Dolgencorp, LLC v. Spence, 1150124
| Citation | 224 So.3d 173 |
| Decision Date | 30 September 2016 |
| Docket Number | 1150124 |
| Parties | DOLGENCORP, LLC v. Michelle SPENCE |
| Court | Alabama Supreme Court |
Rick D. Norris, Richard E. Smith, and W. Steven Nichols of Christian & Small, LLP, Birmingham, for appellant.
Kimberly Griffin Kervin, Prattville; and Kelly Tipton Lee, Prattville, for appellee.
Dolgencorp, LLC ("Dolgencorp"), appeals from a judgment entered on a jury verdict in the amount of $100,000 in favor of Michelle Spence in her action filed in the Autauga Circuit Court seeking damages arising from her arrest for shoplifting. We reverse and remand.
The evidence at trial showed the following. On April 16, 2013, Spence went to the Dollar General discount store located on McQueen Smith Road in Prattville to purchase some paper towels, toilet paper, mineral oil, and hair spray. Spence's cousin, Kody Atchison, accompanied Spence to the store.1 Cindy Welch was the manager working at the Dollar General store that day. Welch and Spence did not know each other before that day, even though Spence was a regular shopper at that particular Dollar General store.
Spence got a shopping cart outside the store. She placed her purse in the compartment of the cart where the child seat is located, and she entered the store. Welch testified that she was stocking merchandise when she saw Spence enter the store. Welch continued to watch Spence as Spence walked toward the health-and-beauty-aid section.
Once Spence reached an aisle of health and beauty products, she picked up a container of mineral oil. The evidence is conflicting as to what occurred next. Welch testified that she witnessed Spence place the mineral oil in her purse, which was open. Spence testified that she placed the mineral oil in the compartment of the cart near her purse. Welch testified that she began to "suspect" that Spence was up to something so she specifically watched Spence as she walked to the next aisle. Spence selected a container of hair spray. According to Spence, she placed the hair spray in the top compartment of the cart. Spence admitted that the hair-spray container was not visible in the cart, but she stated that this was because it had rolled to the side of her purse and then became sandwiched between the back of the cart and her purse. Welch testified that she was standing right over Spence's shoulder and she watched Spence place the hair-spray container in her open purse and then close the purse by zipping it. Spence testified that this was not possible because the purse was too small to hold the containers of mineral oil and hair spray and that the zipper on the purse was broken. Spence stated at trial that she no longer had the purse because she threw it away at some point.
Spence testified that as soon as she put the hair spray into her cart Welch grabbed her by the arm "and hollered, 'You're trying to conceal that.' " Spence stated that she responded by picking up the hair spray and saying: Spence testified that Welch took the hair spray from her, then handed it back to her. Spence testified that Welch continued to yank her arm and told her: Spence stated that Welch then "just took off" for the store office. Spence and Atchison followed Welch toward the front of the store and stood there while Welch went into the office and telephoned the police. Spence testified that there were several people in the store at this time and that Welch's handling of the situation embarrassed and humiliated her.
Approximately 15 or 20 minutes later, two Prattville police officers arrived at the Dollar General store. Welch gave the police officers an oral statement of her version of what had happened. Spence requested that the officers review the videotape of the incident, but she was told that there was no video.2 The officers arrested Spence at approximately 3 p.m.; she was taken to the police station in city hall.
Welch remained in the store and continued working, while arranging for someone else to oversee the store while she went to the police station. Welch arrived at city hall between 4 p.m. and 5 p.m., at which time she signed a complaint alleging theft of property against Spence. A magistrate judge signed the complaint shortly thereafter. Spence was taken to jail at approximately 5 p.m.
Spence unsuccessfully attempted to contact her mother regarding bail. Spence then contacted Atchison to come down to the police station to see what could be done about getting her released from jail. Cpt. Larry Nixon, the jail warden/administrator, testified that Spence would have been released from jail that same day if $500 cash had been paid to the magistrate judge by 5 p.m., but no payment was submitted. Nixon also testified that when Spence's purse was inventoried it was found to contain $229.37 in cash. Spence spent the night in jail with eight other inmates in a large holding cell. The following day Atchison posted a cash bond of $150 (a reduction approved by the magistrate judge), and Spence was released.
The charges against Spence were dismissed after two court appearances because no witnesses appeared to testify against her. Welch quit working for Dolgencorp not long after the incident—namely at the end of May 2013—in order to move to Ferriday, Louisiana, to be with her husband, who had cancer
. Based on the testimony at trial and the briefs of the parties to this Court, it is undisputed that Welch did not tell anyone at Dolgencorp about the incident involving Spence before she left employment with the company.
Welch had started working for Dolgencorp in December 2011. She testified that Dolgencorp trained its employees through the use of videos that, among other things, explained Dolgencorp's Standard Operating Procedures ("SOPs"). Dolgencorp employees also were given an electronic copy of Dolgencorp's employment handbook. Employees signed an acknowledgment form in which they attested that they had read and understood all information contained in the employment handbook. Welch signed an acknowledgment on December 5, 2011, at the outset of her employment with Dolgencorp, and she signed another one on April 13, 2013, three days before the incident involving Spence.
Welch testified that during her training she learned about a four-step approach for handling suspected shoplifters know as "ASAP." The ASAP approach is contained in Dolgencorp's "Shoplifting Prevention SOP." Welch testified that she did not remember specifically ever seeing a written document that discussed the proper way to deal with a shoplifter, although she stated that she did read everything she attested to reading (by signing acknowledgment forms) during her training and employment.
Welch further testified that the first step in the four-step ASAP approach was to "approach" the subject. The second step was to "smile" from approximately five feet away. The third step was to "ask" a "face-saving" question. The fourth step was to "proactively" offer assistance. A portion of the policy also states: "[I]f the customer produces the merchandise the employee is not to accuse them of stealing or attempt to detain them." Another portion of Dolgencorp's shoplifting SOP states: The SOP states that, if possible, a store manager should give the suspected shoplifter an opportunity to pay for the items in question before seeking assistance from law-enforcement authorities.
Welch admitted that she did not follow Dolgencorp's shoplifting SOP on April 16, 2013. She stated that she believed that the SOP provided "guidelines" on how to handle shoplifting situations, that the "procedures may not fit every situation," and that in "different situations you do different things." Welch also admitted, however, that no one at Dolgencorp told her that she did not have to follow the SOP in every situation.
Dolgencorp's district manager for the store at which Welch was working conducted an annual performance review of Welch in 2012. Welch's overall performance-review score was "good." The performance review concluded:
Welch testified that district managers discussed improving "shrinkage" with store managers at least once a year.
On June 23, 2014, Spence sued Dolgencorp and Welch. She asserted claims of invasion of privacy, defamation, false imprisonment, and negligent and wanton training. Dolgencorp filed its answer on October 16, 2014, denying all allegations. On June 15, 2015, Spence filed an amended complaint in which she added claims asserting malicious prosecution and assault and battery against Dolgencorp and Welch. Dolgencorp filed its answer to the amended complaint on July 7, 2015.
Spence never perfected service of her complaint on Welch. On the first day of trial, Spence moved to dismiss Welch from the action, and the trial court granted the motion. The trial court's written order stated simply: "Oral Motion to Dismiss Cindy Welch, granted."
On July 21, 2015, following a two-day trial, the jury returned a general verdict in favor of Spence and against Dolgencorp in the amount of $100,000 in compensatory damages.4 The trial court entered a judgment on the jury's verdict the same day.
On August 14, 2015, Dolgencorp filed a "Renewed Motion for Judgment as a Matter of Law Post-Judgment and ...
To continue reading
Request your trial
-
Moore v. Lowe
...irrespective of special harm or the existence of special harm caused by the publication of the statement." Dolgencorp, LLC v. Spence , 224 So. 3d 173, 186 (Ala. 2016). Defamation is actionable per se (that is, without proving special harm), if "the language used exposes the plaintiff to pub......
-
July v. Terminix Int'l Co.
...statement irrespective of special harm or the existence of special harm caused by the publication of the statement. Dolgencorp, LLC v. Spence, 224 So. 3d 173, 186 (Ala. 2016) (quoting Wal–Mart Stores, Inc. v. Smitherman, 872 So. 2d 833, 840 (Ala. 2003) ). The distinction between actions of ......
-
Krile v. Lawyer
...of hostility, threats, improper motive, or an intent to causelessly and wantonly injure the plaintiff. See Dolgencorp, LLC v. Spence , 224 So.3d 173, 186-87 (Ala. 2016) ; Maethner v. Someplace Safe, Inc. , 929 N.W.2d 868, 873 (Minn. 2019). We have further explained:Actual malice is not infe......
-
Roberson v. Walker
...in the plaintiff's favor; and 5) that the plaintiff suffered damage[ ] as a result of that prior proceeding. Dolgencorp, LLC v. Spence , 224 So.3d 173, 183 (Ala. 2016) (quoting Whitlow v. Bruno's, Inc. , 567 So.2d 1235, 1237 (Ala. 1990) ). The elements as recited above do not reflect any so......