Ferrell v. Mikula

• Citation: 295 Ga. App. 326,672 S.E.2d 7
• Decision Date: 25 November 2008
• Docket Number: No. A08A1549.,A08A1549.
• Parties: FERRELL et al. v. MIKULA et al.
• Court: Georgia Court of Appeals

672 S.E.2d 7

295 Ga. App. 326

FERRELL et al. v. MIKULA et al.

No. A08A1549.

Court of Appeals of Georgia.

November 25, 2008.

Reconsideration Denied December 16, 2008.

Deitch & Rogers, Andrew T. Rogers, Decatur, for appellants.

Rutherford & Christie, Carrie L. Christie, Atlanta, Courtney M. Norton, for appellees.

BARNES, Chief Judge.

Racquel Ferrell and the parents of Kristie Ferrell sued Ruby Tuesday, Inc. and its manager Christian Mikula for false imprisonment, intentional infliction of emotional distress, and negligent hiring and training. After extensive discovery, the defendants moved for summary judgment on all counts. In a one-page order stating only that no genuine issues as to any material fact existed, the trial court granted the motion, and the Ferrells appeal. For the reasons that follow, we affirm the trial court's grant of summary judgment to the defendants on the Ferrells' claim for intentional infliction of emotional distress and negligent training, but reverse the grant on the false imprisonment claim.

1. On appeal we review the trial court's grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ford v. Bank of America Corp., 277 Ga.App. 708, 627 S.E.2d 376 (2006). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Wachovia Bank v. Moody Bible Institute of Chicago, 283 Ga.App. 488, 489, 642 S.E.2d 118 (2007).

So viewed, the evidence shows that on Friday night, August 6, 2006, 18-year old Racquel Ferrell and 13-year-old Kristie Ferrell went to Ruby Tuesday. After they ate and paid their bill, the girls left the restaurant, got into their car, and drove out of the parking lot. As they began to enter the highway, Racquel noticed a black truck following her very closely with its headlights on high. She could not see well out of her rear-view mirror with the bright lights behind her, so she changed lanes, but the truck changed lanes with her and stayed close behind. She switched lanes again, and the truck did too. A marked police car by the side of the road pulled onto the highway between the girls' car and the following truck and pulled the car over. After asking Racquel if she had any drugs or weapons, the officer pulled her out of the car, placed her in handcuffs, and put her in the back seat of his patrol car. Another officer removed Kristie from the car, placed her in handcuffs, and put her in the back of another patrol car.

All of the police officers gathered to talk to the driver of the truck that had been following the Ferrells, who turned out to be a uniformed off-duty police officer working as a security guard for Ruby Tuesday. The officer who arrested Racquel returned to the patrol car where she was being held and told her if she had not paid her Ruby Tuesday bill she was going to jail. She protested, and the officer conferred again with the other officers, then returned to the car and said, "It was a mistake." He explained that the manager at the restaurant had sent the off-duty officer after them because he said the girls had not paid their bill, but they did not fit the description of the two people who had walked out without paying. The officers removed the handcuffs from Racquel and Kristie and returned them to their car. After asking for Racquel's driver's license and obtaining information about both girls, the officer told them they were free to go.

Mikula had been an assistant manager for about a month, and was the only manager at Ruby Tuesday that night. One of the servers, Robert, reported that his customers at Table 24 had a complaint, so Mikula talked to the couple and told them he would 34;take care of" the food item in question. The customers were a man and a woman in their late 20s to early 30s. Mikula left the table to discuss the matter with Robert, after which server Aaron told Mikula that the patrons at Table 24 had left without paying. Mikula looked at the table, confirmed they had not left any money for the bill, and went out the main entrance. He saw a car pulling out of the parking lot, and said to the off-duty officer, "Hey, I think they just left without paying." The officer said, "Who, them?" Mikula said, "I think so," and the officer got up and went to his vehicle.

Mikula asked another assistant manager, who was not working at the time but had been sitting with the officer, "Is he going after them?" She responded, "Yeah. If you want to stop him, you'd better go get him." Mikula did not respond and did not attempt to stop the officer because he was trying to decide what to do, although he thought the customers at Table 24 might have misunderstood him earlier and believed he was going to write off the entire bill. The officer called him shortly afterward and asked for a description of the Table 24 customers, and after he gave it, the officer responded simply, "Oh." When he returned to Ruby Tuesday, the officer said he had pulled over the wrong people, and Mikula apologized for sending him out. Mikula spoke to the Ferrells' mother later than evening and again apologized for the incident.

Mikula knew the officer was going to follow the people in the car and would stop them, but did not ask the officer if he had seen who got into the car. He did not give the officer a description of the people at Table 24, and did not know the race, age, gender, or number of people in the car being followed. He did not know if there were people in any of the other cars in the parking lot. He did not ask any other people in the restaurant if they had seen the people at Table 24 leave the building, which had two exits. He did not know how long the people had been gone before Aaron told him they left, or whether another customer had picked up money from Table 24. He could have tried to obtain more information to determine whether the people in the car he pointed out were the people who had been sitting at Table 24, but did not do so.

Mikula had received no training or instructions about what to do if a customer left without paying, although after the fact his supervisors explained how to account for the missing money if it happened again. His supervisors also told him afterward not to inform the police if someone was suspected of leaving without paying, because they were there as security guards in a deterrent capacity only. He would have handled the situation differently if he had received more specific training about how to deal with it.

2. The Ferrells contend that the trial court erred in granting summary judgment to Ruby Tuesday on their claim of false imprisonment. The restaurant responds that Mikula merely stated his good faith belief about the crime to the security guard police officer, who then acted on his own. Ruby Tuesday also argues that the Ferrells have failed to present evidence that Mikula acted with malice.

Georgia law recognizes three different related torts in this area, although the distinctions among the three are not always clear in our case law: (1) false imprisonment, which is "unlawful" detention without judicial process, or without the involvement of a judge at any point (OCGA § 51-7-20); (2) false or malicious arrest, which is detention "under process of law" (OCGA § 51-7-1); and (3) malicious prosecution, which is detention with judicial process followed by prosecution (OCGA § 51-7-40). An arrest "under process of law" is an arrest made pursuant to a warrant and the key distinction between malicious arrest and false imprisonment under OCGA §§ 51-7-20 and 51-7-1 is whether the person was detained using a warrant or not.

In this case, the Ferrells were detained without a warrant, and thus have a claim for false imprisonment, known under common law as trespass upon a person. Smith v. Embry, 103 Ga.App. 375, 377(2), 119 S.E.2d 45 (1961). "False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty." OCGA § 51-7-20. "The only essential elements of the action being the detention and its unlawfulness, malice and the want of probable cause need not be shown." (Citations omitted.) Westberry v. Clanton, 136 Ga. 795, 72 S.E. 238 (1911); accord Drug Emporium v. Peaks, 227 Ga.App. 121, 128-129(2)(d), 488 S.E.2d 500 (1997); Lowe v. Turner, 115 Ga.App. 503, 506(2), 154 S.E.2d 792 (1967).

The evidence in this case clearly establishes that the Ferrells were detained. Although "`imprisonment' was originally intended to have meant stone walls and iron bars, ... under modern tort law an individual may be imprisoned when his movements are restrained in the open street, or in a traveling automobile." (Citation and punctuation omitted.) Burrow v. K-Mart Corp., 166 Ga.App. 284, 287(3), 304 S.E.2d 460 (1983). Ruby Tuesday does not argue otherwise, but instead argues that the evidence established sufficient probable cause and the plaintiffs failed to establish that Mikula acted with malice. But malice is not an element of false imprisonment, only of malicious arrest and prosecution under OCGA §§ 51-7-1 and 51-7-40. Further, "unlike an action for malicious arrest[,] in an action based] upon a warrantless arrest, [which is false imprisonment], the mere existence of probable cause standing alone has no real defensive bearing on the issue of liability. [Cit.]" Collins v. Sadlo, 167 Ga.App. 317, 318, 306 S.E.2d 390 (1983).

This is true because probable cause to believe that a crime has been committed may otherwise exist and a warrantless arrest yet be illegal.... [T]he defendant in a false imprisonment case premised upon a warrantless arrest does not meet his defensive burden merely by demonstrating the existence of probable cause but h...