Holmes v. Crossroads Joint Venture

• Decision Date: 06 July 2001
• Docket Number: No. S-99-438.,S-99-438.
• Citation: 262 Neb. 98,629 N.W.2d 511
• Parties: Robert HOLMES, Appellant and Cross-Appellee, v. CROSSROADS JOINT VENTURE, an Indiana partnership, et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

629 N.W.2d 511

262 Neb. 98

Robert HOLMES, Appellant and Cross-Appellee, v. CROSSROADS JOINT VENTURE, an Indiana partnership, et al., Appellees and Cross-Appellants.

No. S-99-438.

Supreme Court of Nebraska.

July 6, 2001.

Frank E. Robak, Sr., Council Bluffs, Iowa, for appellant.

Patrick B. Griffin and Marcia A. Rezac, of Kutak Rock, Omaha, for appellees.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

Robert Holmes, the plaintiff, was taken into custody by security officers of Crossroads Mall (Mall) in Omaha, Nebraska, following an altercation outside the Mall with two students from the high school where Holmes was employed. Holmes was banned from the Mall for a period of 1 year and was again detained when he returned to the Mall less than a year after the first incident. Holmes sued, alleging causes of action for assault and battery, false imprisonment, and malicious prosecution. Holmes won jury verdicts on the assault and battery and one of the false imprisonment claims, but the district court granted the defendants' motion for new trial as to those causes of action. The primary questions presented in this appeal are whether the district court (1) abused its discretion in granting the motion for new trial or (2) erred in directing verdicts against Holmes on his malicious prosecution causes of action.

FACTUAL BACKGROUND

On July 9, 1994, Holmes went by himself to the Mall to pay a department store bill. Holmes is a former U.S. Marine and was employed at the time as a security guard for the Omaha Public Schools at Benson High School. While at the Mall, Holmes saw two female Benson students, O.J. and K.C. Holmes testified that O.J. approached Holmes and asked Holmes why he had her "kicked out" of school. Holmes said that O.J. asked Holmes to go outside with her and talk about it, and Holmes agreed. K.C., however, testified that Holmes approached her and O.J. and initiated an argument inside the Mall.

Holmes testified that as he walked out of the Mall with O.J. and K.C., K.C. asked O.J., "[A]re you going to kick Mr. Holmes' ass now?" Holmes testified that O.J. came at him and that he heard a click, which he thought was a gun or switchblade. K.C., however, testified that Holmes started the physical confrontation by pulling O.J.'s hair. Holmes testified that he grabbed O.J.'s arm and spun her around and released her when he saw that she did not have a weapon. Holmes testified that K.C. then attacked him, and Holmes struck her on the arms to defend himself. Holmes said that when K.C. backed away, O.J. attacked Holmes and tore his shirt, then Holmes picked up O.J. and "threw her out of the way." Holmes testified that at that point, the fight stopped.

Holmes said that Ted Rummel, a Mall security officer, then came out of the Mall and asked what was happening, and K.C. told Rummel that Holmes had hit her. Holmes testified that Rummel ran up to Holmes, pushed him, and said, "You like to fight little girls? Fight me!" Holmes stated that Rummel pushed Holmes again and repeated himself. Joe Leggett, another Mall security officer, testified that he was inside the Mall with Rummel when the fight outside caught Rummel's attention. Leggett testified that when he went outside, he saw Rummel push and strike Holmes. Rummel testified that when he and Leggett were inside the Mall, Rummel saw Holmes and O.J. and K.C. wrestling and punching one another. Leggett testified that he did not hear Rummel challenge Holmes to fight.

Holmes testified that he kept his hands to his sides, tried to remain calm, and then turned his back on Rummel. Holmes stated that Rummel then attacked Holmes from behind, using his right arm to put pressure on Holmes' jugular vein, while yelling at Holmes to get down. Rummel, on the other hand, testified that Rummel first had to separate the combatants and that Holmes kept trying to get past Rummel to get to O.J. and K.C. despite repeated commands to stay back. Rummel and Leggett testified that Rummel attempted to place Holmes in a vascular neck restraint, a maneuver intended to cut off blood to the brain and induce unconsciousness. Holmes said that he saw flashing lights and felt like he was "getting ready to go," so he used his left arm, which was free, to remove Rummel's arm.

Holmes testified that at that point, Rummel was joined by Leggett, who approached and asked Rummel what Holmes had done. Leggett denied making this statement. Holmes testified that Rummel asked Leggett for assistance and that Leggett helped Rummel get Holmes to the ground. Holmes testified that he never made any offensive movements directed at the security officers. Rummel, however, testified that when Holmes refused to stop trying to get to O.J. and K.C., Rummel and Leggett tried to subdue Holmes and take Holmes to the ground. Leggett testified that Holmes had been coming forward toward Rummel, O.J., and K.C. prior to Rummel's attempted vascular neck restraint. K.C. testified that when the Mall security officers seized Holmes, Holmes resisted and attempted to get away from the officers. Rummel testified that Holmes was finally taken down by a knee strike.

Holmes testified that Rummel and Leggett dragged Holmes along the ground to the curb, kicking him along the way. Holmes stated that the officers bent Holmes' head over the curb, placing pressure on the back of Holmes' neck, and that Holmes was kicked in the back. Rummel and Leggett denied this. Holmes testified he thought that his head was going to be struck by an approaching vehicle. Holmes said that the officers then handcuffed him and lifted him up. Rummel and Leggett, to the contrary, testified that Holmes continued to resist while on the ground. Jeff Noble, another Mall security officer, also testified that Holmes resisted the officers. Holmes testified that a large number of people were in the vicinity and had observed the incident.

Holmes was placed into a Mall security vehicle and taken to the Mall office. Holmes was detained in the Mall office and questioned by several security personnel. Holmes was bleeding from his injuries the entire time he was in the office, and he was photographed by one of the officers. Holmes testified that he remained in handcuffs, although Mark Sundermeier, an off-duty Omaha police officer who was working at the Mall, testified that the handcuffs were removed after 10 to 20 minutes when Holmes calmed down. Holmes testified that he was in the office for 45 minutes to 1 hour, and perhaps longer. Holmes stated that one of the officers brought Holmes a form and said that Holmes would not be permitted to leave until Holmes signed the form. Holmes later testified he was told that "if you don't sign the papers, you will go downtown." Rummel and Leggett denied these allegations. Holmes signed the document, which was a form that banned Holmes from the Mall for 1 year.

Holmes testified that he was bleeding from abrasions on his knees, shin, and chest. Rummel testified that these injuries resulted from Holmes' struggling while outside. Holmes testified that when he was released, he was in a great deal of pain and went straight home, where he instructed his family to photograph his injuries to document them. After that, Holmes went to the emergency room. The photographs taken by Holmes' family and by Mall security were admitted into evidence and show bloody abrasions on Holmes' knees and the front of Holmes' left shoulder. Emergency department records from Immanuel Medical Center showed that Holmes visited the emergency room on July 9, 1994, and had multiple abrasions and contusions. Holmes was treated with Polysporin, Tylenol, and ice.

Holmes testified that he did not return to the doctor after that because he could not afford it. Holmes testified that at the time of trial, he still had scars on his shoulders, chest, and knees that caused him discomfort. Holmes also testified that the incident exacerbated a preexisting problem with his back that had first developed during Marine Corps boot camp. Holmes stated that he bought a whirlpool device for his bathtub to help relieve his recurring pain and that he spent about 3 or 4 days lying on cushions on his waterbed as a result of his injuries. Holmes admitted that he was still playing softball during this period, but stated that he was sitting on the bench.

Holmes also testified that he was issued a citation by an off-duty Omaha police officer, later identified as Sundermeier. This citation was for disturbing the peace. Holmes testified that Sundermeier issued the citation after discussing the incident with Mall employees. Rummel denied being involved in the decision to issue a citation, although Sundermeier testified that the citation was issued based upon Sundermeier's interviews of Rummel and Leggett. Holmes testified that he was concerned about the criminal prosecution because, to work for the Omaha Public Schools, he had to make sure that his record remained clean. The criminal case was later dismissed by the Douglas County Attorney.

Holmes returned to the Mall on January 28, 1995, after the criminal charge had been dropped. Holmes testified that based on what he had been told at the time of the ban, he thought he was no longer banned from the Mall because the criminal complaint had been dismissed. Holmes was accompanied at the time by his 10 year old daughter. Holmes was confronted by Leggett, who approached Holmes and confirmed Holmes' identity. Leggett then spoke to Dan Clark, an off-duty Omaha police officer who was working at the Mall. Clark testified that he confirmed with Mall employees that Holmes had been banned from the Mall, so he approached Holmes and informed Holmes that Holmes was under arrest for trespassing. Holmes testified that he was taken to the Mall office, searched, questioned, held for 1 to 1½ hours, and cited for trespassing by Clark.

Holmes also testified that while he was held, he was...