K-Mart Corp. v. Washington
| Decision Date | 30 December 1993 |
| Docket Number | K-MART,No. 23236,23236 |
| Citation | 109 Nev. 1180,866 P.2d 274 |
| Parties | CORPORATION, A Michigan Corporation And Scott Weiss, Appellants, v. Willie WASHINGTON, Respondent. |
| Court | Nevada Supreme Court |
Beckley, Singleton, DeLanoy, Jemison & List and Kwasi Nyamekye, George Johnson, Las Vegas, for appellants.
Barker, Gillock, Koning, Brown & Earley, Las Vegas, for respondent.
Respondent Willie Washington (Washington) brought the instant action against appellant K-Mart Corporation (K-Mart) asserting claims for false arrest, false imprisonment, assault and battery, defamation, malicious prosecution, negligent hiring and retention, 1 conversion, and negligent and intentional infliction of emotional distress, arising from an incident which occurred at a K-Mart store on December 31, 1986. The case proceeded to jury trial on all claims except the claims for conversion and emotional distress. The jury found in favor of K-Mart on the claims of false arrest and negligent hiring and retention. The jury found for Washington on the claims for assault and battery, malicious prosecution, defamation, and false imprisonment, awarding him $263,156.50 in damages. K-Mart filed a motion to amend judgment, which the district court denied. K-Mart appeals both the order denying the motion to amend and the final district court judgment, seeking a new trial based on the trial court's admission of a K-Mart loss prevention manual into evidence. K-Mart also challenges the district court's finding of defamation and the award of future damages for malicious prosecution, assault and battery, and defamation. We can ascertain no grounds upon which to grant K-Mart's request for a new trial and we conclude: (1) the K-Mart manual was properly admitted into evidence; (2) there was sufficient evidence to support the jury's finding of slander per se and the award of both past and future damages for such defamation; and (3) the medical testimony introduced at trial supports only $3,500.00 in future damages for assault and battery.
On December 31, 1986, Washington visited his hairdresser to have his hair done in a "Jeri Curl" for New Year's Eve. Washington's hairdresser testified that Washington's hair was dripping wet when he left the hair salon. She explained that the permanent wave she gave Washington required liberal application of a moisturizing hair conditioner to prevent the hairstyle from drying out. Later that day, Washington went to a K-Mart store in Las Vegas to purchase a hair product to maintain his new hairstyle. The facts and events from this point on are disputed. Washington testified that he searched the shelves but could not find the hair product he desired; therefore, he left the store without making a purchase. The K-Mart loss prevention agent, Scott Weiss (Weiss), testified that he saw Washington use two hair products from the shelves, spray a substantial quantity of "Sta-Sof-Fro" conditioner into his hair, and then leave the store. Weiss testified that he followed Washington into the parking lot to ask him to pay for the hair product. An off-duty police officer, Raymond Berni (Officer Berni), testified that he saw Weiss, with the bottle of curl activator in his hand, 2 following Washington. Officer Berni decided to intervene, and an altercation ensued.
Weiss testified that he placed Washington under citizen's arrest intending to return him to the store security office. However, Weiss was not sure when or "where the actual citizen's arrest took place and where the police department took over and their arrest was initiated." Officer Berni testified that he placed Washington under arrest for obstruction and hindering a police officer's investigation. The testimony as to who arrested Washington when and for what is far from certain. It is agreed that when Officer Berni attempted to handcuff Washington, he eluded him. Officer Berni and Weiss then chased Washington across the parking lot. Washington stumbled and fell, whereupon the two men tackled and handcuffed him.
A witness, Joyce Gantz (Gantz), testified that she saw Washington in the K-Mart hair care aisles; she described his hair as wet and stated "it looked like he just had it fixed at the shop." She observed Washington scanning the shelves of hair-care products. She stated he appeared to be searching for a specific product. Gantz did not see Washington use any products; she testified "he just turned around and walked out." After Gantz paid for her purchases, she saw that two men she assumed were security guards had stopped Washington outside the store. She heard the two men ask Washington to go back into the store. Gantz stated that Washington attempted to walk away from the two men; however, they grabbed Washington, handcuffed him, threw him on the ground, and called him a "nigger." Gantz testified that the two men kicked Washington in the shoulders, neck, and back.
Washington testified that he indicated he would cooperate, but the two crime fighters kicked him around nonetheless, and used racial epithets. Weiss and Officer Berni deny using racist language, and contend instead that Washington swore at them. A crowd gathered in the parking lot. After Washington was sufficiently subdued, he was led through the K-Mart store in handcuffs and taken to the store security office.
Officer Berni and Weiss testified that Washington was then placed, handcuffed, in a chair in the security office. The men testified that Washington began banging his head on the wall; therefore, they placed him on the floor so he would not injure himself. Washington testified that he wound up face-down on the floor after he was knocked down, kicked, beaten, and verbally abused by the two men. He states Weiss and Officer Berni were unresponsive to his complaints that his back was injured and that his arm was numb from the tight handcuffs. Washington stated that another K-Mart employee came into the room while Washington was lying on the floor. Washington tried to explain the situation, hoping to gain the man's assistance. The K-Mart employee told him, "Nigger if you don't shut up I'll turn 'em loose on you again."
Deborah Donaldson, Washington's former girlfriend, testified that a K-Mart employee Washington was thereafter transported to jail by an on-duty police officer, who testified that Washington admitted to him that he had used the hair product; however, Washington vehemently denies this. Washington was charged with felony assault on a police officer (Berni), petty larceny, assault and battery and resisting a public officer making an arrest. Washington spent New Year's Eve in jail. The felony assault charge was subsequently dropped prior to trial. Washington was tried and found not guilty on all three charges. Washington thereafter brought the instant action against K-Mart, asserting claims for false arrest, false imprisonment, assault and battery, defamation, malicious prosecution, negligent supervision and retention, conversion, and negligent and intentional infliction of emotional distress. The case proceeded to jury trial on all claims except conversion and emotional distress.
who was searching Washington's truck told her that she should stay away from Washington because "he seemed like a bad guy." Officer Berni also searched Washington's truck and his person. Officer Berni found over $600.00 in cash on Washington's person
The jury found in favor of K-Mart and Weiss on the claim of false arrest, and for K-Mart on the claim of negligent hiring and retention. The jury found for Washington on the claims for assault and battery, malicious prosecution, defamation, and false imprisonment and awarded him $263,156.50 in damages. 3 Following entry of judgment, K-Mart filed a motion to amend judgment, contending that: (1) the award for defamation was improper because Washington failed to prove the publication element of his slander per se claims; (2) the future damages awards were not supported by necessary expert medical testimony; and (3) the expert medical testimony in the record supports only an award of $3,500.00 for assault and battery. The district court denied the motion. K-Mart appeals both the order denying the motion to amend judgment and the final district court judgment, seeking a new trial based on the trial court's admission of a K-Mart loss prevention manual into evidence.
The K-Mart manual.
K-Mart contends that it is entitled to a new trial based on the district court's admission of a K-Mart loss prevention manual into evidence. K-Mart argues that the manual created a higher standard of care than that imposed by applicable Nevada law pertaining to a shopkeeper's retention of a suspected shoplifter, and therefore it was improper for the jury to consider.
The decision to admit or exclude relevant evidence, after balancing the prejudicial effect against the probative value, is within the sound discretion of the trial judge. See NRS 48.035. 4 The trial court's determination will not be overturned absent manifest error or abuse of discretion. See Jeep Corporation v. Murray, 101 Nev. 640, 646, 708 P.2d 297, 301 (1985). Discussing appellate review of such determinations, this court has stated, " '[i]f At trial, K-Mart argued that its actions were shielded from liability under NRS 598.030, which codifies the common law shopkeeper's privilege. NRS 598.030 provides, in pertinent part:
the evidence is relevant, reversal is appropriate only where its prejudicial effect so outweighs its probative value that admission constitutes a clear abuse of discretion.' " Land Resources Dev. v. Kaiser Aetna, 100 Nev. 29, 34, 676 P.2d 235, 238 (1984) (quoting F/V American Eagle v. State, 620 P.2d 657, 672 (Alaska 1980)). Evidence is relevant where it has some tendency to make the existence of any material fact more or less probable than it would be without the evidence. See NRS 48.015. 5
2. Any merchant may request any person on his premises to place or...
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