Kemp v. Rouse-Atlanta, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY
• Citation: Kemp v. Rouse-Atlanta, Inc., 429 S.E.2d 264, 207 Ga.App. 876 (Ga. App. 1993)
• Decision Date: 24 February 1993
• Docket Number: No. A92A2155,INC,ROUSE-ATLANT,A92A2155
• Parties: KEMP et al. v.et al.

Page 264

429 S.E.2d 264

207 Ga.App. 876

KEMP et al. v. ROUSE-ATLANTA, INC. et al.

No. A92A2155.

Court of Appeals of Georgia.

Feb. 24, 1993.

Reconsideration Denied March 17, 1993.

Certiorari Denied May 28, 1993.

Dwight L. Thomas, Avis F. Sanders, for appellants.

Alston & Bird, Russell W. Thorpe, Jeffery M. Brown, Renee M. Hom, for appellees.

McMURRAY, Presiding Judge.

Appellants Kenneth Bernard Kemp and Errol R. Manson filed an action for damages against the defendant-appellees for false arrest, false imprisonment, malicious prosecution, assault and battery, slander, and negligent hiring, retention and training. The trial court granted appellees' motion for summary judgment as to all allegations, giving rise to this appeal.

On June 29, 1989, appellee Lawrence Sinclair was patrolling Underground Atlanta on the evening shift of his job as a security guard employed by appellee Rouse-Atlanta. He spotted appellants in a restricted area that was off limits to the public. Each of them was carrying a shopping bag labeled "B. Gallerie" which contained merchandise later identified by appellee Phillip Brock, the manager of B. Gallerie, as belonging to the shop. The retail business, incorporated in California as appellee B. Gallerie Group, Inc., was a tenant of appellees Underground Festival, Inc. and Underground Atlanta Joint Venture.

Sinclair approached appellants to find out what they were doing in the unauthorized area, and asked if they had sales receipts to show they had purchased the merchandise in the shopping bags. Appellants had no receipts, but claimed Manson worked for B. Gallerie and had been given permission to rummage in an area where the newly-opened shop was discarding merchandise; and that Manson had asked Kemp to help him remove the discarded merchandise. However, Manson was not working at the store at the time of the encounter. In his deposition and affidavit, Sinclair swore that he immediately radioed for backup assistance and had no further discussion with appellants until the backup arrived. At that time Sinclair stated he asked appellants to accompany him to the security substation for further investigation and they agreed; and that he did not make physical contact with either man. When they arrived at the security substation, Sinclair told appellants to be seated and left the room to contact B. Gallerie's manager to identify the merchandise.

When Sinclair left to locate the store manager, Atlanta Police Officer Warren Meredith was present in the substation booking a suspected shoplifter. Meredith overheard one of the appellants tell the other he had found the merchandise in a garbage dumpster and intended to take it. Based upon this conversation Meredith concluded he had probable cause to arrest appellants for theft of lost or mislaid property. He placed appellants under arrest, charged and handcuffed them and, with the aid of several other Atlanta Police officers, searched them. Sinclair did not assist in the arrest nor request that either appellant be arrested. Brock arrived after the arrest and identified the merchandise as belonging to B. Gallerie and missing from the stockroom. Based on this identification of the property and Brock's decision to prosecute, appellants were also charged with receiving stolen property. They were tried only on that count. After hearing evidence, the trial court directed a verdict of acquittal on the sole ground that the State had failed to meet its burden of proving beyond a reasonable doubt that the property had been stolen from B. Gallerie, so there was insufficient evidence to convict appellants of theft by receiving stolen property. Held:

1. Appellants contend that in order to justify the grant of summary judgment in a negligence case, the movant must show by uncontroverted evidence that its acts in no way contributed to the proximate cause of the damage incurred; and that because they could have shown to a jury at trial that the reason for the false arrest was the inadequate and improper training received by Sinclair, their entire complaint should not have been dismissed. In answers to interrogatories concerning the basis for this contention, appellants claimed that Sinclair assaulted them, "improperly handled the situation by not allowing Manson to identify himself," and "falsely accused [appellants] of theft before investigating the situation when a reasonable explanation was at hand."

"The appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment. [Cits.]" Harvey Freeman & Sons, Inc. v. Stanley, 189 Ga.App. 256, 258(2)(a), 375 S.E.2d 261 (1988) (rev'd on other grounds in 259 Ga. 233, 378 S.E.2d 857 (1989)). "An employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's violent and criminal propensities, [cits.], and there was no evidence of such knowledge in this case." Odom v. Hubeny, Inc., 179 Ga.App. 250, 252(2), 345 S.E.2d 886 (1986). Moreover, "the training [Sinclair] was required by statute and agency regulations to receive was [not] designed to uncover the trainee's latent character defects for purposes of placing the employer on notice that the trainee possessed violent or criminal propensities. Thus [Rouse-Atlanta's] failure to provide that training does not avail appellants." Kelley v. Baker Protective Svcs., 198 Ga.App. 378, 379-380, 401 S.E.2d 585 (1991). Appellants have pointed out no evidence in the record which would establish the existence of triable issues on the negligent hiring, training and retention of Sinclair by his employer, or that Rouse-Atlanta had actual or constructive knowledge of Sinclair's propensity to commit the acts complained of.

2. Claiming that they were unlawfully stopped and detained by force, appellants assert that far from voluntarily accompanying Sinclair to the security substation, Manson was grabbed by the belt loops of his pants and Kemp was told not to move while Sinclair summoned two other Rouse security officers to help him take appellants there. They allege that from these actions they were made to feel they were under arrest and not at liberty to leave.

We have been referred to no portions of the record in which appellants submitted sworn evidence or testimony in this regard, but our search discloses that such facts were alleged in the pleadings and appeared in an answer to interrogatories filed by Manson's attorney in response to appellees' motion for summary judgment. The answer states that Sinclair bent Manson's left arm behind his back and grabbed him by his trousers; and that Sinclair improperly handled the situation by not allowing Manson to identify himself and "falsely accused him of theft before investigating the situation when a reasonable explanation was at hand." It appears from the transcript of the criminal trial that the verdict of acquittal was directed before either defendant testified, and no depositions or affidavits filed in the civil action presenting any sworn evidence to this effect are included in the record on appeal. However, Sinclair's and Meredith's testimony in the criminal trial and their affidavits supporting the motion for summary judgment were consistent that appellants were not physically restrained or threatened by Sinclair or any other Rouse security guards; and that they voluntarily chose to accompany Sinclair to the substation to continue the investigation, after which Meredith took charge.

"A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). See also Collins v. Byrd, 204 Ga.App. 893(1), 894, 420 S.E.2d 785 (1992). Appellants did not specifically point out that their evidence of unlawful detention was contained in Manson's answers to interrogatories, but it does appear in the record.

"The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention. OCGA § 51-7-20. A detention need not consist of physical restraint, but may arise out of ' " 'words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.' (Cit.)" (Cits.)' [Cit.]" Fields v. Kroger Co., 202 Ga.App. 475, 414 S.E.2d 703 (1992). " 'It is essential, however, that the restraint be against the plaintiff's will; and if he agrees of his own free choice to surrender his freedom of motion, as by remaining in a room or accompanying the defendant voluntarily, to clear himself of suspicion or to accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment.' [Cit.]" J.H. Harvey Co. v. Speight, 178 Ga.App. 812, 813, 344 S.E.2d 701 (1986).

"In addition, OCGA § 51-7-60 precludes a recovery for false imprisonment when it is shown that the owner or operator of a store reasonably believed the person detained was engaged in shoplifting. OCGA § 51-7-60 thus implicitly recognizes the right of a shop owner to protect himself from shoplifting by detaining a customer who has acted in a suspicious manner. Where a detention occurs its reasonableness is a jury question. However, 'there is no...