Kling v. Harris Teeter Inc., 3:00CV609-MCK.

• Court: U.S. District Court — Western District of North Carolina
• Writing for the Court: McKnight
• Citation: Kling v. Harris Teeter Inc., 338 F.Supp.2d 667 (W.D. N.C. 2002)
• Decision Date: 21 November 2002
• Docket Number: No. 3:00CV609-MCK.,3:00CV609-MCK.
• Parties: KLING, et al., Plaintiffs, v. HARRIS TEETER INC. et al., Defendant.

338 F.Supp.2d 667

KLING, et al., Plaintiffs, v. HARRIS TEETER INC. et al., Defendant.

No. 3:00CV609-MCK.

United States District Court, W.D. North Carolina, Charlotte Division.

November 21, 2002.

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Chiege O. Kalu Okwara, Law Office of Chiege O. Kalu Okwara, Charlotte, NC, for plaintiffs.

Michael J. Rousseaux, Kenneth R. Raynor, Templeton & Raynor, P.A., Anthony T. Lathrop, Moore & Van Allen, Ryan D. Bolick, Cranfill, Sumner & Hartzog, Charlotte, NC, for defendant.

ORDER

McKNIGHT, United States Magistrate Judge.

THIS MATTER IS BEFORE THE COURT for ruling on Defendant Horne's motion for Judgment on the Pleadings (doc. 22); Defendant Harris Teeter's motion for summary judgment as to Cynthia Kling (doc. 26); Defendant Harris Teeter's motion for summary judgment as to Christine Kling (doc. 28); and Defendant Horne's motion for summary judgment (doc. 31). These motions are ripe for consideration.

I. Factual and procedural background

On March 16, 1999, Plaintiff Christine Kling ("Plaintiff") entered Defendant Harris Teeter's ("Harris Teeter") store on Monroe Road with her daughter-in-law, Plaintiff Cynthia Kling, ("Kling") and her grandchild. While in line at the checkout, Plaintiff wrote a check for her purchases and gave it to the cashier. When the cashier tried to enter Plaintiff's check into the store's register system, a code appeared on the register screen alerting the cashier to check with customer service before proceeding with the transaction. The cashier told Plaintiff to wait while she went to customer service, leaving the register area. Plaintiff, who had been bending down to straighten candy that her grandchild pulled off the display rack, testified that she did not hear the cashier tell her to wait. When Plaintiff looked up, the cashier was gone with her check. Even though she received no receipt, Plaintiff testified that the grocery bagger indicated that she could leave the store. Plaintiff then left the store with her groceries.

At the time of this incident, Plaintiff had written several checks to Harris Teeter that were returned for insufficient funds. Each time a check was returned, Plaintiff was called to come into the store in person and pay cash for the amount due on the returned check. Due to this history, Harris Teeter's register system required customer service approval on Plaintiff's check and thus, the code appeared that day to alert the cashier to check with customer service.

When the cashier and customer service representative went back to the register area to discuss the check problem with Plaintiff, Plaintiff was gone. The cashier and customer service representative told the co-manager, David Benton, that Plaintiff left with her groceries while they were trying to resolve the problem with her check. Another manager, overhearing the conversation, told Benton that she had been to court several times with Plaintiff over bad checks written to the store.¹ Benton then called Monroe Public Safety and reported the incident.

Defendant Officer Chris Horne ("Horne") from Monroe Public Safety came to the store that evening. After taking a statement from the cashier, he had a larceny warrant issued for Plaintiff Christine Kling. Several officers from Monroe Public Safety went to Plaintiff's home that morning around 4:00am and arrested her. Kling was at home with Plaintiff and witnessed her mother being taken to the police car in handcuffs. At her bail hearing at the police station, Plaintiff testified that Defendant Horne told the magistrate that she was a liar and they had been looking for her. The magistrate required her to post a $300.00 bond before she could be released.

Several hours later, after being released from jail, Plaintiff and Kling returned to the store to pay off the check. Plaintiff testified that the manager they talked to called her a "liar" and would not return her check. Later that day, after discovering that they had confused Plaintiff with the other customer, Christine King, a manager called Plaintiff and told her that there was no longer a problem with the check and apologized. When Plaintiff and Kling returned to the store to pick up the check, the manager explained the mix-up with the names and again apologized. When manager Benton learned that she had been arrested, he called Monroe Public Safety and told Horne that they did not want to press charges against Plaintiff. A few days after the incident, someone from Harris Teeter's corporate office called Plaintiff and offered to "fill her refrigerator" with groceries to apologize, which Plaintiff declined.

While Harris Teeter declined to press charges, Plaintiff had to go to her court appearance because Officer Horne did not dismiss the warrant until just before she appeared before the magistrate. The charges have now been expunged from her record.

Plaintiff filed an eight-count complaint alleging (1) "defamation and slander per se;" (2) "negligent employment and/or inadequate training;" (3) "Intentional infliction of mental distress;" (4) "Negligent infliction of mental distress;" (5) "Assault and Battery;" (6) "Violation of Civil Rights;" (7) "Malicious Prosecution;" and (8) "False imprisonment and Actual Imprisonment." [Doc. 1].

II. Analysis

Defendant Harris Teeter filed a motion for judgment on the pleadings alleging that Plaintiffs had failed to state a claim as to the various causes of action. Before the response and reply time had expired on this motion, Defendant Harris Teeter filed a motion for summary judgment which incorporates the arguments made in the motion for judgment on the pleadings. For ease of analysis, this order will address the arguments as presented in the motion for summary judgment and will address arguments presented by both defendants as to each claim.

1. Summary judgment standard

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant has "the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes will demonstrate the absence of any genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Rule 56(c)). Further, "the adverse party `must set forth specific facts showing that there is a genuine issue for trial.' "Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Rule 56(e)).

Further, in opposing summary judgment, nonmovants must do more than present a mere scintilla of evidence in their favor. They must present sufficient evidence that reasonable jurors could find for them by a preponderance of the evidence. An apparent dispute is "genuine" only if "the non-movant's version is supported by sufficient evidence to permit a reasonable jury to find in [the non-movant's] favor." Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.1995) (internal quotation marks and citation omitted).

2. Defamation and slander per se²,³

The Complaint is unclear as to what statements allegedly constitute defamation and slander per se. Plaintiff's response is also vaguely worded but Plaintiff does argue that she was verbally called a thief and accused of stealing and was charged with larceny. As to the verbal accusation, she does not identify the speaker or the communication, nor is there any evidence that anyone verbally referred to her as a "thief" or verbally accused her of stealing. No cause of action can lie where there is no supporting evidence.

To further confuse the matter, in her deposition, Plaintiff testified that the slander claim was based upon the store manager calling her a liar. In an abundance of caution, the undersigned will evaluate this comment despite the fact that Plaintiff's counsel does not allege or argue it.

First⁴, Plaintiff alleges slander per se. North Carolina law recognizes two kinds of slander. Slander per se is an oral communication of false and defamatory words to a third person which is defamatory on its face and does not require the showing of malice or special damages. Morrow v. Kings Dept. Stores, 57 N.C.App. 13, 290 S.E.2d 732 (1982). Slander per quod is an oral communication of false and defamatory words to a third person which is not defamatory on its face and requires the injurious character of the words be shown, as well as special damages. Id.

Under North Carolina law, calling a person, in effect, a liar, without linking the statement to their trade or business, cannot constitute slander per se. Johnson v. Bollinger, 86 N.C.App. 1, 356 S.E.2d 378 (1987). Accordingly, as a matter of law, no action can lie for slander per se on this comment. Even if Plaintiff alleged slander per quod, Plaintiff cannot show it because there is no evidence that any third person heard this comment.

As to Defendant Horne's issuance of the arrest warrant for larceny, citing no supporting authority, Plaintiff argues that this constitutes libel as a written communication of defamatory words published to third persons.⁵ It is well-settled that when an otherwise defamatory communication is made in furtherance of a political, judicial, social, or personal duty, the declarant is entitled to a qualified privilege unless actual malice is shown. Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000).

It is undisputed that the application for the warrant was done in furtherance of Defendant Horne's duties as a police officer. Moreover, Plaintiff has not alleged, nor argued, malice, nor is there any evidence thereof. Under the caselaw, Defenda...