Kroger Co. v. Briggs, A13A0671.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: MILLER
• Citation: 746 S.E.2d 879,323 Ga.App. 256
• Parties: The KROGER CO., INC. v. BRIGGS.
• Docket Number: No. A13A0671.,A13A0671.
• Decision Date: 16 July 2013

323 Ga.App. 256
746 S.E.2d 879

The KROGER CO., INC.
v.
BRIGGS.

No. A13A0671.

Court of Appeals of Georgia.

July 16, 2013.

Matthew Glenn Moffett, Atlanta, for Appellant.

Sherard Kendre Dixon, Michael Arthur Mills, for Appellee.

MILLER, Judge.

[323 Ga.App. 256]Najah Briggs sued The Kroger Co. for negligence, among other claims, based on its actions that led to his arrest for attempting to pass allegedly counterfeit money. In fact, the money was not counterfeit and Briggs was ultimately cleared of any wrongdoing only after being arrested and jailed, losing his job, being denied his seniority and other ramifications. The negligence claim was presented

[746 S.E.2d 880]

to a jury and they concluded that Kroger was negligent and awarded Briggs $500,000 in damages. Kroger moved for a directed verdict during trial and filed a motion for judgment notwithstanding the verdict after trial. Kroger appeals the denial of those motions and its motion for summary judgment on the negligence claim. We conclude that the evidence was sufficient to support the jury's verdict and that the summary judgment ruling is moot. Thus, we affirm.

In its review of the denial of a motion for judgment notwithstanding the verdict, this Court is to determine whether there is any evidence to support the jury's verdict. This same standard of appellate review is to be applied in the situation of the denial of a motion for a directed verdict or a motion for new trial on general grounds. In so doing, this Court must construe the evidence in a light most favorable to the prevailing party in the court below.

(Citations omitted.) Patterson–Fowlkes v. Chancey, 291 Ga. 601, 602, 732 S.E.2d 252 (2012).

Construed in favor of Briggs, the evidence at trial showed that on August 19, 2009, Briggs was running errands before going to work and stopped at a Kroger store. He needed change for a $100 bill so that he could pay for his dry cleaning. Briggs shopped for a few minutes and then went to the self checkout to pay for the items he had selected. After scanning his items, he attempted to pay with the $100 bill, but the machine would not accept the money. Briggs told the attendant in the self checkout area what had happened and she directed him to the customer service desk.

Briggs went to the customer service desk, explained what had happened, and asked for change for the $100 bill. After Briggs handed the bill to the customer service representative, he saw her mark the bill with a black pen. She then told him that she would have his change for him soon. The representative waited on a few other customers before heading into a back office. Briggs saw the store manager, Bobby Reeder, go into the back office with the customer [323 Ga.App. 257]service representative, and they stayed there for several minutes. The representative then opened the door to the back office and told Briggs that there was a delay because they had been locked out of the safe and that they would have his change shortly. Although Briggs had smaller bills in his wallet, the representative never asked him for another form of payment.

While Briggs thought he was waiting for his change, Reeder made a determination that the bill was counterfeit and called 911. He told the operator that he had a guy trying to pass a counterfeit bill and asked them to send the police. Reeder's determination was based solely on the fact that the counterfeit detection pen used by the customer service representative had left a mark on the bill. Reeder did not know that the pen came with instructions and never made any attempt to determine whether there were any instructions indicating on which bills the pen would work. The bill that Briggs submitted for payment was a series 1950c bill, and the pen used on it was not able to determine whether a 1950 bill was counterfeit.

Kroger had certain procedures in place to address the issue of counterfeit money. A risk specialist for Kroger testified that, using information obtained from a U.S. Secret Service website, he prepared a document instructing Kroger employees on the steps to follow if presented with a bill the employee suspects may be counterfeit. Those steps included:

1. Make the customer aware of your suspicion concerning the suspect document.

2. Compare the bill with one you KNOW is genuine.

3. NEVER accuse the customer of intentionally attempting to pass the suspect document.

4. Ask the customer if they know where they received the suspect document.

5. Request another bill or form of payment. Offer the customer the use of the store phone to contact police if they wish.

A separate memorandum addressed to front end managers discussed what to look for and how to handle being confronted with suspected counterfeit money. In that memorandum, managers were informed that if a

[746 S.E.2d 881]

bill turns black when marked with a counterfeit detection pen, it is “SUSPECT ONLY.” The cashiers or office personnel were instructed to call a floor supervisor or management person [323 Ga.App. 258]to handle the situation. The memorandum further provided that “[t]he customer simply needs to be asked if they have another bill or form of payment. There is no need to contact the authorities unless the customer is presenting a large number of counterfeit bills.... The average consumer, in all probability, would not recognize a bogus bill.” According to the risk specialist, both documents were in effect for the Kroger store Briggs visited in 2009, and Reeder should have been aware of their contents.

Reeder testified that he recognized the documents, but admitted that he did not follow the instructions in either. Reeder made no attempt to speak with Briggs before calling the police and did not compare the bill to one he knew was genuine. Nor did Reeder look at the date on the bill because he considered that to be irrelevant. Reeder did understand that by calling 911 and asking the operator to send the police, it was possible that they would arrest Briggs.

The risk specialist testified that although store managers have discretion in these situations, the preferred course of action is for them to contact the risk management department before calling the police. If Reeder had called the risk specialist in this situation, the risk specialist would not have contacted the police. Kroger also had a policy in place that store managers were expected to notify risk management personnel of incidents in their stores, but neither Reeder nor anyone else at his store ever told risk management that Briggs had been arrested for having an allegedly counterfeit bill.

Briggs's first indication that anything was wrong was when a uniformed police officer approached him and told him that he was being arrested for forgery for having a counterfeit bill. Briggs was not given any opportunity to explain or to offer another method of payment. Instead, Briggs was handcuffed and threatened with the use of a taser gun if he did not cooperate. When the officer asked where he had obtained the money, Briggs explained that he had received it from his mother-in-law and that she had obtained the money from a bank on Jonesboro Road. Briggs was transported to the Clayton County jail where he was photographed and fingerprinted, required to put on prison clothing, and placed in a cell. Briggs remained in jail for 31 hours.

The arresting officer's testimony was presented by deposition. When asked why he went to the Kroger store, the officer testified that

[t]he manager or customer service representative had gotten a hundred dollar bill at the customer service counter that [323 Ga.App. 259]they had tested with a pen, with one of the money detect pens that they said turned black, which was an indicator for them that it was counterfeit. They also noticed some inconsistencies with it, so they believed it was a counterfeit bill and they called 911, so I responded.

The officer, who had some in-house training on counterfeit detection but no formal instruction, noted some inconsistencies on the bill. Based on his conversation with the customer service representative and possibly the store manager, as well as his personal observations of the bill, the officer arrested Briggs.

Briggs was charged with first degree forgery and hired a criminal attorney to defend him. After Briggs paid the attorney $1,500, the first degree forgery charges were dismissed in 2009.

At the time of his arrest, Briggs was employed by Allied Barton and worked 40 hours a week for them at a rate of $11.00 per hour. He missed two days of work while he was in jail, and was terminated from his job because he had been arrested for a felony. After the forgery charges against him were dismissed, Briggs sought to return to his job at Allied Barton. The position he formerly held had been filled and there were no other positions available at that location.

Although Briggs was able to return to Allied Barton in January 2010, it was for less pay and he was required to reapply, submit to another background check, and go through another probationary period. The contract at that location ended in March 2012, and he

[746 S.E.2d 882]

was not able to find another position at Allied Barton. Briggs testified that he wanted to continue working for Allied Barton because the company had a good reputation and provided good benefits and because he really enjoyed the job.

Briggs's former supervisor testified that Briggs was a very capable employee and that he would hire him again if he could. The supervisor also testified that he would have kept Briggs on at his initial position if he had not been arrested and that he would have recommended Briggs for promotion if a position was available. A higher level position with higher pay did come available at that location after Briggs left. Briggs sought more than $700,000 in lost future earnings, as well as other damages.

After Briggs presented his case, Kroger moved for a directed verdict on the claims for negligence, punitive damages, and future lost...