McFarland v. Skaggs Companies, Inc.
| Decision Date | 01 February 1984 |
| Docket Number | No. 18352,18352 |
| Citation | 678 P.2d 298 |
| Parties | Elwood K. McFARLAND, Plaintiff and Respondent, v. SKAGGS COMPANIES, INC., Defendant and Appellant. |
| Court | Utah Supreme Court |
Stephen G. Morgan, Salt Lake City, for defendant and appellant.
Findley P. Gridley, Bruce Baird, Ogden, for plaintiff and respondent.
This is an appeal from a jury verdict and judgment in favor of plaintiff Elwood K. McFarland in a case of false arrest.
On January 9, 1980, plaintiff, a dentist and resident of Ogden, Utah, entered a Skaggs Drug Center in Ogden for the purpose of purchasing a television antenna plug. Upon entering the store, plaintiff proceeded to the aisles where the electrical appliances and parts were displayed. After searching several display racks and being unable to locate the desired article, plaintiff left the store.
Plaintiff was unaware that as he searched for the antenna plug, a Skaggs security officer by the name of Anita Avondet was watching him from behind a one-way mirror. Miss Avondet thought she saw plaintiff take an electrical part off the rack and place it in the right-hand pocket of his raincoat. Acting upon this belief, she followed plaintiff outside the store, where she immediately accosted him.
The litigants gave conflicting accounts of their confrontation outside the store and the events that followed. Under familiar rules of appellate procedure, we are constrained to review those accounts in the light most favorable to the jury's verdict and the party prevailing below, which in this case is the plaintiff. 1
According to plaintiff, at the time Miss Avondet accosted him she was not wearing any identifying badges or clothing that would in any way denote her official capacity as a security officer. Furthermore, she did not verbally identify herself as a security officer; she merely stated, "Sir, I want to talk to you." Being thus unaware of her official status and thinking she might be trying to sell him something, plaintiff replied, "I'm not interested," and at the same time attempted to step around her. In doing so, he extended his arm to brush her away. At this point, again without identifying herself or her objective, Miss Avondet grasped plaintiff's coat lapels and began to scuffle with him. Reflecting upon the circumstances surrounding the confrontation, plaintiff ceased scuffling and indicated to Miss Avondet that he understood what she apparently wanted, but that she was making a big mistake. Miss Avondet responded that she was not paid to make mistakes, whereupon she requested that plaintiff accompany her back into the store and to the manager's office.
Once inside the manager's office, Miss Avondet telephoned the police and reported the incident as a "shoplifting case." She then pointed to plaintiff's right-hand coat pocket and asked that he remove from that pocket whatever he had taken from the store. Plaintiff thereupon produced the contents of the pocket, which consisted of no more than a set of keys. No further search was made of plaintiff's coat or his person, though plaintiff encouraged Miss Avondet to do so. Other store personnel searched along plaintiff's route through the store and in the area of the scuffle, but failed to find the suspected stolen merchandise.
A short time later, Ogden police officers arrived to investigate the incident. The extent of their investigation was to question plaintiff and Miss Avondet as to what had occurred. Apparently believing the account given by Miss Avondet over that given by plaintiff, the senior officer took her aside (out of the presence of plaintiff) and informed her that she had a good case for assault if she desired to press charges. Miss Avondet indicated, however, that inasmuch as she did not sustain any injuries as a result of the scuffle, she did not wish to press charges. Plaintiff overheard this conversation and later testified that it was the only reference ever made by anyone with regard to an assault.
After the private discussion between the officer and Miss Avondet, plaintiff was released. He was never formally charged with any crime as a result of this incident, nor was he ever brought before a magistrate.
On November 18, 1980, plaintiff instituted this suit for false arrest against Skaggs, Inc., seeking $10,000 in general damages and $50,000 in punitive damages. At trial, Skaggs (hereinafter defendant) defended on the theory that Miss Avondet was justified in arresting plaintiff by reason of the privilege granted store owners to detain and search suspected shoplifters 2 and by reason of the privilege of a private citizen to make a citizen's arrest of one who has committed an assault. 3
Plaintiff's position at trial, with respect to defendant's first defense (i.e., merchant's arrest privilege), was that Miss Avondet did not have the requisite "probable cause to believe" that plaintiff had stolen merchandise from the store, and thus the merchant's privilege could not be asserted. The jury returned a verdict in favor of plaintiff's position.
As to defendant's second defense (i.e., citizen's arrest privilege), plaintiff moved for a directed verdict of false imprisonment on the assault arrest, inasmuch as the citizen's arrest privilege was abused and, moreover, lost due to defendant's failure to charge the assault offense within a reasonable period of time. The court denied this motion, reasoning that the arrest was merely "transitory." The court also refused to give an instruction requested by plaintiff, which would have directed the jury that unless plaintiff was taken promptly before a magistrate the citizen's arrest privilege was lost.
The instructions given to the jury relative to this latter defense were that the defendant had the burden of proving "beyond a reasonable doubt" that plaintiff did in fact commit a criminal assault upon Miss Avondet and that if defendant failed in that burden, the arrest for assault was unlawful because "[t]here is no statutory privilege protecting against an unlawful arrest for assault based on one having 'probable cause to believe' an assault had been committed." Based on the instructions as well as the evidence adduced with regard to this issue, the jury found in plaintiff's favor on this defense also.
The jury awarded plaintiff $10,000 in general damages and $25,000 in punitive damages. Defendant's motion for a new trial was denied and this appeal ensued.
On appeal, defendant raises the following points: (1) the court committed reversible error by instructing the jury that defendant must prove "beyond a reasonable doubt" that plaintiff committed an assault upon Miss Avondet in order to justify the assault arrest; (2) the court's instruction that no "probable cause" privilege exists for a private arrest for assault was also an error of reversible magnitude; and (3) this Court should reconsider its holding in Terry v. Zions Co-op. Mercantile Institution 4 that a punitive damage award is sustainable upon a finding of "malice in law."
We first consider plaintiff's rejoinder to points one and two above regarding the assault arrest. Plaintiff answers these points with the same argument he presented at trial in support of his motion for a directed verdict of false imprisonment, to wit: whatever privilege defendant might have had to arrest plaintiff for assault was abused and lost due to defendant's failure to charge plaintiff with the offense within a reasonable period of time. Plaintiff contends that this Court should reverse the trial court's denial of his motion in this regard and thereby moot defendant's arguments respecting the assault.
Plaintiff's argument is purportedly based upon a widely accepted rule that has been expressed in this state in specific statutory terms:
When an arrest is made without a warrant by a peace officer or private person, the person arrested shall, without unnecessary delay, be taken to the magistrate in the precinct of the county or municipality in which the offenses occurred, and an information, stating the charge against the person, shall be made before such magistrate.... [Emphasis added.] 5
Plaintiff's reliance upon the foregoing statutory provision is not completely warranted. While the privilege to make a lawful arrest is certainly abused by an unreasonable delay in the presentment of the prisoner before a magistrate, it is not so certainly abused in a case such as this where the prisoner is released from custody and charges are never brought against him. Plaintiff has failed to recognize this important distinction, the effects of which, in terms of false imprisonment liability, are demonstrated thus:
In the case of a lawful arrest without a warrant, the person making the arrest must present the prisoner promptly before a magistrate. An unreasonable delay in this respect will constitute an abuse of the privilege and will render the actor liable for that portion of the imprisonment which is in excess of the reasonable period allowed for such presentment.[ 6 In addition, if the person making the arrest does not present the prisoner to a magistrate at all, but releases him without such presentment, the actor is liable for the arrest even though it had been lawful when made, unless the person arrested and released consented to or requested the release without presentment, or unless such person were actually guilty of the offense for which he was arrested. In the latter two cases, the person has not been harmed and since the arrest was originally lawful, it does not become unlawful by the release. 7 [Emphasis added.]
Thus, the legitimacy of plaintiff's position with respect to the assault arrest is contingent upon a negative determination of the following questions: (1) Did plaintiff consent to or request his release without the requisite presentment? (2) Was plaintiff actually guilty of the assault offense?
The "consent to be released" concept has been explained as follows:
The other's consent to be released may be shown...
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