Panas v. Harakis, K-M

• Decision Date: 06 August 1987
• Docket Number: No. 86-202,K-M,86-202
• Citation: 529 A.2d 976,129 N.H. 591
• Parties: Loukia PANAS and Nicholas Panas v. John HARAKIS andart Corporation.
• Court: New Hampshire Supreme Court

Page 976

529 A.2d 976

129 N.H. 591

Loukia PANAS and Nicholas Panas v. John HARAKIS and K-Mart Corporation.

No. 86-202.

Supreme Court of New Hampshire.

Aug. 6, 1987.

Law Offices of Edward W. Richards, Nashua (Edward W. Richards (orally) and Janine Gawryl on the brief), for plaintiffs.

McLane, Graf, Raulerson & Middleton P.A., Manchester (Arthur G. Greene (orally) and Jane E. Cetlin on the brief), for defendants.

THAYER, Justice.

In this case, both the plaintiffs and the defendants appeal various findings and rulings of the Superior Court (Pappagianis and Dalianis, JJ.) made during the course of the plaintiffs' suit for false imprisonment; malicious prosecution; slander; invasion of privacy; negligent hiring, training, supervision, and failure to terminate; negligent performance of duties; and loss of consortium for the above causes of action. The plaintiffs assign error to the court's (1) setting aside of the jury verdict as "manifestly exorbitant" and ordering a new trial on damages only; (2) refusal to admit into evidence the defendant John Harakis' criminal convictions; and (3) alleged refusal to give jury instructions on additional compensatory damages. The defendants, in turn, assign error to the court's (1) admission into evidence of the facts and circumstances underlying the defendant Harakis' criminal convictions; (2) refusal to declare a mistrial after plaintiffs' counsel had elicited testimony from Harakis regarding his criminal record; (3) failure to instruct the jury that the merchant's privilege statute, RSA 627:8-a, was a complete defense to all of the plaintiffs' counts; and (4) allowing the plaintiffs to amend their writs to add alleged counts for negligent infliction of emotional distress. We affirm.

On January 30, 1983, some time after 1:00 p.m., Loukia and Nicholas Panas ventured into the K-Mart department store on South Willow Street in Manchester. The couple purchased Valentine's Day cards for their two boys, and a baking tin. The Panases then left the store and returned to their car, where they deposited their purchases. They crossed the mall parking lot and were about to enter Chuck E. Cheese's Pizza Time Restaurant, where their two boys were waiting for them. Before they entered the restaurant, however, John Harakis, who was employed as a K-Mart security guard, stopped the Panases and accused them of shoplifting.

At trial, Harakis testified that while the Panases were in the K-Mart Store, he had seen Loukia Panas break into a package of spark plugs and place one of them in her coat pocket. Harakis stated that he followed the Panases into the parking lot, where he observed Loukia Panas take an object from her right coat pocket and put it into the front of the car. After the Panases left their car to proceed toward the restaurant, Harakis walked to the car, peered into it, and noticed spark plugs on the dashboard. After viewing the spark plugs, Harakis motioned to a K-Mart employee to act as a witness and proceeded to apprehend the couple at the restaurant entrance. Harakis claimed that he then asked Loukia Panas to return to K-Mart "to talk about the merchandise that she took from the store." The Panases testified that Harakis said, "You're under arrest," loudly accused Loukia Panas of shoplifting, and ordered her to return to the K-Mart store with her arms raised above her head. Harakis denied that Loukia Panas had returned to the store with her hands raised; and store employees corroborated his testimony, although one employee admitted he could not hear exactly what Harakis said to the Panases.

The Panases were taken into the K-Mart security office. Harakis emptied the contents of Loukia Panas' pocketbook onto a table, and searched the pockets of her coat. He then asked the Panases to sign a release form admitting that they had shoplifted in return for a promise from K-Mart not to press charges. Loukia Panas declined the offer. At approximately 4:20 p.m., Officer Jeffrey Czarnec, of the Manchester Police Department, arrived at K-Mart in response to a shoplifting call. Harakis informed Czarnec of his apprehension of Panas. Panas offered to take Harakis and Czarnec to her car in order to show them the items she had purchased. Czarnec and Harakis saw the spark plugs in the car. Panas gave them to Harakis who handed them to Czarnec. Panas told Czarnec they had been there for several days. Nicholas Panas testified that he had purchased the spark plugs approximately a month before at a Bradlee's department store in Chelmsford, Massachusetts. Czarnec testified that Loukia Panas volunteered to pay K-Mart for the spark plugs. At trial, Panas denied she had ever offered to pay for the spark plugs.

Based on information he received from Harakis, and that Loukia Panas had allegedly offered to pay for the spark plugs, Officer Czarnec placed Loukia Panas under arrest. She was handcuffed and placed in the rear of a paddy wagon while her children watched. Once at the police station, she was fingerprinted and photographed, her coat was removed, and she was placed in a jail cell. While in the cell, she vomited. Panas stayed in the jail cell for several hours until her husband could go home and obtain bail money. A trial date for the shoplifting of the spark plugs was set for April 8, 1983. Harakis was subpoenaed to appear as a witness, but did not do so. No other K-Mart representative appeared, and the case was dismissed for lack of prosecution.

Loukia Panas brought suit against John Harakis and K-Mart for false imprisonment; malicious prosecution; invasion of privacy; slander; negligent hiring, training, supervision, and failure to terminate John Harakis; negligent infliction of emotional distress and intentional infliction of emotional distress. Nicholas Panas brought suit for loss of consortium under the above theories. The defendants filed a motion to dismiss the counts of negligent and intentional infliction of emotional distress, alleging that no such causes of action are recognized in New Hampshire. The Superior Court (Dalianis, J.) granted the motion. The plaintiffs then filed a motion to amend the writ by adding counts against K-Mart and Harakis alleging negligent performance of Harakis' duties that caused, inter alia, mental and emotional distress to Loukia Panas. The Superior Court (Dalianis, J.) granted the motion to amend. The defendants then argued a motion to dismiss those counts on the basis that they were restatements of the negligent infliction of emotional distress counts. The Superior Court (Pappagianis, J.) denied the defendants' motion to dismiss the additional counts.

In February, 1986, the plaintiffs filed a motion in limine to admit criminal records of John Harakis that had been annulled. The Superior Court (Dalianis, J.) ruled that evidence of the annulled convictions could not be offered. The court did, however, rule that the underlying facts and circumstances giving rise to a 1980 conviction for impersonation of a police officer could be admitted into evidence, provided that such evidence could be introduced without reference to the actual criminal proceedings. The court also ruled that the underlying facts and circumstances of a 1976 conviction for attempted theft could not be admitted because any probative value was outweighed by the danger of undue prejudice.

The trial below commenced on March 24, 1986, and lasted for ten days. Loukia Panas testified that when she was apprehended by John Harakis she felt "embarrassed," "terrible," and that her legs shook. She stated that, after January 30 1983, the date of the incident, she ceased to attend church services, or go shopping in malls or stores, and experienced difficulty in getting to sleep. She stated at one point that she had lost the ability to function as a "good mother and wife." Nicholas Panas also testified to his wife's inward withdrawal, and remarked that her weight had gone from 130 pounds at the time of the incident to 197 pounds.

The plaintiffs produced several expert psychiatric witnesses. Dr. Harold Bursztajn, a clinical professor of psychiatry at the Harvard Medical School, testified that Loukia Panas was a person from a conservative, family-oriented background whose "mission in life was basically to go ahead and teach her children to be just like their father, to be honest, law-abiding, upstanding people. She really has devoted her whole life to that, and this is something which all of a sudden went to pieces." Dr. Bursztajn proceeded to state that the event of Loukia Panas' apprehension and imprisonment caused her to suffer a post-traumatic stress disorder that manifests itself in the following respects: (1) Panas experiences recurrent and intrusive recollections of the event, (2) she has recurrent dreams of the event that awaken her, (3) whenever she attempts to describe the event she becomes frightened and overwhelmed, and (4) she has withdrawn from participating in her children's school activities, and has grown detached from her husband in terms of sexual intimacy.

Dr. Paul Menitoff, a psychiatrist in private practice in the Lowell, Massachusetts area, also testified on behalf of Loukia Panas. Dr. Menitoff stated that, after examining Panas, and talking to several of her friends, he diagnosed her as suffering from post-traumatic stress disorder with anxiety and depression. Dr. Menitoff said that the incident was the "stressor," or precipitating factor, in the psychological illnesses. Dr. Menitoff suggested that Loukia Panas' conservative, religious upbringing in a small city in Greece rendered her particularly sensitive to being arrested.

On cross-examination, Loukia Panas testified that she does cook meals, make beds, clean and do laundry. Loukia Panas' psychiatric nurse testified that her condition improved when taking prescription medication. Panas, however, discontinued the medication, and six months later her condition deteriorated. The defendant's expert psychiatric...