Rankin v. Venator Group Retail, Inc.

• Decision Date: 24 December 2002
• Docket Number: No. ED 80833.,ED 80833.
• Citation: 93 S.W.3d 814
• Parties: Tammy RANKIN, Plaintiff/Appellant, v. VENATOR GROUP RETAIL, INC., d/b/a Lady Foot Locker, et al., Defendants/Respondents.
• Court: Missouri Court of Appeals

93 S.W.3d 814

Tammy RANKIN, Plaintiff/Appellant, v. VENATOR GROUP RETAIL, INC., d/b/a Lady Foot Locker, et al., Defendants/Respondents.

No. ED 80833.

Missouri Court of Appeals, Eastern District, Division Four.

December 24, 2002.

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Mary Judith Gioia, St. Louis, MO, for appellant.

James W. Reeves, St. Louis, MO, for respondent.

WILLIAM H. CRANDALL, JR., Presiding Judge.

In an action for false imprisonment and malicious prosecution, plaintiff, Tammy Rankin, appeals from the trial court's judgment, entered pursuant to a jury verdiet, in favor of defendant, Venator Group Retail, Inc. d/b/a Lady Foot Locker, on the false imprisonment claim and from the trial court's grant of summary judgment in favor of defendants, Lindy Robertson and Tom Favre, on both the false imprisonment and malicious prosecution claims. We affirm.

The evidence adduced at trial established that on March 14, 1998, plaintiff, her mother, her two children, and her nephew were shopping at South County Center Mall (hereinafter "the mall"). They entered Lady Foot Locker (hereinafter "the store"), a store owned and operated by defendant, Venator Group Retail, Inc. (hereinafter "Venator"). This was the same store at which plaintiff purchased items totaling $168.00 two days earlier. The store manager assisted plaintiff and let her into a dressing room. Plaintiff testified that she took one jogging suit, consisting of a jacket and pants, into the dressing room; but the store manager testified that she thought plaintiff took two jogging suits with her. When plaintiff left the dressing room, she returned a jogging suit. Plaintiff testified that the pants and jacket of the jogging suit were on two separate hangers, but the store manager testified that when plaintiff went into the dressing room the pants and jacket of each jogging suit were on one hanger. When the store manager found two hangers with only one piece of clothing on each, she telephoned the police to report the theft of one jogging suit.

Defendants, Lindy Robertson, a uniformed police officer (hereinafter referred to as "police officer"), and Tom Favre, a uniformed reserve officer (hereinafter referred to as "reserve officer") (hereinafter collectively referred to as "police officers"), responded to the store. Based on a description furnished by the store manager, the police officers located plaintiff and her family members in the mall. When they approached her, they asked if she had the jogging suit. After plaintiff denied having the jogging suit, she consented to a search of her person and her bags. She stated that she did so because she wanted to prove to her children that she did not take the suit. The police officer denied searching her person; but did search her bags, finding no jogging suit. The police officer suggested they search her car and plaintiff consented to that search. Plaintiff stated that the police officer took her by the wrist to escort her to her car on the parking lot, but the police officer denied touching plaintiff. As the police officer accompanied plaintiff to her vehicle, the reserve officer drove the patrol car to plaintiff's car. Plaintiff handed the police officer her car keys. The police officer then searched the car's trunk and interior, but did not fmd a jogging suit. During the searches inside the mall and on the parking lot, plaintiffs mother informed plaintiff that she thought that the police officers needed a warrant to search her and also ordered the police officers not to look into any of her bags. The police officers complied. While on the parking lot, plaintiff was upset and angry. She was crying and talking loudly.

Before leaving, the police officer asked plaintiff not to return to the store. Plaintiff, however, went back to the store with her family. There, she confronted the store manager, asking for an explanation of why she called the police. The store manager described plaintiffs behavior as "yelling" and "angry." Plaintiff described her behavior as "crying" and "upset." Because several customers were in the store, the manager asked her to go to the back room to discuss the matter. When the police officers re-entered the mall, they heard loud voices coming from the store. As they entered the store, they heard yelling and screaming coming from the back room. They arrested plaintiff for disturbing the peace, although the store manager did not request that they do so. Plaintiff was handcuffed and taken to the police station. Although plaintiff claims that she was photographed and fingerprinted at the station, the police officer denied these activities. The police officer, however, gave her a summons to appear in court. When she later appeared in court, she was not on the docket and was not prosecuted for disturbing the peace.

Plaintiff brought the present action for damages for false imprisonment and malicious prosecution against Venator and the police officers, Lindy Robertson and Tom Favre. The trial court granted summary judgment in favor of defendants-police officers. The action against defendant-Venator was tried to a jury and only the false imprisonment claim was submitted to the jury. The jury rendered a verdict in favor of defendant-Venator on that claim. The trial court entered judgment in accordance with the verdict. Plaintiff appeals from the judgment entered by the trial court in favor of defendant-Venator and from the trial court's grant of summary judgment in favor of defendants-police officers.

JUDGMENT IN FAVOR OF VENATOR

In Count I of her petition, plaintiff alleged that Venator and the store manager, acting on behalf of Venator, instigated her detention and search against her will by supplying information to the police officers which led to her false arrest. In Count II of her petition, she alleged that Venator and its employee maliciously prosecuted her by also instigating the summons being issued for peace disturbance. The trial court did not submit Count II to the jury and found in favor of Venator on Count I pursuant to a jury verdict.

On appeal in a jury-tried case, we review the evidence and reasonable inferences therefrom in a light most favorable to the jury's verdict, disregarding evidence to the contrary. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998). We will reverse a judgment based on a jury verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion; where reasonable minds can differ on the question before the jury, we do not disturb the jury's verdict. Id.

In her first point, plaintiff contends that the trial court erred in not permitting her to testify about statements made by the police officers during their first encounter in the mall. Venator objected to any such testimony on the basis of hearsay and the trial court sustained the objection. At trial and on appeal, plaintiff contends that such testimony was not hearsay, because it was not offered to prove the truth of the matter asserted, but rather it was offered to explain plaintiff's reaction to this encounter and why she was so upset. The admission or exclusion of evidence is within the sound discretion of the trial court and will not be reversed unless there is a substantial or glaring injustice. Fierstein v. DePaul Health Center, 24 S.W.3d 220, 225 (Mo.App. E.D. 2000).

Assuming, without deciding, that the statements did not constitute hearsay, the exclusion of the testimony was at most harmless error. Plaintiff testified extensively about her encounter with the police and about how upset and angry she was when the police officers confronted her about the missing jogging suit. The police officers also testified as to how upset plaintiff was. Plaintiff's first point is denied.

In her second point, plaintiff charges error in the trial court's refusal to submit ten instructions pertaining to false imprisonment, malicious prosecution, and punitive damages for each of those claims.

In considering the propriety of a proferred instruction, we review the evidence in the light most favorable to the submission of the instruction, keeping in mind that a party is entitled to an instruction on any theory supported by the evidence. Higby v. Wein, 996 S.W.2d 95, 97 (Mo.App. E.D.1999).

The essence of the cause of action for false arrest, or false imprisonment, is a person's confinement of the plaintiff, without legal justification. Thomas v. M--R--A--, 713 S.W.2d 570, 574 (Mo.App.1986); see also M.A.I. 23.04 [1983 Revision]. A person may be liable for false arrest if he does not actually confine the plaintiff but merely instigates the confinement, as in the case of providing information on the basis of which a subsequent unlawful arrest is made. Id. A suit for false arrest or false imprisonment is the proper action where the aggrieved person is arrested without legal process. Id.

Here, plaintiff claims that there was substantial evidence that Venator instituted her false imprisonment for peace disturbance, because the initial call to the police set in motion a continuous series of events which culminated in her arrest. We disagree. Venator's store manager called the police only with regard to the possible theft of a jogging suit. The police officers completed their investigation of that allegation and found no evidence that plaintiff had taken the jogging suit. The police officers left plaintiff in the parking lot outside of the mall, but cautioned her not to return to the store. At that point, no arrest had been made relating to the call initiated by Venator. It was only when plaintiff, against the advice of the police officer, returned to the store to confront the store manager that the police officers, on their own, went back to the store. At that point, they arrested plaintiff for disturbing the peace. Venator's store manager neither called the police when plaintiff returned to the store nor requested that...