Rivers v. Dillards Dept. Store, Inc.

• Decision Date: 12 September 1997
• Docket Number: No. 96-3370,96-3370
• Citation: 698 So.2d 1328
• Parties: 22 Fla. L. Weekly D2149 Stacy L. RIVERS, Tynesha M. Rivers, Nikina D. Cunningham, and Stacy L. Rivers, as parent and custodian for Tevon J. Elmore, a minor, Appellants, v. DILLARDS DEPARTMENT STORE, INC., a Florida Corporation, Linda Love, and James Donohoe, Appellees.
• Court: Florida District Court of Appeals

Page 1328

698 So.2d 1328

22 Fla. L. Weekly D2149

Stacy L. RIVERS, Tynesha M. Rivers, Nikina D. Cunningham, and Stacy L. Rivers, as parent and custodian for Tevon J. Elmore, a minor, Appellants, v. DILLARDS DEPARTMENT STORE, INC., a Florida Corporation, Linda Love, and James Donohoe, Appellees.

No. 96-3370.

District Court of Appeal of Florida First District.

Sept. 12, 1997.

Michael R. Rollo, Pensacola, for appellants.

Thomas R. Jenkins of Bozeman, Jenkins & Matthews, P.A., Pensacola, for appellees Dillards and Love.

Millard L. Fretland of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, for appellee James Donohoe.

PER CURIAM.

Stacy Rivers, her young son, her sister, Tynesha Rivers, and Nikina Cunningham went into Dillard's department store on August 20, 1994. Stacy and her son went upstairs while Tynesha Rivers and Nikina Cunningham went to the shoe department. As they were waiting for a sales person to bring a pair of shoes from the stock room, officer Donohoe, a uniformed off-duty city police officer employed by Dillard's as a security guard, approached and asked Tynesha Rivers and Nikina Cunningham for identification. At that time, Donohoe did not give a reason for his request, but the women complied. Donohoe left the immediate area with their drivers' licenses and returned after a period of time. Meanwhile, Tynesha Rivers purchased a pair of shoes.

When Donohoe returned, he directed the two to another area of the store. At one point, Donohoe placed his hand on Cunningham's arm. The two said in depositions that they did not feel they could fail to comply with Donohoe's requests due to the show of authority. When Stacy Rivers and her son arrived in the area, Donohoe asked her for identification, also. He would not explain when the women asked why they were being detained. He escorted the four to an area near the shoe department where he directed them to sit and wait, while continuing to hold their drivers' licenses. As they waited, they could see, behind swinging doors, a hallway where photos were posted on a bulletin board labeled "Wall of Shame."

Love, a female store supervisor, came to the area with a camera, and Donohoe proceeded to photograph Stacy Rivers without her consent. The camera malfunctioned or ran out of film, and he took no other photos. Love advised the women they were no longer welcome on store property and they were being warned they could be arrested for trespass if they returned. Stacy asked to return the shoes she had just purchased, but Donohoe would not allow her to do so at that time. The women were evicted from the store. According to their depositions, none of them had ever been convicted or suspected of committing a criminal offense before they were detained that day; neither had they been accused of shoplifting at Dillard's or any other department store.

Stacy and Tynesha Rivers and Nikina Cunningham sued Dillard's, Love, and Donohoe for false imprisonment, intentional infliction of emotional distress, invasion of privacy, battery, libel, and conspiracy. Among other things, they alleged that they were detained without any legal reason, and that photos were taken against their will and placed in public view on the "wall of shame." After appellee moved for summary judgment, appellants and appellees submitted affidavits and depositions, from which the following accounts have been taken.

In her deposition, Nikina Cunningham said that while Donohoe asked them to come with him, he did not accuse them of shoplifting. When they asked him what the problem was, he said to wait and talk with the sales manager. She was upset sitting there in front of people; they were near a clearance rack and people were looking over at them. She said Donohoe touched her just to guide her to where they were going, and that she did not think he was trying to touch her for any other reason, just that she didn't know where he wanted her to go. She added that she really didn't pay much attention to that part of the incident. She saw the bulletin board with photos inside a swinging door that employees went through, although she was not close enough to distinguish facial features on the photos. She said she still did not know why she was evicted from the store.

Stacy Rivers said she had never had any problem in a store regarding shoplifting. When they arrived at Dillard's, she and her son went upstairs, and when she came downstairs, the officer approached and asked her for identification. He asked them to follow him. She asked, in a normal voice, whether there was a problem, but there was no scene or loud talking. She was puzzled but not angry at that point. The area he took them to was near the north entrance to the store, where there were some chairs in a hallway outside of an office. Donohoe told them to have a seat and wait for the store manager. He said they were not under arrest, but they could not leave. She observed a store employee walk by and look at them, go into the office, and then leave. After that, Love arrived, carrying a camera, and informed them that they were not welcome in the store and would be trespassing if they returned. Donohoe attempted to photograph them, and succeeded in taking her photograph, which ended up on the "wall of shame." She could not make out any of the faces on the wall from the picture that later appeared in the newspaper, nor could she make them out from the other side of the swinging doors. She said she had felt embarrassed while at the store being escorted by a uniformed officer.

Tynesha Rivers said she went to Dillard's to match shoes with a shirt she had purchased earlier, and she did purchase the shoes while she was there. She was upset because the officer would not explain, and he raised his voice and said if they did not do as he said they would be arrested. She could not distinguish faces in the photos on the wall from where she was sitting.

Donohoe said he has dual employment with the City and Dillard's to provide security, and that they took photos of people who had been warned not to return to the store. He did not know the origin of that practice. On that day, an employee told him she suspected the three of shoplifting in the past in her section of the store, because on past occasions, she had found empty hangers and tags on the floor, and they would split up when they entered the store. He said another employee verified this account. Donohoe said that one of the managers had to issue the warning; he could not do it himself. He asked the women for identification, and they obliged. They started to become loud, and he asked them to follow him to a more secluded area and asked them to keep it down, but it got worse as they got closer to the exit. He determined that there were no outstanding warrants on any of them. Love brought the camera, and he tried to take pictures, but the camera malfunctioned. Love warned them not to return or they would be arrested for trespass. He told them two employees suspected them of shoplifting in the past, and returned their identification to them just before they were released to exit the store. He said they were very loud from the time they were with him in the shoe department until they left. They asked to return the shoes, but he told them to make an appointment with management to do so.

Love said they use off-duty police officers for security. An employee called her about the three, saying she had seen them before and thought they were a problem. The employee had already spoken to Donohoe. Love told Donohoe she wanted to ask the women to leave the store. She told them they could not return or they would be arrested for trespassing. She did not tell them the reason. They were becoming loud and using profanity, so she asked Donohoe to escort them from the store. She had to go upstairs to get the camera, which took 5-8 minutes. They took photos of people who have been arrested or who they do not want in the store so that employees will know who they are, although the wall is no longer there. The wall had been located through the doors into the warehouse, to which only employees have access. She did not know when the wall was started, but it was there when she began working at Dillard's.

The salesgirl who first called attention to the three said in her deposition that she recognized the women as having been in the store numerous times, and said they were having problems with them. She indicated they exhibited characteristics of shoplifters, such as separating immediately after entering the store, and gathering clothes into a certain area of the store where they could not be seen. She said employees would find the clothing on racks after they left, as well as empty hangers and tags on the floor. She called Donohoe and asked if they could ask them to leave. Donohoe said the manager would have to do it. She had been instructed that if she felt uncomfortable she was supposed to call security.

The trial court granted summary judgment for the defendants on all counts. The court determined that regardless of the existence of some factual dispute, the actions complained of did not rise to the level of outrageousness required for intentional infliction of emotional distress. Further, as to invasion of privacy, as a matter of law, there was no intrusion, as appellants came onto Dillard's property, and there was no evidence of publication of any facts to the public at large. ¹ As to false imprisonment, the court ruled that the store has an absolute right to ask any person to leave the premises, that probable cause is not an issue in a civil case, and that Donohoe was acting within his legal authority as a law enforcement officer, and that authority protects Dillard's and Love. Further, the court found that even if the photo of Stacy was placed on the wall, Dillard's could communicate to its employees the identity of persons not welcome on the premises, and the defendants did not initiate the...