Shirley v. Kroger Ltd. P'ship I

• Decision Date: 08 July 2021
• Docket Number: Record No. 200823
• Citation: 300 Va. 99,860 S.E.2d 372
• Court: Virginia Supreme Court
• Parties: Shirley DILL v. KROGER LIMITED PARTNERSHIP I, et al.

300 Va. 99

860 S.E.2d 372

Shirley DILL

v.KROGER LIMITED PARTNERSHIP I, et al.

Record No. 200823

Supreme Court of Virginia.

JULY 8, 2021

Lauren M. Byrne (MartinWren, on brief), for appellant.

C. Kailani Memmer (Victor S. Skaff, III ; Glenn Robinson Cathey Memmer & Skaff, Roanoke, on brief), for appellees.

PRESENT: All the Justices

OPINION BY JUSTICE S. BERNARD GOODWYN

In this appeal, we consider whether the circuit court erred in granting a motion to strike claims of malicious prosecution and false imprisonment, which were brought by a person who was mistakenly identified, charged, and prosecuted as a shoplifter.

I. BACKGROUND

Shirley Dill (Dill) is a 70-year-old woman who resides in Staunton, Virginia. Dill frequents a Kroger supermarket, located in Staunton and operated by Kroger Limited Partnership I (Kroger).

On February 22, 2017, Sarah Lynch (Lynch), one of the managers for the Kroger supermarket, was performing routine tasks around the store when she paused by the checkout counters because she saw a shopper place an unscanned package of strawberries into a shopping bag. Lynch, who asserts that she believed the shopper was named Shirley Dill, told the shopper that she did not think the strawberries had been scanned. The shopper scanned the package of strawberries.

Following the incident, Lynch sent an e-mail to one of Kroger's asset protection specialists, Gina Harrison (Harrison). The subject line of the e-mail read "Shirley Dill," and the message stated "I caught her trying to put a box of strawberries in her bag without paying for them. I should have let her leave and got her for stealing, but could you look on camera and see if she got us for anything?"

Harrison investigated the incident and discovered that the Kroger supermarket shopper card (the Plus Card) used for the transaction witnessed by Lynch was registered to Susan Rosenmeier (Rosenmeier), not Dill. When this fact was brought to Lynch's attention, Lynch suggested that Dill must have borrowed and used a relative's Plus Card, because she knew that the shopper she saw was Shirley Dill. Harrison believed Lynch. Harrison continued to investigate by looking through other transactions linked to Rosenmeier's Plus Card. She found two video recordings of the same shopper stealing roughly $40 worth of items from Kroger.

Harrison reported the incidents to the Staunton Police Department, and she showed the videos to Staunton Police Investigator Stewart Green (Investigator Green), the police officer who responded to her report. Harrison, based upon her discussions with Lynch, identified the shopper in the video as Shirley Dill. She told Investigator Green that a Kroger manager knew the shopper and verified the shopper's identity. Investigator Green returned to the police station and ran a criminal history check on Dill. That same afternoon, relying on Harrison's report and Lynch's identification of the shopper, Investigator Green applied for and obtained two petty larceny misdemeanor warrants for shoplifting against Dill.

After obtaining the warrants of arrest, Investigator Green called Dill to inform her that he had two warrants for her arrest for shoplifting at the Kroger store. Dill denied stealing from Kroger and protested that she was innocent. She stated that she had a Plus Card registered in her name and asserted that she used that card to shop at the Kroger store. According to Dill, Investigator Green responded that Kroger did not make mistakes when reporting theft and that Kroger had a videotape of her stealing on two different occasions. Investigator Green ordered Dill to report to the police station the next day.

On March 1, 2017, Dill reported to the police station, as instructed, and she was taken before a magistrate, who placed her on bond, ordered her to remain in the Commonwealth, and prohibited her from visiting the Kroger store. Dill borrowed money and eventually engaged a lawyer to defend her on the charges. The criminal trial was continued multiple times over several months. Shortly before the scheduled criminal trial, in May, her lawyer viewed the Kroger supermarket surveillance video at the Commonwealth's attorney's office. As soon as Dill's lawyer saw the shopper in the video, he told the Commonwealth's attorney that "you would have to be blind to think that that was Shirley Dill." The Commonwealth's attorney agreed and moved to dismiss the charges on the day of trial; the trial court dismissed, with prejudice, the charges against Dill.

In June 2017, another shoplifting incident occurred at the Kroger supermarket, and it involved the same shopper whom Lynch had previously identified as Dill. This time, however, Harrison apprehended the shoplifter at the time of the incident. When Harrison asked for the shopper's driver's license, she saw that the name on the license was Susan Rosenmeier, which was also the name associated with the Plus Card that Harrison used to investigate the thefts for which Dill was charged. Harrison called Investigator Green and told him of the mistake previously made in identifying the purported shoplifter. Investigator Green informed Harrison that Dill had already been charged and that the trial court had already dismissed the cases because it was obvious that Dill had been misidentified.

On January 8, 2018, Dill filed a complaint against Kroger and Lynch in the Circuit Court of the City of Staunton, asserting claims of malicious prosecution, false imprisonment, intentional infliction of emotional distress, and defamation. In response, Kroger and Lynch together filed a single responsive pleading, which contained their grounds for demurrer and an answer. The circuit court denied Kroger and Lynch's demurrers, and on February 12, 2020, the circuit court began a jury trial on Dill's claims.

At trial, during Dill's case-in-chief, Lynch agreed that it was Rosenmeier whom she saw with the unscanned package of strawberries at the checkout counter. She explained that she mistakenly thought that Rosenmeier was named Shirley Dill because, in the past, prior to the incident involving the strawberries, a third party—she did not remember who—had told her that the person now known to be Rosenmeier, was named Shirley Dill. She did not identify the third party or recount the time frame or circumstances surrounding why she had previously asked about the customer's name. Lynch said that she regularly saw Rosenmeier at the Kroger supermarket and had been referring to her as "Shirley." She stated that she had never seen Rosenmeier behave suspiciously, except for that time when she saw Rosenmeier place unscanned strawberries into a shopping bag. Lynch testified that when she saw Rosenmeier take the unscanned strawberries, she had called out, "Shirley," at which point Rosenmeier looked up at Lynch, who then told Rosenmeier that the strawberries had not been scanned.

Lynch admitted that she oversaw two earlier investigations concerning incidents, at or around the Kroger store, involving Dill. The first incident occurred in September 2015 when Dill was injured in the Kroger supermarket parking lot. Lynch wrote the incident report for Kroger and spoke with Dill to ask for Dill's identifying information. In that incident report, Lynch recorded that she believed Dill was "out for something" because Dill's statements were inconsistent. When asked why she thought Rosenmeier was Dill, although she had previously met Dill, Lynch stated that she had no recollection of this prior meeting with Dill and was reminded about the incident report only when it was brought to her attention during the discovery process undertaken in the instant case. The second incident report that Lynch wrote involving Dill concerned a Dr. Pepper sales agent's allegation that Dill was stalking him and had stolen his jacket. Lynch testified that she did not believe the sales agent's claims, nonetheless she conducted an investigation to determine if the sales agent's jacket had been stolen by Dill. Lynch stated that she determined that the jacket had not been taken by Dill, but she did not discuss the issue with Dill face to face.

Despite the two prior incidents she investigated and reported on involving Dill, Lynch claimed that she did not know Dill and would not have recognized her prior to the instant case. She insisted that she had no "ax[e] to grind" against Dill.

Harrison testified that when she received Lynch's e-mail, she recognized the name Shirley Dill. She admitted that she was familiar with the name Shirley Dill because of the incident involving the Dr. Pepper sales agent's claim that Dill was stalking him and had stolen from him. She conceded that, unlike Lynch who had met Dill and spoken with her face to face, Harrison had never seen Dill prior to the instant proceedings.

Investigator Green testified that after his meeting with Harrison, he was no longer trying to confirm the identity of the shopper caught on the video surveillance. He stated that Harrison had given no indication that Kroger was uncertain about the shoplifter's identity. He asserted that Harrison reported that a store manager, i.e., Lynch, knew the shoplifter and identified the shoplifter as Shirley Dill. Investigator Green explained that, based on the video surveillance evidence provided by Harrison and the positive identification made by Lynch, he believed he had probable cause to apply for Dill's arrest. He added that the magistrate, who reviewed his application for the warrants of arrest, evidently agreed with him because the magistrate issued two warrants for Dill's arrest.

After Dill rested her case, Kroger and Lynch moved to strike Dill's case-in-chief, arguing that this was a case of simple mistaken identity. As to the malicious prosecution claim, Kroger and Lynch argued that Harrison and Lynch had probable cause to report Dill to law enforcement because they knew that a person had shoplifted from the Kroger supermarket, and "they thought at that time that they had the correct person." They averred...