Tumbarella v. Kroger Co.

• Decision Date: 05 September 1978
• Docket Number: Docket No. 77-4303
• Citation: Tumbarella v. Kroger Co., 85 Mich.App. 482, 271 N.W.2d 284 (Mich. App. 1978)
• Parties: Angeline TUMBARELLA, Plaintiff-Appellant, v. The KROGER COMPANY, an Ohio Corporation, and Kenneth Koberstein and Paul Bregge, severally and jointly, Defendants-Appellees.
• Court: Court of Appeal of Michigan

Page 284

271 N.W.2d 284

85 Mich.App. 482

Angeline TUMBARELLA, Plaintiff-Appellant, v. The KROGER COMPANY, an Ohio Corporation, and Kenneth Koberstein and Paul Bregge, severally and jointly Defendants-Appellees.

Docket No. 77-4303.

Court of Appeals of Michigan.

Sept. 5, 1978.

Rehearing Denied Oct. 23, 1978.

Released for Publication Nov. 13, 1978.

Ralph H. Nelson, Jr., Harper Woods, for plaintiff-appellant.

Hammond Ziegelman Sotiroff & Fishman by Malcolm D. Brown, Detroit, for defendants-appellees.

Before MAHER, P. J., and J. H. GILLIS and McGREGOR, ^* JJ.

J. H. GILLIS, Judge.

Plaintiff was employed by defendant, Kroger Company, in the capacity of a cashier for approximately seven years. On September 8, 1974, plaintiff was discharged from her position for allegedly stealing $5. ¹

Plaintiff vigorously denied taking any money, and commenced an action against defendant for (1) false imprisonment, (2) slander, (3) libel, and (4) assault and battery. The action was removed to Federal court on petition of defendants, but later remanded to Macomb County Circuit Court on June 19, 1976, on stipulation by the parties that there was no diversity or Federal question jurisdiction. Summary judgment was granted to defendants on October 13, 1977.

Plaintiff now appeals as of right from the dismissal of her complaint. ²

The facts alleged by plaintiff leading to her discharge are as follows:

Plaintiff was operating her cash register in a normal fashion on September 8, 1974. Two very unusual transactions occurred near the end of her shift. First, a man ran through plaintiff's line, passing around the waiting customers, and tossed $2 on the counter. He was carrying a six-pack of beer, and he said, "This is for my beer." Plaintiff was not sure of the price of the beer so she put the $2 on her register slab and continued to ring up her remaining customers. Then, within a few minutes, a woman ran through plaintiff's line, carrying what appeared to be a roast. She tossed $5.10 on the counter and left. Plaintiff called for the woman to wait for her receipt but she was gone.

Plaintiff then put the $5.10 on her register slab near the $2 and finished ringing out her customers. Plaintiff then asked another cashier what the price of the beer was, and the other cashier answered $1.79. Plaintiff said that she might as well ring up the $1.79 and put the whole $2 in the register, and then proceeded to do so. Plaintiff then stood at her register trying to figure out what to do with the $5.10. She had no idea what the price of the meat had been, and was afraid it might have cost more than $5.10. Plaintiff decided to wait and ask the night manager what to do with the $5.10 at the end of her shift, when she "rang out" and turned in her key.

Plaintiff then closed her register and went into the store to do some personal shopping before ringing out for the evening. ³ Plaintiff carried the $5 with her while doing her shopping. ⁴ After completing her shopping, plaintiff proceeded to have another cashier ring up her items. While the cashier rang up the items, plaintiff went to her register, got her purse and extracted $4 to be used to pay for the items.

At this point in time, two men approached plaintiff, identifying themselves as security and police officers, and asked plaintiff where the money was. After plaintiff indicated that she did not know what they were talking about, the two men escorted her to the back storeroom, and questioned her about the transaction. They also emptied plaintiff's purse and found the $5 bill. ⁵ The two men then took plaintiff to the front office for a conference with the night manager. After approximately 10 minutes, plaintiff was informed that she was fired.

Plaintiff subsequently contacted her union representative and filed a grievance alleging that she was improperly discharged. After meeting with Kroger's representatives, the union informed plaintiff that they did not intend to pursue her grievance any further.

Plaintiff then commenced the present action against defendants in Macomb County Circuit Court.

I

Plaintiff first contends that the trial court erred in granting defendants' motion for summary judgment in respect to plaintiff's false imprisonment claim.

The basis for defendants' motion for summary judgment is not clear in that defendants failed to specify on the record what sub-rule they were grounding their motion upon. Apparently defendants' motion is based upon GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted, or GCR 1963, 117.2(3), no genuine issue of material fact.

The trial court's opinion also failed to specify which sub-rule it was based upon. Under such circumstances, the propriety of summary judgment should be scrutinized under both sub-rules. See Bob v. Holmes, 78 Mich.App. 205, 210, 259 N.W.2d 427 (1977).

The legal principles involved in reviewing a motion for summary judgment for failure to state a claim were set forth in Borman's, Inc. v. Lake State Development Co., 60 Mich.App. 175, 179, 230 N.W.2d 363, 366 (1975):

"A motion based solely on subsection 1, challenges the legal sufficiency of a plaintiff's claim and is to be considered by an examination of the pleadings alone. * * * Our job as a reviewing court is to accept as true the well-pleaded facts in plaintiff's complaint, against each defendant, * * * and to determine whether these claims are so 'clearly unenforceable as a matter of law that no factual development can possible (Sic ) justify a right to recovery.' " (Citations omitted.)

False imprisonment is the unlawful restraint of a person's liberty or freedom of movement. Stowers v. Wolodzko, 386 Mich. 119, 191 N.W.2d 355 (1971). The restraint must be "false", I. e., without right or authority to do so. Hess v. Wolverine Lake, 32 Mich.App. 601, 604, 189 N.W.2d 42 (1971).

In Hill v. Taylor, 50 Mich. 549, 552, 15 N.W. 899, 900 (1883), our Supreme Court stated the requirement of an arrest:

"There can be no such thing as an action for false imprisonment where the plaintiff has not been arrested; and while, as has been held, manual seizure is not necessary, there must be that, or its equivalent, in some sort of personal coercion."

This statement of the law was approved in Bonkowski v. Arlan's Department Store, 383 Mich. 90, 96-97, 174 N.W.2d 765 (1970), where the Court stated that the first element of false imprisonment was an intention to take the person accosted into custody.

In the case at bar there can be little question that plaintiff alleged this first element of a false imprisonment claim. Plaintiff clearly alleged that the two men who confronted her in the store stated that they were police and security officers and made menacing gestures which gave plaintiff the impression that she was in custody. These actions, coupled with threats of prosecution and jail, expressly and impliedly restricted plaintiff's freedom.

In an action for false imprisonment plaintiff need not allege malice or the absence of probable cause on behalf of the defendants in order to recover. Prosser, Torts (4th ed.), § 12, p. 49; 35 C.J.S. False Imprisonment § 2, p. 624. In Donovan v. Guy, 347 Mich. 457, 464, 80 N.W.2d 190, 193 (1956), which concerned an action for false imprisonment, the Court quoted as follows from the early case of Barker v. Anderson, 81 Mich. 508, 511, 45 N.W. 1108 (1890):

" 'As a general proposition, it must be admitted that it is only necessary for the plaintiff, in an action of this kind, to show that he has been imprisoned or restrained of his liberty. The presumption then arises that he was unlawfully imprisoned, and it is for the person who has committed the trespass to show that it was legally justified.' "

Defendants contend that they had probable cause to believe that plaintiff had money that belonged to defendant, Kroger, in her possession. Therefore, they claim that they had an absolute privilege, as a matter of law, to detain plaintiff. We disagree.

M.C.L. § 600.2917; M.S.A. § 27A.2917 provides that when a shopkeeper suspects a person of "removing or of attempting to remove from a store without right or permission goods held for sale therein", the shopkeeper does Not enjoy the absolute privilege to detain or defame the person.

In actions for false imprisonment, libel, and slander, the person is merely precluded from recovering damages for mental anguish and punitive damages, where the merchant had reasonable cause to suspect the person of stealing. Bruce v. Meijers Supermarkets, Inc., 34 Mich.App. 352, 357, fn. 1, 191 N.W.2d 132 (1971); Bonkowski v. Arlan's Department Store, 383 Mich. 90, 96-97, 174 N.W.2d 765 (1970).

It is the opinion of this Court that the aforementioned statute should govern the present case in that the instant situation is practically indistinguishable from that involved in shoplifting cases. Accordingly, plaintiff should be permitted to proceed to trial on her false imprisonment claim and seek nominal damages even if defendants had probable cause to believe that plaintiff had stolen moneys from defendant, Kroger Company.

We also note that the trial court could not properly grant defendants' motion for summary judgment pursuant to GCR 1963, 117.2(3).

"Motions for summary judgment under GCR 1963, 117.2(3) are not proper unless no genuine issue as to any material fact remains. In passing on the motion, benefit of every reasonable doubt must be given to the party opposing the motion. Summary judgment under this provision is designed to test whether factual support exists for the claim made. Affidavits, pleadings, depositions, admissions, and other documentary evidence must be considered by the court. Courts are liberal in finding that a genuine issue does exist, in order not to infringe upon a party's right to trial of disputed factual issues." (Citations omitted.) Bob v. Holmes, supra, 78 Mich.App. at 211-212, 259 N.W.2d at 431.

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