BROWN v. SUPER DISCOUNT MARKETS, INC

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Docket Number

A96A1787.

Attorney(S)

Joseph M. Todd, for appellants. Drew, Eckl Farnham, Peter B. Barlow, George R. Moody, for appellees.

Judges

Judge Harold R. Banke.

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Smart Summary

Factual and Procedural Background

Janice Brown and her daughter Kelly Roper filed an action for damages against Super Discount Markets, Inc. (doing business as Cub Foods) and Phillip Smith, a security employee, alleging false arrest, false imprisonment, and assault and battery. The claims arose from their detention on suspicion of shoplifting at Cub Foods. The trial court granted summary judgment in favor of Cub and Smith, and the case is now before the Court of Appeals of Georgia on appeal from that ruling.

Legal Issues Presented

Whether summary judgment was proper given the existence of disputed material facts regarding the reasonableness of the initial detention of Brown and Roper.
Whether the manner and length of Brown and Roper's detention were reasonable as a matter of law.
Whether the alleged physical contact by Smith constituted assault and battery under Georgia law.

Arguments of the Parties

Appellants' Arguments

Brown and Roper testified that Smith physically grabbed Brown’s arm, forcibly moved them, locked them in the office, prevented their departure, pushed Brown down repeatedly, poked her in the back, and detained them for an unreasonably long time (one to one and a half hours).
They asserted that Smith threatened to involve child protective services and used profane and verbally abusive language.
They contended these facts raised triable issues on false arrest, false imprisonment, and assault and battery claims, precluding summary judgment.

Appellees' Arguments

Cub and Smith argued their actions were protected by statutory privilege under OCGA § 51-7-60, asserting reasonable cause to detain based on suspected shoplifting.
They claimed any physical contact was non-confrontational and privileged.
Cub submitted affidavits and statements attempting to impeach the appellants’ testimony and to characterize the lawsuit as fraudulent, though some evidence was held inadmissible.
They asserted the detention was brief (approximately ten minutes) and voluntary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lau's Corp. v. Haskins, 261 Ga. 491 (1991)	Standard for granting summary judgment: no triable issue of material fact when evidence viewed most favorably to non-movant.	Applied to determine whether disputed facts precluded summary judgment.
K Mart Corp. v. Adamson, 192 Ga. App. 884 (1989)	Reasonableness of detention under shoplifting statutes and summary judgment standards.	Used to assess whether detention and its manner could be resolved as a matter of law.
Simmons v. Kroger Co., 218 Ga. App. 721 (1995)	Clarifies that false arrest and false imprisonment claims are not mutually exclusive.	Referenced to correct appellees’ counsel's misstatement of law.
Swift v. S.S. Kresge Co., Inc., 159 Ga. App. 571 (1981)	Security personnel entitled to detain suspected shoplifters when reasonable cause exists.	Supported appellees’ entitlement to initially intercept Brown and Roper.
Crowe v. J. C. Penney, Inc., 177 Ga. App. 586 (1986)	Reasonableness of detention length and manner generally a jury question unless evidence is undisputed.	Distinguished to affirm that disputed facts here preclude summary judgment.
United States Shoe Corp. v. Jones, 149 Ga. App. 595 (1979)	Summary judgment standards and evidentiary burdens in false imprisonment claims.	Applied to support remand for jury determination on detention reasonableness.
Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (1928)	Any unlawful touching, even without physical injury, constitutes a violation of personal rights and assault and battery.	Supported appellants’ assault and battery claim despite absence of physical injury.
Greenfield v. Colonial Stores, 110 Ga. App. 572 (1964)	Defines assault and battery as any unnecessary physical violence constituting harmful or offensive contact.	Clarified the standard for unlawful touching in assault and battery context.
Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876 (1993)	Reinforces that unlawful physical contact constitutes assault and battery.	Confirmed that disputed physical contact raised triable issues.
OCGA §§ 51-7-60, 51-1-13, 51-1-14, 16-8-14(a)(1), 9-11-56(e), 24-3-31	Statutory provisions governing shoplifting detention, assault and battery, evidentiary standards, and summary judgment procedure.	Guided analysis of statutory privilege, reasonableness of detention, admissibility of evidence, and tort claims.

Court's Reasoning and Analysis

The court began by reaffirming the standard for summary judgment, emphasizing that all evidence must be viewed in the light most favorable to the non-moving party. It found that Smith initially had reasonable cause under OCGA § 16-8-14(a)(1) to detain Brown and Roper based on observed conduct suggesting shoplifting, thus justifying the initial interception.

However, the court identified significant factual disputes regarding the manner and length of detention. Brown and Roper's testimony described prolonged detention (one to one and a half hours), physical coercion, and abusive behavior by Smith, which sharply contrasted with Cub's claim of a brief and voluntary detention lasting about ten minutes. The court noted that reasonableness of detention length and manner is typically a question for the jury unless the evidence is undisputed, which was not the case here.

Regarding assault and battery, the court held that any unlawful physical contact, even absent physical injury, is actionable. The conflicting testimony about Smith's use of force and threats raised triable issues under OCGA §§ 51-1-13 and 51-1-14.

The court also criticized appellees’ counsel for misstatements of fact and law, noting the appellants never admitted to shoplifting and that false arrest and false imprisonment claims are not mutually exclusive.

Consequently, the court concluded that summary judgment was inappropriate because genuine issues of material fact existed on all claims.

Holding and Implications

Judgment reversed and remanded.

The Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. This decision means the claims of false arrest, false imprisonment, and assault and battery must be resolved by a jury due to the existence of disputed material facts. The court did not establish new legal precedent but reaffirmed existing principles regarding summary judgment standards and the rights of suspected shoplifters during detention.

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BROWN ET AL. v. SUPER DISCOUNT MARKETS, INC. ET AL.

Judge Harold R. Banke.

Janice Brown and her daughter Kelly Roper sued Super Discount Markets, Inc. d/b/a Cub Foods ("Cub") and Phillip Smith, a security employee, to recover damages for false arrest, false imprisonment, and assault and battery resulting from their detention for suspected shoplifting at Cub. The case is before us on appeal from the grant of summary judgment in favor of Cub and Smith.

Summary judgment is appropriate when the court viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491 ( 405 S.E.2d 474) (1991). Viewed in that light, the evidence was as follows. As Brown and Roper were beginning to checkout at Cub, Smith intercepted them because he had purportedly observed them concealing cigarettes, meat and cheese inside their purses as they shopped. Cashier Cheryl Hall noticed that the women unsuccessfully attempted to remove some of the secreted merchandise from their purses after they were caught. Evette Sanabria, a customer service representative, accompanied Smith, Brown, and Roper to the store office. Sanabria ascertained that the items allegedly purloined totalled $26.66. Smith decided not to prosecute the customers, gave them a criminal trespass warning, and advised them not to return.

Cub and Smith moved for summary judgment asserting that their actions were protected by statutory privilege under OCGA § 51-7-60. They further contended that any touching was non-confrontational and privileged.

Cub offered affidavits from a friend of a Brown family member and a paralegal employed by its counsel, and an unsworn statement from Brown's daughter, Tammy Ropers, to assert that the appellants' lawsuit was a fraud and to challenge the veracity of Brown and Roper's version of events. The friends affidavit was admissible under OCGA § 24-3-31. The tape-recorded statement is inadmissible because it is unsworn. The paralegal's affidavit is inadmissible because the paralegal was not a witness to any statement allegedly made by the parties, Janice Brown or Kelly Roper. Compare Jacobs v. Spano, 193 Ga. App. 447 ( 387 S.E.2d 924) (1989) (nonparty witness to whom party made statement can testify as to party's admissions). See Hassell v. First Nat. Bank, 218 Ga. App. 231, 232-234 (2) ( 461 S.E.2d 245) (1995); OCGA § 9-11-56 (e).

In opposition to summary judgment, Brown and Roper offered their testimony and that of Nichols, Brown's fiance, who witnessed Smith's initial confrontation with the women. All three testified that Smith grabbed Brown's arm and slung her and that Smith shoved Roper into a nearby candy rack. Brown and Roper further claimed that Smith locked the office door, prevented them from leaving, pushed Brown down repeatedly whenever she attempted to leave the office and poked her in the back as she was departing the store. Both stated that they were detained an unreasonable length of time, between an hour and an hour and a half. They further testified that Smith threatened to contact the Department of Family and Children Services to have Roper's child taken away and that Smith was profane and verbally abusive. Held:

Brown and Roper's sole enumeration of error is that summary judgment was precluded by the existence of material disputed facts. We agree. Cub and Smith could not prevail on motion for summary judgment unless the reasonableness of the initial decision to detain Brown and Roper and reasonableness of the manner and length of their subsequent detention were established as a matter of law. K Mart Corp. v. Adamson, 192 Ga. App. 884, 885 ( 386 S.E.2d 680) (1989); OCGA § 51-7-60.

We observe that counsel for appellees misstated the facts by asserting that appellants admitted they were shoplifting. The record clearly refutes this statement. This was not the only time that counsel for appellees made material misstatements of the record. We note that counsel also misstated the law in arguing that false arrest and false imprisonment claims are mutually exclusive. Simmons v. Kroger Co., 218 Ga. App. 721, 722 (1) ( 463 S.E.2d 159) (1995). See Standard 45 (b), State Bar Rule 4-102 (d).

When Smith intercepted Brown and Roper, he claimed that he had observed firsthand that the women were attempting to conceal or take possession of Cub's merchandise. OCGA § 16-8-14 (a) (1). Because Smith had reasonable cause to believe that shoplifting was in progress, Smith was entitled to intercept Brown and Roper and investigate further. Swift v. S.S. Kresge Co., Inc., 159 Ga. App. 571, 573 (2) ( 284 S.E.2d 74) (1981).

However, the circumstances surrounding the detention are more problematic. Although Cub maintains that the detention was brief and voluntary, lasting approximately ten minutes, Brown and Roper vigorously dispute those claims. Contrary to Cub's contention, whether the manner and length of detention were reasonable may be determined as a matter of law only in rare cases where the evidence is uncontroverted. Compare Crowe v. J. C. Penney, Inc., 177 Ga. App. 586, 588 (2) ( 340 S.E.2d 192) (1986). This is not such a case and a jury must determine the reasonableness of Smith's actions on the false imprisonment and false arrest counts. United States Shoe Corp. v. Jones, 149 Ga. App. 595, 597 ( 255 S.E.2d 73) (1979); OCGA § 9-11-56 (e).

Summary judgment must be reversed on the assault and battery claim as well. Notwithstanding Cub's argument to the contrary, any unlawful touching of a person's body, even though no physical injury ensues, violates a personal right and constitutes a physical injury to that person. Christy Bros. Circus v. Turnage, 38 Ga. App. 581 ( 144 S.E. 680) (1928). "`Any act of physical violence (and the law will not draw a line between different degrees of violence), inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery.' [Cit.] Greenfield v. Colonial Stores, 110 Ga. App. 572, 574-575 (1) ( 139 S.E.2d 403) (1964)." Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 880 (3) ( 429 S.E.2d 264) (1993).

Brown and Smith testified that Smith bullied them, made threats, scared them, and used excessive physical force both before and after he took them to the office. The above-stated facts raise a triable issue as to whether Smith's actions constituted assault and battery within the meaning of OCGA §§ 51-1-13, 51-1-14.

Judgment reversed and remanded. McMurray, P.J., and Ruffin, J., concur.