224 So. 3d 173
Ala.2016Background
- On April 16, 2013, store manager Cindy Welch accused Michelle Spence of concealing two items (mineral oil and hairspray) and called police; Spence was arrested, spent a night in jail, and charges were later dismissed for lack of witnesses.
- Welch admitted she did not follow Dollar General’s (Dolgencorp) Shoplifting SOP (ASAP method and directives to avoid accusations or touching), and later left employment without reporting the incident to corporate.
- Spence sued Dolgencorp and Welch asserting invasion of privacy, defamation, false imprisonment, negligent (and wanton) training, malicious prosecution, and assault and battery; Welch was dismissed before trial for failure of service and Dolgencorp was tried alone.
- A jury returned a general verdict for Spence for $100,000; the trial court entered judgment and denied Dolgencorp’s post-judgment motion; Dolgencorp appealed.
- The Alabama Supreme Court found conflicting evidence on key factual issues (what Welch actually saw; whether probable cause existed) and identified which claims were properly supported by evidence and which were not.
Issues
| Issue | Spence’s Argument | Dolgencorp’s Argument | Held |
|---|---|---|---|
| Effect of dismissal of Welch on respondeat superior liability | Dismissal was procedural and does not preclude holding employer liable if employee was negligent | Employer argued servant’s dismissal entitled it to JML on respondeat superior theory | Court: Dismissal without adjudication of Welch’s conduct did not bar suit against employer; no JML on that ground |
| Assault & battery (vicarious liability) | Welch assaulted/touched Spence while trying to stop shoplifting; acts related to store objectives | Employer argued Welch acted outside scope of employment | Court: Welch’s conduct was related to preventing theft and furthered employer’s business; claim properly submitted to jury |
| Negligent training | Dolgencorp failed to effectively communicate SOPs to Welch; inadequate training led to wrongful conduct | Employer argued SOP existed and was adequate; plaintiff offered no proof SOP was inadequate | Court: Evidence that Welch did not recall receiving or reading policies supported submission of negligent-training claim to jury |
| False imprisonment / probable cause for detention | Welch lacked probable cause because items were placed in cart, purse too small, zipper broken; factual dispute | Employer argued Welch observed concealment and had probable cause to detain and call police | Court: Probable cause was fact-dependent and disputed; claim properly submitted to jury |
| Malicious prosecution (signing complaint) | Welch acted maliciously or without probable cause in filing complaint | Employer: Welch subjectively had reasonable belief/probable cause; prosecution not malicious | Held: No sufficient evidence of malice; probable-cause question not appropriate for jury on these facts; malicious-prosecution claim should not have been submitted |
| Defamation (report to police) | Reporting false theft was unprivileged or done with actual malice | Employer: Qualified privilege for reporting crimes; plaintiff must prove actual malice | Held: Qualified privilege applied and record lacked substantial evidence of actual malice; defamation claim should not have been submitted |
| General verdict / Good-count–Bad-count problem | — | Jury returned a general verdict; some claims improperly submitted could have formed basis for award | Court: Because verdict was general and included improperly submitted claims (malicious prosecution and defamation), judgment reversed and case remanded for new trial on properly submitted claims (negligent training, invasion of privacy, false imprisonment, assault and battery) and JML entered for malicious prosecution and defamation |
Key Cases Cited
- Ex parte Atmore Cmty. Hosp., 719 So.2d 1190 (Ala. 1998) (scope-of-employment and intentional-torts principles)
- Whitlow v. Bruno’s, Inc., 567 So.2d 1235 (Ala. 1990) (merchant’s statutory detention privilege and false-imprisonment standards)
- Eidson v. Olin Corp., 527 So.2d 1283 (Ala. 1988) (probable cause judged by facts as they appeared when action filed; court vs. jury on undisputed facts)
- Delchamps, Inc. v. Morgan, 601 So.2d 442 (Ala. 1992) (malicious-prosecution analysis where subjective belief supported by undisputed facts)
- Willis v. Parker, 814 So.2d 857 (Ala. 2001) (malice in malicious-prosecution context; carelessness only infers malice if actor knew act was wrong/unlawful)
- Cook’s Pest Control, Inc. v. Rebar, 28 So.3d 716 (Ala. 2009) (good-count/bad-count rule requiring new trial when general verdict may rest on improper claims)