Gatto v. Publix Supermarket, Inc.

Jun 17, 1980
79-1270
Versions:387 So. 2d 377

High, Stack, Lazenby, Bender, Palahach & Lacasa and Alan R. Dakan, Miami, William J. Williams, Coral Gables, for appellant.

Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.

Before HUBBART, NESBITT and DANIEL PEARSON, JJ.

DANIEL PEARSON, Judge.

The genesis of this case was an incident in which Publix employees, believing that Gatto had shoplifted some paperback books, (1) attempted to retrieve the books, (2) called the police who arrested Gatto, and (3) executed a sworn complaint leading to an abortive criminal prosecution of Gatto. Gatto thereafter sought damages in a suit against Publix Supermarket, Inc. and its store manager, Harold Stepp, charging assault and battery, false arrest and imprisonment, and malicious prosecution.

The trial court directed verdicts in favor of the defendants on all counts, and from those rulings, Gatto appealed. We affirm the trial court‘s rulings in respect to assault and battery and false arrest and imprisonment1; we reverse the directed verdict on the malicious prosecution count.

The evidence adduced by Gatto, viewed in a light most favorable to him, Wheaton v. Bohnert Roofing and Supply Co., 369 So.2d 1016 (Fla. 3d DCA 1979), establishes no more than a casual touching of Gatto‘s hand by Stepp during Stepp‘s efforts to retrieve what he reasonably believed to be Publix‘s property.2 There is no evidence to show that Gatto was placed in fear of imminent peril, that the contact was harmful or offensive to him, or that his personal dignity was offended by the touching. See McDonald v. Ford, 223 So.2d 553 (Fla. 2d DCA 1969) (in which the defendant‘s initial “laughing embrace” of the plaintiff, as distinguished from his later efforts to overcome her resistance, was said not to constitute an assault and battery); Restatement (Second) of Torts §§ 19, 21 (1966).

Similarly, by Gatto‘s own admission, at all times he considered himself free to leave the premises of Publix and was never restrained from leaving. While Stepp eventually called the police, he did so at Gatto‘s insistence.3 The evidence, again viewed most favorably to Gatto, does not support a verdict for Gatto on the false arrest or imprisonment counts.

Notes

1
We treat the false arrest and false imprisonment as one, since the difference is one of terminology only. See Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721, 723 (Fla. 3d DCA 1977).
2
Gatto‘s most forceful testimony on this subject is, “I said — I said that getting — trying to get the books out of my hand, his hands came in contact with either part of my palm or my wrist or my arms. I mean, there‘s where the contact was.”
3
Even if it had been Stepp‘s intention to detain Gatto for the purpose of recovering the goods, in our view Stepp had probable cause to believe that the Publix goods had been unlawfully taken by Gatto. At the time of these events the existence of probable cause for believing that the person arrested committed larceny of the goods held for sale would insulate Stepp and Publix from liability. See § 901.34, Fla. Stat. (1977), repealed by Ch. 78-348, § 3, Laws of Fla. The probable cause to support a temporary detention of a suspected shoplifter by a merchant or the merchant‘s employee is less than the probable cause required to support a later prosecution. Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2d DCA 1976); Rothstein v. Jackson‘s of Coral Gables, Inc., 133 So.2d 331 (Fla. 3d DCA 1961). Gatto‘s counsel at oral argument conceded that Publix employees had probable cause to believe that Gatto had stolen Publix goods and contended merely that this probable cause dissipated when Gatto denied his guilt. Assuming, arguendo, that Gatto‘s denial had the significance attached to it by his counsel, the only cause of action which arose thereafter was one for malicious prosecution.
4
There are six elements to be established in a malicious prosecution case: (1) a criminal proceeding was commenced or continued against the plaintiff; (2) the defendant commenced or caused the commencement of such proceeding; (3) the criminal proceeding had a bona fide termination in the plaintiff‘s favor; (4) there was no probable cause for causing the commencement of the criminal proceeding; (5) the defendant acted with malice; (6) the plaintiff suffered damage. Shidlowsky v. National Car Rental Systems, Inc., 344 So.2d 903 (Fla. 3d DCA 1977); Applestein v. Preston, 335 So.2d 604 (Fla. 3d DCA 1976); Liabos v. Harman, 215 So.2d 487 (Fla. 2d DCA 1968). Even if the trial court were incorrect in concluding that there was no bona fide termination of the criminal prosecution in Gatto‘s favor, we would be compelled to uphold his directed verdict if there was a failure of proof on any of the other five elements. A correct ruling of a trial court will be sustained regardless of the incorrect reasons assigned for the ruling. Congregation Temple De Hirsch v. Aronson, 128 So.2d 585 (Fla. 1961); Green v. Bruns, 102 So.2d 610 (Fla. 1958); Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980). We find, however, that viewed most favorably to Gatto, there was sufficient evidence of the other five elements to warrant submission to a jury. While we earlier said there was probable cause to justify Gatto‘s detention, we note that information learned through further investigation thereafter could establish a lack of probable cause subjecting the defendants to liability for causing the commencement of the later criminal prosecution. Food Fair Stores, Inc. v. Kincaid, supra.
5
By way of example, the ABA Standards, The Prosecution Function § 3.9(a) and (b) (1970), point out the broad discretion vested in the prosecutor in making his decision to prosecute or not:

“3.9 Discretion in the charging decision.

“(a) In addressing himself to the decision whether to charge, the prosecutor should first determine whether there is evidence which would support a conviction.

“(b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that evidence exists which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his discretion are:

“(i) the prosecutor‘s reasonable doubt that the accused is in fact guilty;

“(ii) the extent of the harm caused by the offense;

“(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;

“(iv) possible improper motives of a complainant;

“(v) prolonged non-enforcement of a statute, with community acquiescence;

“(vi) reluctance of the victim to testify;

“(vii) cooperation of the accused in the apprehension or conviction of others;

“(viii) availability and likelihood of prosecution by another jurisdiction.”

6
See Schoenbrod v. O‘Neill, 375 So.2d 42 (Fla. 3d DCA 1979) (Schwartz, J., special concurring opinion).