*1 No. Dec. 24860. [S.F. 1986.] POOL,
GEORGE LLOYD Plaintiff and Respondent, al., CITY OF OAKLAND et Defendants and Appellants.
Counsel Winnie, Richard E. Mark City Attorney, Shragge, Deputy City Attorney, Mintz, Mintz, Giller, Himmelman David Himmelman & David A. Weingard, and David S. for and Appellants. Honler Defendants Garrett, Jr., James E. Cox and Dan L. for Plaintiff Respondent.
Opinion BIRD, C. J. the facts to the a below presented finding Do Stores, negligence against defendant Inc. for the harm (Safeway) when, it caused as of its detect part campaign counterfeit currency, a an erroneous and that customer suspicion unsupported reported counterfeit bill? tendering a on the instructing error in issue of reasonable Does the trial court’s verdict defendant general against City reversal cause arrest require (Oakland)? of Oakland
I.1 1,1977, Pool was arrested George Lloyd plaintiff On the afternoon May $100 bill did not tendering after bear the at a Safeway supermarket the bill Safeway employee, believing might We Trust.” The “In God phrase counterfeit, Police The even- Department. summoned Oakland Mr. Pool’s him in bill was not jail overnight. Pool and held arrested tually counterfeit, he to defraud attempting Safeway. nor as arrest occurred follows. to Pool’s leading
The events incident, had cashed a Pool a local paycheck In the week preceding $100 him few small bills and fifteen bank issued bank. The Wells Fargo bills was from series 1950A—a series upon $100 of these At least one bills. We does not The record shows appear. “In God Trust” the motto which do dated 1950” not bear the through $100 bills “of series valid that all We Trust.” “In God words worth a bill to pay approximately Pool tendered such
At Safeway, line she his change. told him to wait in while got checker groceries. the checker to return. 10 minutes for for about He waited patiently As Pool to ask the new checker began over post. checker took new *6 him out two uniformed Oakland pointed employee his store change, about seized him the arm and him in placed immediately by officers who handcuffs. because was on the alert for summoned Safeway had been
The police stores in the Oakland area had bills. $100 Apparently, counterfeit $100 bills. All number counterfeit an inordinate been receiving many at issue here. to the as events 1Conflicting testimony presented verdict, However, with a “begins this court’s task and ends from a appeal this uncontradicted, evidence, or any contradicted there substantial as to whether determination (Crawford Southern Co. jury.” reached will the conclusion which Pacific added; , 183], Munoz v. Olin italics accord 427 429 [45 Cal.2d cited; generally see 596 P.2d and authorities 1143] 635-636 [156 Cal.3d 289-291.) Witkin, (3d 1985) Appeal, ed. Cal. Procedure Therefore, summary events. in the reflects Pool’s version Conflicts this factual only pertinent. where are noted evidence instructed to watch for such bills in the area had been employees Oakland and of counterfeit status. This $100 to screen indicia screening bills for of the bill list the serial number against was to include process checking had of bogus prepared. serial numbers that bill, booth When the checker it the cashier’s brought Pool his presented for The change manager inspect closely. allowed the assistant checker assistant check the bill manager against testified that she saw the the list of the assistant denied ever manager having serial numbers. list, it. seen such a he had heard about he said although instructed to look for the motto “In had also been Safeway employees believed that $100 God We Trust” on because Safeway management bills bills No basis for this belief that motto be counterfeit. lacking appears might drawn, Indeed, in the it is that the lack of record. if inference may any “In God not an indicium of counterfeit status. We Trust” on bills is series dated did through states that valid “bills police report (Italics added.) not have ‘In Pool’s bill was a God We Trust’ on the rear.” “1950 Series A.” God We Trust”
Nevertheless, saw that “In manager when the assistant counterfeit, bill, the bill as a from he treated missing possible Pool’s When the as instructed. He his suspicions police. reported bill, arrived, next them Pool’s “suspicious” the assistant showed manager bill—i.e., illustrate where to a of more recent “legitimate” vintage—to one be. “missing” motto should line, Pool, of this. When the Mr. knew none in the checkout waiting him, had done nothing wrong officers that he he protested approached or his back. The money that he his groceries get wanted to for merely pay officers his ignored pleas. back and threatened to break his behind his
One officer held Pool’s wrist identification, he which produced. They arm. The officers asked Pool did the bill. At no time they explain also asked him where he obtained that he had done to insist nothing nature Pool continued of the problem. wrong. *7 from,the with his arms behind his back store
As escorted Pool the officers arm, a he was shoved up against cigarette each and an officer holding lot, In the injuries. parking suffer physical machine. he did not Apparently view, him into the then back of pushed the Pool in officers frisked public At no time did advise they station. him to the police car and took patrol him of his rights. station, was fingerprinted, photographed Pool to a strip
At the subject a visual of his search, until inspection included rectum. It was not which he was of learned suspected passing Pool counterfeit currency. this that point station, at the after arriving police officers determined Within minutes valid. The verification bill consisted of procedure $100 that Pool’s instituted by service of for this Department Treasury calling telephone took less than six minutes. entire process The purpose. held Pool
Nevertheless, on overnight police charges interfering Code, (Pen. 148.)3 They offered Pool a chance investigation.2 with a police call, which he refused. Pool was released the following to make a phone afternoon. action and intentional against Safeway negligent an
Pool brought distress, arrest, false and false Pool infliction of emotional imprisonment. arrest, (i.e., false assault and for false imprisonment, battery sued Oakland arrest), effectuate the to intentional infliction of emo- excessive force using distress, (42 1983, 1985). §§ violation of his civil U.S.C. rights tional case, in At the heard 1981. close of by jury The case was plaintiff’s section 581c nonsuit under Pro- moved for Code Civil the motion court as to all claims granted cedure.4 The trial against Safeway, infliction emotional distress cause of action. except negligent to instructions on the issue of given negligent made no objection distress. infliction of emotional testimony allege and the officers’ were report that while the officers police 2Both the store, bill, he “flailed his arms” and attempted grab to his escorting Pool from the lapel. one officer’s The officers claim that Pool was placed to clipped which was flailing his arms. began handcuffs until he grabbed cigarette Pool was arrested when he onto arresting The officer testified go they escorting report as were him from to let the store. The machine and refused cigarette incident. The report machine states that Pool refused no mention of the makes containing groceries. his cart go shopping let of a that she observed the booth glass testified incident from a enclosed Safeway checker Although shouting, she heard some she Pool taking her break. did not see where she was Pool, up grab come him him the arms and escort arms. She saw flail his vantage point, appeared Pool cooperative. From her
from the store. are to Penal Code unless otherwise noted. references 3All further “(a) provides plaintiff 581c in relevant part: section After the of Civil Procedure 4Code statement, or the in a opening presentation her of his or her evidence his or completed has defendant, waiving right without his offer evidence the event by jury, the trial judgment move for a granted, may nonsuit. motion is not granting “(b) presented, presented, supports the evidence or to be appears If action, grant not all of the issues involved in but the court shall the motion as to some proceed remaining. the action shall ...” issues and as to the issues as to those the motion
1059 motion, the court refused to instruct own civil On its on the jury Oakland, no evidence of finding claims or against rights city policy civil The rights. Pool of his court submitted the other deprive conspiracy (assault and false arrest battery, Oakland against claims false impris- onment, distress) of emotional intentional infliction Oakland jury. verdicts for each cause of action. did not Oakland request special on the issue arrest, instructions of false fact-specific did which request to deliver. trial court refused verdict each against returned defendant general and assessed $45,000. moved for a judgment Safeway
damages notwithstanding trial, alternative a new claiming verdict or in the the evidence not did findings negligence. also jury’s Safeway argued award indicated magnitude damage improper consideration of sym- Oakland moved for a trial, or new pathy, passion prejudice. claiming on the instructed charge false improperly arrest and that the The trial court denied award was excessive. both damage motions and this followed.5 appeal
II.
be
not at issue in this
by
The discussion
what is
may
simplified
noting
it owes its
case.
concedes that
customers a
duty of due care to
(Cf.
Molien v.
them to foreseeable harms.
avoid
Kaiser Foundation
exposing
(1980)
27 Cal.3d
923
Hospitals
Cal.Rptr.
[167
582 P.2d duty funds]; 109] [bank’s misappropriation of Bank America (1963) Weaver v. [30 Cal.Rptr. to honor to customer duty duly
P.2d
presented
)6
644] [bank’s
check].
the trial court’s instructions
challenge
does not
explaining the due care
does
challenge
to the
trial
jury. Safeway
standard
court’s instructions
granted
(Cal.
the effective date of
hearing
Proposition
Const.,
before
5Since
art.
VI,
12),
are
defendants
before
all claims raised
both
this court.
judged
is to
that its conduct
general
concedes
under
6Since
negligence prin
opinion as
effect or
expresses
court
no
ciples,
applicability
holdings
15],
Hughes
P.2d
A found credible second assumes that could have theory the jury numbers assistant list serial manager’s he never saw the testimony that facts, of Safeway and did check it. the failure Under this of the version negligent, especially the assistant a of the list was give manager copy since he was in charge day. store that list, be found could Safeway of the existence of the
Finally, regardless the “In regarding liable for information misleading giving incomplete without We that bills Trust” motto. its Safeway God instructed employees counterfeits. the words “In God Trust” as We should treated potential in circulation failed to tell valid bills current its employees issues of its which lack that motto. could told have employees motto, the Treasury them call bills circulation lack or instructed motto. service to bills lacking Department’s verify validity any needless resulted in the took none of these This carelessness steps. harassment and arrest of an innocent customer. doing something which “Negligence 7The court instructed the as follows: is the reasonably something which a reasonably prudent person a would not do or the failure to do by evidence. person would do under similar to shown
prudent circumstances those ordinary “It is failure to use or reasonable care. ordinary prudence would use “Ordinary persons or reasonable care is care which similar to those shown damages themselves under circumstances in order to avoid or others by the evidence. extraordinarily is not up whose as standard person “You will note that conduct is set individual, one, ordinary but of reasonable exceptionally person cautious nor the skillful prudence. to ask and determining negligent is is helpful person or not a “A test that is whether in the same situation and ordinary if been person prudence answer whether or not had might anticipated that someone possessed knowledge, he foreseen or of the same would have result of damaged have been or as a his action or inaction. avoided, reasonably could be then ‘yes,’ “If and if the or inaction that answer action negligence.” not to would be avoid it some evidence, heard all of with Having agreed jury apparently or all of Pool’s and found reasoning Safeway negligent. *10 contends, however, the jury’s that the not
Safeway record does sum- verdict because care its of reasonable Safeway discharged duty when bill. moning with a presented “suspect” that the an argues have conducted police, should Safeway’s employees, of the bill’s investigation validity. contentions, that
In these rule reviewing this court is guided by the trier of fact determines whether a satisfies defendant’s conduct (1985) (Isaacs standard of care. applicable Hospital v. Memorial Huntington 112, 356, 653]; 38 Cal.3d 131 P.2d v. Ewing 695 Cal.Rptr. Cloverleaf Bowl, Keeton, 399; 20 Torts supra, Cal.3d at & see Prosser p. generally, ed., (5th 1984), 236-237; Weiner, § and the Jury The Civil Trial pp. Weiner].) Law-Fact When Distinction 54 Cal.L.Rev. 1867 [hereafter conduct, reasonable minds differ as to the reasonableness of defendant’s may neither the trial court nor an its own judgment court substitute appellate may (Schwartz and override the v. determination of the fact. as the trier of jury Bakery Helms Limited 67 Cal.2d 68]; Torts, 328C, §
P.2d Rest.2d b.) com. find that the jury Accordingly, erred, this court would have to find has conduct “clearly Safeway’s . . . conformed to what the and that no reasonable community requires, could Keeton, reach a jury (Prosser § conclusion.” contrary & supra, 237; cf., Bowl, 398; v. at p. Ewing at Mosley Cal. 3d p. Cloverleaf Arden Farms Co. P.2d Rest.2d Torts, 328B, § (d).)8 subd. court, then,
This must view the evidence most to Pool9 and favorably determine whether a reasonable could have found that jury conduct Safeway’s fell short of care. ordinary had adopted program counterfeit stop passage
bills
its Oakland stores.
aAs
of this
part
instructed
program, Safeway
its
that lack of the “In God We
an
employees
Trust” motto was
indicium
of counterfeit status.
the record contains no evidence to support
belief
the absence
is a
Safeway’s
feature
counterfeit
motto
Witkin,
(8th
(4
8This
only
Summary
threshold
reached
in “rare
of Cal. Law
cases.”
Torts,
1974)
2756; see,
ed.
e.g.,
Stanley
Richards v.
currency.10 these Legitimate without currency Therefore, neither of the motto absence could jury infer properly increased nor bill was counterfeit. Pool’s decreased the likelihood that bills business,
Given the existence of valid volume and the of Safeway’s have found the “In lacking motto, reasonably God could We the Trust” with a le- foreseeable that a eventually present customer would fore- bill it was gitimate Similarly, We Trust.” lacking words “In God seeable that an would counterfeiting innocent customer suspected arrested, and would subjected suffer investigation, perhaps have Therefore, emotional could distress as a reasonable a result. *11 in concluded such a risk that it was creating should have foreseen Safeway its motto as a instructing possible bill employees lacking to treat a counterfeit.
The also to could had ability protect have Safeway found that customers from could have: this effort. Safeway risk of harm with minimum (1) informed God We its lacked the “In bills that some valid employees Trust” of serial numbers legend; accurate list an prepared and distributed found on bills; to counterfeit its employees telephone instructed 24-hour of suspect on the Treasury validity to check Department service bills. The record service shows Treasury Department that by calling were minutes. able to bill within six of Pool’s verify legitimacy
Merchants of of handle thousands purchases size Safeway’s presumably credit card or estab- has personal undoubtedly check Safeway each day. lished a means aid of transactions without the of such verifying validity that it is reasonable repeated not contend police intervention. does Safeway summon as to the validity it is uncertain police whenever such customer’s check or credit the preferred approach card. Presumably cases is to refuse to does not Safeway explain tender. accept questionable different why standards this case. should govern the risk Each of the reduced have significantly methods would foregoing These of harm to the incident in this case. averted Safeway customers and undermined Safeway’s alternatives were not would not have burdensome and Nevertheless, were not anticounterfeit program. they employed. found, evidence under the a reasonable could have
Accordingly,
. .
case,
.
should have “foreseen
this
presented
although
training
academy
Phyllis Benally
10Officer
that her
of the Oakland Police testified
Trust” was
subject
lack of “In God We
on the
of counterfeit bills never instructed that the
an indicium of counterfeit status.
bill,
Pool
the motto.
through
1950 do not bear
11Pool’s
all
bills dated
series
bill
incident at issue here.
obtained his
from a bank the week before the
action,”
someone might have been
damaged ...
as a result of [its]
did not act with that
degree
care “which
of ordinary prudence
persons
ante,
would use in order to avoid
fn.
(See
damages
. . .
. . .”
others .
7.) This court cannot disturb the
Helms
v.
(See
jury’s
Schwartz
finding.
Limited,
Bakery
supra,
it is not liable because its of Pool’s negligence was not cause the proximate injuries. According un of an Safeway, Pool’s the result injuries were foreseeable superseding cause. unforeseeable that it was Safeway claims that the police officers would fail to validity investigate thoroughly Pool’s bill before deciding so, arrest him. argues, Had done they no emotional harm would have befallen Pool. like
Foreseeability, reasonableness, the jury. fact for is a question (Weirum General, v. RKO Inc. 15 Cal.3d Cal.Rptr.
539 P.2d Bigbee Tel. & Tel. Co. Pacific 947].) 665 P.2d be disturbed will not jury’s finding if there is ‘“room for a reasonable (Ibid., difference quoting of opinion.’” *12 Schrimscher v. Bryson (1976) 125].) 58 Cal.App.3d 664 [130 Cal.Rptr. “ ‘ is [Fjoreseeability not to be than measured is more what by probable not, but includes whatever is life likely of modern enough in setting that a reasonably thoughtful [person] would of it in guiding take account conduct,”’ practical (Bigbee, 57, citation.) supra, 34 Cal.3d at p.
Moreover, “what is
to be
required
of
foreseeable is the
character
general
the event or harm . . . not its
(Id.
precise nature or manner of occurrence.”
12This decision is in line with those
finding
of other
of
states
a
permitted
which have
liability against merchants who fail to
simple
calling
take
steps
allay suspicions before
(See,
police.
e.g.,
the
428,
Montgomery
(1950)
Harrer v.
P.2d
Ward &
Co.
Mont. 295 [221
[jury could
432]
have found
negligent
merchant
as
police
for
customer to
reporting
suspected check-forger
identification;
without
asking
first
for
“it could be found
defendants were
negligent
careless
calling
police
regard
and . . . acted without
plaintiff’s
rights
cause”];
and without reasonable
S. H. Kress
v. Bradshaw
& Co.
Cal.3d Rest.2d 585 P.2d see generally Torts, a.) reason, com. For is liable defendant negligent injuries brought about an if the by cause intervening origin of independent or, cause . . . fore “intervening was foreseeable if not the defendant by seeable, it caused either of a If injury which was foreseeable. type [if] then the towards defendant of liability [element is not relieved satisfied] Dist., . . . .” plaintiff (Hoyem Manhattan supra, Beach Sch. City 521.) Therefore, Cal.3d at p. if Pool was a foreseeable injury call to inter consequence Safeway’s and the police resulting police vention, the foreseeability officers’ police investigation incomplete is irrelevant.
It is settled that arrested of the foreseeable being is one police consequences (Weaver transaction v. Bank reporting as illegal. America, Likewise, supra, 433-434.)13 59 Cal.2d at an in pp. accusing nocent customer of felonious conduct and could fore in the calling police conflict, arrest, lead to a seeably escalation of the investigation, all of which would cause (See, emotional v. Mont distress. Harrer e.g., Co., Ward & gomery Therefore, 428.) could conclude reasonably that when its Safeway reported unsup ported counterfeit, that Pool’s suspicion it created a foreseeable risk that an innocent customer would hands suffer emotional distress at the of the police.
Since the foreseeable, resulting injuries were of the acts of the police *13 ficers—even if not wrongful—do relieve for Pool’s liability of (See Dist., injuries. Hoyem v. Manhattan Beach 22 Sch. Cal.3d City 521; Blecker v. 1195, at p. (1985) Wolbart 167 1201-1202 Cal.App.3d [213 Weaver, 13In defendant Bank of sought liability injuries America to avoid for it caused by wrongfully reporting checking a person sought purchase account to be invalid. A items to by tendering at a store a check drawn upon checking his Bank America account. When of check, the store contacted the verify bank to validity reported the of the bank the account the closed. The merchant then police, plaintiff. summoned the who the arrested sought Plaintiff damages against Bank of The bank claimed that America for his arrest. it could not be held liable police because the calling store owner’s act of the superseding arrest were causes of plaintiff’s injury. This court plaintiff held that negligent could bank. The court against recover in tort reasoned that it could not hold a so remote intervening “as matter of law arrest was possibility a that the bank of ‘[B]y could not . . the exercise reasonably have foreseen it. . occur, diligence, reasonable the bank could would consequence have foreseen this exact for the issuance of a check offense upon public a bank meet it is a without funds or credit to which, notoriously, frequently the drawer of imprisonment results in the arrest and of (59 434, (1929) check.’” Cal.2d at 120 p. quoting Savings & Trust Co. Mouse Central 868, 870].) Ohio St. 599 N.E. [167
1065
Thus,
law,
this court cannot
aas matter of
that Pool’s
781].)14
say,
Cal.Rptr.
a foreseeable
was not
risk created
failure
by Safeway’s
emotional distress
of felonious conduct
reporting suspicions
care
exercise due
to
jury’s finding
supports
Safeway’s negligence
evidence
police.
Pool’s emotional distress.
cause of
awas
proximate
for
argument
overturning
jury’s negligence finding
final
Safeway’s
merchant entitles
to
as a
special protection. Safeway
its status
is that
to detain a
statutory privilege
merchant’s
customer—for
relies on the
a reasonable
cause to
conducting
investigation—upon probable
purposes
490.5,
1976,
1,
(Former
(e);
1131,
§
subd.
§
Stats.
ch.
suspect shoplifting.
5048;15
(1936)
v. S.H. Kress & Co.
Collyer
also
structions
embodying
principles.
may
Oakland
does
14Although
joint
the misconduct of the
not relieve
Safeway might have
liability
injury,
by forcing
for Pool’s
minimized its ultimate loss
several
damages.
might
the lion’s share
Oakland
have
Oakland to contribute
been found
injury
Safeway requested
had
ordering
for Pool’s
instructions
primarily responsible
(see
(1975)
itself and Oakland
apportion
degree of fault between
Li v. Yellow
Cab Co.
858,
1226];
Motorcycle
532 P.2d
Cal.Rptr.
American
Superior
be raised for appeal. (1968) 68 Cal.2d of Westerman 29, 267, 517]; 437 P.2d Cal.Rptr. see also Willden v. Washington [66 631, 636, 18 Cal.3d 69, Nat. Ins. Co. fn. 5 Cal.Rptr. 557 P.2d [135 501]; Audubon Sage Society, Sea & Inc. v. Com. Planning 357, 412, 668 P.2d Cal.Rptr. [appellate [194 664] consideration of issues not raised at trial legal” “purely permissible if facts only undisputed]; v. Barrett Mobile Home Downing Inc. Transport, 38 Cal.App.3d 519, 277].) Cal.Rptr.
However, even if this court were to consider the merchant’s privilege issue, would Pool’s here not be recovery precluded. plain language of ‘‘detentions”; refers to only former section 490.5 it does not grant protection Furthermore, summoning from liability police.16 such assuming available, has no evidence that it protection presented had the cause believe that Pool’s bill was counterfeit. requisite probable next concern the Safeway’s arguments issue of damages." Safeway have that the court should instructed the argues that Pool’s failure call from have jail may make constituted phone contributory negligence. to seek Pool’s failure his release from was not jail contributorily because it did not contribute as a cause of his negligent, underlying injuries. “[Contributory negligence negligence before plaintiff any damage, (Prosser, or invasion of his has occurred . . . .” rights, 458; any supra, at p. (7th 1986) 77.) see also BAJI No. 3.50 ed. The fact that Pool p. refused relevant, all, would be if at to make a call to a claim phone that Pool failed he suffered as a result of mitigate damages Safeway’s negligence and misconduct. “The rule of subsequent Oakland’s [mitigation damages] occurred, after a has comes into but while play legal wrong some damages (Prosser, 458; .” still be averted . . . at may see also p. Valencia v. 840, (1944) 23 Cal.2d Shell Oil Co. Jarchow v. Tran 917, samerica Title Ins. Co. 48 Cal.App.3d 949-950 Witkin, 470]; see (8th Torts, of Cal. Law generally Summary 1974) ed. 3158; 14.67.) § BAJI No. p.
Although general instruction Safeway requested on contributory neg- it failed to an instruction on ligence, request mitigation (Cf. of damages. here, 490.5, (e)(1) 16In at the time of the events issue section provided subdivision that a merchant could “detain a person for a reasonable time for conducting the purpose of investigation an in a reasonable manner” if the merchant had “probable believe cause” to unlawfully person “attempting take or unlawfully taken from ha[d] merchandise (Italics added.) premises.” the merchant’s The statute provided “any further a defense to arrest, false imprisonment, action for false by any slander or unlawful detention brought detained,” “[(1)] probable if the person merchant had cause to believe had person [(2)] to steal merchandise attempted stolen or reasonably under acted merchant [if] 490.5, all (§ (e)(4); the circumstances.” subd. Stats. ch. italics added.) Safeway’s contention that the statute expressly permits a merchant “to summon ‘police’ wholly on reasonable cause” is without merit.
1067 3.50, instructions], [contributory negligence BAJI No. with supra BAJI instructions]; 14.67, of damages Nos. 14.68 see [mitigation 4 generally 3158-3159; 870, (1984 Witkin, id. 737A-737C, § §§ supra, pp. supp.) case, “in a civil each of the 412-418.) Generally, parties must pp. propose in instructions accordance and with his complete comprehensive theory so, do do not court has if the no litigation; parties to duty instruct Inc., v. Barrett Mobile (Downing on its motion.” Home own Transport, 523; accord, 519, v. Agarwal 38 supra, (1979) Johnson Cal.App.3d 25 141, 932, 603 P.2d Cal.3d Cal.Rptr. 950-951 Willden v. Wash [160 Co., 631, 636; 18 Cal.3d see Nat. Ins. also ington supra, Barrera v. De 166, 170 724]; Witkin, La Torre Cal.2d 7 48 Cal. [308 Procedure Trial, 242, (3d 248 to 1985) ed. p. propose instructions at [failure trial to raise the issue on However, precludes right appeal].) party’s as to there is some to measure of the effect damages, authority that a judge instructions, (See is sua required give proper sponte. Agarwal v. Johnson, 951, 25 Cal.3d at v. citing Pepper Underwood 343], 708-709 Cal.Rptr. overruled Cal.App.3d on other Cal.3d grounds Turney Stout Cal.Rptr. 1228].)
586 P.2d court need not reach this issue. Safeway no presented evidence to its call theory phone would have support shortened Pool’s Therefore, would have stay had no jail. jury means of determining whether, extent, what and to call would phone have reduced Pool’s dam- was not ages. Accordingly, entitled to a mitigation of damages instruction. final contention is that the
Safeway’s $45,000 award jury’s excessive in light injuries Pool plainly suffered. Oakland raised an identical claim. Defendants argue size of the verdict indicates that motivated jury by passion prejudice. court must reviewing give considerable deference in
“[A] matters relating in the first instance damages to the trial court secondarily.” (Merlo Acc. Ins. v. Standard & Co. (1976) 59 Cal.App.3d 17 [130 Life 414]; see Bertero v. National Cal.Rptr. General Corp. P.2d 608].) The trial court’s is entitled ruling “because been to deference having present trial, at the the trial judge more familiar with the necessarily evidence.” (Ibid.) Here the found Pool’s warranted an injuries $45,000. award of The trial court found sufficient evidence award and denied defendant’s motion for this issue.17 new trial on
17Safeway points several cases in which $45,000 damage awards of less than *16 showed that Pool was 56 old at the years
The evidence time of the incident been arrested. His indicated that had never he suffered testimony and great humiliation from his confrontation with in and indignity police, front and in the customers lot. He passersby parking of both suffered in the booking, fingerprinting, further indignity photographing process. he was as a result testified that distressed particularly being subjected He and visual of his rectum. search strip inspection to a that he suffered effects from lingering Pool also testified his ordeal. His him that his blood was pressure higher doctor informed his heartbeat Pool that he after the incident. testified would never irregular was forget he the incident as as lived. long evidence, award cannot be said to
In of this “so jury light grossly as to that it is the raise a result presumption passion or disproportionate (Bertero Corp., supra, v. National General 13 Cal.3d at prejudice.”’” (1969) 1 v. Cal.3d Cunningham Simpson 308-309 quoting p. 39].) this court should not Accordingly, disturb award. the jury’s sum, determination acted negligently the jury’s
In calling Moreover, as a matter of law. neither is not unreasonable the police First, the defenses withstand action scrutiny. claimed here Safeway’s of Pool’s cause” as a injury not an unforeseeable matter “superseding Second, “merchants’ does the so-called not Safe- protect privilege” of law. rate, and, to raise issue at trial at any failed because way, calling not bar verdict liability police. Finally, does privilege Therefore, law. this will as a matter of court affirm excessive Safeway. against judgment
III. verdict should be jury’s general contends over Oakland instructed the court on the improperly the trial false because turned excessive. “there is found to be no fixed or were absolute harm nonphysical (Merlo monetary value of emotional distress.” compute the Standard by which standard Co., 17; p. at accord Bertero Cal.App.3d v. National General Acc. Ins. &Life Therefore, 64.) awards in p. citation to other cases is of no value Cal.3d supra, 13 Corp., (See 12.) damages case. in this id. at fn. assessing propriety court Oakland, the trial According of action. court erred in sub- arrest cause *17 reasonable, or of cause to the probable, mitting question jury.18 clear that the of question The law is cause to a probable arrest is (Roberts the trial court. v. to be decided City issue Los legal Angeles of 625, (1980) 320]; 629-630 Gibson v. J.C. Cal.App.3d Cal.Rptr. [167 109 Co., (1958) 165 1057]; Inc. 645 P.2d Penney Cal.App.2d Aitken [331 134, 141 (1949) 788].) P.2d White 93 The trier of fact’s Cal.App.2d cases is to resolve conflicts function in false arrest in the Ac evidence. cause, is where the evidence with conflicting cordingly, respect probable facts, of the court to instruct the ‘“it as to duty jury what if [is] established, (Gibson, would constitute cause.’” probable 165 supra, Roberts, 645; Aitken, 630; at 109 supra, Cal.App.2d p. Cal.App.3d p. 141.) The 93 Cal. 2d at then supra, jury decides App. whether the evidence factual supports necessary findings. of the existence instructional error alone is insufficient a verdict. A defendant overturn must also jury show that the error was Proc., (Code 475) § Civ.
prejudicial resulted in a “miscarriage Const., VI, (Cal. 13). (See Witkin, § art. justice” Procedure, Cal. supra, 334-335.) Appeal, pp. “miscarriage “‘[A] should be justice” court, declared when the “after an only cause, examination of the entire evidence,” is of the including “opinion” it is reasonably probable more a result favorable to the appealing would party have been reached (Seaman’s the absence of the Service, error.’” Direct Buying Inc. v. Standard Oil Co. 36 Cal.3d 686 P.2d Cal.Rptr. 1158].)
Here Oakland that the error argues was prejudicial because “the have with evidence well may agreed favorable to defendants supporting cause, a factual of reasonable but found finding liability by misapplying for reasonable cause.” legal standard forth cases have set
Recent several factors to be considered in an error prejudicially whether affected determining “(1) verdict: given following instructions were seriatim: “A 18The false arrest is taking the unlawful custody. of a person into warrant, “Now, may, lawfully without peace officer person arrest a whenever he has person to be to believe that arrested has reasonable cause committed a criminal offense. “Now, cause for the plaintiff case, reasonable arrest of the to constitute in this the evidence had police officers reasonable must cause to establish believe that the plaintiff offense. committed a criminal true, that the foregoing all the evidence fact you you “If find from must find that there plaintiff. arrest the cause to was reasonable true, you is not that such fact must find that you “If find there was not reasonable cause to arrest him.” [citations]; (2) whether issues of conflict in the evidence on critical degree to the instruction’s have contributed argument may respondent’s [citation]; rereading effect whether the jury requested misleading [citation]; (4) the evidence the erroneous instruction or of related [citation] instruc [citation]; the effect of other closeness verdict jury’s (LeMons University v. Regents tions in the error remedying [citations].” 21 Cal. 3d of California Service, Co., Direct Inc. v. Standard Oil Seaman’s Buying 771.) at p. *18 factor, on “the conflict in the evidence
As to the first of degree issues,” had the was whether the Oakland police critical critical issue only or resisting], delaying], reasonable cause to arrest Pool for “willfully (§ 148.)19 them in of their duties. The police the obstructing]” discharge at them or otherwise had such cause if believed that Pool swung officers they (1970) 12 (Cf. In re Joe R. their efforts to take him outside. resisted 80, 83-84, found where Cal.App.3d Cal.Rptr. 530] [obstruction defendant, alia, flee].) the inter hit and to Although officer attempted on threw his identification that Pool also shouted obscenities and testified counter, constitute a violation these actions would not the checkout alleged an officer neither would have “actively impeded 148 because of section (See v. Allen 109 Cal.App.3d of his duty.” People the performance v. Little see also District Columbia fn. 1 force [“Although L.Ed. 70 S.Ct. U.S. (1950) 339 460] of the offense an ingredient force is not always indispensible threatened or duties, mere remonstr an officer in the his discharge with interfering the are not held to be equivalent criticisms of an officer usually even or ances interference”]; 44 A.L.R.3d cases collected Annot. unlawful 1033-1036.) arms,” officer, his at an ever “flailing swinging denied emphatically Pool he was admittedly when ordered. Although store leave the refusing or innocence, he identification upon request produced his and protested upset ordered to do so. According when officers with the store left the at one of the to either swing and attempted his arms Pool flailed police, of one officers. One of the from lapel $100 bill his or grab officers machine as let of a cigarette refused to go also Pool testified officer does store. The report out of the him escort attempting were they resists, any willfully delays, or obstructs who person “Every that: provides 19Section office, discharge any duty of his attempt to officer, discharge or in the peace or officer public exceeding not by a fine one thousand punishable is prescribed, punishment when no other exceeding year, one or both county jail not in a ($1,000), by imprisonment or dollars imprisonment.” fine and such incident, mention that Pool refused to not machine but alleges cigarette of a cart. let go shopping matter, would
Were this the evidence on the conflict be only presented and a that the error was be might instructional finding prejudicial present witness, checker, supportable. agreed neutral only Pool’s the officers Pool leading with version of facts. She observed out of the store and testified that not his arms flailing Pool was appeared whole time. cooperating witness, Since Pool’s neutral version facts was confirmed by only isit resolved the in critical issues in Pool’s favor. likely conflict so, If held because no Oakland liable there was reasonable jury properly Thus, cause for arrest under Pool’s facts. version of the the first factor does finding prejudice. factor, to the second Turning arguments does not appear *19 the (Seaman’s “‘contributed to .’” jury instruction’s effect . misleading . Service, Co., Direct Inc. Buying 771.) v. Standard Oil supra, 36 Cal.3d at p. the To contrary, appears that arguments counsels’ reduced significantly effect the any prejudicial erroneous instruction have had. Both might parties’ on the closing arguments issue of cause the reasonable focused at jury’s tention on the critical facts a the needed to that arrest was finding improper.
Oakland’s argument was closing limited the persuading jury officers’ version of the facts true and that Pool was The lying. was read the text of section jury 148 and informed that the specifically critical fact was whether the officers Pool thought at them. swinging As expressed jury, Oakland’s case on the hinged that Pool finding to either strike Officer or “attempted retrieve the bill or Callaway appeared to be one of those doing acts.”
Pool with Oakland’s if agreed that he flailed argument his arms or grabbed bill, i.e., for the officers, to be the appeared striking the arrest was However, he that proper. argued the officers were and that the lying, jury should believe the checker’s that Pool testimony with the cooperated as him led from the store. Pool’s they concluded attorney his argument the “Mr. stating: Pool isn’t the jury going fight at or policeman time, town, whatever his at the not in age this not in that area. He coop- erated.” sum,
In both to the that if it parties suggested jury believed the officers’ facts, Thus, was not version of the Oakland liable for false arrest. the closing minimized of incorrect the effect instruction on arguments significantly cause. attention on the critical to a reasonable facts By focusing jury’s cause, informed implicitly of reasonable finding parties jury in version of the facts was a verdict acceptance necessary Oakland’s such, As reduced Oakland’s favor. parties substantially possibility found Oakland liable. believed Oakland jury yet Accordingly, the second factor weighs against finding prejudice. Seaman’s An further indicates that the in- through assessment factors structional error had little effect. Since did not ask for prejudicial jury instructions, further factor because the argues against finding prejudice for a reasonable cause did not ask instruction or evidence rereading against to that issue. Factor also because the weighs prejudice relating a clear for Pool. victory 11-to-1 verdict was jury’s fifth factor ‘“the effect of other in Seaman’s instructions Finally, Service, (Seaman’s Direct Inc. v. the error . . . .’” Stan- Buying remedying Co., 771.) Since none of the other instruc- dard Oil cause, could not have remedied the they tions to reasonable pertained Therefore, the fifth factor in favor of weighs finding instructional error. prejudice. action, one causes consideration multiple
Since this case involves weighs against finding of prejudice. addition to those listed Seaman’s Oakland after in- against verdict general being here rendered intentional inflic- battery, causes of action—assault structed several *20 on distress, and arrest and Oakland imprisonment. tion false of emotional as the false arrest cause action. Oakland to alleges only instructional error Therefore, this does not which court know did a verdict. not ask for special the on If relied on finding jury relied liability. cause of action the jury arrest, error is instructional irrelevant a than the other false theory likelihood that the result further reduces the This clearly not prejudicial. the cause Oakland absent reasonable improper would have been favorable instruction. for instructional error above, may court reverse
As an appellate discussed would have occurred that a different result if it is only reasonably probable Service, Inc. v. Standard (Seaman’s Direct Buying in the absence of error. Co., 770.) record in of the this Reviewing light at p. Oil that ruled above, would have jury it does not appear set forth factors instructed. been favor had it properly Oakland’s attention on the critical focused jury’s arguments closing parties’ facts of Oakland’s version acceptance facts and suggested Also, witness neutral cause. the only of reasonable to a finding necessary not reasonably probable facts. Therefore it is version of the Pool’s supported has given ruled in Pool’s favor. Oakland but that the believed Oakland verdict the general occurred. Accordingly, that this no reason suspect affirmed. Oakland will be against
IV. currency, to detect counterfeit When undertook campaign Safeway innocent subjecting exercise due care to avoid also accepted duty with distress of a confrontation police customers to the emotional public concluded that failed to discharge officers. The jury reasonably that duty.
The record shows that its Safeway gave incomplete, pos- employees incorrect, motto bills lacking information about sibly validity an innocent the risk that “In God We Trust.” created Safeway thereby Although customer would be wrongly committing felony. suspected foreseeable, means risk failed to utilize available easily this Therefore, the evidence which it could have harm. potential avoided jury’s sufficient finding negligence. Furthermore, the conduct of the Oakland is not a police superseding such that for its cause of Pool’s is relieved of injury liability It is foreseeable call to the and the negligence. Safeway’s resulting intervention would cause to an innocent customer emotional distress of criminal wrongdoing. suspected the false arrest cause of instructional error on
Additionally, In action does not reversal of the verdict Oakland. against require general nature and the of the light closing arguments, fact-specific parties’ neutral witness’s corroboration of it is not reasonably Pool’s testimony, Therefore, believed Oakland in favor of Pool. found probable yet $45,000 the error was award damage against prejudicial. Finally, *21 is not of law. Oakland excessive as a matter and Oakland are affirmed. Accordingly, judgments against Safeway J., Broussard, J., Panelli, Mosk, J., J., concurred. Reynoso, un- to make clear GRODIN, J. my in wish concur but judgment, I with respect basis of holding the narrow derstanding majority opinion’s not does majority to the As I read the Safeway. opinion, liability California law a store under to hold that general principles purport 1074
owner—or, matter, for that other any private individual—may ordinarily held liable in for tort misconduct to the simply reporting suspected police. In in recognition strong favor of public policy encouraging citizens such report suspicions police—thereby permitting determine whether further action is California cases in justified—past have effect held that such conduct is so “conditionally privileged,” that even if an individual is crime has negligent concluding occurred actually or in he will incur no identifying perpetrator, liability simply reporting his (See, so as he is suspicions faith. long acting good e.g., Peterson v. 690, (1954) 19]; Robinson 43 Cal.2d 695 P.2d Turner v. Mellon [277 45, 15]; Cal.2d 48-49 P.2d v. Oreb Hughes [257 550]; P.2d v. McDonald Gogue Cal.2d 484-487 Miller v. Fano Cal. 106-107 P. 183]. al., 4.11, See (2d 1986) et The Law of Torts generally Harper ed. 512-513; (5th 1984) Prosser & Keeton on Torts ed. pp. §§ pp. 872-873.) authorities, does take issue with these majority but refrains from them here applying because never relied simply on these therein, or the law precedents, embodied either principle at trial or on appeal. notes,
As the with majority the case was respect Safeway’s liability submitted to the on a jury solely negligent-infliction-of-emotional-distress sole on is that the theory. Safeway’s argument evidence at trial is appeal insufficient as a matter of law to a verdict on that I support theory. agree that, with the on the majority ordinary elements of the assumption tort of here, infliction of are negligent emotional distress applicable evidence is sufficient to the verdict. That assumption—the validity of which is not at issue here—is reflected in the instructions to the which did not object.
Because of the narrow basis of the I ruling, concur in the majority’s judgment.
Lucas, J., concurred.