Lead Opinion
OPINION
Deborah L. Street and Okeema Heise appeal the grant of summary judgment in favor of Shoe Carnival, Inc. and Randall C. Wright (collectively, Shoe Carnival). They present the following issues:
L. The trial court erred when it ruled that Appellants-Plaintiffs' claims for false imprisonment present no genuine issue of material fact for trial and entered summary judgment in Appellees-Defendants' favor on said claims.
IL The trial court erred when it ruled that Appellants-Plaintiffs' claims for defa*1056 mation present no genuine issue of material fact for trial and entered summary judgment in favor of Appellees-Defen-dants' favor on said claims.
IIL The trial court erred when it ruled that Appellant-Plaintiff Okeema Heise's claim for punitive damages presents no genuine issue of material fact for trial and entered summary judgment in Appellees, Defendant's favor on said claim.
We reverse.
The disposition of a case by summary judgment is appropriate only when no genuine issues of material fact exist and the proponent is entitled to judgment as a matter of law. Lewis v. City of Indianapolis (1990), Ind.App.,
The evidence most favorable to Street and Heise shows that they entered a Shoe Carnival store with Heise's husband and with two of the Heises' children. They shopped for merchandise, and Mr. Heise found some shoes for himself. Heise wanted some shoes for herself and the children, so Mr. Heise planned to go to the bank for some more money.
Heise found some shoes for the children and gave them to the children to hold. She placed some shoes for herself on the top of the stroller and continued to shop. As she found other pairs of shoes more appealing, she would exchange the other shoes for the shoes she had chosen previously.
Street also found some shoes and carried them in the same hand as her clutch purse. She carried some tissues in her other hand to use on the children. She found some socks for Heise's daughter and held them in the hand with the tissue.
Mr. Heise paid for his own shoes and told his wife he was going to the bank for the money. Heise and Street were at the front of the store at the time and continued to shop.
Wright, the loss prevention manager, then confronted Street and Heise. Wright twisted Street's arm behind her back and pinned her down on the cash register counter. Many customers were in the establishment at the time. Wright then yelled, "resisting arrest call 911 hurry. Resisting arrest." Wright and another employee then led Street and Heise to the office. Wright used foul language throughout the episode.
Shoe Carnival obtained summary judgment in light of Ind.Code 85-83-6-2:
(A) An ownér or agent of a store who has probable cause to believe that a theft has occurred or is occurring on or about the store and who has probable cause to believe that a specific person has committed the theft may:
(1) detain the person and request the person to identify himself;
(2) verify the identification;
(3) determine whether the person has in his possession unpurchased merchandise taken from the store;
(4) inform the appropriate law enforcement officers; and
(5) inform the parents or others interested in the person's welfare, that the person has been detained.
(B) The detention must:
(1) be reasonable and last only for a reasonable time; and
(2) not extend beyond the arrival of a law enforcement officer or two (2) hours, whichever first occurs.
Indiana Code Subsection 35-48-4-2(a) defines theft as follows:
A person who knowingly or intentionally exerts unauthorized control over property of another person commits theft ...
Probable cause to initiate a eriminal prosecution exists where facts found on a reasonable inquiry would induce a reasonably intelligent and prudent person to believe the accused has committed the crime. Duvall v. Kroger Co. (1990), Ind.App.,
Wright's version of the events contradicts that of Street and Heise. Wright claims Street placed two pairs of shoes in her purse. He claims Heise gave Street a pair of shoes which Street placed in a diaper bag on the stroller. Wright claims Street placed some socks in her pocket and left them there, where he found them later. While in the office, Wright accused the two of stealing shoes.
Evidence that a person removed property from any place within a business premises at which it had been displayed or offered to a point beyond that at which payment should have been made constitutes pri-ma facie evidence of intent to deprive the owner of any part of its value and that the person exerted unauthorized control over the property. Ind.Code 835-48-4-4(c)(@2). The undisputed evidence shows that Street and Heise had possession of Shoe Carnival merchandise beyond the point of payment. Shoe Carnival claims that this evidence shows it had probable cause to detain Street and Heise.
The evidence most favorable the Street and Heise, however, shows that Shoe Carnival offers merchandise for sale beyond the cash registers, even on the sidewalk outside the store. The evidence most favorable to the nonmovants supports the inference that, although Street and Heise had possession of Shoe Carnival's property beyond the point of payment, they merely continued to shop for merchandise while Heise's husband went to the bank for more money. For example, in her deposition, Street stated she had held a pair of blue shoes and a pair of white socks in her hand but did not stop to pay for them because, "I wasn't paying yet." A reasonable person could believe that Street and Heise had not committed theft and were not attempting to commit theft and that Shoe Carnival did not have probable cause to believe otherwise.
Evidence that a person concealed property displayed or offered for sale or hire constitutes prima facie evidence of intent to deprive the owner of any part of its value and that the person exerted unauthorized control over the property. IC. 85-48-4-4(c)(1). The term "conceal" means to hide, secrete, to keep out of sight, or prevent the discovery of an item. See Dennis v. State (1952),
Street acknowledges that she put the socks in her pocket but only because the socks had been in her hand and she had reached briefly into her pocket to grab a tissue for the children. She had her purse and a pair of shoes in her other hand at the time. A reasonable person could conclude that Street did not conceal the socks but, despite having reached momentarily into her pocket for a tissue with the socks in her hand, possessed the socks in a manner not calculated to prevent their discovery. Again, a reasonable person could believe that Street and Heise had not committed theft and were not attempting to commit theft and that Shoe Carnival did not have probable cause to believe otherwise.
The State filed criminal charges against Street and Heise based upon the information Wright had submitted to the authorities. Based upon the information, a trial judge found probable cause to detain Street and Heise. At the request of the State, however, the trial judge dismissed the charges after the civilian witnesses, including Wright, had not appeared for trial. Shoe Carnival now claims that the judicial finding of probable cause in the criminal proceeding is disposi-tive of the existence of probable cause in the present case.
Shoe Carnival notes that a judicial determination of probable cause in a criminal proceeding may constitute prima facie evidence .of probable cause in a subsequent action for malicious prosecution. Shoe Carnival contends that the same is true of a subsequent action for false imprisonment. Shoe Carnival notes that the prima facie
Despite the validity of the authority just mentioned, this Court has explained that:
the finding of the examining court is, at most, but prima facie evidence of the existence of probable cause, and that to rebut this prima facie case it is not necessary to attack that judgment as procured by fraud. "All that can be required on trial is the exhibition of such a state of facts as will fairly rebut and overcome this finding in the minds of the jury.
Louisville, New Albany and Chicago Railway Co. v. Hendricks (1895)
In the eriminal proceeding, the trial judge based the probable cause determination on the evidence most favorable to both Shoe Carnival and the State. Shoe Carnival is now the movant for summary judgment in a civil case. As noted above, the evidence most favorable to the nonmovants supports the inference that Shoe Carnival did not have probable cause to believe that Street and Heise had committed theft or were attempting to commit theft. Inasmuch as the facts exhibited would fairly rebut and overcome the judicial determination of probable cause in the minds of a jury, a genuine issue of material fact exists for trial.
Finally, Shoe Carnival notes that Street and Heise signed "confessions" in which they admitted they had committed theft. The evidence most favorable to the nonmovants, however, supports the inference that the admissions were not voluntary but the fruits of coercion from Wright. He told Street she had better sign the paper or she "was going to regret it." He told Heise that, if she did not sign the document, then her "life would be a living hell." He told her that she had to sign the paper, that she had no choice. Street had asked to see an attorney, and Wright refused the request. The evidence of coercion distinguishes the present case from Duvall,
The present case contains genuine issues of material fact on the existence of probable cause. A trier of fact must resolve the differing versions of the truth at trial. Therefore, the trial court improperly granted summary judgment to Shoe Carnival on the claims of false imprisonment.
II
To maintain an action for defamation, a plaintiff must show a communication with defamatory imputation, malice, publication, and damages. Rambo v. Cohen (1992), Ind.App., 587 N.E2d 140, 145, trans. denied. Shoe Carnival claims that no genuine issue of material fact exists about whether Wright published a defamatory communication.
A communication is defamatory per se if it imputes criminal conduct. Rambo,
The determination about whether a communication is defamatory is a question of law for the court. Rambo,
The evidentiary matter most favorable to the nonmovants shows that Wright twisted Street's arm behind her back and pinned her down on the cash register counter. Many customers were in the establishment at the time. Wright then yelled, "resisting arrest call 911 hurry. Resisting
An arrest is the taking of a person into custody, that he may be held to answer for a crime. I.C. 35-33-1-5. From the communication that Street and Heise were under arrest, a trier of fact reasonably could infer that Wright meant they were being taken into custody so that they could be held to answer for a crime. We next consider whether the communication specifically imputes the crime of theft.
This court has stated, without citation to authority, that, while the false imputation of criminal activity clearly gives rise to a cause of action for defamation, the imputation must bear some reasonably close relation to the legislative definition of a crime. Gibson v. Kincaid (1966),
In the case just cited, the Defendant had stated, in a colorful manner, that the plaintiff had taken his penis out and had urinated in the presence of two women. See Seller,
Taking all the language used into consideration, we think that it charges the commission of an act of public indecency by an indecent exposure of the person.
Id. at 432. The accusation had not mentioned the phrase "indecent exposure," and the words had not recited the elements of that offense.
In Drummond v. Leslie (1840),
The defendant contends that the words are not actionable, and that the judgment should therefore have been arrested; but we are of a different opinion. There is not, it is true, a directly affirmative charge, that the plaintiff had committed forgery; nor was that necessary. If the words were calculated to induce the hearers to suspect that the plaintiff was guilty of the crime, they were actionable; [citation omitted] and we think the words in question, taken in connection with the cireumstances under which they are allleged [sic] to have been spoken, are of that character.
Id. at 455.
From the evidence considered in the light most favorable to the nonmovants, a reasonable trier of fact could conclude that Wright's words and actions. amounted to a charge of theft against Street and Heise Accord Mains v. K Mart Corp. (App.1988),
Shoe Carnival also claims that no publication occurred in the present case. The evi-dentiary matter, taken in the light most favorable to the nonmovants, shows Shoe Carnival communicated to its customers that Street and Heise were under arrest for theft. A reasonable trier of fact could conclude that the manner in which it did so fulfills the publication requirement. Accord Montgomery Ward & Co., Inc. v. Cliser (1972),
A genuine issue of material fact exists on the issue of whether Show Carnival publish ed a defamatory communication about Street
III
Compensatory damages are a prerequisite to recovery of punitive damages. Sullivan v. American Cas. Co. Of Reading, Pa. (1992), Ind.,
To justify an award of punitive damages, there must be clear and convincing evidence which overcomes the presumption that the defendant's conduct was merely negligent or the result of some honest error. Lazarus, 544 N.E2d at 527. Rather, punitive damages are recoverable only upon clear and convincing evidence that the defendant acted with malice, fraud, gross negligence, or oppression which was not the result of mistake of law or fact, honest error of judgment, overzealousness, mere negligence, or other human failing. Id.
As related above, a reasonable trier of fact could conclude that Shoe Carnival did not, in fact, have probable cause to detain Heise. Also, a reasonable trier of fact could conclude that Wright verbally abused Heise during the detention. Further, as noted above, the evidence most favorable to Heise supports the inference that her "confession" to having committed theft was not voluntary but was a result of coercion from Wright. A genuine issue of material fact exists about whether Shoe Carnival engaged in oppression in the sense required for punitive damages.
Further, malice may be inferred from the institution of eriminal prosecution without probable cause. Lazarus,
A genuine issue of material fact exists on Heise's punitive damage claim. The trial court therefore improperly granted summary jadgment to Shoe Carnival on the issue.
Judgment reversed.
Dissenting Opinion
dissenting.
I dissent. In order to succeed on their false imprisonment claims, Street and Heise had to establish the absence of probable cause for their arrest. Probable cause for criminal prosecution exists when facts found on reasonable inquiry would induce a reasonably prudent and intelligent person to believe that the accused committed the charged crime. Duvall v. Kroger Co. (1990), Ind.App.,
In this case, the facts relevant to the issue of probable cause are undisputed. It is undisputed that Street concealed merchandise and that Heise observed her doing so. It is further undisputed that both carried merchandise beyond the point of payment. These acts constitute prima facie evidence that they committed theft; that is, they exerted unauthorized control over and intended to deprive Shoe Carnival of the merchandise. IND.CODE § 35-48-4-4(c) (1998). These undisputed facts alone are sufficient to constitute probable cause, rendering the detention lawful and defeating Street and Heise's
Further, the trial court in the criminal proceeding found probable cause for Street and Heise's arrest. Judicial determinatipn of probable cause constitutes prima facie evidence of probable cause in this civil action. See Lazarus Department Store v. Sutherlin (1989), Ind.App.,
Although Street and Heise contend that Wright's conduct was inappropriate and that he coerced them into signing confessions, they do not present evidence to dispute Wright's statements regarding the concealment of merchandise beyond the point of payment. Accordingly, they did not successfully rebut Shoe Carnival's prima facie evidence of probable cause. Because the facts demonstrating the existence of probable cause are undisputed, summary judgment was properly entered on this count. The trial court should be affirmed.
I also dissent to reversal of summary judgment on Street and Heise's defamation claim. Although the Majority correctly states the general rule that determining whether a communication is defamatory is a question of law, the Majority goes on to conclude that because the communication at issue here is reasonably susceptible to either a defamatory or non-defamatory interpretation, it is a factual issue precluding summary judgment. Maj. op. at 1058-1059 (citing Rambo v. Cohen (1992), Ind.App.,
Street and Heise argue that statements by Wright were defamatory per se because his statements imputed to them commission of a crime. Upon detaining Street and Heise in the store, Wright made the following statement: "resisting arrest call 911 hurry. Resisting arrest." This communication is not reasonably susceptible to a defamatory interpretation. In order for the false imputation of eriminal activity to give rise to a cause of action for defamation, the imputation must bear a reasonably close relation to the legislative definition of a crime.
As the Majority correctly states, compensatory damages are a prerequisite to an award of punitive damages. Maj. op. at 1060 (citing Sullivan v. American Cas. Co. of Reading, Pa. (1992), Ind.App.,
Notes
. The Majority relies on Street and Heise's explanation for concealing merchandise beyond the point of payment to create a genuine issue of material fact in this case. Although Street and Heise's explanation for their conduct is relevant to whether they actually committed theft, it is not material to the issue of probable cause. Their undisputed conduct alone, regardless of the explanation therefor, is sufficient to constitute probable cause and precludes a false imprisonment claim. See IC 35-43-4-4(c), Duvall, supra.
. The Majority rejects this well-established rule based on Seller v. Jenkins (1884),