UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BROOKE WOMACK, 

Plaintiff,

and

TONYA WOMACK; CARL WOMACK,

Plaintiffs-Appellees,

v.

TIERCO MARYLAND, INCORPORATED,  No. 01-1947

d/b/a Adventure World,

Defendant-Appellant,

and

PRINCE GEORGE’S COUNTY,

MARYLAND; PRINCE GEORGE’S

COUNTY POLICE DEPARTMENT,

Defendants. 
BROOKE WOMACK, 

Plaintiff,

and

TONYA WOMACK; CARL WOMACK,

Plaintiffs-Appellants,

v.

TIERCO MARYLAND, INCORPORATED,  No. 01-1984

d/b/a Adventure World,

Defendant-Appellee,

and

PRINCE GEORGE’S COUNTY,

MARYLAND; PRINCE GEORGE’S

COUNTY POLICE DEPARTMENT,

Defendants. 

Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge;

William G. Connelly, Magistrate Judge.

(CA-99-2130-DKC)

Argued: April 3, 2002

Decided: May 31, 2002

Before MOTZ and TRAXLER, Circuit Judges, and

W. Craig BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by unpublished per

curiam opinion. 

2 WOMACK v. TIERCO MARYLAND, INC.
COUNSEL

ARGUED: Robert Wayne Pierce, NILES, BARTON & WILMER,

L.L.P., Baltimore, Maryland, for Appellant. Michael Lloyd Smith,

CAPITOL LEGAL GROUP, Washington, D.C., for Appellees. ON

BRIEF: Anthony Graham, Sr., CAPITOL LEGAL GROUP, Washington, D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Defendant Tierco Maryland, Inc., operator of the Adventure World

Amusement Park in Prince George’s County, Maryland, appeals the

district court’s denial of its motion for judgment as a matter of law

on plaintiff Tonya Womack’s claim for false imprisonment. Tonya

Womack and her husband, Carl Womack, cross-appeal the district

court’s grant of Tierco’s motion for judgment as a matter of law on

their claims for intentional infliction of emotional distress. We affirm

in part, reverse in part, and remand. 

I.

This lawsuit arises from an incident occurring on July 3, 1998,

when security officers employed at the Adventure World Amusement

Park detained and ejected Tonya Womack from the park. On that day,

plaintiffs Carl and Tonya Womack took their daughter and her friend

to the park. It is undisputed that during the early evening hours of this

particularly hot and crowded day, Ms. Womack approached a concession stand and, following a conversation with the employee inside,

removed a fruit drink and cup from the stand without paying for the

items. The circumstances immediately preceding and following that

WOMACK v. TIERCO MARYLAND, INC. 3
act by Ms. Womack, and the appropriateness of the actions taken by

park employees in response, are the subjects of this action. 

According to Ms. Womack, after waiting in line for a lengthy

period, she approached the concession stand window and ordered a

fruit drink and a cup of ice. When the female attendant working inside

advised Ms. Womack that they were out of ice, Ms. Womack told her

that she was dehydrated and asked the attendant to please get her

some ice. Without comment, the attendant turned and walked away.

Two minutes later, Ms. Womack asked the attendant if she was still

helping her and received no response. Mr. Womack then asked for a

manager and received no response. Ms. Womack testified that she

then stated, to no one in particular, that she was taking the drink and

cup to a nearby concession stand to pay for them. At that point, Ms.

Womack testified, "one of the guys behind the stand gestured that it

was okay." J.A. 50. She then carried the drink and cup to a nearby

vendor stand, operated by an independent vendor. 

Over Tierco’s objections, Ms. Womack testified that when she

approached the second vendor, he told her that he could not sell her

the fruit drink or cup because he was an independent vendor. However, he told her that he could sell her a cup of ice and a lemonade

from his stand. Ms. Womack testified that she then purchased these

items from the second vendor, and left the items taken from the first

vendor with the second vendor on his word that he would return them

for her. This second vendor was not identified and was not called to

testify at trial. 

Upon leaving the lemonade stand, Ms. Womack testified that she

was approached by a security officer who said he understood there

was a problem. Ms. Womack advised him that there was not a problem, thanked him, and walked away. At that point, the security officer

told Ms. Womack that she had been accused of stealing a drink or a

cup from a concession stand. Ms. Womack told the officer that she

had paid the lemonade vendor for the items and again walked away.

At that point, more security officers approached Ms. Womack and

informed her that she had been accused of stealing and that she

needed to go with them. By this time, Mr. Womack had approached

the group and began speaking with the security officers while Ms.

Womack walked to a nearby playground with the children. Ms.

4 WOMACK v. TIERCO MARYLAND, INC.
Womack then returned to where the officers were and attempted to

give them money if they would leave her and her family alone.

According to her testimony, she was instead handcuffed without provocation or need. She testified that she then saw the attendant in the

first concession stand and begged her to "tell the truth," J.A. 61, but

was taken from the scene through the park in handcuffs. Ms. Womack

testified that the security officers continuously threatened her during

the walk to the security office, lifting her up by the handcuffs and at

one point tightening the handcuffs to hurt her in retaliation for her

request that they be loosened. Mr. Womack offered a similar account

of the incident. 

The female attendant in the first concession stand, Ms. Viola Lee,

and the other park employees involved in the incident offered a much

different account of the events that day. Ms. Lee testified that Ms.

Womack approached her concession stand that evening, demanding

to be served out of turn because she was hot. When Ms. Lee refused

to take Ms. Womack out of turn, Ms. Womack grabbed a bottled fruit

drink on display and a souvenir cup and headed towards a nearby vendor, where she paused briefly before walking away. In accordance

with park policy, Ms. Lee notified a manager to contact security and

followed Ms. Womack so that she could identify her for the officers.

According to Ms. Lee and the other park employees, Ms. Womack

became aggressive and hostile when security attempted to speak with

her about the removal of the items from the first concession stand,

cursing at the officers in the presence of other patrons and children

in the nearby play area. Ms. Womack claimed to have paid for the

items, which were still in her possession, and accused Ms. Lee of

lying about the incident. This aggressive behavior, the park employees testified, culminated in Ms. Womack lunging at Ms. Lee as if to

hit her. The security officers then stepped between the women to protect Ms. Lee and placed Ms. Womack in handcuffs. Ms. Womack was

then immediately removed to the park security office, per park procedure, in order to terminate the disruption as quickly as possible and

minimize any embarrassment. At the security office, Ms. Womack

was asked to sign a "Trespass Letter," notifying her that she was

barred from entering the Adventure World property for life, and then

escorted to the park exit. 

WOMACK v. TIERCO MARYLAND, INC. 5
The Womacks subsequently filed this lawsuit against Tierco, alleging claims for assault, battery, false arrest, false imprisonment, and

intentional infliction of emotional distress.* The district court, having

dismissed all claims for assault, false arrest, and intentional infliction

of emotional distress by the conclusion of the trial, submitted the case

to the jury solely on the claims for battery and false imprisonment.

The jury returned a verdict in favor of Ms. Womack on the false

imprisonment claim only and awarded her $2,000 in lost wages and

$73,000 for noneconomic losses. In all other respects, the jury

returned a verdict for Tierco. Tierco’s motions for judgment as a matter of law and for a new trial on the false imprisonment claim were

subsequently denied by the district court. Tierco now appeals from

the jury’s verdict for Ms. Womack on the false imprisonment claim.

Ms. Womack cross-appeals the district court’s dismissal of her claim

for intentional infliction of emotional distress. 

II.

A.

We begin with Tierco’s challenges to the jury instructions regarding Ms. Womack’s false imprisonment claim. The district court

instructed the jury as follows:

False imprisonment . . . is the intentional restriction of the

freedom of movement of a person who is aware of the

restriction and who does not consent. A person is not

responsible for false imprisonment if he had a right to

restrict the plaintiff’s movement. Failure to conduct an adequate investigation may destroy this defense. A person is not

responsible for false imprisonment if he had a privilege to

arrest without a warrant, and a person has such a privilege

if the person was present or in view when the other commit-

*The Womacks also brought a civil rights action under 42 U.S.C.A.

§ 1983 (West Supp. 2001), against Prince George’s County and Prince

George’s County Police Department. Prince George’s County removed

the case to federal court, but the County and its Police Department were

subsequently dismissed from the case. The trial against Tierco proceeded

under the court’s supplemental jurisdiction. 

6 WOMACK v. TIERCO MARYLAND, INC.
ted a misdemeanor amounting to a breach of the peace and

immediately arrested the other for that offense.

. . .

A merchant or his employee who detained a person for

investigation is not responsible for false imprisonment if he

had probable cause to believe that the person committed the

crime of theft. 

J.A. 521-22. 

We review a district court’s jury instructions for abuse of discretion. See United States v. Helem, 186 F.3d 449, 454 (4th Cir. 1999).

This court will reverse a judgment "for error in jury instructions only

if the error is determined to have been prejudicial, based on a review

of the record as a whole." Abraham v. County of Greenville, South

Carolina, 237 F.3d 386, 393 (4th Cir. 2001) (internal quotation marks

omitted). 

1.

Tierco first contends that the trial court erred in failing to instruct

the jury that the defense of another, as charged for the battery count,

is also a defense to a false imprisonment claim. As to the battery

count, the district court instructed the jury as follows:

A battery is an intentional touching of a person without that

person’s consent. . . . 

A person is not responsible for battery if he had a right to

do what he did. A person has a right to defend himself,

another person and his employer’s property so long as he

used only such force as was reasonably necessary to protect

himself, the other person or his employer’s property. A person has the right to protect himself, the other person or his

employer’s property from actual attacks or threatened harm

which he reasonably believes would immediately occur. 

WOMACK v. TIERCO MARYLAND, INC. 7
J.A. 520-21 (emphasis added). With regard to the false imprisonment

claim, however, the district court did not charge the jury that the

defense of persons or property was a defense to the claim. 

Tierco is correct that the defense of another is a defense equally

applicable to false imprisonment and battery. See Restatement (Second) of Torts § 67 & cmt. a; § 76 (1965). Accordingly, the district

court erred in not instructing the jury in this defense. However, we

will only reverse the judgment if the error was prejudicial, based on

a review of the whole record. See Abraham, 237 F.3d at 393. Having

reviewed the record closely, we are satisfied that the error was prejudicial to Tierco, necessitating a new trial. 

According to the undisputed testimony, Ms. Womack was handcuffed and taken from the park area to the security trailer. It is this

act of restraint by the security officers which serves as the primary

basis for both the false imprisonment claim and the battery claim

brought by Ms. Womack against Tierco. The dispute is over the provocation for the handcuffing of Ms. Womack by the security officers.

Ms. Womack contends that there was no stated basis, other than perhaps for the theft accusation, whereas the park personnel testified that

the handcuffing only occurred as a result of Ms. Womack’s lunging

at Ms. Lee in a threatening manner. 

Presented with these conflicting accounts, the jury returned a verdict for Tierco as to the battery claim, but for Ms. Womack as to the

false imprisonment claim. Under the circumstances, we believe the

trial court’s failure to charge the jury that the defense of another, in

this case Ms. Lee, is a defense to both battery and false imprisonment

was prejudicial to Tierco. Accordingly, we reverse the judgment in

favor of Ms. Womack and remand for a new trial solely on her claim

for false imprisonment. 

2.

Tierco also contends that the trial court erred in failing to instruct

the jury that the park security officers could use reasonable force to

restrain Ms. Womack and eject her from the property once they had

instructed her to leave and she refused. See Vancherie v. Siperly, 221

A.2d 356, 358-59 (Md. 1966) (applying privilege to use such reason8 WOMACK v. TIERCO MARYLAND, INC.
able force as a defense to assault and battery claim where there was

evidence that plaintiff refused defendant’s request to leave the premises); Maddran v. Mullendore, 111 A.2d 608, 612 (Md. 1955) (same).

This is a correct statement of the law, but we find no error in the district court’s refusal to charge it as a defense. 

Although there was testimony that the park security officers told

Carl Womack that his wife was going to have to leave the park and

that he refused to cooperate, there was no evidence that Tonya

Womack was asked to leave the park before she was handcuffed or

that she ever refused to leave the park after being asked to leave.

Indeed, the testimony consistently revealed that, once Ms. Womack

was taken to the security trailer and the handcuffs were removed, she

signed a document barring her from ever returning to the park and

was escorted without incident to the exit. 

We reject Tierco’s contention that Ms. Womack should be charged

with knowledge of what the security officers said to her husband or

that she could be imprisoned based upon a refusal voiced by him. At

a minimum, there must be evidence that Ms. Womack was personally

asked to leave and refused to do so or was otherwise made personally

aware that her continued presence would be considered a trespass.

Because there was no such showing made below, the district court did

not abuse its discretion in refusing Tierco’s proffered instruction on

trespass. 

3.

Finally, Tierco contends that the trial court improperly instructed

the jury that a defendant’s right to restrict a plaintiff’s movement,

such as that which arises after the defendant observes the commission

of a misdemeanor, could be destroyed by the defendant’s "[f]ailure to

conduct an adequate investigation." J.A. 521. See Montgomery Ward

v. Wilson, 664 A.2d 916, 923-24 (Md. 1995). 

Having reviewed Tierco’s contentions and the record, we conclude

that the district court did not abuse its discretion in giving this instruction to the jury. We note, however, that in this case the instruction

goes to the issue of Tierco’s right to restrict Ms. Womack based upon

probable cause to believe that she had stolen the drink and cup from

WOMACK v. TIERCO MARYLAND, INC. 9
the first vendor and, more particularly, to the issue of whether an adequate investigation into the circumstances of the alleged theft was

conducted. Therefore, it appears to have little to do with the issue of

the security officers’ right to prevent Ms. Womack from harming

another person. 

B.

We now turn briefly to Tierco’s appeal of the district court’s

admission of hearsay statements allegedly made by the lemonade vendor to Ms. Womack. According to Ms. Womack, this vendor advised

her that the poor service she had received at the park concession stand

was common and that, although he could not accept payment for the

items removed from the park stand, he would return them for her. The

district court allowed Ms. Womack to testify concerning these alleged

statements made by the lemonade vendor on the sole basis that the

vendor had "apparent authority" to act as an agent for Tierco. 

Although the lemonade vendor was located inside the park for the

purpose of offering products for sale to the park patrons, it is undisputed that he was an "independent vendor" who simply paid the park

a percentage of his sales. As such, the lemonade stand was necessarily

subject to some park policies due to its presence inside the gates, but

was nonetheless operated as an independent concessionaire. The

attendant in the stand was not employed by Tierco, and there was testimony that employees of the independent concessionaires wore different uniforms than the park employees and name badges that did not

bear the park’s name. The park did not have authority to directly control the independent concessionaire’s employees or regulate their

schedules. And, Ms. Womack testified that the lemonade vendor told

her he was an independent vendor and, therefore, that she could not

pay him for the items she had removed from the first concession

stand. 

1.

Federal Rule of Evidence 801(d)(2)(C) allows the admission of "a

statement by a person authorized by the party to make a statement

concerning the subject." "[A]uthority in the context of 801(d)(2)(C)

means ‘authority to speak’ on a particular subject on behalf of some10 WOMACK v. TIERCO MARYLAND, INC.
one else." See Precision Piping & Instruments, Inc. v. E.I. duPont de

Nemours & Co., 951 F.2d 613, 619 (4th Cir. 1991). Rule

801(d)(2)(D) allows the admission of "a statement by the party’s

agent or servant concerning a matter within the scope of the agency

or employment, made during the existence of the relationship." Under

Rule 801(d)(2)(D), the party offering the evidence must show that the

declarant is an agent of the party-opponent and the scope of that

agency. See United States v. Portsmouth Paving Corp., 694 F.2d 312,

321 (4th Cir. 1982). 

Having reviewed the testimony, we agree that the district court

erred in admitting the lemonade vendor’s statements as admissions by

a party-opponent under Rule 801(d). There is no evidence that the

lemonade vendor was authorized by Tierco to speak on its behalf.

And, plaintiffs’ evidence was insufficient to establish that the lemonade vendor was an agent or employee of Tierco or that the statements

concerned matters within the scope of his agency or employment. See

Precision Piping, 951 F.2d at 618-620. Accordingly, we hold that the

district court abused its discretion in admitting the statements of the

independent lemonade vendor as a Rule 801(d) admission by Tierco.

2.

As an alternative, the Womacks assert that we should uphold the

admissibility of the hearsay statements made by the lemonade vendor

to Ms. Womack because the trial court could have admitted the statements, not for the truth of the matter asserted, but to show that a conversation took place between Ms. Womack and the lemonade vendor

and that Ms. Womack relied upon the conversation when she told

Tierco’s security officers that there was no problem. Tierco asserts

that we cannot sustain the trial court’s decision on this basis for two

reasons. First, to establish that a conversation took place, Ms.

Womack did not need to testify as to the precise statements made by

the lemonade vendor and, second, even if admissible for this limited

purpose, Tierco would have been entitled to an instruction that the

evidence was only admissible for this limited purpose. See Fed. R.

Evid. 105 ("When evidence which is admissible . . . for one purpose

but not admissible . . . for another purpose is admitted, the court, upon

request, shall restrict the evidence to its proper scope and instruct the

jury accordingly."). 

WOMACK v. TIERCO MARYLAND, INC. 11
During the trial, the statements of the lemonade vendor do appear

to have come into evidence both for the truth of the matter asserted,

which we have determined to be error, and later to establish what

information the officers had gathered for purposes of determining

whether probable cause existed to believe a theft had occurred. The

district court, however, did not admit the evidence in question with

this limited purpose in mind and, therefore, did not consider the propriety of giving a limiting instruction. 

Because we reverse the verdict on other grounds, we need not

determine whether Tierco was prejudiced by the erroneous admission

of the hearsay testimony as an admission by a party-opponent. On

remand, this case will be tried solely on Ms. Womack’s claim for

false imprisonment. We express no opinion as to whether the hearsay

statements of the lemonade vendor are admissible for purposes other

than their truth, and leave for the district court the determination of

what limiting instructions would be appropriate in the event the statements are admitted for such other purposes. 

III.

By cross-appeal, plaintiffs challenge the district court’s dismissal

of their claims for intentional infliction of emotional distress. To pursue a claim for intentional infliction of emotional distress, plaintiffs

were required to establish (1) that the defendants’ conduct was "intentional or reckless"; (2) that the defendants’ conduct was "extreme and

outrageous"; (3) that there was "a causal connection between the

wrongful conduct and the emotional distress"; and (4) that "the emotional distress [was] severe." Thacker v. City of Hyattsville, 762 A.2d

172, 197 (Md. Ct. Spec. App. 2000); see Harris v. Jones, 380 A.2d

611, 613 (Md. 1977). 

The Maryland courts have made it clear that viable claims for

intentional infliction of emotional distress will be sparingly found.

See Borchers v. Hrychuk, 727 A.2d 388, 392 (Md. Ct. Spec. App.

1999). In determining whether defendants’ alleged conduct was

extreme and outrageous, the court must find that the conduct was "so

outrageous that it goes beyond all possible bounds of decency, and is

regarded as atrocious, and utterly intolerable in a civilized community." Id. at 392 (internal quotation marks and alterations omitted).

12 WOMACK v. TIERCO MARYLAND, INC.
Also, "[i]n order for distress to be sufficiently severe to state a claim

for intentional infliction of emotional distress, ‘the plaintiff [must]

show that he suffered a severely disabling emotional response to the

defendant’s conduct,’ and that the distress was so severe that ‘no reasonable man could be expected to endure it.’" Thacker, 762 A.2d at

197 (quoting Harris, 380 A.2d at 611). 

At the close of the case, the district court granted Tierco’s motion

for judgment as a matter of law as to the Womacks’ claims for intentional infliction of emotional distress, concluding that the security

officers’ conduct was not "so outrageous in character and so extreme

in degree as to go beyond all possible bounds of decency and to be

regarded as atrocious and utterly intolerable in a civilized community." J.A. 508. Having reviewed the transcript, we find no error in

this determination and affirm the district court’s dismissal of these

claims in their entirety. 

IV.

In sum, we reverse the district court’s denial of the motion for

judgment as a matter of law on the false imprisonment claim because

Tierco was entitled to an instruction that the defense of others is a

defense to false imprisonment. In all other respects, we affirm the district court’s denial of the motions for judgment as a matter of law.

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED

WOMACK v. TIERCO MARYLAND, INC. 13