# FILED April 3, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

_______________________________________________________ ) PATTY M. RICHARDS , ) Davidson County Circuit Court ) No. 96C-3278 Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 01A01-9708-CV-00379 ) O’CONNOR MANAGEMENT, ) INCORPORATED and R USS ) HACKETT , ) ) Defendants/App

ellees. ) )

______________________________________________________________________________ From the Circuit Court of Davidson County at Nashville. Honorable Barbara N. Haynes, Judge

James R. Tomkins, GLASGOW & VEAZEY, Nashville, Tennessee Attorney fo

r Plaintiff/Appell

ant. M. Bradley Gilmore , Christina Norris, PARKER, LAWRENCE, CANTRELL & DEAN, Nashville, Tennessee Attorneys f

or Defendants/A

ppellees.

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT AND REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)Plaintiff Patty M. Richards appeals the trial cou rt’s o rder granting the motion for summary judgment filed by

Defendants/App

ellees O’Connor M

anagement,

Inc., and Russ

Hackett. In entering summary

judgment in favor of the Defendants, the trial court dismissed Richards ’ claims for outrageous conduct and false imprisonment. We affirm in part, reverse in part, and remand for further procee

dings.

For purposes o f these sum mary judgment p roceedings , the following facts were undisputed. In August 1996, Plaintiff Patty Richards visited the Hickory Hollow Mall in Nashville, where she made several purchases using mall gift c

ertificates. I

n making her pur

chases, Richards incorrectly

used t he non-ne gotiable portions of the gift certificates and retained the original gift certificates.

Richards explained

that this mistake fir

st occurred when an employee in the Dillard’s hosiery department informed

her that the non-negotiable copy was the portion that she should use. Richards continued to make purchases withthe non-negotia ble portions of the

gift certifica

tes until she had used seve

n of her eight g

ift certificate

s.

The following day, Richards received a telephone ca ll from a clerk at

Gloria Jean’s,
a coffee shop in the mall where she had used one of the gift certificates. The Gloria Jean’s cle

rk told Richards that she had made her purchase using the wrong copy of the gift certif

icate and that she needed to bring the original certificate to the store. Richards stated that she would return t

o the store with the gift certificate within the next week.

On the same day

Richards received the telephone call from the Gloria Jean’s clerk, a Gloria Jean’s employee also caused the following “mall alert” to be issued:

Mall Alert sent on 8-10-96, because a Gloria Jean’s employ e e inadvertently

kept the paper

non-negotiable part of the gift certificate and the customer l

eft with the gift

certificate an

d merchandise. I

t is the fault of the employee due to inexper ience; however, the gift certificate must be recovere

d by Gloria

Jean’s. If it

is presented in a store at [Hickor

y Hollo w Mall],security will be called and an officer will take it to Gloria Jean’s after it is verified t o be the original gift certificate matching the copy above.

The mall alert included Richards’ name and home address.Five days after the mall alert was issued, Richards returned to the H ickory Hollow

Mall with the original

gif t certifica tes, which she pla nned to exchange

for the non-neg

otiable portions. Instead of going immediately to Gloria Jean’s, Richards stopped at Watchworks, another mall merchant, to pick up her daughter’s watch which was being repaired. When Richards identified herself to the Watchworks clerk, the clerk recognized Richards’ name from the mall alert and called security.

Defendant Russ Hackett

was the mall security guard who responded to the call from Watchworks. Hackett, who also worked as a Metropolitan Police Department officer, was wearing his police uniform and badge and was armed with a 9-mm Glock. W hen Hackett arrived at Watchworks,he did not know why security ha

d been call

ed. The Watchworks clerk identified Richards to Hackett

and explained that

Richards was the s

ubject of a mall al

ert. Although Ha

ckett did notremember the contents of the mall alert, he then approached Richards because he “wanted to be sure [she] stayed put.”

As Hackett approached Richards, he asked her in a loud voice if sh e was Patty Richards. According to Ric hards, Hackett t

alked so loudly

that he was shoutin

g at times. Richards acknowledged

that she was Patty Richards, and she asked if there was a problem. At the same time, the Watchworks clerk was preparing to hand Richards her daughter’s watch. Hackett took the watch from the clerk’s hand and demanded to know if Richards had paid for the watch. The Watchworks clerk assured Hackett that Richards owned the watch. Hackett then ordered Richards to back away from the Watchworks counter.

As Richards backed

away from the counter,she reached fo r her purse to tak

e it with her. At that time, according to Richards, Hac kett “starte d really freaking out.” He y elled and screamed at Richards, ordering her to take her hands off her purse and to let him look in the purse. Although Richards’ recollection was vague, she also believed that Hackett put his hand on his gun when he was yelling and screaming at her. Richards complied with Hac kett’s orders and opened her purse so that Hac

kett could visually

inspect its conten

ts.

After viewing the cont

ents of Richards’ purse, Hackett or dered Richards to standnearby

with another

security g uard who had arr

ived at about the sa

me time as Hackett. Hackett took Richards by

the arm and led her to where the second security g uard was standing. When Richards asked the second

security g

uard what was “g

oing on,” the g

uard told Richards that Hac

kett would return “in a minute,” and he instructed her to “stay right her e.”

Satisfied that Richards “wasn’t going anywhere,” Hackett re turned t o the Watchwork s counter to talk to the clerk. At that time, the clerk informed Hackett that the mall alert had been initiated by G

loria Jean’s and that

it “was about some gift certificates.” Hackett then recalled that
a mall alert hadbeen issued involving gift certificates, but he did not remember if it involved “any kind of theft or inapprop

riate conduct of

any kind.” H

ackett called the security officer in charge that day, Lt. Gorman, and told him that he had responded

to the mall

alert, that the mall alert was posted
on the security

office bulletin board, and that he “had Mrs. Richards at Watchworks.” Lt. Gorman stated that he would meet Hackett at Watchworks after first going by the security office.

While w aiting for Lt. Gorman, Hackett returned to where Richards wa s stand ing
. Hackett handed Richards t

he watch and expla

ined that there se

emed “to be some qu

estion with Gloria Jean’s about a gift certifica te.” Hackett as

ked Richards if sh

e had used the non-

negotiable portion of a gift certif

icate to make a pu

rchase at Gloria

Jean’s. Richards a

nsw e red “yes” and explained that she had come to the mall that night to return the original gift certifica tes to Gloria Jean’s and the other

merchants. Hac

kett escorted Ric

hards back to

the Watchworks counter, where she showed him the original gift certificates. Hackett tore off and retained the original

gift certifica

te withthe serial number matching the certificate used at Gloria Jean’s. Rich ards th en asked if she could “go take” the other gift certificates, but Hackett instructed her to stand there “for a minute.” Specif ica lly, Ha ckett told Richards to “[j]ust wait here” because another security guard w as “checking [her] out” and would be there in a minute.

Upon observing the o riginal gift certifica tes in Richards’ po

ssession, Hacket

t developed

“some suspicion” that Richards may have stolen something because she apparently had spent the non-negotia

ble portions. I

t was undisputed tha

t Hackett did not d evelop this suspici on until Richards showed him the original gift certifica tes , and Hackett acknowledged that, other than Richards’ poss e ssion of the original gift certificates, he had no reason to suspect Richards ofcommitting a theft. Hackett observed nothing about Richards’ attitud

e or demeanor wh

ich would cause him to believe that she had engaged in or was about to engag e in any criminal offense.

When Lt . Gorman arrived a few minutes later, the officers decided that Gorman would accompany Richards to ensure that she delivered all of the orig inal gift cer

tificates to

the various merchants. Lt. Gorman accompanied Richards to Dillard’s, walking a short distance behind her “like [she] was unde

r arrest or somet

hing.” At Dillar

d’s, Lt. Gorman ag

reed to take care of the remaining gift certificates for Richards, and he permitted her to leave the mall . Richards did not attempt to leave the mall prior to this time because she was “scared to death” and believed that she “would have been shot” if she “had tried to leave.”

Richards subsequently brought this action for outrageous cond uct, false imprisonment,

and defamation against Hackett and against O’Connor Management, I

nc., the entity which managed the Hickory Hollow Mall. After the parties conduc ted discovery, the D efend ants moved for summary

judgment, conte

nding th at, as a matter of law, the evidence did not support Richards’ claims. The trial court agreed and granted the Defendants’ motion. On appeal, Richar ds challenges only the trial cour t’s dismiss al of her claims f or outrageous c

onduct and false imprisonment.
Summary

jud gm ent is appropriat

e only when t

he parties’ “ple

adings, depositio

ns,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any mat

erial fact and th

at t he moving party

is entitled to a judg

ment as a matter of law.” T.R.C.P. 56 .04. In deter mining whether o

r not a genuine i

ssue of material f

act exists for purposes of

summary judg

ment, the trial cou

rt is required to consi

der the question in

the same
manner as a motion for

directed verdic

t made at the close

of the plaintiff’s proof. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). That is, “the trial court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of tha t pa rty, and discard all countervailing evidence.” Id . at 210-11.

Applying this standard to the evidence presented in this case, we first affirm the trial court’s dismissal of Richar ds’ claim for outrageous conduct. In order to state a claim for the tort of1 Bain v. Wells , 936 S.W.2d 618, 622 n.3 (Tenn. 1997).

outrageous conduct, also known as intentional infliction of emotional di stress, 1 a plaintiff’s complaint mus t allege that the defendant eng

aged in conduc

t “so outrageou

s in character,

and so extreme in degree, as to go bey

ond all bounds of decenc

y, and to be r

egarded as at

rocious, and utter

ly untolerable

in acivilized community.” Medlin v. Allied Inv. Co. , 398 S.W.2d 270, 274 (Tenn. 1966) (quoting Restatement (Second) of Torts § 46), abrogated on other grounds by Camper v. Minor , 915 S.W.2d 437, 446 (Tenn. 1996); accord Bain v. Wells , 936 S.W.2d 618, 623 (Tenn. 1997); Alexanderv. Inman , 825 S.W.2d 102, 105 (Tenn. App. 1991). As an in itial matter, the c

ourts have the burden of determining whether the alleged conduct “may

reasonably

be regarded a

s so extreme and outrageous as to permit recovery” under a theory of outrageous conduct. Swallows v. Western Elec. Co. , 543 S.W .2d 581, 583 (Tenn. 197 6); accord Bain v. Wells , 936 S.W.2d at 623; Alexanderv. Inman , 825 S.W.2d at 105. Af ter carefully

reviewing the e

vidence presen

ted in this case, we conclude that, even when v iewed in the light most favorable to Richards, this evidence does notshow conduct so extr

eme in degree

as to support a cause of action for outrageous conduct. See,
e .g . , Newsom v. Textron Aerostructures , 924 S.W.2d 87, 97-98 ( Tenn. App. 1995); Hudson v. Pickering , 1989 WL 134748, at *2 (Tenn. App. Nov. 8, 1989).

The more difficult question pr es ented in this case is whether the evidence, when viewedin Richards’ favor, supports a cause of action for false imprisonment. False imprisonment is the intentional restraint or detention of another without just cause. Newsom v. Thalhimer Bros. , 901 S.W.2d 365, 367 (Tenn. App. 19 94); Brown v. SCOA Indus., Inc. , 741 S.W.2d 916, 919 (Tenn. App. 1987). In order to establish a claim of false imprisonment, the plaintiff must allege and prove the following ele

ments:
(1) the detention or

restraint of [the plaintiff] against his will and (2) the unlawfulness

of such detention o

r restraint.
Coffee v. Peterbilt of Nashville, Inc. , 795 S.W.2d 656, 659 (Tenn. 1990); Newsom , 901 S.W.2d at 367. After reviewing the depositions submitted by the parties in the summar y judgment proc eedings below, we conclu de that Richards has submitted sufficient evidence to create genuine issues ofmaterial fact a s to both of these elements, i.e. whether Richards was detained or rest rained agains

t her will and wheth

er such detention

or restraint was

unlawful.

This court has adopted the following rule with regard to the type of evidence required to support the dete

ntion element of fa

lse imprisonment:
[I]t is not enough for plaint iff to feel “mentally restrained” by the action s of the defendan

t. The evidence m

ust establish a res

tr ain t against the plaintiff’s will, as where she yields to force, to the threat of f orce or t o th e ass ert ion of au tho rit y.

Newsom , 901 S.W.2 d at 368 (qu oting Faniel v. Chesapeake & Potomac Tel. Co. , 404 A.2d 147, 151-52 (D.C. 1979) (omitting citations)). In order to support the element of detention, therefore, the plaintiff must present evidence that she was rest rained or co nfined thr ough the defendant’s exercise of force, threats of force, or assertion of authority. Ne wsom , 901 S.W.2 d at 368; see also Schroeder

v. Lufthansa German Airlines , 875 F.2d 613, 621- 22 (7th Cir. 1989); Berry v. Loiseau , 614 A.2d 414, 432 (Conn. 1992 ); West v. King’s Dep’t Store, Inc. , 365 S.E.2d 621, 623-24 ( N.C. 1988); Safeway Stores, Inc. v. Amburn , 388 S.W.2d 443, 447 (Tex. Civ. App. 1965); Skillern & Sons v. Stewart , 3 79 S.W.2d 68 7, 691 (Tex. Civ. App. 1964). A determination of this issue may dependupon several factors, including “not only the actual words spoken but the relative size, age, experience, sex and physical demeanor of the participants.” Black v. Kroger Co. , 527 S.W.2d 794, 800 (Tex. Civ. App. 1975).

We conclude that, when viewed in the light most favorable to Richards, the evidence reveals that Richards was detained against her will by the Defendants’ use of force, threats of force, and assertion of

authority. Hackett, wearing a Metropolitan Police Department uniform and armed witha 9 -mm Glock, approached Richards and began shouting orders at her, such as to bac k away from the counter, to g

et her hands off h

er purse, and to a

ll ow hi m to look in the purse. Richards believed that, at one point during the encounter, Hackett placed his hand on his gun. For the next several minutes, Hackett proceeded to direct and control Richards’ movements, leading her by the
arm to where another

security guard stood, instructing her to wait with the other security guard, and then, later, requiring Richards to wait with Hackett while he awaited the arrival of his supervisingofficer. In their discussion of the gift certificates, Richards informed Hackett that she had

come to the mall to return the originals, and she asked if she could “go take” the gift certif

icates. Hacket

t told Richards “no,” and

he instructed her

to remain where she was until his supervisor arrived. Richards wantedto leave the mall, but she did not try to leave because

she was afraid th

at she would be shot

. Hackett contradicted some of Richards’ testimony regarding these events, but h

e acknowledge

d that, when he approached Richards, his intent was to make sure Richards “stay ed put.”

In holding that this evidence was sufficient to create a genuine issue of material fact
as to whether Richards was detained ag ainst her will, we d

istinguish the fa

cts of this case

from those found in Newsom v. Thalhimer Bros. , 901 S.W.2d 365 (Tenn. App. 1994). In Newsom , the plaintiff claimedthat she was falsely imprisoned by two members of he r empl o yer’s security staff, w ho allegedly threatened theplaintiff that, if s he left the store m

anager’s off

ice, they w

ould call the police and have her arrested. Id . at 366-67. I n affirming a directed verdict entered in favor of the defe ndants, this court noted tha t the plaintiff volu

ntarily ac companied a supe

rvisor to the st

or e manager’s officer and, further, that at no time during the encounter did the individual de f endants touch the plaintiff, use profanity toward her, or in any way use force or make any th reats of force against the plaintiff. Id
. at 366-67. In c ontrast, the evide

nce in the present case indicated that the unifo rmed and armed Hackett shouted orders at Richards and that he directed some of he r movements

by taking he

r by the arm

and leading her

. We believe that th

is evidence cre

ates a genuine issue of material fact as to whether Richards was detained against her will. See Berr y v. Loiseau , 614 A.2d 414, 432 (Conn. 1992) (holding that trial co urt erred in directing verdict for defendants

on false imprisonment claim where e vidence s howed that defendants took plaintiff by arm, escorted him to defendants’ office and car, used abusive and thr eatening l anguage toward plaintiff, anddisplayed r

evolver); see also Wal-Mart Stores, Inc. v. Yarbrough , 681 S.W.2d 359, 362 (Ark. 1984) (holding that trial court prop erly subm itted issue of false imprisonment to jury where defendant’s assistant manag er te stified that he had plaintiff guarded from time she was stopped until time police arrived).

We also c onclude that the record contains sufficient evidence to create a genuine issu e of material fact a

s to the unlawfulne

ss of Richards’ detention. In order to establish this element, a pl aintiff must allege and prove that she was detained without probable cause. Brown v. SCOAIndus., Inc. , 741 S.W.2d 916, 920 (Tenn. App. 19 87); Hudson v. Pickering , 1989 WL 134748, at

*1 (Tenn . App. Nov. 8 , 1989 ). In urging this cou rt to affirm the tr

ial court’s dismissa

l of Richards’ false imprisonment claim, the Defendants contend that, a s a matter of law, Hackett had

probable
cause to detain Richards because he suspected that she had committed a theft. See, e.g. , Brown v. SCOA Indus. , 741 S.W.2d at 920 (ho lding that store w as entitled to dire

cted verdict on f

alse imprisonmentclaim because reasonable minds could not conclude other than that store employees had probable cause to detain plaintiff for shoplifting).

We respectfully disagree with the Defendants’ c ontention. The mall alert issued relative to the gift certificates contained no suggestion that Richards had committed a theft. Instead, the mall alert indicated that “a Gloria Jean’s employee inadvertently

kept the paper no

n-negotiable part of the gift certificate” and that this mistake was “the fault of the employee due to inexperience.” In his deposition, Hackett admitted that he initially did not know why Watchwo rks had c alled security and that, when he first approached Richar ds, he could not recall t

he contents of the

mall alert. When told that the mall alert was initiated by Gloria Jean’s and that it invol ved g ift certificates,

Hackett recalled the

mall alert being issued but could not remember if it involved “any kind of theft or inap propriate conduct of any kind.” Hackett did not discover the existence of the original gift certificates in Richards’ possession until after he already had detained

her for a period of time. Although Hackett testified that he then developed “some suspicion” that Richards may have committed a

theft, Hackett a

lso acknowledg

ed that, other than Richards’ possession of the original g iftcertificates, Hackett had no reason to suspect Richards of theft. Based on the foreg oi n g evidence, we hold that a genuine issue of material

fact exists

as to whether Hackett’s detention of Richards was supported by probable cause.

For the same reason, we reject the Defendants’ contention that they were entitled to summary judg

ment based on the st

atutory def

ense provided in Tennessee CodeAnnotated section 40-7-116(c). That section provides that

A merchant or a merchant’s employee o r agent or a peace officer who detains, questions or causes the arrest of any person suspectedof theft

shall not be criminally or civilly liable for any legal action relating to such detention, questioning or arrest if the merchant or merchant’s employee or agent or pea ce officer:(1) Has reasonable gr ounds to suspect that the person has committed or is atte

mpting to commit the

ft; (2) Acts in a reasonable manner under the

circumstances; and (3) Detains the suspected person for a reasonable period of time.

T.C.A. § 40-7-116(c) ( 1990). Although t he statute refe

rs to “reasonabl

e grounds”

rather tha n “probable cause ,” in the context of false imprisonment claims, this court has interpreted the two terms as having the same meaning. Brown v. SCOA Indus. , 741 S.W.2d at 919.

That portion of the trial court’s judgment dismissing Richards’ claim for false imprisonmentis reversed, and this cause is remanded for further proceedings consisten t w ith this opinion. In all other r

espects, the trial court’s judgment is affirmed. Costs on appeal are taxed onehal f to Ric hard s an d on e-ha lf t o th e Def end ant s, f or w hic h ex ecut ion may i ssu e if nece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)