GA Code § 51-7-1 (2021)
2021 Georgia Code|Title 51 - Torts|Chapter 7 - False Arrest, False Imprisonment, Malicious Prosecution, and Abusive Litigation|Article 1 - False Arrest|§ 51-7-1. Right of Action for False Arrest

 An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.   (Orig. Code 1863, § 2935; Code 1868, § 2942; Code 1873, § 2993; Code 1882, § 2993; Civil Code 1895, § 3854; Civil Code 1910, § 4450; Code 1933, § 105-1001.)   Law reviews.   - For article, "Georgia Local Government Officers: Rights for Their Wrongs," see 13 Ga. L. Rev. 747 (1979).   JUDICIAL DECISIONS    Actions for malicious arrest and prosecution are not favored by courts. Ventress v. Rosser, 73 Ga. 534 (1884); Price v. Cobb, 60 Ga. App. 59, 3 S.E.2d 131 (1939).   Legislative intent.    - The provisions of law relative to false or malicious arrest are intended to protect and remunerate those who have been wantonly abused under color of authority. Jackson v. Norton, 75 Ga. App. 650, 44 S.E.2d 269 (1947).    Injured party was not able to recover under O.C.G.A. § 51-1-6 for the declarant's alleged violation of the criminal statutes. O.C.G.A. § 16-10-26, prohibiting giving a false report of a crime, and O.C.G.A. § 16-10-24, prohibiting obstructing or hindering the police, as these statutes did not provide for a civil cause of action; furthermore, the legislature had provided statutory civil remedies in the form of false arrest under O.C.G.A. § 51-7-1 and malicious prosecution under O.C.G.A. § 51-7-40. Jastram v. Williams, 276 Ga. App. 475, 623 S.E.2d 686 (2005).    Elements of action under this section are similar to action for malicious prosecution. Waters v. Winn, 142 Ga. 138, 82 S.E. 537 (1914).    Arrest is taking, seizing, or detaining of person of another, either by touching or putting hands on that person, or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and will of the person making the arrest; it is sufficient if the arrested person understands that the person is in the power of the one arresting and submits in consequence thereof. Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 12 S.E.2d 398 (1940).    When restraint was unlawful and contravention of other person's right, arrest was unlawful, and a right of action accrued to the person arrested against the person who had thus unlawfully arrested the person and restrained the person of the person's liberty. Turney v. Rhodes, 42 Ga. App. 104, 155 S.E. 112 (1930).   Arrest established.    - Even though a customer was told the customer was not under arrest, but the customer was prevented from leaving the security office of the store, an arrest was established. Simmons v. Kroger Co., 218 Ga. App. 721, 463 S.E.2d 159 (1995), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).    Whoever arrests or imprisons person without warrant is guilty of a tort, unless the person can justify under one of the exceptions prescribed by law. Jackson v. Norton, 75 Ga. App. 650, 44 S.E.2d 269 (1947).    An arrest without a warrant, unless made under circumstances declared by statute to warrant arrest without warrant, is illegal and is a tort for which an action will lie as well as when arrest is under process of law but without probable cause and maliciously made. Standard Sur. & Cas. Co. v. Johnson, 74 Ga. App. 823, 41 S.E.2d 576 (1947).   Probable cause for arrest.    - Whether a store's security guard acted reasonably in relying on unverified information from a source the guard never identified when the guard arrested a customer created an issue of fact regarding the presence or absence of probable cause. Simmons v. Kroger Co., 218 Ga. App. 721, 463 S.E.2d 159 (1995), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).    Plaintiff could not sustain claims of false arrest and malicious prosecution against a police officer and city because there was no evidence of lack of probable cause or malice. Stanford v. City of Manchester, 246 Ga. App. 129, 539 S.E.2d 845 (2000).    Defendant bank was properly granted summary judgment on the plaintiff patron's civil claim for false arrest after: (1) it was undisputed that the patron refused to leave the bank after being repeatedly asked by bank representatives to do so; (2) such refusal clearly provided probable cause within the meaning of O.C.G.A. § 51-7-3 for the patron's arrest for criminal trespass under O.C.G.A. § 16-7-21(b); and (3) such probable cause defeated the "without probable cause" element of the false arrest claim under O.C.G.A. § 51-7-1. Mohamud v. Wachovia Corp., 260 Ga. App. 612, 580 S.E.2d 259 (2003).   Because the plaintiff had gone to the police stations and told two other officers that the arresting officer had better stop harassing the plaintiff, and because the arresting officer had stopped the plaintiff for traffic violations on two separate occasions during the week or two prior to a parking lot incident, believing that the plaintiff was involved in drug activity, the plaintiff had failed to carry the burden of showing lack of probable cause, and the arresting officer was entitled to summary judgment on the false arrest claim. Perrin v. City of Elberton, F. Supp. 2d (M.D. Ga. July 1, 2005).    In an action alleging false arrest, malicious prosecution, and false imprisonment, as the arresting officers were parties, not disinterested witnesses. their deposition testimony that the arrest of both plaintiffs was based solely upon their professional judgment, constituted a mere statement of self-serving opinion and a legal conclusion that could not support the grant of summary judgment; moreover, a jury, not a judge, was to construe the facts upon which such opinion was based and could reach a diametrically different conclusion to that reached by the witness. Adams v. Carlisle, 278 Ga. App. 777, 630 S.E.2d 529 (2006).   When the defendant police captain saw nude dancing plus alcohol being served, the captain had probable cause to issue a citation to the plaintiff nightclub operator for violating a county ordinance, and since there was no evidence of malice, the nightclub operator's malicious arrest claim failed. Curves, LLC v. Spalding County, 685 F.3d 1284 (11th Cir. 2012).   Arrestee's false arrest claim failed because probable cause existed to arrest the arrestee for burglary; an eyewitness observed the arrestee and another person entering a vacant home, officers found that the home's back door appeared to have been damaged, and the arrestee and the other person admitted that they did not have permission to enter. Gray v. Ector, 541 Fed. Appx. 920 (11th Cir. 2013)(Unpublished).   Arrestee's state law false arrest claim failed because the arrest was supported by probable cause. Smith v. City of Fairburn, Ga., F.3d (11th Cir. Feb. 15, 2017)(Unpublished).    When victim of and witnesses to robbery had identified the defendant from the photo lineup, there was both sufficient information to provide probable cause for the defendant's arrest and no evidence of malice in the application for the arrest warrant, and therefore no action for false arrest and malicious prosecution. Franklin v. Consolidated Gov't, 236 Ga. App. 468, 512 S.E.2d 352 (1999).   Dismissal of criminal charge pursuant to compromise agreement did not terminate in plaintiff's favor.   - Plaintiff's state law malicious arrest claim against the deputy was properly dismissed because the state dismissed the criminal charge based on a compromise agreement, and thus, it did not terminate in the plaintiff's favor. Henley v. Payne, 945 F.3d 1320 (11th Cir. 2019), appeal dismissed, No. 20-12915-A, 2020 U.S. App. LEXIS 30824 (11th Cir. Ga. 2020).   No indication sheriff played role in false arrest.   - District court properly dismissed the plaintiff's claims against the sheriff because as to a § 1983 false arrest claim, the plaintiff did not allege the sheriff played a role in the probable cause determination; as to the Eighth Amendment excessive bail claim, the complaint did not allege the sheriff was involved in setting bail or that the sheriff could alter bail; as to the state malicious arrest claim, the sheriff was not involved in the decision to arrest the plaintiff, nor was the arrest carried out as result of a policy made by the sheriff; as to a state law false imprisonment claim, by the time the sheriff knew of imprisonment, the plaintiff was detained pursuant to a valid warrant; and as to an intentional infliction of emotional distress claim, the allegations did not meet the required standard. Henley v. Payne, 945 F.3d 1320 (11th Cir. 2019), appeal dismissed, No. 20-12915-A, 2020 U.S. App. LEXIS 30824 (11th Cir. Ga. 2020).   Question of arrest is for jury.    - In a tort action filed by a parent as next friend of the parent's minor daughter alleging various torts including false arrest, because the record showed that the defendants took the child and led the child around by the hand, whether an arrest was made was a question for the jury. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).    While false or malicious arrest may be tort, it is likewise breach of condition of sheriff's official bond, when the false or malicious arrest is done colore officii. Jackson v. Norton, 75 Ga. App. 650, 44 S.E.2d 269 (1947).    Person has cause of action against officer who arrests the person when the arrest is not made in good faith and is arbitrary and illegal on the part of such officer. Jackson v. Norton, 75 Ga. App. 650, 44 S.E.2d 269 (1947).    If criminal process is sued out without probable cause and arrest is made under it, remedy of accused depends on whether or not one is actually prosecuted under the warrant. After the arrest, if the warrant is dismissed or not followed up, the remedy is for malicious arrest. But, if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie. Barnes v. Gossett Oil Co., 56 Ga. App. 220, 192 S.E. 254 (1937); Smith v. Embry, 103 Ga. App. 375, 119 S.E.2d 45 (1961), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672, S.E.2d 7 (2008).    If warrant or process is valid, malicious arrest or malicious prosecution is exclusive remedy and an action for false imprisonment will not lie. Lovell v. Drake, 60 Ga. App. 325, 3 S.E.2d 783 (1939).    Only distinction between malicious arrest and malicious prosecution lies in whether prosecution was "carried on," and the plaintiff must show a termination to prove malicious arrest. Smith v. Embry, 103 Ga. App. 375, 119 S.E.2d 45 (1961), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672, S.E.2d 7 (2008).    False arrest, false imprisonment, and malicious prosecution are not mutually exclusive, and a plaintiff can proceed before a jury on all three theories. Wal-Mart Stores, Inc. v. Johnson, 249 Ga. App. 84, 547 S.E.2d 320 (2001), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).   False imprisonment and false arrest distinguished.    - Because the elements of false imprisonment and false arrest are different, the denial of summary judgment on one claim does not preclude the grant of summary judgment on the other. Simmons v. Kroger Co., 218 Ga. App. 721, 463 S.E.2d 159 (1995), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).   False arrest and malicious prosecution distinquished.    - Trial court did not err in granting summary judgment to the defendants as to the plaintiff's claim for false arrest as a genuine issue of material fact did not exist since the plaintiff did not dispute that the plaintiff's arrest proceeded to prosecution when the plaintiff was brought before a judge who set bond and that the plaintiff remained in jail for 72 days; thus, to the extent the plaintiff may seek redress, the action was one for malicious prosecution and not false arrest. Sheffield v. Futch, 354 Ga. App. 661, 839 S.E.2d 294 (2020), cert. denied, No. S20C1090, 2020 Ga. LEXIS 807 (Ga. 2020).    An arrest without a warrant cannot constitute a false/malicious arrest under O.C.G.A. § 51-7-1. Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).    Because it was undisputed that the employee was never arrested pursuant to a warrant, the employee's false arrest claim lacked merit, and the trial court did not err when the court granted summary judgment to the employer on that claim. Smith v. Wal-Mart Stores East, LP, 330 Ga. App. 340, 765 S.E.2d 518 (2014).   Employer not liable when employees not liable.    - Because the individual defendants and the detective were not liable for false arrest, summary judgment was proper as to the employer since there was no evidence of malice or corruption. McClendon v. Harper, 349 Ga. App. 581, 826 S.E.2d 412 (2019).   Action accrues when proceeding terminates.    - To recover in tort for malicious arrest, the arrested party has the burden of showing that the prior criminal proceeding, whatever its extent, has terminated in the party's favor, and the action does not accrue until the proceeding terminates. McCord v. Jones, 168 Ga. App. 891, 311 S.E.2d 209 (1983).   Statute of limitations.    - Actions for malicious prosecution, for malicious abuse of legal process, for false arrest or false imprisonment, or for malicious use of civil process were all actions for damages for injuries to the person of the party complainant; and under former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33) such actions were not barred until two years after the issues arise. McCullough v. Atlantic Ref. Co., 50 Ga. App. 237, 177 S.E. 601 (1934), rev'd on other grounds, 181 Ga. 502, 182 S.E. 898 (1935).    Petition for malicious prosecution will not lie unless it is alleged that prosecution has terminated in favor of petitioner. Hughes v. Georgia Power Co., 65 Ga. App. 163, 15 S.E.2d 466 (1941); Mathews v. Murray, 101 Ga. App. 216, 113 S.E.2d 232 (1960).    Punitive damages are not recoverable in absence of actual damages. Kilgore v. National Life & Accident Ins. Co., 110 Ga. App. 280, 138 S.E.2d 397 (1964).   Claim for damages subject to assault and battery endorsement.    - Trial court did not err in finding that, under the policy, the plaintiff's claim for damages for false imprisonment arose out of an assault and battery and were thus subject to the $50,000 sublimit in the assault and battery endorsement because under the clear language of the endorsement, the plaintiff's damages for false imprisonment and false arrest arose out of an alleged assault and battery and the assault and battery were the genesis of the plaintiff's claims for false imprisonment and arrest. Zook v. Arch Specialty Ins. Co., 336 Ga. App. 669, 784 S.E.2d 119 (2016).   Arrest of police officer for nonpayment of taxes.    - A police officer is liable for damages resulting from the arrest of a person who has paid the person's street tax, since no ordinance of a penal nature was shown to justify the officer's act. McDonald v. Lane, 80 Ga. 497, 5 S.E. 628 (1888).   Arrest under false charge of swindling creates liability.    - An arrest caused by making a false and malicious charge of swindling and advising that a warrant be issued is actionable. Stevens v. Little-Cleckler Constr. Co., 18 Ga. App. 483, 89 S.E. 597 (1916).   Liability of railroad officer for arrest.    - No liability arises when the officer of a railroad company arrests one standing on a moving train under circumstances indicating that one is stealing a ride. Summers v. Southern Ry., 118 Ga. 174, 45 S.E. 27 (1903).   Officer's independent judgment in making arrest.    - Actions for false arrest, malicious prosecution, and false imprisonment may successfully be defended by an uncontroverted affidavit of the arresting officer that the decision to arrest the plaintiff was made solely by the officer in the exercise of the officer's professional judgment and independently of any exhortations by the defendants. Jacobs v. Shaw, 219 Ga. App. 425, 465 S.E.2d 460 (1995).   Official immunity.    - Police officer's conduct in arresting the plaintiff, while unprofessional, was not willful, fraudulent, corrupt, or malicious; therefore, the officer enjoyed limited immunity. Yarbrough v. Kirkland, 249 Ga. App. 523, 548 S.E.2d 670 (2001).   Minor incapable of consent.    - Summary judgment was properly denied on a parent's claim of intentional infliction of emotional distress, false arrest, false imprisonment, and invasion of privacy arising out of an accusation by store employees that the parent's nine-year-old child stole from the store because the child was below the age of 13, the age of criminal responsibility under O.C.G.A. § 16-3-1, and was legally incapable of giving consent to their actions under O.C.G.A. §§ 51-11-2 and51-11-6. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).   Evidence of malice precluded grant of summary judgment.    - Summary judgment was properly denied on a parent's false arrest claim under O.C.G.A. § 51-7-1 arising out of an accusation by store employees that the parent's nine-year-old child stole from the store because whether an arrest took place when employees led the child back into the store to be questioned about the alleged theft, whether they had probable cause to do so under O.C.G.A. § 51-7-3, and whether they acted maliciously under O.C.G.A. § 51-7-2 were issues of fact to be resolved by a jury. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).   Summary judgment improper.    - Trial court erred in granting summary judgment in favor of a corporation and the corporation's president in an employee's action alleging malicious prosecution and malicious arrest because genuine issues of fact remained as to the issues of probable cause and malice; although the president averred that the president did not know that the employee was not licensed when the president hired the employee, the affidavits the employee submitted indicated otherwise. McKissick v. S. O. A., Inc., 299 Ga. App. 772, 684 S.E.2d 24 (2009).    Trial court erred in granting summary judgment to a police officer in an arrestee's action alleging false arrest because a question of fact remained as to whether the officer apprehended the arrestee for disorderly conduct knowing that there was no probable cause to do so when nothing in the arrestee's testimony suggested that the arrestee either cursed the officer or physically obstructed the officer at any time before being handcuffed; the officer failed to provide undisputed evidence showing that an arrest for physical obstruction was justified, and the officer was not aware at the time of the arrest that the arrestee had an outstanding warrant for failure to appear. Jones v. Warner, 301 Ga. App. 39, 686 S.E.2d 835 (2009), overruled on other grounds by Sheffield v. Futch, 2020 Ga. App. LEXIS 80 (Ga. Ct. App. 2020).   Trial court erred by refusing to file in forma pauperis complaint.    - Trial court erred by refusing an inmate's request to proceed in forma pauperis under O.C.G.A. § 9-15-2(d) and to file the inmate's complaint because the court could not decipher the inmate's complaint as construing the complaint in the light most favorable to the inmate, the inmate did state justiciable claims for false arrest, false imprisonment, and violation of the inmate's civil rights. Thompson v. Reichert, 318 Ga. App. 23, 733 S.E.2d 342 (2012).    Cited in Brookshier v. Williams, 19 Ga. App. 685, 91 S.E. 1056 (1917); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978); Webster v. City of East Point, 164 Ga. App. 605, 294 S.E.2d 588 (1982); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982); McCord v. Jones, 168 Ga. App. 891, 311 S.E.2d 209 (1983); Nunnally v. Revco Disct. Drug Ctrs. of Ga., Inc., 170 Ga. App. 320, 316 S.E.2d 608 (1984); Stover v. Watson, 180 Ga. App. 16, 348 S.E.2d 463 (1986); Carruth v. Roberts, 189 Ga. App. 247, 375 S.E.2d 499 (1988); Robbins v. Lanier, 198 Ga. App. 592, 402 S.E.2d 342 (1991); Britt v. Whitehall Income Fund, 891 F. Supp. 1578 (M.D. Ga. 1993); Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 532 S.E.2d 463 (2000); Fleming v. U-Haul Co., 246 Ga. App. 681, 541 S.E.2d 75 (2000); Draper v. Reynolds, 278 Ga. App. 401, 629 S.E.2d 476 (2006).   RESEARCH REFERENCES   Am. Jur. 2d.   - 52 Am. Jur. 2d, Malicious Prosecution, §§ 3, 4.   10A Am. Jur. Pleading and Practice Forms, False Imprisonment, § 2.   ALR.    - Advice or order from superior officers as defense to a police officer for making an unlawful arrest, 3 A.L.R. 647.    Liability for loss of property left unprotected when owner was wrongfully arrested, 5 A.L.R. 362.    Liability of municipality for arrest and detention of person upon false pretense that he or she is afflicted with a contagious disease, 12 A.L.R. 249.    Malice and want of probable cause as elements of action for false imprisonment, 19 A.L.R. 671; 137 A.L.R. 504.    Detention as result of dispute over payment of bill for cash service as false imprisonment, 26 A.L.R. 1333.   Excessiveness or inadequacy of damages for false imprisonment or arrest, 35 A.L.R.2d 273.   When statute of limitations begins to run against action for false imprisonment or false arrest, 49 A.L.R.2d 922.   Pleading good faith or lack of malice in mitigation of damages in action for false arrest or imprisonment, 49 A.L.R.2d 1460.   False arrest or imprisonment: entrapment as precluding justification of arrest or imprisonment, 15 A.L.R.3d 963.   Attorneys' fees as element of damages in action for false imprisonment or arrest, or for malicious prosecution, 21 A.L.R.3d 1068.   Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment, 79 A.L.R.3d 882.   Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.   Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment, 93 A.L.R.3d 1109.   False imprisonment: liability of private citizen, calling on police for assistance after disturbance or trespass, for false arrest by officer, 98 A.L.R.3d 542.   Liability for negligently causing arrest or prosecution of another, 99 A.L.R.3d 1113.   Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 35 A.L.R.4th 441.   Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.   Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.   Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R.4th 1031.   Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.   Construction and application of Federal Tort Claims Act provision (28 USCA § 2680(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 152 A.L.R. Fed. 605.