Summary
holding that "general damages [were] presumed to result" from accusation that plaintiff shoplifted a tube of lipstick
Summary of this case from Scott v. Spencer Gifts, LLCOpinion
Case No. 1:99CV10-S-D.
Filed Date: January 20, 2000.
OPINION
In this case, plaintiffs allege that defendant is vicariously liable for the actions of an employee who wrongfully accused plaintiffs' minor child of shoplifting. Presently before the court are defendant's motion for summary judgment and plaintiffs' cross-motion for partial summary judgment.
FACTS
The facts are not in dispute. On March 16, 1998, Lindsay Earnest, the 17-year-old daughter of plaintiffs Michael and Linda Earnest, was shopping in defendant's North Gloster Street store in Tupelo, Mississippi. While Lindsay shopped, a Wal-Mart employee, Wanda Carter, notified Angela Jacobs, the loss prevention officer, that she suspected Lindsay of shoplifting. Memory Holly, another Wal-Mart employee, overheard this conversation. At approximately the same time, Tim Moore, a Wal-Mart employee who was in the store shopping but not working, approached Carter and Holly. Holly asked Moore to help her and Carter watch Lindsay. Moore agreed, tracking Lindsay through the store for ten to fifteen minutes. When Lindsay checked out, she exited through the front doors with Moore behind her. Once outside, Moore began "holler[ing]" for Lindsay to stop and come back to him. She returned to the entrance of the store where Moore examined Lindsay's receipt and compared it to the items in her bag. Finding no discrepancy between the receipt and the contents of the bag, Moore advised Lindsay that he suspected her of shoplifting a tube of lipstick. In response, Lindsay pulled out her pockets, and Moore then told her to empty her purse on top of the trash can located adjacent to the front entrance of the store. Finding nothing, Moore returned to the store, and Lindsay proceeded to her car. On her way, Lindsay passed a group of boys who yelled, "Thief. You got busted."
Howard Brannon, the manager of the North Gloster Wal-Mart and the corporate designee, admitted in his deposition that Moore's actions violated Wal-Mart policy for apprehending and questioning a suspected shoplifter. In that regard, he testified that employees are instructed to notify a member of management or the loss prevention officer if they suspect a customer of shoplifting. The loss prevention officer then stops the suspected shoplifter as he exits the store and requests the individual to return to the inside of the store where he is questioned in private. Indeed, five days after the subject incident, Moore was terminated for violation of company policy, specifically, that he had "made a loss prevention stop unauthorized. He stopped a customer who had nothing!" Brannon further admitted that the manner in which Moore detained and questioned Lindsay was unreasonable.
DISCUSSION
The question at the heart of this case is whether Moore, at the time of the incident in question, was acting within the course and scope of his employment with Wal-Mart so as to impose vicarious liability on the company for his actions in detaining and questioning Lindsay in front of other Wal-Mart employees and patrons. The law on this issue is clear; its applicability to this case presents the challenge.
The employer is responsible for the torts of its employee only when they are committed within the scope of his employment. "Scope of employment is a relative term, difficult of exact definition. It comprehends consideration of the surrounding facts and circumstances." Horton v. Jones, 44 So.2d 397, 399 (Miss. 1950). See also Loper v. Yazoo M. V. R. Co., 145 So. 743, 745 (Miss. 1933) (phrase "scope of employment" has "no fixed legal or technical meaning"). Relevant considerations include:
(1) whether the tortious act was done in the course of and as a means to the accomplishment of the purposes of the employment and therefore in furtherance of the master's business, Odier v. Sumrall, 353 So.2d 1370, 1372 (Miss. 1978);
(2) whether the tortious act was committed within the real or apparent scope of the employee's authority, Jenkins v. Cogan, 119 So.2d 363, 368 (Miss. 1960);
(3) whether the unauthorized conduct is of the same general nature as that authorized by the employer or is incidental to the employment, Odier, 353 So.2d at 1372.
An act is within the "apparent" scope of the employee's authority "when a reasonably prudent person, having knowledge of the nature and usages of the business, is justified in supposing that he is authorized to perform it from the character of the duties which are known to be intrusted to him." Tarver v. J. W. Sanders Cotton Mill, Inc., 192 So. 17, 19 (Miss. 1939). If these conditions are met, then the employer is liable "although in doing the act, the [employee] stepped beyond his authority." Horton, 44 So.2d at 399; see also Jenkins, 119 So.2d at 368. Thus, "the decisive question is not whether the servant was acting in accordance with the instructions of the master but whether he was at the time doing any act in furtherance of his master's business." Lovett Motor Co. v. Walley, 64 So.2d 370, 372 (Miss. 1953). Of course, "liability is not limited to the acts of the employee which promote the objects of the employment. Sometimes the business of the master is combined with the business or pleasure of the employee." Horton, 44 So.2d at 399. But certainly, "[a]ttention must be given to the character of the employment and the nature of the wrongful deed — the time and place where committed." Id.
To escape liability, the employer must show that at the time of the act, the employee had abandoned his employment and was about some purpose of his own not incidental to the employment. Odier, 353 So.2d at 1372; see also Lovett, 64 So.2d at 372; Horton, 44 So.2d at 399. Furthermore, generally, the employer, which "has the right to fix the hours within which the work is to be performed," White's Lumber Supply Co. v. Collins, 191 So. 105, 106 (Miss. 1939), will not be liable for the conduct of his employee "except during the fixed period and during such an additional fringe of time, as is not unreasonably disconnected from the authorized period." Collins, 191 So. at 106.
This case presents a unique situation because while Moore was in Wal-Mart originally on purely personal business, he ultimately took it upon himself, after being solicited by a fellow employee, to perform a function which was certainly in the interests of his employer and in furtherance of its business. (Indeed, Wal-Mart advised its employees that "[i]t is everyone's responsibility to help stop shrinkage [which includes shoplifting].") What the court finds telling in this case is Wal-Mart's response to Moore's actions. If the company had not terminated his employment, after all, according to Wal-Mart, Moore was merely a customer who acted out of purely personal feelings of altruism — then the court would have no hesitation in finding that Wal-Mart is not vicariously liable for his actions. But that is not what Wal-Mart did: it fired Moore for violating company policy. If Moore was simply a customer, then Wal-Mart had no authority to terminate his employment for his acts on the day in question. However, when Wal-Mart determined that Moore had overstepped his authority in making an unauthorized prevention stop, it tacitly acknowledged that he was acting within the course and scope of his employment at the time, and it is vicariously liable for his actions. The company quite simply cannot have it both ways. The court certainly recognizes the catch-22 in which Wal-Mart was placed by an overzealous employee who believed he was doing a good deed for his employer; however, the court believes "that the loss resulting from the servant's acts should be considered one of the normal risks of the business in which the servant is employed which that business should bear." Loper, 145 So. at 745. The motion of Wal-Mart for summary judgment is therefore denied, and the question becomes whether there are any genuine issues of material on the elements of plaintiffs' claims for slander and wrongful detention.
Two initial matters must be addressed. First, Wal-Mart argues that plaintiffs did not sufficiently plead a claim for defamation. The court disagrees. In their complaint, plaintiffs alleged, "Several persons witnessed the unlawful detention of Lindsay and heard her being falsely accused of stealing. In fact, several of the passersby jeered, `You got caught.' `Thief.'" Though minimal, these allegations put defendant on notice of a claim of defamation, which is all plaintiffs are required to do under the Federal Rules of Civil Procedure.
Second, Wal-Mart can gain no shelter from the qualified privilege of Miss. Code Ann. § 97-23-95, which protects a merchant from slander and false imprisonment claims when it detains and questions a suspected shoplifter. To gain protection under this statute, the merchant not only must show good faith and reasonable grounds for believing that the customer is shoplifting but also present evidence that the detention and questioning of the customer were done in a reasonable manner. Turner v. Hudson Salvage, Inc., 709 So.2d 425, 427 (Miss. 1998). In this case, Wal-Mart has admitted through its corporate designee that neither the detention nor the questioning of Lindsay was reasonable; therefore, the statutory privilege does not attach. See also J. C. Penney Co. v. Cox, 148 So.2d 679 (Miss. 1963) (merchant lost qualified privilege where assistant manager caught customer by arm and demanded she empty contents of purse and bag in full view of sales people and customers in store; court stated, "The qualified privilege . . . does not give the merchant the right to embarrass or harass individuals suspected, in public view of every one, in a rude manner").
To prove defamation, plaintiffs must establish: (1) a false and defamatory statement concerning Lindsay; (2) an unprivileged publication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused the by publication. Boone v. Wal-Mart Stores, Inc., 680 So.2d 844, 846 (Miss. 1996).
Having carefully considered the matter, the court finds that there is no genuine issue of material fact on any of these elements and that plaintiffs are entitled to judgment as a matter of law on the defamation claim. Wal-Mart admitted through Brannon that it has no evidence that Lindsay stole any item from its store. Moore's allegation to the contrary was therefore false, and no reasonable juror could find that a false allegation of shoplifting is not also defamatory. Furthermore, Wal-Mart does not dispute that Moore's interrogation of Lindsay occurred, at the very least, in the presence of customers who were entering and exiting the store. "To accuse one of stealing is actionable per se, and no testimony is required to show the meaning of the words." Southwest Drug Stores v. Garner, 195 So.2d 837, 841 (Miss. 1967). In other words, plaintiffs are not required "`to introduce the customers . . . or bystanders . . . to testify as to their understanding of the meaning of the words complained of.'" Garner, 195 So.2d at 841 (citation omitted). Rather, it is only necessary that "`the facts and circumstances would entitle the jury to believe that [such persons] heard and understood [the charges].'" Id. Certainly, being questioned in front of other customers is unprivileged. Moreover, at the very least, Moore was negligent in the manner in which he questioned Lindsay, Wal-Mart itself having admitted that his actions were unreasonable. And finally, plaintiffs need not prove general damages as they are presumed to result when a person is charged with theft. Foster v. Neal, 715 So.2d 174, 183 (Miss. 1998).
The court turns now to plaintiffs' claim for unlawful or wrongful detention but only in passing, since plaintiffs did not brief this issue. Certainly, Wal-Mart has admitted that the manner in which Lindsay was detained was unreasonable, but plaintiffs have failed in their motion or their argument to the court to explain how this fact figures into resolution of the underlying detention claim. As such, plaintiffs are not entitled to its summary dismissal on the merits.
CONCLUSION
Having carefully considered the motions of the parties, the court finds that plaintiffs are entitled to judgment as a matter of law on the issue of defendant Wal-Mart's vicarious liability for the acts of its employee in detaining and questioning Lindsay Earnest, and that they are likewise entitled to summary judgment on the merits of the slander claim. They are not, however, entitled to summary judgment on the merits of the wrongful detention claim, as they did not address that claim in the motion or their arguments to the court. Therefore, their motion for partial summary judgment is granted in part and denied in part. Because Wal-Mart is vicariously liable for the actions of Tim Moore as a matter of law, its motion for summary judgment is denied.
An appropriate order shall issue.
This _________ day of January, 2000.
L. T. SENTER, JR. SENIOR JUDGE