โ) (citation omitted). Accord Simmons v. Mableton Finance Co., 254 Ga.App. 363, 365(2), 562 S.E.2d 794 (2002). Compare Melton, supra (โWe find particularly persuasive the fact that the criminal charge against appellee was dismissed following a preliminary hearing at which essentially the same facts as were known to [defendant] when [plaintiff] was arrested were presented to a magistrate.โ).
Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) ( 282 SE2d 393) (1981) ("While not conclusive, the dismissal of the charge is evidence that probable cause was lacking.") (citation omitted). Accord Simmons v. Mableton Finance Co., 254 Ga. App. 363, 365 (2) ( 562 SE2d 794) (2002). Compare Melton, supra ("We find particularly persuasive the fact that the criminal charge against appellee was dismissed following a preliminary hearing at which essentially the same facts as were known to [defendant] when [plaintiff] was arrested were presented to a magistrate.").
Horne, supra at 448, citing Willis v. Brassell, 220 Ga. App. 348, 353 (4) ( 469 SE2d 733) (1996). See also Melton, supra at 822 (2) (a). Accord Simmons v. Mableton Finance Co., 254 Ga. App. 363, 365 (2) ( 562 SE2d 794) (2002). (Emphasis omitted.)
In any event, based on Georgia case law, it is for a jury to decide in the present instance whether Evans, LGC, Grayson, and CPG may be liable.Simmons v. Mableton Finance Co., 254 Ga. App. 363, 366 (4) ( 562 SE2d 794) (2002) (genuine issue of material fact existed as to whether company and employee instigated prosecution of customer); McClelland v. Courson's 441 South Station, 248 Ga. App. 170 ( 546 SE2d 300) (2001) (genuine issue of material fact existed in malicious prosecution claim where store employee failed to adequately investigate information that led store to submit affidavit identifying arrestee as the perpetrator); Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681, 682-683 (2) ( 541 SE2d 75) (2000) (where company negligently failed to ascertain the complete state of facts or recklessly failed to present them fully and fairly, summary judgment on claims for false arrest and malicious prosecution was precluded); Wilson v. Wheeler's, Inc., 190 Ga. App. 250 ( 378 SE2d 498) (1989) (genuine issues of material fact existed as to whether probable cause existed for customer's arrest where slight diligence exercised on the part of the store would have shown that there could be no
Likewise, a federal or Georgia claim for false arrest requires the plaintiff to show the absence of probable cause at the time of the arrest. Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010); Simmons v. Mableton Fin. Co., 562 S.E.2d 794, 797 (Ga. Ct. App. 2002). Here, El alleged that McCord conducted a pre-warrant hearing to hear the tenant's accusation that El had improperly evicted the tenant.
The elements of Georgia's false-arrest claim are (1) the presence of malice and (2) the absence of probable cause. Simmons v. Mableton Fin. Co., 562 S.E.2d 794, 797 (Ga.Ct.App. 2002); O.C.G.A. ยง 51-7-40.
A claim for false arrest in Georgia is an arrest under process of law, without probable cause and made maliciously. Simmons v. Mableton Fin. Co., 562 S.E.2d 794, 797 (Ga. Ct. App. 2002). In this case, Payne admits that while he was detained by a Walmart loss prevention employee, he was arrested by Officer Nobles of the Dublin City Police.
Under Georgia law, "[a]n aggrieved plaintiff must prove three elements in a false arrest claim: an arrest under the process of law, without probable cause[,] and made maliciously." Simmons v. Mableton Fin. Co., 562 S.E.2d 794, 797 (Ga. Ct. App. 2002).
See Adams v. Carlisle, 278 Ga. App. 777, 792 (2006) ("[I]n cases involving false arrest, malicious prosecution, and false imprisonment, the law draws a fine distinction between occasions wherein a party directly or indirectly urges law enforcement officials to begin criminal proceedings, which result in potential liability, and incidents wherein a party merely relays facts to an official who then makes an independent decision to arrest, which does not result in liability."); Simmons v. Mableton Fin. Co., 254 Ga. App. 363, 365 (2002). --------
"An aggrieved plaintiff must prove three elements in a false arrest claim: an arrest under process of law, without probable cause and made maliciously." McKissick v. S.O.A., Inc., 684 S.E.2d 24, 29 (Ga. Ct. App. 2009) (quoting Simmons v. Mableton Fin. Co., 562 S.E.2d 794, 797 (Ga. Ct. App. 2002)). Because the elements for false arrest under Georgia law are the same as the elements for malicious prosecution under the common law, and the Court has found that Hayes has raised a genuine dispute as to each element of the common law tort of malicious prosecution, Flowers' Motion for Summary Judgment (Doc. 12) as to Hayes' state law claim for false arrest is DENIED.