Security Officer Training and Selection Criteria

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8 Selected Case Readings

CHAPTER OUTLINE

Introduction................................................................................................................................... 335

Notes.............................................................................................................................................. 481

Introduction The following cases have been properly labeled “benchmark” precedents in the world of

private security. Use them as reference points and as catalysts for further discussion.

The cases emphasize the legal nuances of private sector justice, and, even more compel-

lingly, they tell the story of privatization and its apparent invincibility. Since Burdeau

v. McDowell, the kingpin of private security cases, decided in 1921, the courts at both

the state and federal levels have consistently ruled on this well-settled area of law. While

activists on many fronts wish constitutional extension to private sector operations, the

reticence of jurists, even in the age of judicial activism, is quite remarkable. To be sure,

the courts have been dependable and even more predictable. That sort of uniformity is

rare and a reflection of how high the stakes are in the law of private security.

AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC. 182 F.3d 376 (5th Cir. 1999)

Before Garwood, Duhe, and Benavides, circuit judges.

Opinion:

John M. Duhe, Jr., circuit judge:

Aetna Casualty & Surety Company (“Aetna”) sued Pendleton Detectives of Mississippi, Inc.

(“Pendleton”) for recovery of the amount of claims it paid for losses to its insured, The Merchants

Company, Inc. (“Merchants”), resulting from Pendleton’s negligence or breach of contract. The jury

awarded Aetna $174,000 in damages. Subsequently, the district court granted Pendleton’s Motion

for Judgment as a Matter of Law and entered judgment for Pendleton. Aetna appeals arguing the

district court erred, because Aetna presented sufficient evidence to sustain the jury’s verdict.

We agree, and reverse the district court’s judgment and reinstate the jury’s verdict.

BACKGROUND

In August 1993, Pendleton contracted with Merchants to provide security for Merchants’

Jackson, Mississippi distribution warehouse facility. Merchants quickly determined that it was

unsatisfied with Pendleton’s service. Merchants complained that the gate was left open at times,

guards arrived at work intoxicated, made personal phone calls, and entertained members of the

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Private Security and the Law

Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from apus on 2020-10-19 12:24:54.

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AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC.—CONT’D

opposite sex while on duty. In early 1995, Merchants determined through its inventories an

unusually high amount of loss from its warehouse. Merchants suspected nightshift employee

theft was responsible for the increased losses. Merchants fired its nightshift manager and

notified Pendleton, but the problem only grew worse. After Merchants notified Pendleton again

of the problem, it hired a private investigator posing as an employee to investigate the problem.

The private investigator concluded employee theft was responsible for the losses. Additionally,

several nightshift employees, while taking lie detector tests administered by a hired expert,

admitted stealing large amounts of food from the warehouse. After receiving Merchants’

complaints, Robert H. Pendleton, chairman of the board of Pendleton, sent Merchants a memo

acknowledging that the guards’ performance was below what was expected.

On January 31, 1996, Merchants submitted a claim of $430,266.68 for losses resulting

from theft at its Jackson, Mississippi warehouse. After settling the claim, Aetna sued to

recover the amount as Merchants’ legal subrogee and contractual assignee. Although the jury

awarded $174,000 in damages to Aetna, the district court granted Pendleton’s Motion for

Judgment as a Matter of Law and entered a judgment for Pendleton on May 8, 1998.

Merchants appeals.

DISCUSSION

We review the district court’s grant of a motion for judgment as a matter of law de novo,

applying the same standard it used. See Hill v. International Paper Co., 121 F.3d 168, 170 (5th

Cir. 1997). A court may grant a judgment as a matter of law if after a party has been fully heard

by the jury on an issue, “there is no legally sufficient evidentiary basis for a reasonable jury to

have found for that party with respect to that issue.” Fed. R. Civ. P. 50; Conkling v. Turner, 18

F.3d 1285, 1300 (5th Cir. 1994). A court should view the entire record in the light most favorable

to the nonmovant, drawing all factual inferences in favor of the nonmoving party, and “leaving

credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts to the jury.” Conkling, 18 F.3d at 1300 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)).

The district court based its ruling on Merchants’ failure to introduce conclusive evidence

that the thefts occurred while Pendleton guards were on duty. Although Pendleton’s security

expert, Robert Vause, testified that it was more likely than not that the theft occurred because of

Pendleton’s substandard service, the district court disregarded his testimony because his belief

was based on the lax security environment created by Pendleton employees at Merchants’

warehouse.

Merchants contends that it presented sufficient evidence to support the jury’s verdict, while

Pendleton asserts that Merchants did not prove its employees proximately caused Merchants’

losses. Specifically, Pendleton argues Merchants failed to present direct evidence that

Pendleton guards were on duty when the thefts occurred. While admitting that its security

services were substandard, Pendleton contends that Merchants’ restrictions on its security

service caused the losses rather than Pendleton’s substandard services.

To prove negligence, “a plaintiff must prove by a preponderance of the evidence each

element of negligence: duty, breach of duty, proximate causation, and injury.” Lovett v.

Bradford, 676 So. 2d 893, 896 (Miss. 1996). Circumstantial evidence is sufficient to prove

proximate cause under Mississippi law. See K-Mart, Corp. v. Hardy, 735 So. 2d 975, 1999 Miss.

336 PRIVATE SECURITY AND THE LAW

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AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC.—CONT’D

LEXIS 102, 1999 WL 145306, at *5 (Miss. 1999). “Negligence may be established by

circumstantial evidence in the absence of testimony by eyewitnesses provided the

circumstances are such as to take the case out of the realm of conjecture and place it within the

field of legitimate inference.” Id. (quoting Downs v. Choo, 656 So. 2d 84, 90 (Miss. 1995)); see

Davis v. Flippen, 260 So. 2d 847, 848 (Miss. 1972). (“when the case turns on circumstantial

evidence it should rarely be taken from the jury.”)

Merchants presented the following evidence of Pendleton’s negligent security practices:

(1) guards slept on the job; (2) guards watched T.V. on the job; (3) guards drank on the job;

(4) guards entertained guests of the opposite sex on the job; (5) guards left the gate to the

warehouse open;(6) Pendleton’s admission of failing to perform sufficient background checks

on its guards; (7) the private investigator’s conclusion that nightshift employees were

responsible for the losses; (8) several of Merchants’ nightshift employees’ confessions to

stealing large amounts of food;(9) Pendleton’s contractual obligation to provide security from

4 P.M. to 8 A.M. and 24 hours a day on weekends; (10) Merchants’ repeated reports of

suspected employee theft to Pendleton; (11) the report of a person wearing a Pendleton

baseball cap selling Merchants’ products from the trunk of his car; and (12) Merchants’

security expert’s testimony that it was more probable than not that Pendleton’s lax security

practices caused the losses. Merchants argues the above evidence is sufficient to support

the jury’s verdict.

Pendleton argues that Merchants’ restrictions on its security service caused the losses, and

that, because of the limited nature of the security service Merchants requested, the loss

would have occurred even had Pendleton performed its duties perfectly. Pendleton contends

the following restrictions placed upon its service by Merchants prevented it from deterring the

losses: (1) Pendleton was not allowed to go inside Merchants’ warehouse; (2) Pendleton was not

allowed to inspect the inside of trucks or employee vehicles leaving the facility; (3) Pendleton

did not provide 24 hour a day protection 7 days a week; and (4) the Pendleton security officer’s

view of the employee parking lot was obstructed for a short period of time every hour while he

conducted rounds of the premises.

At trial, Pendleton theorized that Merchant’s former night shipping manager was involved in

a large-scale scheme to steal food by colluding with truck drivers to falsify shipping documents

and send sealed trucks full of food to nonexistent locations. Pendleton contended that because

its guards lacked the authority to search sealed trucks as they left the gates of Merchants’

facility, it was unable to prevent the losses Merchants suffered. However, Pendleton did not

offer evidence that Merchants accused its truck drivers of stealing or that it ever suspected or

investigated any occurrences of falsified shipping documents. Moreover, Merchants’ evidence

established that the substantial losses from theft continued long after Merchants fired the night

shipping manager.

Merchants’ evidence at trial sufficiently supports the jury’s inference of causation between

Pendleton’s lax security practices and the losses Merchants suffered. The Security Instructions

developed by Pendleton exclusively for Merchants expressly stated that the mission of

Pendleton’s post was “to maintain security of the property and prevent fires, theft, etc. during

all hours.” The Security Instructions required that Merchants’ employees enter the facility only

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Chapter 8 • Selected Case Readings 337

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AETNA CASUALTY & SURETY COMPANY V. PENDLETON DETECTIVES OF MISSISSIPPI, INC.—CONT’D

through a gate located next to the guard house and that Pendleton guards be stationed at the

guard house during their entire shift except during the brief period of their rounds. These

instructions also authorized Pendleton’s guards to stop Merchants’ employees and inspect any

packages or bundles they were carrying, and mandated that Pendleton guards keep a “close

check on the employee parking area to deter outsiders, or other employees, from tampering

with or damaging employee vehicles.” (emphasis added). Additionally, while the guards’ view of

the employee parking lot was obstructed for a short period of time every hour during the

rounds of the premises, the guards were to perform these rounds randomly rather than at a set

time of day and were supposed to lock the gate while away, requiring employees to wait until

the guard’s return to exit the facility, thereby reducing the likelihood of employee theft during

this brief absence.

The period of loss claimed by Merchants extended from October 1994 to December 1995.

During this period Merchants employed up to 90 nightshift employees, and Pendleton was

required to conduct nearly 1,000 shifts of security services. The jury’s award of $174,000 to

Aetna, an amount substantially smaller than the $430,266.68 Aetna demanded, evidences the

jury’s implicit conclusion that Pendleton caused at least some of Merchants’ losses. The jury

obviously concluded that while the night shipping manager Merchants fired in July 1995 caused

some of the losses, Pendleton’s substandard security practices also caused $174,000 of the

losses Merchants suffered.

Based on the above evidence, a reasonable juror could not only have concluded that

Pendleton’s poor security practices allowed Merchants’ nightshift employees to steal with

impunity, but that in fact Pendleton’s security officers were also involved in the theft from

Merchants themselves. For the above reasons, we reverse the district court’s decision and

reinstate the jury’s verdict.

REVERSED AND JURY VERDICT REINSTATED

ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.

212 Ill. App. 3d 717; 571 N.E.2d 783 (1991)

Justice White delivered the opinion of the court. Cerda, P. J., and Rizzi, J., concur.

Defendants appeal from a judgment entered by the circuit court of Cook County that

reversed the revocation of plaintiffs’ licenses to practice. We affirm the judgment of the

circuit court.

Defendants are the Department of Registration and Education (the Department), now

known as the Department of Professional Regulation; Gary L. Clayton (the Director), who was

Director of Registration and Education at the pertinent times; the Illinois Private Detective,

Private Alarm, and Private Security Board (the Board); and the Board’s chairman, and five other

members.

338 PRIVATE SECURITY AND THE LAW

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

One plaintiff is Arthur Letourneau, to whom the record sometimes refers as Arthur

LeTourneau. The other plaintiffs are the detective division, the security division, and the

alarm division of Investigations International (the company). Of the four licenses and

certificates revoked, two licenses (as a private detective and a private security contractor) were

issued in Letourneau’s name, and two certificates (as a private detective agency and as a private

security contractor agency) were issued to Letourneauin the names of the company’s detective

division and security division, respectively. For convenience when referring collectively in this

opinion to plaintiffs’ licenses and certificates, the general term “licenses” is used.

A certificate as a private alarm contractor agency, issued in the name of the company’s alarm

division, and a license as a private alarm contractor, issued in Letourneau’s name, were neither

revoked nor involved in the disciplinary proceedings, but as licensees the holders thereof have

joined as plaintiffs.

The central issue is whether revocation of plaintiffs’ licenses was contrary to the manifest

weight of the evidence, unsupported by substantial evidence, or arbitrary and unreasonable.

I. STATUTORY BACKGROUND AND PROCEDURAL HISTORY

Under the Private Detective, Private Alarm, and Private Security Act of 1983 (Ill. Rev. Stat. 1985,

ch. 111, par. 2651 et seq.) (the Act or the present Act), a licensee is subject to disciplinary

sanctions for enumerated violations. (Ill. Rev. Stat. 1985, ch. 111, par. 2672(a).) A range of

sanctions, including license revocation, is provided. Ill. Rev. Stat. 1985, ch. 111, par. 2675. In this

cause, the department filed formal charges seeking disciplinary action against Letourneau and

the company as respondents. The charges named Letourneau and the company’s detective and

security divisions as holders of the licenses in question. The charges alleged three substantive

acts or omissions, said to constitute violations of the Act or of its precursor statute (the 1933

Act) (Ill. Rev. Stat. 1983, ch. 111, par. 2601 et seq.) (repealed eff. Jan. 5, 1984)1 and therefore to

constitute grounds for license revocation or suspension under section 22 of the Act (Ill. Rev.

Stat. 1985, ch. 111, par. 2672). The alleged violations were:

(a) Failure by the company since 1979 to register its employees with the department, in

violation of section 10b(4) of the 1933 Act and section 15(c) of the present Act (Ill. Rev. Stat.

1983, ch. 111, par. 2622(4);Ill. Rev. Stat. 1985, ch. 111, par. 2665(c)).

(b) Practice by the company as “a detective” while its “license” was nonrenewed from 1977 to

October 1983, said to be in violation of section 3 of the 1933 Act (Ill. Rev. Stat. 1983, ch. 111,

par. 2603).2

revocation of his detective license, in violation of sections 16(b) and (f) of the 1933 Act and

sections 22(a)(3), (a)(14), (a)(15), and (a)(19) of the present Act (Ill. Rev. Stat. 1983, ch. 111,

pars. 2628(b), (f); Ill. Rev. Stat. 1985, ch. 111, pars. 2672(a)(3), (a)(14), (a)(15), (a)(19)).

Under the version of the Act applicable to this cause, it was a continuing requirement for

agency certification such as here that the agencies each have a full-time Illinois-licensed

private detective or private security contractor in charge and that each such person reside in

Illinois. (Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d), (f).) “Residency” meant having established an

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Chapter 8 • Selected Case Readings 339

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

actual domicile in Illinois for at least one year. (Ill. Rev. Stat. 1985, ch. 111, par. 2652(m).) The

1933 Act contained similar requirements for detective agencies. (Ill. Rev. Stat. 1983, ch. 111,

pars. 2601, 2621.) The present Act has now been amended to repeal the requirement that a

licensee in charge reside in Illinois. See Pub. Act 85—981, art. III, } 5, eff. Jan. 1, 1988 (amending Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d) through (f)).

During several sessions between January and July 1986, a hearing officer received testimony

from 11 witnesses and admitted 75 exhibits into evidence. Attending from time to time and

sometimes participating in the proceedings were several members of the board. On January 22,

1987, the board made and submitted its written findings of fact, conclusions of law, and

recommendation that the licenses at issue be revoked. See Ill. Rev. Stat. 1985, ch. 111, par. 2674(d).

The board’s factual findings were that:

Letourneau had been a Florida resident since at least 1980 and, while holding the licenses at

issue, had falsely reported to the Department since 1980 that he was an Illinois resident.

Letourneau and the company had practiced as a detective and detective agency from

October 1977 to October 13, 1983, and from January 4, 1984, to January 7, 1985, without a

license and without registering employees.

Letourneau and the company had since at least 1980 allowed Ernest Rizzo to practice as a

detective without a license or supervision.

Letourneau and the company had practiced as a security contractor and security contractor

agency from January 4, 1984, to January 7, 1985, without registering employees.

The board’s legal conclusion was that Letourneau had violated the sections of the present

Act and of the 1933 Act that he and the company were charged with violating.

Letourneau filed a motion for rehearing, but the director denied it. Adopting the board’s

findings of fact, conclusions of law, and recommendation, he then ordered that licenses at

issue be revoked.

On April 28, 1987, Letourneau filed his complaint for administrative review in the circuit

court of Cook County, seeking to have the director’s revocation orders vacated. After briefing

and argument, the court entered an order on August 10, 1988, reversing the department’s

revocation decision.

The trial judge stated that he was reversing the revocation orders because the findings

of fact were without substantial foundation in the evidence. Specifically, the judge found that

there was no evidence to support the director’s finding that Letourneau had been a Florida

resident since 1980 and that there was evidence that Letourneau had been an Illinois resident

at the times in question. The judge also found that there was no evidence to support the

director’s finding that Letourneau had allowed Rizzo to practice as an unlicensed private

detective and that the department’s evidence in general was not strong enough to support the

result of revocation. At a hearing on defendants’ motion for reconsideration, the judge

again stated that there was insufficient evidence to support the director’s findings of fact

and conclusions of law. Accordingly, he denied the motion for reconsideration, and this

appeal followed. This opinion will refer to matters of evidence as required for discussion of

the issues.

340 PRIVATE SECURITY AND THE LAW

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

II. ANALYSIS

A. Standard for Reviewing Findings of Fact

In reviewing the factual determinations made by the director, this court is limited to

ascertaining whether his decision accorded with the manifest weight of the evidence and was

supported by substantial evidence. Massa v. Department of Registration & Education (1987), 116

Ill. 2d 376, 385, 507 N.E.2d 814, 818; Bruce v. Department of Registration & Education (1963), 26

Ill. 2d 612, 622, 187 N.E.2d 711, 717; Irving’s Pharmacy v. Department of Registration &

Education (1979), 75 Ill. App. 3d 652, 658, 394 N.E.2d 627, 632.

The findings and conclusions of an administrative agency regarding questions of fact are to

be considered prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3-110; Murdy v.

Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088.) However, this does not mean that a

court should automatically approve an agency decision merely because the agency heard

witnesses and made findings. Viera v. Illinois Racing Board (1978), 65 Ill. App. 3d 94, 99, 382

N.E.2d 462, 466.

B. Letourneau’s Residency

Defendants appear to regard Letourneau’s residency as being relevant for two reasons, either of

which might support disciplinary action.

First, as the sole individual to whom the company’s agency licenses were issued, Letourneau

(or some person employed by him) was required to be in charge of agency operations as a full-

time, individually licensed Illinois resident, and failure to comply would violate the law. (See Ill.

Rev. Stat. 1985, ch. 111, pars. 2664(d), (f); Ill. Rev. Stat. 1983, ch. 111, par. 2621.) Letourneau

employed no such person; the question is whether Letourneau himself met the requirement.

Second, Letourneau was required to avoid fraud or material deception in connection with

licensure and to report his correct address and practice location to the department (Ill. Rev.

Stat. 1985, ch. 111, pars. 2671(a), 2672(a)(1); Ill. Rev. Stat. 1983, ch. 111, pars. 2616, 2628(a));

according to defendants, failure to report a Florida residence would violate the law. However,

though the department’s briefs discuss such residency questions at length, its formal charges

never clearly specified violation of either of these residency-related requirements. The only

formal charge that even arguably might be read as pertaining to one or both of them was the

charge that Rizzo had unlawfully practiced as a detective for the company.

Despite any deficiencies in the formal charges, one of the director’s findings of fact was that

Letourneau had been a Florida resident who falsely reported Illinois residency—thereby

presumably violating the requirements that he report his correct address and avoid fraud or

material deception (see Ill. Rev. Stat. 1985, ch. 111, pars. 2671(a), 2672(a)(1)). And one of the

director’s conclusions of law was that Letourneau had permitted his license to be used by an

unlicensed person in order to operate without Letourneau’s supervision or control (see Ill. Rev.

Stat. 1985, ch. 111, par. 2672(a)(15))—which comes close to saying that Letourneau violated the

requirement that he keep a full-time, Illinois-licensed individual who resides in Illinois in

charge of his agencies (see Ill. Rev. Stat. 1985, ch. 111, pars. 2664(d), (f)).

The implication of defendants’ treatment of the residency question is that Letourneau’s

nonresidency, failure to report a correct address, failure to keep a full-time licensed resident

in charge, and facilitation of Rizzo’s unlicensed practice are actually all of a piece in common

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

sense, and all unlawful under one statutory section or another. For the additional reason that

plaintiffs make no issue of any incongruity in formal charges, findings of fact, and conclusions

of law, Letourneau’s alleged nonresidency is treated in this opinion as if it had been duly framed

as a violation from the outset.

Defendants point to testimony by Letourneau’s business partner and two alleged former

employees (who testified under grants of immunity) that they never saw Letourneau in

Illinois during the period in question. Defendants also point to evidence that departmental

investigators were never able to find Letourneau at his Illinois addresses, that the company

maintained a Florida office, and that Florida had issued detective licenses to an Arthur

Letourneau. From this, defendants argue that they were entitled to use their expertise regarding

normal conduct of a licensee in order to infer that Letourneau was not an Illinois resident.

Though Ernest Rizzo (whom, according to the formal charges, Letourneau had helped to

engage in unlicensed practice) testified that he had known Letourneau for 20 years and that

Letourneau was an Illinois resident, defendants argue that they were entitled to judge Rizzo’s

credibility adversely because of his failure to explain adequately a number of past actions and

statements suggestive of unlicensed practice. In addition, defendants point to the testimony

of one witness, a longtime Letourneau acquaintance, that he had dined with Letourneau in

Florida in 1983 and that Letourneau, in the witness’ words, had then “indicated” that he

was a Florida resident.

Documentary evidence in the form of mail and utility bills shows Illinois addresses for

Letourneau, but defendants argue that the addresses were actually Rizzo’s. As a fact from

which an adverse inference can be drawn, defendants point to Letourneau’s refusal to answer

questions at the administrative hearing on grounds of potential self-incrimination after the

Department’s counsel had referred to the possibility of criminal charges. Accordingly,

defendants contend that the finding of Letourneau’s nonresidency in Illinois was not against

the manifest weight of the evidence.

In reply, besides referring to evidence already noted, plaintiffs point to other evidence that

Letourneau was an Illinois resident. The department’s investigator testified that he saw a

license on the wall at an address previously stated by Letourneau to be his own. The

department’s investigators testified that mailboxes bearing Letourneau’s name and containing

mail addressed to him existed at addresses given by Letourneau. Responses in Letourneau’s

name were received by the department, after it had sent mail to Letourneau at his Illinois

address, though defendants contend that the responses either did not bear Letourneau’s

personal signature at all or bore discrepant personal signatures. Letourneau also appeared

before Illinois notaries public. In the circuit court, the trial judge referred to the need for “facts

established by evidence,. . .evidence that is understood in law as being evidence.”

He continued:

This is not a case which turns on the weight of the evidence or the credibility of the

witnesses, quite frankly.

This is a case which must be reversed I believe because the findings are without substantial

foundation in the evidence. A case by the state cannot be made from inferences, from

presumptions, or from suspicions, or from indirect evidence. They have to be made by

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

evidence that’s credible, and sufficiently strong to warrant the result that is reached. There is no

strong evidence here to support the result of revocation of Letourneau’s license.

After referring to the department’s grant of immunity to its witnesses, the trial judge

remarked:

The only basis for the conclusion that Mr. Letourneau resides in Florida is that one witness

had dinner with Mr. Letourneau once in Florida in 1983 I believe, and yet the charge is

that he lived there since 1980. That same witness said I hadn’t seen him around, and I had

dinner with him in ‘83. The fact that that witness had not seen Letourneau in Illinois does

not mean that Letourneau resided in Florida during all of that hiatus.

The trial judge acknowledged the evidence of Florida detective licenses in the name of an

Arthur Letourneau but stated:

I am not sure that this Mr. Letourneau is the only Arthur Leto[ur]neau in the USA, and

there was no attempt to demonstrate the Arthur Letourneau in Florida is the Arthur

Letourneau that we are talking about here in Illinois.

So there clearly is no evidence to support the finding. . .that Letourneau has lived in Florida

since 1980.

The judge then referred to evidence that Letourneau had received mail in his Illinois

mailbox, was paying utility bills in Illinois, had registered his automobile in Illinois, and had

responded to department notices mailed to Illinois. The judge also cited Rizzo’s testimony that

Letourneau lived in Illinois:

Clearly the department is free to ignore Mr. Rizzo’s testimony, but I find it incredible that

they would ignore that testimony and accept testimony from someone who said he had

dinner with Mr. Letourneau in Florida and give greater weight to the latter while giving

no weight to the former.

Defendants were entitled to draw reasonable inferences from the evidence. (Raymond

Concrete Pile Co. v. Industrial Comm’n (1967), 37 Ill. 2d 512, 517, 229 N.E.2d 673, 676.) In an

administrative proceeding, defendants could also, in conjunction with other evidence, draw an

inference adverse to Letourneau from his refusal to testify on grounds of potential self-

incrimination. (Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 613-14,

411 N.E.2d 1110, 1116.) If the issue is merely one of conflicting testimony and a witness’

credibility, the administrative agency’s determination should be sustained. (Keen v. Police Board

(1979), 73 Ill. App. 3d 65, 70-71, 391 N.E.2d 190, 195.) An administrative agency may properly

base its decision on circumstantial evidence. Ritenour v. Police Board (1977), 53 Ill. App. 3d 877,

882-83, 369 N.E.2d 135, 139.

In finding “no” evidence of Letourneau’s nonresidency, the trial judge overlooked testimony

that, in what may have been admissions against interest (see Cox v. Daley (1981), 93 Ill. App. 3d

593, 596-97, 417 N.E.2d 745, 748), Letourneau had said in about 1979 that he planned to move

to Florida and had “indicated” in 1983 that he was now a Florida resident. In any event, the

department presented what it contends was circumstantial evidence of Letourneau’s Florida

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

residency: the Florida licenses, inability to find him in Illinois, accumulation of several weeks’

worth of mail in a mailbox, identity between Letourneau’s claimed Illinois addresses and

Rizzo’s addresses, irregularities in Letourneau’s purported signature on answers to mail sent to

him at Illinois addresses, and the adverse inference from Letourneau’s refusal to testify on the

question of his residency.

Although the trial judge erred in concluding that there was no evidence that Letourneau

had lived in Florida since 1980, the question remains whether the evidence offered by the

department sufficiently supported the director’s decision so that the decision can be said not to

have been against the manifest weight of the evidence.

Defendants have not cited and we have not found any requirement that one must be a

Florida resident in order to be licensed as a detective in that state, so the mere fact of Florida

licensure would carry relatively little weight even if plaintiff were shown to have been the

Florida licensee.

The Act did not expressly require the person in charge of a private detective agency always to

remain within Illinois; all it required was that the person in charge be a resident of this State

and be a “full-time Illinois licensed private detective.” (See Ill. Rev. Stat. 1985, ch. 111, par. 2664

(d).) Assuming that Letourneau did spend some time in Florida, such a fact is not substantial

evidence that he thereby gave up Illinois residency, that while he was in Florida his Illinois

agency operations actively continued without him, or that he was thereby prevented from

being as much a “full-time Illinois licensed” individual as any other licensee who took

vacations or went on trips out of state. The fact that departmental investigators failed to find

Letourneau but found his mail in the mailbox is evidence that he was absent; it falls short of

being substantial evidence that he was nonresident.

Assuming that any connection between Rizzo and Letourneau was lawful, a coincidence

between Letourneau’s Illinois addresses and Rizzo’s is of little probative value. Any

relationship between Letourneau and Rizzo in the nature of business association,

friendship, or employment (unless of a type prohibited by the Act) is substantial

evidence neither of Letourneau’s nonresidency nor of his facilitation of unlicensed

practice by Rizzo.

Letourneau would ordinarily have had a right to appoint someone his agent for signing

documents; thus, purported irregularities in his signature are not substantial evidence of

nonresidency. Because Letourneau’s refusal to testify can lead to an adverse inference only in

conjunction with other evidence (Giampa, 89 Ill. App. 3d 606, 411 N.E.2d 1110), the lack of

other substantial evidence impairs the probative value of his refusal. And, given the other

evidentiary shortcomings, a naked assertion of departmental expertise in judging licensees’

conduct amounts to ipse dixit.

If the department had produced substantial evidence on the residency issue and it were

simply a matter of weighing that evidence against Letourneau’s or of judging the credibility

of witnesses, the presumption of correctness in the director’s findings would prevail over mere

disagreements by plaintiffs or even by this court. However, as did the circuit court, we believe

that no substantial evidence supported the director’s finding of Letourneau’s Florida residency

and false statements of Illinois residency.

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

Still, the matter does not end here. The parties agree that the most serious charge against

Letourneau was that he permitted the use of his agency certificates by Rizzo in order for

Rizzo to engage in unlicensed practice. Thus, we must address the sufficiency of the director’s

findings on that issue.

C. Rizzo’s Activities

Defendants point to considerable evidence as proving that Letourneau permitted Rizzo to

use Letourneau’s licenses and thus to operate without being licensed himself.

Repeated coincidences were demonstrated between Rizzo’s address and those of Letourneau

and the company. Letourneau, accompanied by Rizzo, had once attempted to obtain an

agency certificate in the name of Ernest D. Rizzo, Ltd. In addition, Rizzo had contacted the

department in behalf of Letourneau to discuss an agency name change and what kind of work

Rizzo (whose license had been revoked) could now permissibly do for the company. Insurance

procured by Letourneau was carried in Rizzo’s name until corrected after departmental

rejection. Checks payable to Rizzo had been deposited to the company’s account. Rizzo signed

purchase papers as owner of cars purchased by the company.

Raymond Rocke, testifying under a grant of immunity, said he had performed security work

for the company under Rizzo as “boss.” Though Rizzo testified that the witness was working

without authority and was discharged by Letourneau, the testimony was impeached by

Letourneau’s certification to the department that the witness had been an employee after the

“discharge.” Rizzo also attempted to explain such matters as his deposition testimony that he

was employed by the company, a magazine account of investigations he supposedly was

conducting as a company subcontractor without being licensed, and a telephone directory

advertisement for the company that carried Rizzo’s name. Defendants argue that the credibility

of Rizzo’s explanations was simply judged adversely.

In addition, Letourneau refused to answer questions about Ed Rossi, whom he had listed as

an employee and whose name the department contended was an alias for Rizzo. Rizzo matched

the age and physical description of Rossi, and his social security number was a slightly

transposed version of Rossi’s. Rizzo acknowledged having used the name Ed Ross.

But plaintiffs respond that no witness, not even Rocke, testified to personal knowledge that

since 1980 Rizzo had actually engaged in activities legally constituting practice as a private

detective. One witness testified to Rizzo’s having told him that Rizzo planned to be an employee

but not a principal of a company to be formed by Letourneau. Rizzo himself denied having

practiced as a detective in Illinois since 1978 or 1979.

Defendants contend that, despite Rizzo’s denial of practicing as a detective, he admitted

that he had investigated Rocke, ascertained the address and business of another person,

conducted electronic sweeps to discover surveillance devices, and conducted “investigations

for pay” on cases for Letourneau’s attorney. However, these contentions by defendants lack

force, because none of the described activity, unless it is part of a paid investigation, legally

constituted practice as a private detective—except possibly, of course, for the very conduct

of “investigations for pay.” (See Ill. Rev. Stat. 1985, ch. 111, par. 2652(h).) As for the latter

conduct, the most to which Rizzo’s testimony admitted was serving a subpoena and checking

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ARTHUR LETOURNEAU ET AL. V. THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL.—CONT’D

for wiretaps at the attorney’s request, apparently for pay in both cases. Neither serving a

subpoena nor checking for a wiretap, even for pay, was itself necessarily practice as a

private detective; it would only have been so if part of a paid investigation made to obtain

information regarding several subjects specified by statute. (See Ill. Rev. Stat. 1985, ch. 111,

par. 2652(h).) There was no testimony that Rizzo’s admitted activity was part of any such

statutorily specified investigation, much less that it was performed by use of Letourneau’s

licenses.

The director was entitled to judge the credibility of witnesses and to draw inferences from

the evidence. However, the evidence offered to prove Rizzo’s unlicensed practice did not

constitute the substantial evidence required by law on what was admittedly the most

serious charge against Letourneau. Thus, the circuit court correctly rejected the director’s

finding that Letourneau had permitted Rizzo to practice without a license by using

Letourneau’s licenses.

D. Other Disputed Factual Points

Defendants extensively discuss their contention that the director’s findings regarding practice

on inactive licenses and regarding nonregistration of employees should not have been reversed

by the circuit court. Plaintiffs reply at length. Yet, the circuit court never “reversed” the

Director’s findings on these issues.

The circuit court’s order as drafted by plaintiffs’ counsel did read that “the Court, having

found no evidence to support the findings entered by the Department, orders that the

Decision of the Department revoking the licenses of Arthur Letourneau be and is hereby

reversed.” (Emphasis added.) However, the transcript reveals that the court focused entirely on

the lack of substantial evidence for the findings on residency and on allowing Rizzo’s

unlicensed practice. Because of that lack, the court declared that “the decision by the

department therefore is arbitrary and constitutes an abuse of the department’s discretion. For

all of these reasons the decision is reversed.”

It is evident that the circuit court based reversal on the residency and Rizzo issues and on no

other. We need not consider the director’s findings and conclusions on other issues if his

reversible findings on the residency and Rizzo issues were so central as to render his revocation

decision an abuse of discretion.

E. License Revocation

An agency’s exercise of discretion may be set aside if it was arbitrary or unreasonable or

clearly violated the rule of law. (Commonwealth Edison Co. v. Illinois Commerce Comm’n

(1988), 180 Ill. App. 3d 899, 907, 536 N.E.2d 724, 729.) The courts will not reweigh the

evidence but will determine whether the final administrative decision just and reasonable

in light of the evidence presented. Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469,

471, 269 N.E.2d 713, 714; Sircher v. Police Board (1978), 65 Ill. App. 3d 19, 20-21, 382 N.E.2d

325, 327.

The applicable rule, as phrased by many authorities, is that courts may not interfere with an

administrative agency’s discretionary authority unless it is exercised arbitrarily or capriciously

or unless the administrative decision is against the manifest weight of the evidence. (E.g.,

Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 388, 507 N.E.2d

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814, 819; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088; People ex rel.

Stephens v. Collins (1966), 35 Ill. 2d 499, 501, 221 N.E.2d 254, 255.) In terms of that formulation

of the rule, it has been said that, when determining whether an administrative decision is

contrary to the manifest weight of the evidence, a court should consider the severity of the

sanction imposed. Cartwright v. Illinois Civil Service Comm’n (1980), 80 Ill. App. 3d 787,

793, 400 N.E.2d 581, 586; Kelsey-Hayes Co. v. Howlett (1978), 64 Ill. App. 3d 14, 17, 380 N.

E.2d 999, 1002. Contra Epstein v. Civil Service Comm’n (1977), 47 Ill. App. 3d 81, 84, 361

N.E.2d 782, 785.

An alternative formulation of the rule is that, when judging whether an agency sanction is

arbitrary or unreasonable, manifest weight of the evidence is not the applicable standard of

review, because the reasonableness of the sanction, not the correctness of the agency’s findings

or reasoning, is the issue. E.g., Brown v. Civil Service Comm’n (1985), 133 Ill. App. 3d 35, 39, 478

N.E.2d 541, 544.

In any event, however, courts will not hesitate to grant relief from an adverse agency

decision if that decision is not supported in the record by sufficient evidence. (Basketfield v.

Police Board (1974), 56 Ill. 2d 351, 359, 307 N.E.2d 371, 375; Feliciano v. Illinois Racing Board

(1982), 110 Ill. App. 3d 997, 1003, 443 N.E.2d 261, 266.) Thus, a court may reverse an order for

imposing an unwarranted sanction. See Feliciano, 110 Ill. App. 3d at 1005, 443 N.E.2d at 267;

Cartwright, 80 Ill. App. 3d at 793-94, 400 N.E.2d at 586.

On the questions of Letourneau’s residency and Rizzo’s activities, which clearly were the

most important to the department and the director, the director’s findings were unsupported

by substantial evidence. We believe that the director’s decision to revoke plaintiffs’ licenses,

based as it was primarily on such unsupported findings, represented an arbitrary and

unwarranted sanction.

Accordingly, we affirm the judgment of the circuit court, which reversed the director’s

revocation of plaintiffs’ licenses.

AFFIRMED.CERDA, P. J., AND RIZZI, J., CONCUR.

STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC. 195 F.3d 715 (4th Cir. 1999)

Before WIDENER and TRAXLER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Judge Traxler wrote the opinion, in which Judge Widener and Senior Judge Butzner joined.

Paramount Parks, Inc. (“Paramount”) operates an amusement park in Hanover County,

Virginia known as “Paramount’s Kings Dominion” (“Kings Dominion” or “the park”). While

visiting Kings Dominion in May 1994, Stephanie P. Austin (“Austin”) was positively identified

by two of Kings Dominion’s employees as a woman who had passed a bad check at the

park less than one week earlier. After questioning Austin for several hours, a special police

officer of the Kings Dominion Park Police Department caused a warrant to be issued for Austin’s

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

arrest on a charge of grand larceny. The same officer thereafter caused a second warrant

to be issued, this time for Austin’s arrest on charges of forgery and uttering a forged writing. The

Commonwealth’s Attorney’s Office, with the assistance of the arresting officer, actively prepared

the case against Austin over the next nine months. The charges were dismissed before trial,

however, once the Commonwealth’s Attorney’s Office realized that one of the employees who

had identified Austin as having passed the bad check in question had later identified another

park guest in connection with the same offense.

Austin subsequently brought this civil action against Paramount, asserting a variety of

claims arising from her arrests and prosecution on the preceding charges. At trial, the jury

returned general verdicts for Austin on her claim under 42 U.S.C.A. } 1983 (West Supp. 1998) and on several claims under Virginia law, and awarded her compensatory and punitive

damages. The district court ultimately entered judgment in favor of Austin, denied Paramount’s

motion for judgment as a matter of law, and awarded Austin attorney’s fees and expenses under

42 U.S.C.A. } 1988 (West Supp. 1998) upon finding her to be a prevailing party on the } 1983 claim. This appeal followed.

We conclude that Paramount was entitled to judgment as a matter of law on Austin’s } 1983 claim because Austin failed to establish that any deprivation of her federal rights was caused by

an official policy or custom of Paramount. We further conclude that Virginia law compels

judgment as a matter of law in favor of Paramount on Austin’s state-law claims because Virginia

law shields a private employer from liability when a special police officer takes an action in

compliance with a public duty to enforce the law. Accordingly, we reverse the denial of

Paramount’s motion for judgment as a matter of law, vacate the judgment in favor of Austin,

vacate the award of attorney’s fees and expenses, and remand with instructions that judgment

as a matter of law be entered in favor of Paramount.

The Loss Prevention Department at Kings Dominion (“Loss Prevention”) is responsible for

providing safety to park guests and employees, preserving park assets, and enforcing Virginia

law and park rules and regulations. The security operations group of Loss Prevention consists

of special police officers associated with the Kings Dominion Park Police Department, and

seasonal uniformed security officers. Unlike the uniformed security officers, the special police

officers are sworn conservators of the peace who are authorized to carry firearms, make arrests,

and perform the same functions that law enforcement officers in the Commonwealth of

Virginia perform. The special police officers derive this authority from an appointment order

issued annually, on Paramount’s application, by the judges of the Circuit Court of Hanover

County under Va. Code Ann. } 19.2-13 (Michie Supp. 1999). The Sheriff of Hanover County had supervisory authority over the special police officers of

the Park Police Department that was expressly acknowledged in both the Circuit Court’s

appointment order and the Park Police Department’s Policy and Procedure Manual (“Manual”)

in force at the time of the events in question. Specifically, the appointment order provided that

the special police officers “work only under the control and direction of the Sheriff of Hanover

County.” This directive was reiterated in the Manual, which provided that the Park Police

Department “has direct affiliation with the Hanover County Sheriff’s Department and is under

the direction of the Sheriff of Hanover County.” The Manual further provided: The Chain of

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

Command and authority for all Kings Dominion Park Police shall be as follows involving official

law enforcement:

a. Sheriff of Hanover County

b. Lieutenant of Kings Dominion Park Police

c. Kings Dominion Park Police Sergeant

d. Kings Dominion Park Police Corporal

e. Kings Dominion Park Police Officer

Although the Park Police Department fell under Loss Prevention in the organizational

structure at Kings Dominion, the testimony at trial established that the special police officers

performed their law enforcement duties without interference from park management.

Chancellor L. Hester (“Hester”), who served as Manager of Loss Prevention at the time of the

events in question, provided uncontradicted testimony that his role in matters of law

enforcement was limited to ensuring that guests suspected of committing crimes at the park

were treated courteously and professionally. As to decisions pertaining to law enforcement,

however, Hester testified that he “let the police officers do the work,” knowing that those

officers received assistance and direction from the Hanover County Sheriff’s Department and

the Commonwealth’s Attorney’s Office. The annual training that the special police officers

received reflected this division. Hester provided instruction on interpersonal skills, while the

Sheriff’s Department and the Commonwealth’s Attorney’s Office taught law enforcement

classes on such topics as the laws of arrest, the conducting of interviews, self-defense,

and searches and seizures.

The principal events giving rise to the present litigation occurred at Kings Dominion on

May 15, 1994, when a guest arrived at the park’s Season Pass office and submitted a check

for $360 under the name of “Donita Morgan.” Japata Taylor (“Taylor”), a park cashier, accepted

the check and proceeded to retrieve $360 worth of Kings Dominion currency, known as

“Scooby dollars,” which guests use to purchase merchandise for sale within the park.

Meanwhile, a guest at the next window submitted a check under the name of “Catherine May”

to Joshua Stone (“Stone”), another park cashier. Because the Season Pass office did not have

enough Scooby dollars to cash the two checks, Taylor and Stone contacted their supervisor,

Deborah Samuel (“Samuel”). Samuel then had a chance to observe “Donita Morgan” and

“Catherine May” after obtaining a sufficient amount of Scooby dollars from the park’s

Cash Control office.

Several days later, Loss Prevention learned that both the “Donita Morgan” check accepted by

Taylor and the “Catherine May” check accepted by Stone were fraudulent. In fact, numerous

fraudulent checks under these and other names had been passed at Kings Dominion during the

May 14-15 weekend. Loss Prevention suspected that a group of individuals were operating an

illegal check-cashing scheme at the park using fraudulent identification cards and fraudulent

checks, and provided the park’s cashiers with a memorandum listing various names under

which bad checks had already been passed, including “Catherine May.” The cashiers were

directed to immediately inform Loss Prevention should a guest submit a check under a

listed name.

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

Sergeant Cindy Gatewood (“Gatewood”) of the Park Police Department supervised the

investigation into the apparent check-cashing scheme. On the morning of Saturday, May 21,

1994, six days after Taylor and Stone had accepted the “Donita Morgan” check and the

“Catherine May” check, respectively, Gatewood obtained verbal descriptions of the suspects

from Samuel, Taylor, and Stone. According to Gatewood’s testimony at trial, Samuel described

“Donita Morgan” as a “middle-aged black woman with twisted hair.” Taylor described the

suspect as “a black female, five foot five, five foot six, average build, twisted hair braids,

sunglasses.” After obtaining verbal statements, Gatewood asked each of the three employees to

prepare written statements. In her written statement, Taylor described “Donita Morgan” as a

woman who had braided hair and wore Chanel sunglasses. Samuel, in her written statement,

described her as “a middle-aged black woman with glasses, long twisted braids, and

a lot of children.”

Austin, an African American woman who at the time was a twenty-three-year-old student at

the University of Maryland, was among the more than 20,000 guests of Kings Dominion on

Saturday, May 21. That evening, Taylor saw Austin in the park and identified her as the “Donita

Morgan” suspect from the previous weekend. Taylor alerted Loss Prevention accordingly.

Officer Michael Drummer (“Drummer”) of the Park Police Department subsequently

approached Austin and escorted her to the Loss Prevention office. After being contacted at

home and apprised of the situation, Gatewood arranged for Investigator Robert Schwartz

(“Schwartz”) of the Hanover County Sheriff’s Department to meet her at the Loss Prevention

office. In the interim, Samuel went to the Loss Prevention office and, like Taylor, identified

Austin as the “Donita Morgan” suspect from the previous weekend.

After arriving at the Loss Prevention office, Schwartz advised Austin of her Miranda rights.

He and Gatewood then informed Austin that two employees had positively identified her as

having passed a fraudulent “Donita Morgan” check at the Season Pass office on May 15, 1994,

and questioned Austin for several hours as to her whereabouts on that date. According to

Gatewood’s testimony at trial, Austin stated that she was at a banquet at the University of

Maryland on May 15, 1994, but Austin refused to provide any information which would allow

that statement to be verified. Consistent with his role as Manager of Loss Prevention, Hester

occasionally appeared for several minutes to observe the questioning. Hester testified at trial

that his purpose in doing so “was to make sure that our folks were handling their duties

properly, that the police were in the process of moving this situation forward, and that the

people involved in it were being handled professionally and properly.”

Based primarily upon the accounts of Taylor and Samuel, whom Gatewood described at trial

as “more than a hundred percent sure that Miss Austin was the one who had written a check to

them,” Gatewood decided to arrest Austin. Before doing so, however, Gatewood contacted

Seward M. McGhee (“McGhee”) of the Commonwealth’s Attorney’s Office, who advised

Gatewood that Austin could be charged only with grand larceny until the bank had processed

and returned the bad “Donita Morgan” check at issue. Schwartz thereafter transported Austin

to the Hanover County Magistrate’s office, where Gatewood caused a warrant to be issued

for Austin’s arrest on a charge of grand larceny in violation of Va. Code Ann. } 18.2-95 (Michie Supp. 1999).

350 PRIVATE SECURITY AND THE LAW

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On the following day, Sunday, May 22, 1994, a significant development occurred with respect

to the investigation into the check cashing scheme at Kings Dominion. Specifically, a guest

named Annette Williams arrived at the Season Pass office and submitted a check under the

name of “Catherine May.” The park cashier who accepted the check recognized “Catherine

May” from the memorandum distributed in connection with the scheme and immediately

contacted Loss Prevention. Simultaneously, a guest named Tonya Williams submitted a check

at the Season Pass office under the name of “Demetry Gordon.”

Gatewood subsequently arrived at the Season Pass office in response to the cashier’s call.

When Gatewood asked Annette Williams to come to the Loss Prevention office, Tonya

Williams became visibly agitated. Gatewood described the situation at trial in the following

manner: “a friend of [Annette Williams] got very verbal and upset and said she didn’t

understand why I was taking her friend away, so I invited her to come to the office with me.”

During this encounter, Samuel saw Tonya Williams, an African-American woman who had

braided hair, and identified her as the woman who had submitted the “Donita Morgan” check

to Taylor one week earlier.

Gatewood subsequently brought Annette Williams and Tonya Williams to the Loss

Prevention office for questioning. During the questioning, the women maintained their

respective false identities as Catherine May and Demetry Gordon. Later that day, after Annette

Williams and Tonya Williams had left the park, Gatewood discovered their actual identities

when a guest named Gladys Ann Williams was brought to the Loss Prevention office after

submitting a fraudulent check at the Season Pass office under the name of “Michelle Lockhart.”

In a detailed confession, Gladys Ann Williams confirmed the existence of a check-cashing

scheme, provided the names and aliases of the other participants in the scheme, and provided

information concerning the source from whom they had obtained fraudulent identification

cards and fraudulent checks.

That evening, Samuel alerted Hester at Loss Prevention that she had recognized Tonya

Williams as the woman who had submitted the “Donita Morgan” check to Taylor on May 15,

1994. Hester’s unrefuted testimony indicates that he personally informed Gatewood of this

development later that evening. Samuel’s observation, along with written statements filed by

other park employees, led Gatewood and Hester to conclude that Tonya Williams was one of

several women who had passed bad checks at the park under the name of “Donita Morgan.”

When asked at trial whether she specifically informed McGhee that Samuel had identified

Tonya Williams as “Donita Morgan,” Gatewood responded that “I’m not sure if I told him those

exact words, but he was advised that there was more than one Donita Morgan.” Ultimately,

Gatewood testified, McGhee advised her that “there’s more than one person, you have

your witnesses, and we’re going to go forward with the case, if there’s a scheme, and bust

the scheme.”

Gatewood thereafter caused a warrant to be issued for Austin’s arrest on charges of forgery

and uttering a forged writing in violation of Va. Code Ann. } 18.2-172 (Michie 1996). According to Gatewood’s uncontradicted testimony at trial, she did so only after consulting

McGhee once the “Donita Morgan” checks from May 15, 1994, had been processed by the bank

(Continued)

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

and returned to Kings Dominion. Specifically, Gatewood testified that McGhee “told me when

the checks came in, I was to give him a call. I did, and he advised me to go get the warrants.”

Gatewood subsequently informed Hester that she spoke to McGhee and that she intended to

bring additional charges against Austin. In this regard, Hester testified at trial that Gatewood

“indicated to me somewhere in that period of time, I don’t remember the exact date or

anything, that [McGhee] and she had had a conversation, and the charges were being amended,

yes, sir, I was aware of that.” Gatewood did not serve Austin with the second arrest warrant until

July 14, 1994, when Austin returned to the Hanover County Magistrate’s Office for a preliminary

hearing on the charge of grand larceny. Austin was not further detained and was allowed to

remain out on her original bond.

In January 1995, a Hanover County general district court conducted a preliminary

hearing on the charges pending against Austin. Based primarily upon Gatewood’s testimony,

the court found probable cause to certify the charges for trial. In so doing, the court

indicated that it would have dismissed the charges had Austin presented any evidence

supporting her alibi: “if I would have had any evidence at all that there was a banquet on

May the 15th and if, in fact, [Austin] could have come in here and presented that [she]

attended a banquet on May the 15th, then there would be no question in my mind.” Although

a Hanover County grand jury subsequently indicted Austin on the charges, the matter did not

proceed to trial. Rather, in April 1995, McGhee had the charges dismissed. McGhee did so

apparently upon learning that Samuel, only one day after identifying Austin as having

passed the “Donita Morgan” check to Taylor on May 15, 1994, identified Tonya Williams

in connection with the same offense.

II.

Austin initiated the present litigation by filing a civil action in Maryland state court, naming

Paramount as the only defendant. Following Paramount’s removal of the action to the district

court, Austin filed an eight-count second amended complaint, counts one through five of

which contained claims arising under Virginia law for false arrest, false imprisonment,

malicious prosecution, assault and battery, and negligence, respectively. Counts six through

eight, on the other hand, contained claims arising under federal law. With respect to her } 1983 claim asserted in count six, Austin alleged primarily that she suffered a deprivation of her

federal constitutional rights as a result of Paramount’s policy of causing individuals suspected

of passing bad checks at Kings Dominion to be detained, arrested, and prosecuted, even

without probable cause, to deter other park guests from engaging in such conduct. Austin also

alleged that Paramount failed to exercise due care in the hiring, retention, training, and supervision

of employees who participated in the investigation, detention, and arrest of individuals suspected

of passing bad checks at Kings Dominion, and that such failure manifested a conscious disregard

for Austin’s rights. These latter allegations essentially reiterated the allegations supporting Austin’s

state-law negligence claim asserted in count five.

Paramount next maintains that it was entitled to judgment as a matter of law on Austin’s

} 1983 claim either because Paramount was not a state actor or because Austin failed to establish that an official policy or custom of Paramount caused a deprivation of her

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

federal rights. We review de novo a district court’s denial of a Rule 50(b) motion for judgment as

a matter of law, viewing the evidence in the light most favorable to the prevailing party and

drawing all reasonable inferences in her favor. See Konkel v. Bob Evans Farms Inc.,

165 F.3d 275, 279 (4th Cir.), cert. denied, 145 L. Ed. 2d 155, 1999 U.S. LEXIS 5882, 120

S. Ct. 184 (U.S. 1999).

Section 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State. . .subjects, or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or other proper proceeding

for redress.

42 U.S.C.A. } 1983. To prevail against Paramount on her } 1983 claim, Austin had the burden to establish that she was “deprived of a right secured by the Constitution or laws of the

United States, and that the alleged deprivation was committed under color of state law.”

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130

(1999). Paramount does not dispute that Austin’s rights under the Fourth and Fourteenth

Amendments were violated when Gatewood effected the July 14, 1994 arrest without

probable cause. However, Paramount does dispute that it was a state actor for purposes of

} 1983 merely because it employed Gatewood as a special police officer. The question of whether Paramount was a state actor is a thorny one, but one which we need

not decide here because Austin’s clear failure to show that an official policy or custom of

Paramount was the moving force behind Austin’s July 14, 1994 arrest negates the necessity of

addressing the issue. For purposes of our reviewwewill assume,without holding, that Paramount

was a state actor and proceed to consider Paramount’s challenge to Austin’s assertion that

Paramount had an official policy or custom justifying the imposition of liability under } 1983. Our analysis begins with general principles of municipal liability. In Monell v. Department of

Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), the Supreme Court held that

municipalities and other local governmental bodies constitute “persons” within the meaning of

} 1983, see id. at 688-89. The Court, however, has consistently refused to impose } 1983 liability upon a municipality under a theory of respondeat superior. See Board of the County Comm’rs v.

Brown, 520 U.S. 397, 403, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997). Rather, under Monell and its

progeny, a municipality is subject to } 1983 liability only when “it causes such a deprivation through an official policy or custom.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)

(emphasis added). We have determined that “municipal policy may be found in written

ordinances and regulations, in certain affirmative decisions of individual policy-making

officials, or in certain omissions on the part of policy-making officials that manifest deliberate

indifference to the rights of citizens.” Id. (internal citations omitted). Municipal custom, on the

other hand, may arise when a particular practice “is so persistent and widespread and so

permanent and well settled as to constitute a custom or usage with the force of law.” Id.

(internal quotation marks omitted).

(Continued)

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

We have recognized, as has the Second Circuit, that the principles of } 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that

employs special police officers. Specifically, a private corporation is not liable under } 1983 for torts committed by special police officers when such liability is predicated solely upon a theory

of respondeat superior. See Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Rojas v.

Alexander’s Dep’t Store, Inc., 924 F.2d 406 (2d Cir. 1990); see also Sanders v. Sears, Roebuck & Co.,

984 F.2d 972, 975-76 (8th Cir. 1993) (concluding that private corporation is not subject to } 1983 liability under theory of respondeat superior regarding acts of private security guard employed

by corporation); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (same).

Rather, a private corporation is liable under } 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights. See Rojas, 924 F.2d at 408; Sanders,

984 F.2d at 976; Iskander, 690 F.2d at 128.

In her second amended complaint, Austin primarily alleged in support of her } 1983 claim that she suffered a deprivation of her federal constitutional rights as a result of Paramount’s

policy of causing individuals suspected of passing bad checks at Kings Dominion to be

detained, arrested, and prosecuted, even without probable cause, to deter other park guests

from engaging in such conduct. At trial, however, Austin was unable to present any evidence to

substantiate those allegations. Rather, Austin’s evidence focused on her alternative theory of

} 1983 liability, also alleged in the second amended complaint, that Paramount failed to exercise due care in training employees who participated in the investigation, detention, and

arrest of individuals suspected of passing bad checks at Kings Dominion, and that such failure

manifested a conscious disregard for Austin’s rights. Indeed, the district court, in denying

Paramount’s motion for judgment as a matter of law on the } 1983 claim at the close of Austin’s evidence, relied solely upon this theory:

I think there’s evidence from which [Austin] can argue in this case that really it was a

pretty patchy situation at [Kings Dominion], that they really didn’t have any clear-cut

training program to educate their personnel on dealing with customers who are suspected

of passing bad checks. They did something, but arguably it was pretty patchy, and it seems

to me it could be argued that it was deliberately indifferent.

On appeal, however, Austin has abandoned the preceding theory of } 1983 liability, obviously because the general verdict in favor of Paramount on the negligence claim contained in count

five and the adverse interrogatory answers on the } 1983 claim showed that the jury rejected Austin’s claim of inadequate training. Now, Austin presents a theory of } 1983 liability that resembles the reasoning offered by the district court in disposing of Paramount’s Rule 49(b)

motion and is purportedly reconcilable with the jury’s verdict. Specifically, Austin argues that

Hester was a policy-maker who acquiesced in Gatewood’s intention to effect the July 14,

1994 arrest of Austin on charges of forgery and uttering a forged writing, and who thereby

subjected Paramount to liability. We find this claim untenable.

1. The Supreme Court has recognized that, under appropriate circumstances, a municipality

may incur } 1983 liability for a single decision of a policy-making official. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) (plurality

opinion) (holding county liable under } 1983 when county prosecutor instructed sheriff’s

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

deputies to forcibly enter plaintiff’s place of business to serve capiases upon third parties);

Carter, 164 F.3d at 218 (“Municipal policy may be found. . .in certain affirmative decisions

of individual policy making officials, or in certain omissions on the part of policy-making

officials that manifest deliberate indifference to the rights of citizens.”) (internal citations

omitted). In determining whether an individual constitutes a “policy-making official” in this

sense, courts inquire whether the individual speaks “with final policy-making authority for

the local governmental actor concerning the action alleged to have caused the particular

constitutional or statutory violation at issue.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737,

105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989); see Pembaur, 475 U.S. at 481 (“Municipal liability

attaches only where the decision maker possesses final authority to establish municipal policy

with respect to the action ordered.”). Whether the individual in question exercises such

authority “is not a question of fact in the usual sense.” City of St. Louis v. Praprotnik, 485 U.S.

112, 124, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). Rather, the inquiry “is dependent upon an

analysis of state law,” McMillian v. Monroe County, Alabama, 520 U.S. 781, 786, 138 L. Ed. 2d 1,

117 S. Ct. 1734 (1997), requiring review of “the relevant legal materials, including state and

local positive law, as well as custom or usage having the force of law.” Jett, 491 U.S. at 737

(internal quotation marks omitted). A district court’s determination of whether an individual

exercises final policy-making authority in a particular area is reviewed de novo. See Scala

v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997); Gillette v. Delmore, 979

F.2d 1342, 1349 (9th Cir. 1992).

The foregoing principles of } 1983 “policy-maker” liability were articulated in the context of suits brought against municipalities and other local government defendants. Nevertheless,

these principles are equally applicable to a private corporation acting under color of state law

when an employee exercises final policy-making authority concerning an action that allegedly

causes a deprivation of federal rights. See Howell v. Evans, 922 F.2d 712, 724-25, vacated after

settlement, 931 F.2d 711 (11th Cir. 1991) (assessing whether prison medical director employed

by private corporation exercised final policy-making authority for employer concerning

equipment and staff procurement). In the present appeal, Austin asserts that Paramount’s

liability under } 1983 derives from Hester’s single decision to acquiesce in Gatewood’s intention to effect Austin’s July 14, 1994 arrest on charges of forgery and uttering a forged writing.

Accordingly, the relevant “policy-maker” inquiry is whether Hester, as a matter of state and

local positive law, or custom or usage having the force of law, see Jett, 491 U.S. at 737, exercised

final policy-making authority concerning arrests effected by the special police officers of the

Park Police Department. We are satisfied that he did not.

First, nothing in the positive law of the Commonwealth of Virginia or of Hanover County

granted Hester any policy-making authority concerning arrests effected by the special police

officers. In particular, nothing in the Virginia statute authorizing the appointment of special

police officers granted a private corporation or any of its employees authority over the law

enforcement functions performed by those officers. See Va. Code Ann. } 19.2-13(A). Moreover, nothing in the appointment order issued by the Circuit Court of Hanover County granted any

authority over the special police officers’ law enforcement functions to any of Paramount’s

employees, including the Manager of Loss Prevention. Indeed, the appointment order explicitly

(Continued)

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

mandated that those officers “work only under the control and direction of the Sheriff of

Hanover County.”

Second, nothing in the written policies of Paramount or of Kings Dominion granted

Hester any policy-making authority over arrests effected by the special police officers.

The Park Police Department’s Policy and Procedure Manual provided that the Park Police

Department “has direct affiliation with the Hanover County Sheriff’s Department and is under

the direction of the Sheriff of Hanover County.” The Manual further provided: The Chain of

Command and authority for all Kings Dominion Park Police shall be as follows involving

official law enforcement:

a. Sheriff of Hanover County

b. Lieutenant of Kings Dominion Park Police

c. Kings Dominion Park Police Sergeant

d. Kings Dominion Park Police Corporal

e. Kings Dominion Park Police Officer

Aside from effectively illustrating the final authority of the Sheriff of Hanover County

over the special police officers, the preceding list conspicuously omitted any reference to the

Manager of Loss Prevention.

Third, even viewing the evidence at trial in the light most favorable to Austin and drawing all

reasonable inferences in her favor, we cannot conclude that Hester had any policy-making

authority concerning arrests effected by the special police officers as a matter of custom or

usage having the force of law. See Jett, 491 U.S. at 737. At trial, Austin presented no evidence

that Hester had ever directed a special police officer to effect an arrest or that he had ever

prevented the same. Moreover, there was no evidence that the special police officers routinely

consulted Hester or obtained his approval concerning impending arrests. Nor was there any

evidence that Gatewood consulted Hester or obtained his approval concerning the two arrests

in the present litigation. Rather, Gatewood’s testimony regarding the events preceding those

arrests demonstrates that she consulted only McGhee of the Commonwealth’s Attorney’s Office.

Furthermore, when asked whether he knew that Gatewood planned to bring additional charges

against Austin, Hester testified that “[Gatewood] indicated to me somewhere in that period of

time. . .that [McGhee] and she had had a conversation, and the charges were being amended,

yes, sir, I was aware of that.” Although certainly suggesting that Gatewood kept Hester informed

as to the status of Austin’s case, this testimony in no way indicates that Gatewood attempted

either to consult with Hester or to obtain his approval regarding her decision to bring additional

charges against Austin. Put simply, there was no evidence that Hester, despite his title of

Manager of Loss Prevention, in practice exercised any control over the decisions of the special

police officers regarding detention and/or arrests of park guests suspected of criminal

offenses in this case or any other case. Indeed, the uncontradicted testimony was to the

contrary. In fact, we find no support in the record for any specific policy-making authority given

to or exercised by Hester regarding matters of law enforcement. The questions simply were

not asked, nor was evidence ever produced in this regard.

In light of the foregoing analysis, we have no basis upon which to conclude that Hester

exercised final policy-making authority concerning arrests effected by the special police

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STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

officers of the Park Police Department. Because Austin’s position on Paramount’s liability under

} 1983 rests entirely upon her theory that Hester was a “policy maker,” we are satisfied that she failed to establish that any deprivation of her federal rights was caused by an official policy

or custom of Paramount. Accordingly, we conclude that Paramount was entitled to judgment as

a matter of law on Austin’s } 1983 claim. 2. Because Paramount was entitled to judgment as a matter of law on Austin’s } 1983 claim, Austin cannot be considered a prevailing party on that claim for purposes of } 1988. We therefore vacate the district court’s award of attorney’s fees and expenses. Accordingly, we need

not address the issue presented in Austin’s cross-appeal, which pertains solely to the district

court’s calculation of that award.

Lastly, we turn to the issue of whether Paramount is entitled to judgment as a matter of law on

Austin’s state-law claims for false arrest (July 14, 1994) and malicious prosecution. Again, we

review de novo the district court’s denial of Paramount’s Rule 50(b) motion for judgment as a

matter of law, viewing the evidence in the light most favorable to Austin and drawing all

reasonable inferences in her favor. See Konkel, 165 F.3 at 279.

The Virginia Supreme Court has established that a private employer may not be held liable

under a theory of respondeat superior for torts committed by a special police officer when he or

she acts as a public officer, as opposed to an agent, servant, or employee of the employer. See

Norfolk & W. Ry. Co. v. Haun, 167 Va. 157, 187 S.E. 481, 482 (Va. 1936); Glenmar Cinestate, Inc.

v. Farrell, 223 Va. 728, 292 S.E.2d 366, 369-70 (Va. 1982). The court elaborated upon this key

distinction in Glenmar: Moreover, we held in N. & W. Ry. Co. v. Haun, 167 Va. 157, 187 S.E. 481

(1936), that a special police officer appointed by public authority, but employed and paid by a

private party, does not subject his employer to liability for his torts when the acts complained of

are performed in carrying out his duty as a public officer. The test is: in what capacity was the

officer acting at the time he committed the acts for which the complaint is made? If he is

engaged in the performance of a public duty such as the enforcement of the general laws, his

employer incurs no vicarious liability for his acts, even though the employer directed him to

perform the duty. On the other hand, if he was engaged in the protection of the employer’s

property, ejecting trespassers or enforcing rules and regulations promulgated by the employer,

it becomes a jury question as to whether he was acting as a public officer or as an agent,

servant, or employee.

292 S.E.2d at 369-70.

In the present litigation, the only viable factual predicate for Austin’s claims for false arrest

(July 14, 1994) and malicious prosecution is that Gatewood lacked probable cause to effect

the July 14, 1994 arrest and further lacked probable cause to assist with the prosecution of the

pertinent charges. It is without question, however, that Gatewood effected Austin’s arrest and

assisted with the prosecution in the course of performing her public duty to enforce the

Commonwealth of Virginia’s law against forgery and uttering a forged writing. See Va. Code

Ann. } 18.2-172. Accordingly, under Glenmar, the issue of whether Gatewood acted in her capacity as a public officer was not one for the jury’s resolution.

(Continued)

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BEVERLY JEAN WHITEHEAD, ET AL. V. USA-ONE, INC. 595 SO. 2D 867 (ALA. SUP. 1992)

Maddox, Almon, Shores, Houston, and Steagall, JJ., concur.

Opinion: per curiam.

Beverly Jean Whitehead, Carla Prewett, and Blair Marques were all tenants at Sharpsburg

Manor apartments in Birmingham in 1988. In April and May of that year, a man broke into

each of their apartments and sexually assaulted them. On June 11, 1988, the same man who

had previously assaulted Whitehead broke into Whitehead’s apartment again and raped her.

Alfred Zene was apprehended that evening, and he later pleaded guilty to second degree

burglary for the June 11 break-in; he was sentenced to 25 years in prison.

Whitehead, Prewett, and Marques all sued USA-One, Inc., the company hired to provide

gate attendants at Sharpsburg Manor; Rime, Inc., the owner of Sharpsburg Manor; and

Regal Development Company, the manager of the apartment complex, alleging negligence,

wantonness, and breach of contract. They also sued Zene, alleging assault. Whitehead, Prewett,

and Marques reached a pro tanto settlement with Rime and Regal Development Company,

and the trial court entered a summary judgment for USA-One and made that judgment final

pursuant to Rule 54(b), A.R. Civ. P.

STEPHANIE P. AUSTIN V. PARAMOUNT PARKS, INC.—CONT’D

Because Austin presented no evidence that Gatewood acted other than in her capacity as a

public officer in effecting Austin’s July 14, 1994 arrest and assisting with the prosecution,

Paramount cannot be held vicariously liable with respect to Austin’s claims for false arrest (July

14, 1994) and malicious prosecution. See Glenmar, 292 S.E.2d at 369 (“If [the officer was]

engaged in the performance of a public duty such as the enforcement of the general laws, his

employer incurs no vicarious liability for his acts. . . .”). We conclude, therefore, that Paramount

was entitled to judgment as a matter of law on both claims.

IV.

In summary, we conclude that Paramount was entitled to judgment as a matter of law on

Austin’s } 1983 claim because Austin failed to establish that any deprivation of her federal rights was caused by an official policy or custom of Paramount. We further conclude that, because

Gatewood was engaged in the performance of her public duty to enforce Virginia law when she

effected Austin’s July 14, 1994 arrest and assisted with the prosecution, Paramount was entitled

to judgment as a matter of law on Austin’s claims for false arrest (July 14, 1994) and malicious

prosecution. Accordingly, we reverse the denial of Paramount’s Rule 50(b) motion for judgment

as a matter of law, vacate the judgment in favor of Austin, vacate the award of attorney’s fees

and expenses, and remand with instructions that judgment as a matter of law be entered in

favor of Paramount.

VACATED AND REMANDED.

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BEVERLY JEAN WHITEHEAD, ET AL. V. USA-ONE, INC.—CONT’D

Whitehead, Prewett, and Marques appeal from that judgment, arguing that USA-One

voluntarily assumed a duty to protect them from the criminal acts of a third party. They rely

on Gardner v. Vinson Guard Service, Inc., 538 So. 2d 13 (Ala. 1988), in support of that argument.

In Gardner, Vinson Guard Service had an oral contract with Van’s Photo, Inc., to provide

security guards at one of its facilities. Specifically, Vinson Guard Service was to “provide

protection for vehicles in the parking lot of Van’s Photo and to protect employees traveling to

and from their vehicles” and to “patrol the perimeter around the facility and to make their

presence evident.” 538 So. 2d at 14. A Van’s Photo employee arrived for work one morning after

a burglary had occurred and was told by the security guard on duty that it was safe to go in the

building because the burglar had fled. Approximately 15 minutes after the employee went

inside, she was attacked by a second burglar. In reversing the summary judgment for Vinson

Guard Service on the plaintiff’s negligence claim, this Court held that there was a jury question

as to whether Vinson Guard Service had assumed a duty to protect the Van’s Photo employees

while they were inside the building. We also held that, although a breach of contract cause of

action might exist for a third-party beneficiary, no such cause of action existed in that case.

We find no evidence here that USA-One had a contractual duty to protect Whitehead,

Prewett, and Marques or that it assumed a duty to protect them. The contract between Rime

and Shelby Securities, Inc., USA-One’s predecessor in interest, states at paragraph nine: “It is

expressly understood and agreed that this contract is entered into solely for the mutual benefit

of the parties herein and that no benefits, rights, duties, or obligations are intended or created

by this contract as to third parties not a signatory hereto.”

Although USA-One’s duties were not expressly stated in the contract, Dorothy Holland,

the manager of Sharpsburg Manor, and Barrell Lamar Walker, a former employee of USA-One,

described in their depositions the extent of USA-One’s responsibilities. Walker said that the

gate attendants primarily checked cars entering and exiting the complex, that they kept daily

logs, and that they made periodic “rounds” of the premises. Holland said that the attendants

served as an after-hours answering service, i.e., that they had the telephone numbers of the

maintenance person and the manager on duty in case a resident called the gate with a problem

the attendant could not handle. Holland stated more specifically regarding the attendants’

duties:

“Q. All right. Other than answering—filling an answering service, did [USA-One]—did you

have an understanding that they were supposed to provide anything else?

“A. Yes.

“Q. What was that?

“A. They make rounds of all the public areas. This means they check the swimming pools to

make sure at the proper time that people are out of the pools. Some of them are 9:00,

some are 10:00, the pools. And they check the maintenance shop doors. They check the

pump house doors. They walk through breezeways. They walk around buildings, they do

all sorts of things.

“Q. How many—you call them guards, don’t you?

“A. No, we call them gate attendants.

(Continued)

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BEVERLY JEAN WHITEHEAD, ET AL. V. USA-ONE, INC.—CONT’D

“Q. All right. How many gate attendants were on duty each night?

“A. Until—well, they fluctuated. They had different hours at different times. Depending

upon the nights we had the heaviest traffic, they would—there would be one, two

persons up to say, midnight. And then after midnight, to 5:00 in the morning, there

would be one who rode. They wouldn’t stay in the gate house at all, he rode around and

made checks more frequently.

“Q. Midnight to—

“A. 5:00. Daylight, whatever time it is.

“Q. And what would happen at 5:00?

“A. He would leave.

“Q. Would you have any gate attendants whatsoever after 5:00 in the morning?

“A. After 5:00, no.

“Q. And the first gate attendant to show up would be at 2:00, or what time?

“A. Gate attendant?

“Q. Yes.

“A. When the office closed.

“Q. At 5:00.

“A. Yes. And we closed at 5:30. They would come a little before that time to get information

and pick up the keys and this sort of thing.

“Q. Did you make inquiries about their whereabouts after the first Whitehead incident?

“A. Did I make—

“Q. Did you ask these gate attendants where they were during the night of the first

Whitehead incident?

“A. Yes.

“Q. What did they tell you?

“A. They were there. They were making—or a person was.

“Q. One person was making rounds?

“A. Yes.

“Q. And the other person—

“A. They report back to the attendant.

“Q. Pardon me?

“A. They report back to their station, and are there periodically.

“Q. So, both were making rounds, reporting back to their station periodically, right? Is that

what they told you?

“A. This is what their duties were each night until a certain hour of night, and it depends on

the—we have to look at the guard reports to see.

“. . .

“Q. And now, what did you do after this Marques incident with regard to security force? Did

you talk to the gate attendants? Did you talk to them, personally, at all?

“A. Uh-huh (positive response).

“Q. All right. Were any changes made?

“A. They were—just what they’re permitted to do. You know, they cannot make an arrest.

“Q. Right.

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BEVERLY JEAN WHITEHEAD, ET AL. V. USA-ONE, INC.—CONT’D

“A. And they just made rounds more frequently, rode around more frequently, rode on the

street areas and inside the complex itself. And the police did, too, at all times. They were

there day and night.

“Q. In what way did the gate attendants follow your suggestions about more frequent

patrolling?

“A. Yes, they did [sic]. In fact, I would check on it at times to make sure they were

doing that. I called the gate house to see if they were there, and asked if they

made rounds.

“Q. Did they—did they continue to use two people during the hours that you’ve earlier

testified about, 12:00 to 5:00?

“A. It seems that we made some changes in some of the hours, but I can’t remember exactly

what they were. But they still went off duty at 5:00 or 5:30 in the morning, because it was

daylight at that time.

“Q. I just want to get a bearing on like, more frequently is—they began patrolling more

frequently. How long did they do that? They just spent more time in the car and less

time in the gate?

“A. No. We asked them to walk. Drive to an area, get out and walk around, and—they used

to do a lot of that, anyway. We just asked them to do it more frequently.

“Q. Did you ever have any complaints prior to any of these incidents about the gate

attendants?

“A. Complaints, like?

“Q. Like they weren’t doing their job?

“A. Spasmodically. Not as a usual thing.

“Q. All right.

“A. They’re only there for limited times, and they’re only there for limited services to

perform.

“Q. After the first Whitehead incident, when you understood that the fellow—the assailant

had said ‘they’re waiting for me in the car outside,’ did you check with the guards to

determine whether they had identified the license tag numbers or cars entering and

exiting that evening?

“A. Well, now, we don’t offer security-type security. They can—people like this watch and

wait until there is no one around to appear. He could be at one end of the complex, and

far away from that. You can’t be everywhere at the same time, no way.”

(Emphasis added.)

As opposed to the duties of the security company in Gardner v. Vinson Guard Service,

supra, it is clear both from the contract here as well as from the deposition testimony of

Walker and Holland that the employees of USA-One were at Sharpsburg Manor for the benefit of

Rime. We are unpersuaded by the plaintiffs’ reliance on Nail v. Jefferson County Truck Growers

Ass’n, Inc., 542 So. 2d 1208 (Ala. 1988), to show that USA-One voluntarily assumed a duty to

protect them.

Nail involved a shootout between competing produce retailers at the Jefferson County

Farmers’ Market over leased space at the market. The retailers sued the owner and

(Continued)

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BEVERLY JEAN WHITEHEAD, ET AL. V. USA-ONE, INC.—CONT’D

manager of the market, alleging a negligent failure to prevent injuries caused by the

intentional tort of a third person. The trial court entered a judgment notwithstanding the

verdict, for the owner and manager of the market, and the retailers appealed, arguing that

the market had voluntarily assumed a duty to protect them because, three days before

the shootout, the market had hired a third security guard to patrol the area where the

violence occurred. On the day of the shooting, however, only two guards were present,

because one guard was sick. The retailers produced evidence that a replacement guard was

usually called in when a guard was absent and that, on the day in question, the market did

not provide a replacement guard even though it had knowledge of the “growing rancor”

between the retailers. In reversing the J.N.O.V. with regard to one of the retailers, this

Court stated, “The hostility in this case fermented over a period of several weeks before the

shootout, and Market was apprised of the growing animosity. We hold that evidence was

sufficient for the jury reasonably to conclude violence in Shed One was foreseeable.” 542

So. 2d at 1212.

Here, the fact that the gate attendants patrolled the grounds of Sharpsburg Manor “more

frequently” after the second assault is insufficient to establish that USA-One undertook to

protect the residents of the apartment complex. We hold, therefore, that the summary

judgment for USA-One was correct, and it is due to be affirmed.

AFFIRMED. MADDOX, ALMON, SHORES, HOUSTON, AND STEAGALL, JJ., CONCUR.

BURDEAU V. MCDOWELL 256 U.S. 465; 41 S. Ct. 574; 65 L. Ed. 1048 (1921)

Appeal from an order of the District Court requiring that certain books and papers be

impounded with the clerk and ultimately returned to the appellee, and enjoining officers of

the Department of Justice from using them, or evidence derived through them, in criminal

proceedings against him. The facts are stated in the opinion, post, 470.

COUNSEL: The Solicitor General for appellant:

It was not shown that any book, paper, or other document which was the private property

of appellee was delivered to or was ever in the possession of appellant.

It is difficult to see how it can be said, with any show of reason, that there was any stealing of

books and papers in this case. Certainly there was no invasion of appellee’s right of privacy.

Everything that was taken into possession was found in the office of the company itself, with

the exception of a few papers which were in the private office of appellee, but which it is

admitted related to the business of the company, and were, therefore, such papers as the

company was entitled to have delivered to it. They were, in fact, delivered to its auditor by

appellee’s representative.

If the employee has left papers of his own commingled with those of the company, he

certainly cannot be said to be the sole judge of whether a particular paper is his or belongs

to the company. He has brought about a condition under which the company has the right

to inspect everything in the office before allowing anything to be removed. The inspection,

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BURDEAU V. MCDOWELL—CONT’D

therefore, is entirely lawful, and any information of crime or other matters which may be

thus acquired is lawfully acquired and may properly be used. In the present case, appellee’s

representative was allowed to be present and make a list or take copies of all papers examined.

A paper furnishing evidence of crookedness in the conduct of the company’s affairs certainly

relates to a matter in which the company is interested; and if the unfaithful employee has left

it in the company’s files, or in the company’s office, there is no principle of law under which

he can lawfully claim the right to have it returned to him. He has parted with the private

possession of it, and his surrender of possession has not been brought about by any invasion

ofhis constitutional rights.

Even if it could be said that the company or its representatives stole these papers from the

appellee, this would not preclude their use in evidence if they should thereafter come to the

hands of the federal authorities. The court found, as the evidence clearly required, that no

department of the Federal Government had anything whatever to do with the taking of these

papers and that no federal official had any knowledge that an investigation of any kind was

being made, nor did such knowledge come to any federal official until several months later.

It would scarcely be insisted by anyone that, if the Government should discover that someone

has stolen from another a paper which shows that the latter has committed a crime, the thief

could not be called as a witness to testify to what he has discovered. If the paper were still in his

possession, he could be subpoenaed to attend and produce the paper. The same thing is

accomplished when the Government, instead of issuing a subpoena duces tecum, takes the

paper and holds it as evidence. The rightful owner, while it is being so held, is no more entitled

to its return than one who has been arrested for carrying a pistol is entitled to have the pistol

returned to him pending a trial.

It must always be remembered that “a party is privileged from producing the evidence but

not from its production.” Johnson v. United States, 228 U.S. 457, 458.

Moreover, the Fourth Amendment protects only against searches and seizures which are

made under governmental authority, real or assumed, or under color of such authority.

If papers have been seized, even though wrongfully, by one not acting under color of authority,

and they afterwards come to the possession of the Government, they may be properly used in

evidence. Weeks v. United States, 232 U.S. 383; Gouled v. United States, 255 U.S. 298; Boyd v.

United States, 116 U.S. 616; Adams v. New York, 192 U.S. 585; Johnson v. United States, supra;

Perlman v. United States, 247 U.S. 7.

Mr. E. Lowry Humes, with whom Mr. A. M. Imbrie and Mr. Rody P. Marshall were on the

brief, for appellee:

The issue in this proceeding was the title and right of possession of certain private papers

alleged to have been stolen. The right to private property can be as effectually asserted against

the Government as it can against an individual, and the Government has no greater right to stolen

property than the private citizen. The receiver of stolen goods has no right superior to the right of

the thief and the officer or agent of the Government who receives stolen goods is in no better

position to retain the fruits and advantages of the crime than the humble private citizen. Boyd

v. United States, 116 U.S. 616, 624;Weeks v. United States, 232 U.S. 383, 398. The right which the

appellee asserted was a right which the court had jurisdiction to recognize and preserve.

(Continued)

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BURDEAU V. MCDOWELL—CONT’D

The courts of the United States are open to the citizen for the enforcement of his legal and

constitutional rights, and the right to private property may be asserted as a mere legal right or it

may be asserted under the guarantees of the Constitution.

Abuses of individuals involving the deprivation of the right to the possession, use and

enjoyment of private property are adequately redressed by the assertion of the legal rights of

the individual in either courts of law or equity. The resort to the limitations of the Constitution

may be necessary to curb the excesses of the Government.

In the case at bar there can be no question but that replevin would lie against both the

thief and the receiver of the stolen goods to recover the private property of the appellee.

But the legal remedy by replevin would have been inadequate as the injury could not be

measured in damages. It was necessary to resort to the equitable powers of the court. The fact

that the appellant happened to be an officer or employee of the Government provided no

immunity to him that could prevent the owner of private property from asserting his legal

rights in either a court of law or of equity. Quite to the contrary, the very fact that he was an

officer of the court, enlarged rather than diminished the authority of the court to exercise

control over and deal with the stolen papers which had come into his possession as such

officer of the court.

In this case the proceeding is properly a much more summary proceeding than in a case

against a stranger to the court where the formality and difficulty of securing jurisdiction over

both the person and the property might be involved.

The right of a court of equity to order and decree the return of private property and

papers is well recognized, as is illustrated by the following cases.McGowin v. Remington, 12 Pa.

St. 56; Dock v. Dock, 180 Pa. St. 14; Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. St. 464.

This is an independent proceeding having for its purpose the recovery of property in equity.

The law side of the court provided no adequate remedy. The court in adjudicating the case

properly found that the papers had been stolen; that they were private and personal papers of

the appellee, and that they were in the hands of an officer of the court, and that the owner was

entitled to their return. Up to this point no constitutional question is involved. It is, however,

respectfully submitted that had the court below refused under the evidence and the facts in this

case to order the return of the books and papers, and dismissed the proceeding, and if

subsequently a criminal proceeding had been instituted against the appellee and the stolen

books and papers been admitted in evidence over objection, then appellee would have been

denied the constitutional right guaranteed him under the Fifth Amendment to the Constitution

in that he would have been “compelled in” a “criminal case to be a witness against himself.”

If this conclusion is not correct then a means has been found by which private prosecutors and

complainants and those personally interested in the prosecution and persecution of alleged

offenders can, by the mere acquiescence of the Government, deprive citizens of the United

States of the constitutional rights guaranteed to them by both the Fourth and Fifth

Amendments.

JUDGES: McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke

OPINION BY: DAY

OPINION: MR. JUSTICE DAY delivered the opinion of the court.

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BURDEAU V. MCDOWELL—CONT’D

J. C. McDowell, hereinafter called the petitioner, filed a petition in the United States

District Court for the Western District of Pennsylvania asking for an order for the return to him

of certain books, papers, memoranda, correspondence and other data in the possession of Joseph

A. Burdeau, appellant herein, Special Assistant to the Attorney General of the United States.

In the petition it is stated that Burdeau and his associates intended to present to the grand

jury in and for the Western District of Pennsylvania a charge against petitioner of an alleged

violation of } 215 of the Criminal Code of the United States in the fraudulent use of the mails; that it was the intention of Burdeau and his associates, including certain post-office inspectors

cooperating with him, to present to the grand jury certain private books, papers, memoranda,

etc., which were the private property of the petitioner; that the papers had been in the

possession and exclusive control of the petitioner in the Farmers Bank Building in Pittsburgh.

It is alleged that during the spring and summer of 1920 these papers were unlawfully seized

and stolen from petitioner by certain persons participating in and furthering the proposed

investigation so to be made by the grand jury, under the direction and control of Burdeau as

special assistant to the Attorney General, and that such books, papers, memoranda, etc., were

being held in the possession and control of Burdeau and his assistants; that in the taking of the

personal private books and papers the person who purloined and stole the same drilled the

petitioner’s private safes, broke the locks upon his private desk, and broke into and abstracted

from the files in his offices his private papers; that the possession of the books, papers, etc.,

by Burdeau and his assistants was unlawful and in violation of the legal and constitutional

rights of the petitioner. It is charged that the presentation to the grand jury of the same, or

any secondary or other evidence secured through or by them, would work a deprivation

of petitioner’s constitutional rights secured to him by the Fourth and Fifth Amendments to

the Constitution of the United States.

An answer was filed claiming the right to hold and use the papers. A hearing was

had before the District Judge, who made an order requiring the delivery of the papers to

the clerk of the court, together with all copies memoranda and data taken there from, which

the court found had been stolen from the offices of the petitioner at rooms numbered

1320 and 1321 in the Farmers Bank Building in the City of Pittsburgh. The order further

provided that upon delivery of the books, papers, etc., to the clerk of the court the same

should be sealed and impounded for the period of ten days, at the end of which period they

should be delivered to the petitioner or his attorney unless an appeal were taken from the

order of the court, in which event, the books, papers, etc., should be impounded until

the determination of the appeal. An order was made restraining Burdeau, Special Assistant

Attorney General, the Department of Justice, its officers and agents, and the United

States Attorney from presenting to the United States Commissioner, the grand jury or

any judicial tribunal, any of the books, papers, memoranda, letters, copies of letters,

correspondence, etc., or any evidence of any nature whatsoever secured by or coming

into their possession as a result of the knowledge obtained from the inspection of such

books, papers, memoranda, etc.

In his opinion the District Judge stated that it was the intention of the Department of

Justice, through Burdeau and his assistants, to present the books, papers, etc., to the grand

(Continued)

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BURDEAU V. MCDOWELL—CONT’D

jury with a view to having the petitioner indicted for the alleged violation of } 215 of the Criminal Code of the United States, and the court held that the evidence offered by the

petitioner showed that the papers had been stolen from him, and that he was entitled to the

return of the same. In this connection the District Judge stated that it did not appear that

Burdeau, or any official or agent of the United States, or any of the Departments, had

anything to do with the search of the petitioner’s safe, files, and desk, or the abstraction there

from of any of the writings referred to in the petition, and added that “the order made in

this case is not made because of any unlawful act on the part of anybody representing the

United States or any of its Departments but solely upon the ground that the Government

should not use stolen property for any purpose after demand made for its return.”

Expressing his views, at the close of the testimony, the judge said that there had been a gross

violation of the Fourth and Fifth Amendments to the Federal Constitution; that the

Government had not been a party to any illegal seizure; that those Amendments, in the

understanding of the court, were passed for the benefit of the States against action by the

United States, forbidden by those Amendments, and that the court was satisfied that the

papers were illegally and wrongfully taken from the possession of the petitioner, and were

then in the hands of the Government.

So far as is necessary for our consideration certain facts from the record may be stated.

Henry L. Doherty & Company of New York were operating managers of the Cities Service

Company, which company is a holding company, having control of various oil and gas

companies. Petitioner was a director in the Cities Service Company and a director in the

Quapaw Gas Company, a subsidiary company, and occupied an office room in the building

owned by the Farmers Bank of Pittsburgh. The rooms were leased by the Quapaw Gas

Company. McDowell occupied one room for his private office. He was employed by Doherty

& Company as the head of the natural gas division of the Cities Service Company. Doherty &

Company discharged McDowell for alleged unlawful and fraudulent conduct in the course

of the business. An officer of Doherty & Company and the Cities Service Company went to

Pittsburgh in March, 1920, with authority of the president of the Quapaw Gas Company to take

possession of the company’s office. He took possession of room 1320; that room and the

adjoining room had McDowell’s name on the door. At various times papers were taken from the

safe and desk in the rooms, and the rooms were placed in charge of detectives. A large quantity

of papers were taken and shipped to the auditor of the Cities Service Company at 60 Wall Street,

New York, which was the office of that company, Doherty & Company and the Quapaw Gas

Company. The secretary of McDowell testified that room 1320 was his private office; that

practically all the furniture in both rooms belonged to him; that there was a large safe

belonging to the Farmers Bank and a small safe belonging to McDowell; that on March 23, 1920,

a representative of the company and a detective came to the offices; that the detective was

placed in charge of room 1320; that the large safe was opened with a view to selecting papers

belonging to the company, and that the representative of the company took private papers of

McDowell’s also. While the rooms were in charge of detectives both safes were blown open.

In the small safe nothing of consequence was found, but in the large safe papers belonging to

McDowell were found. The desk was forced open, and all the papers taken from it. The papers

were placed in cases, and shipped to Doherty & Company, 60 Wall Street, New York.

366 PRIVATE SECURITY AND THE LAW

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BURDEAU V. MCDOWELL—CONT’D

In June, 1920, following, Doherty & Company, after communication with the Department

of Justice, turned over a letter, found in McDowell’s desk to the Department’s representative.

Burdeau admitted at the hearing that as the representative of the United States in the

Department of Justice he had papers which he assumed were taken from the office of

McDowell. The communication to the Attorney General stated that McDowell had violated the

laws of the United States in the use of the mail in the transmission of various letters to parties

who owned the properties which were sold by or offered to the Cities Service Company; that

some of such letters, or copies of them taken from McDowell’s file, were in the possession

of the Cities Service Company, that the Company also had in its possession portions of a diary

of McDowell in which he had jotted down the commissions which he had received from a

number of the transactions, and other data which, it is stated, would be useful in the

investigation of the matter before the grand jury and subsequent prosecution should an

indictment be returned.

We do not question the authority of the court to control the disposition of the papers, and

come directly to the contention that the constitutional rights of the petitioner were violated

by their seizure, and that having subsequently come into the possession of the prosecuting

officers of the Government, he was entitled to their return. The Amendments involved are the

Fourth and Fifth, protecting a citizen against unreasonable searches and seizures, and

compulsory testimony against himself. An extended consideration of the origin and purposes of

these Amendments would be superfluous in view of the fact that this court has had occasion

to deal with those subjects in a series of cases. Boyd v. United States, 116 U.S. 616; Adams v.

New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383; Johnson v. United States, 228

U.S. 457; Perlman v. United States, 247 U.S. 7; Silverthorne Lumber Co. v. United States, 251

U.S. 385; and Gouled v. United States, 255 U.S. 298.

The Fourth Amendment gives protection against unlawful searches and seizures, and as

shown in the previous cases, its protection applies to governmental action. Its origin and

history clearly show that it was intended as a restraint upon the activities of sovereign authority,

and was not intended to be a limitation upon other than governmental agencies; as against

such authority it was the purpose of the Fourth Amendment to secure the citizen in the right

of unmolested occupation of his dwelling and the possession of his property, subject to the

right of seizure by process duly issued.

In the present case the record clearly shows that no official of the Federal Government

had anything to do with the wrongful seizure of the petitioner’s property, or any

knowledge thereof until several months after the property had been taken from him and

was in the possession of the Cities Service Company. It is manifest that there was no invasion

of the security afforded by the Fourth Amendment against unreasonable search and seizure,

as whatever wrong was done was the act of individuals in taking the property of

another. A portion of the property so taken and held was turned over to the

prosecuting officers of the Federal Government. We assume that petitioner has an

unquestionable right of redress against those who illegally and wrongfully took his private

property under the circumstances herein disclosed, but with such remedies we are not

now concerned.

(Continued)

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BURDEAU V. MCDOWELL—CONT’D

The Fifth Amendment, as its terms import is intended to secure the citizen from compulsory

testimony against himself. It protects from extorted confessions, or examinations in court

proceedings by compulsory methods.

The exact question to be decided here is: May the Government retain incriminating papers,

coming to it in the manner described, with a view to their use in a subsequent investigation

by a grand jury where such papers will be part of the evidence against the accused, and may

be used against him upon trial should an indictment be returned?

We know of no constitutional principle which requires the Government to surrender the

papers under such circumstances. Had it learned that such incriminatory papers, tending to

show a violation of federal law, were in the hands of a person other than the accused, it having

had no part in wrongfully obtaining them, we know of no reason why a subpoena might not

issue for the production of the papers as evidence. Such production would require no

unreasonable search or seizure, nor would it amount to compelling the accused to testify

against himself.

The papers having come into the possession of the Government without a violation of

petitioner’s rights by governmental authority, we see no reason why the fact that individuals,

unconnected with the Government, may have wrongfully taken them, should prevent them

from being held for use in prosecuting an offense where the documents are of an

incriminatory character.

It follows that the District Court erred in making the order appealed from, and the same is

Reversed.

DISSENT BY: BRANDEIS

DISSENT: MR. JUSTICE BRANDEIS dissenting, with whom MR. JUSTICE HOLMES concurs.

Plaintiff’s private papers were stolen. The thief, to further his own ends, delivered them to the

law officer of the United States. He, knowing them to have been stolen, retains them for use

against the plaintiff. Should the court permit him to do so?

That the court would restore the papers to plaintiff if they were still in the thief’s

possession is not questioned. That it has power to control the disposition of these stolen

papers, although they have passed into the possession of the law officer, is also not

questioned. But it is said that no provision of the constitution requires their surrender and that

the papers could have been subpoenaed. This may be true. Still i cannot believe that action of

a public official is necessarily lawful, because it does not violate constitutional prohibitions

and because the same result might have been attained by other and proper means. At the

foundation of our civil liberty lies the principle which denies to government officials an

exceptional position before the law and which subjects them to the same rules of conduct

that are commands to the citizen. And in the development of our liberty insistence upon

procedural regularity has been a large factor. Respect for law will not be advanced by

resort, in its enforcement, to means which shock the common man’s sense of decency

and fair play.

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STATE OF MINNESOTA V. JEFFREY SCOTT BUSWELL 449 N.W.2d 471 (Minn. App. 1989)

Parker, Presiding Judge, Crippen, Judge, and Bowen, *Judge. Bowen, Judge, dissenting.

OPINION BY: CRIPPEN

Appellants contend their fourth amendment rights were violated by security agent searches at

the gateway to Brainerd International Raceway. The trial court concluded the policing activity

was private. We reverse and remand.

FACTS

Each appellant was charged with possession of controlled substances. After a

consolidated omnibus hearing, the trial court determined that the evidence seized was

the product of a private search and denied appellants’ motions to suppress the

evidence. Appellants waived their rights to a jury trial and were found guilty as charged by

the trial court.

Appellant Dale Jay Schmidt was stopped in his borrowed pickup camper by Bruce Gately,

a private security agency employee outside the entrance to Brainerd International Raceway

on August 18, 1988. Gately asked Schmidt to unlock the back door of the camper portion

of his vehicle so Gately could see if any persons were attempting to enter the race without

paying the admission fee. After Schmidt unlocked the back door, Gately looked into the rear

of the camper, entered it, opened a closet and discovered a small, green tackle box which

contained cocaine. Gately then handcuffed Schmidt and his passenger to a fence pending

the arrival of law enforcement officials.

Appellants Jeffrey Scott Buswell and Gary Lee Schwartzman were also stopped by Gately

upon their arrival at the racetrack on August 18. While searching their converted bus, Gately

discovered contraband inside a closet and a closet drawer. Subsequently, Buswell and

Schwartzman were handcuffed to a fence and law enforcement officials were summoned. More

contraband was found after the bus was seized and searched, and cocaine was discovered on

appellants after they were taken into custody.

In each instance, the searches were conducted by a private security guard employed

by North Country Security. North Country Security is owned by Keith Emerson, a Brainerd

police officer and a special deputy for the Crow Wing County Sheriff’s office.

Emerson contracted with the Brainerd raceway to provide security at the track, which

is located on private property about six miles outside Brainerd, in Crow Wing County. He

was responsible for hiring security guards and managing the security arrangements. For the

weekend at issue, Emerson employed 127 guards, seven of whom were police officers.

In May of 1988, prior to the racing season, Emerson conferred with the Crow Wing County

Sheriff and a local Bureau of Criminal Apprehension agent to determine the procedures that

would be employed when his security guards seized contraband or uncovered other illegal

activity. It was agreed that if any circumstances encountered by Brainerd security guards

seemed to warrant an arrest, Emerson would be called first. After reviewing the situation, he

would then decide whether to call in law enforcement officers. Arrangements were made for

(Continued)

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STATE OF MINNESOTA V. JEFFREY SCOTT BUSWELL—CONT’D

Emerson to contact Dave Bjerja, a Crow Wing County deputy sheriff and a special BCA agent,

when someone was held for further police action.

At approximately 6:00 A.M. on the day of the searches, Emerson convened a meeting with

his employees to discuss security arrangements for the weekend’s races. At this meeting,

Emerson told his employees that vehicles were to be searched for nonpaying persons. Emerson

testified, however, that there was also a standing rule that vehicles are checked on a random

basis for contraband.

ISSUE

Did the searches conducted by private security personnel at the entrance to Brainerd

International Raceway constitute public police action, governed by Fourth Amendment

limitations?

Analysis

Appellants contend the random searches at issue were not private activity and should have

been subject to the constraints set forth by the Fourth and Fourteenth Amendments.

They argue that there was sufficient evidence of public action to implicate the constitutional

prohibitions against unreasonable and warrantless searches and that evidence obtained

was illegally seized and should have been suppressed.

It is well-settled that the Fourth Amendment applies only to governmental action. Burdeau v.

McDowell, 256 U.S. 465, 475, 65 L. Ed. 1048, 41 S. Ct. 574 (1921). This rule of law has

been followed in Minnesota. See State v. Kumpula, 355 N.W.2d 697, 701 (Minn. 1984);

State v. Hodges, 287 N.W.2d 413, 416 (Minn. 1979). The difficulty often arises, however, as it

does here, in determining when governmental action occurs. There is no single authority

directly bearing on this issue.

The public-private classification is made with awareness that constitutional rights of the

citizen must be protected. We are to liberally construe those constitutional provisions which

provide for the security of person and property. See Coolidge v. New Hampshire, 403 U.S. 443,

453-54, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). Courts have recognized the dangers in creating a

simplistic division between private and public sectors when interpreting the Fourth

Amendment.

To err on the side of a restrictive interpretation of the Fourth Amendment would be to

sanction the possibility of widespread abuse of the privacy rights of individuals by private

security guards.

* * * *

Ill-trained in the subtleties of the law of search and seizure, private security guards are more

likely than public law-enforcement officials to conduct illegal searches and seizures. In

addition, private security guards have accoutrements of office that tend to radiate an air of

authority not possessed by other private individuals. Of particular importance are the uniform

and badge, both regulated by the state.

People v. Holloway, 82 Mich. App. 629, 267 N.W.2d 454, 459 (1978) (Kaufman, Judge,

concurring).

The Supreme Court formulated the following standard in Coolidge:

370 PRIVATE SECURITY AND THE LAW

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The test. . .is whether [the private citizen], in light of all the circumstances of the case, must

be regarded as having acted as an “instrument” or agent of the state.

Coolidge, 403 U.S. at 487. The Court recently reiterated this position and stated that the

Fourth Amendment does not apply to a private search or seizure unless the private party

acted as an instrument or agent of the government. Skinner v. Railway Labor Executives Ass’n,

489 U.S. 602, 109 S. Ct. 1402, 1411, 103 L. Ed. 2d 639 (1989).

Case law identifies several determinants of public involvement. Our consideration of

these factors leads us to the conclusion that the searches in the present case were public.

As these factors are examined here, we review the record with respect for the additional rule

of law that appellants have the burden to show by a preponderance of evidence that the

security searches here were not private in nature. United States v. Feffer, 831 F.2d 734, 739

(7th Cir. 1987).

1. Official Police Involvement Whether a private party should be considered an agent or

instrument of the government for purposes of the Fourth Amendment turns initially on the

degree of the government’s participation in the private party’s activities. Skinner, U.S. at, 109 S.

Ct. at 1411. “The fact that the government has not compelled a private party to perform a

search does not, by itself, establish that the search is a private one.” Id. Governmental

participation may be found where the government does something more than adopt a passive

position toward underlying private conduct. Id.

Before a private party’s actions can be attributed to the government, some degree

of government instigation must be shown. United States v. Luciow, 518 F.2d 298, 300 (8th Cir.

1975). This may be in the form of governmental direction, authorization, or knowledge of the

illegality. Id. The Fourth Amendment may apply if the government participates in a search or

encourages a private party to conduct a search. Gundlach v. Janing, 536 F.2d 754, 755

(8th Cir. 1976).

A search is not private in nature if it has been ordered or requested by a government official.

1 W. LaFave, Search and Seizure } 1.8(b), at 178 (2d ed. 1987). Similarly, governmental involvement has been found to exist when private security guards act pursuant to customary

procedures agreed to in advance by the police. See Murray v. Wal-Mart, Inc., 874 F.2d 555, 559

(8th Cir. 1989); El Fundi v. Deroche, 625 F.2d 195, 196 (8th Cir. 1980).

In the instant case, a meeting occurred where public officials and private security

personnel reached an understanding regarding arrest procedures to be utilized upon the

discovery of contraband by the private guards. Although this meeting dealt with the

aftermath of searches, and not the manner of searching, the meeting produced a standing

arrangement for contacts by the supervising security agent with police during the hours

of operation, and a police officer was designated on call to assist with arrests. Emerson testified

he was to be the intermediary between the security person conducting the search and the

police; as he explained: “They wanted a law enforcement officer making the phone calls which

would be for two reasons. One, I am in charge of security and I am a licensed officer.”

2. Service of Public Policing Function Regardless of direct police involvement, systematic use

of random contraband searches serves the general public interest and may reflect pursuit of

(Continued)

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STATE OF MINNESOTA V. JEFFREY SCOTT BUSWELL—CONT’D

criminal convictions as well as protection of private interests. Marsh v. Alabama, 326 U.S. 501,

90 L. Ed. 265, 66 S. Ct. 276 (1946), supplies the basis for concluding that private investigators

and police may be subject to the Fourth Amendment where they are with some regularity

engaged in the “public function” of law enforcement. Id. at 506. See 1 W. LaFave, } 1.8(d) at 200. See also Feffer, 831 F.2d at 739 (private purpose to assist police considered along with

government acquiescence in conduct).

Private security guards may share with police an interest in public prosecutions premised on

the results of a private search. Here, as already pointed out, the interest of the police was

demonstrated in the prior meetings between Emerson and law enforcement officials regarding

the procedures to be used. Where some presearch contact between the private party

conducting the search and a potentially interested government official is shown, influence may

be inferred. 1 W. LaFave, } 1.8(e) at 211 n. 151. The security guards were clearly aiming at discovery of contraband and public prosecution of offenses thus discovered. This was so

notwithstanding any private interest in controlling drug-induced misconduct. Emerson

testified that vehicles were to be checked on a random basis for contraband.

In addition, private security personnel were utilized here to police a major public activity.

Private security guards have been increasingly used as supplements for police protection and

perform functions similar to licensed police officers. Here, Emerson employed approximately

127 guards, seven of whom were police officers, for the weekend races at the Brainerd raceway

overseeing approximately 78,000 spectators.

Finally, the police-like clothing, equipment, and procedures gave North Country Security

personnel the appearance of public authorities. See Holloway, 82 Mich. App. at, 267 N.W.2d

at 459-60. They wore grey uniforms with badges. Gately carried handcuffs and a gun. Emerson

acknowledged that the security guards might look like police officers to the average person.

Combined with the use of the police arrest process (handcuffing appellants to fences,

conducting body searches), the role of these private security agents extended to a police

function, not merely affording private protection.

3. Boundaries of Reasonable Private Policing When intrusion goes beyond a reasonable and

legitimate means for protecting private property, the practice suggests a need for constitutional

protection of individual liberty. Commonwealth v. Leone, 386 Mass. 329, 435 N.E.2d 1036, 1041

(1982). The public does not reasonably anticipate, we conclude, a private prerogative for

random searches, a regular part of admission to a public event, which are more intrusive than

permitted for police authorities. We have examined, in this regard, the nature of the intrusion in

the circumstances of this case.

Gately’s searches of appellants’ vehicles were evidently conducted without consent.

Appellants were not given the option of being searched or leaving the raceway. Moreover,

Gately exceeded the announced scope of the searches. Although appellants were told that he

was only looking for persons trying to enter the race without paying, Gately searched areas of

appellants’ vehicles which could not possibly have hidden a person. He also testified that the

purpose of the searches was to look for contraband as well as trespassers.

4. Police Personnel Finally, the identity of private security employees as off-duty policemen is

an additional factor to be weighed. See Williams v. United States, 341 U.S. 97, 99, 95 L. Ed. 774,

372 PRIVATE SECURITY AND THE LAW

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STATE OF MINNESOTA V. JEFFREY SCOTT BUSWELL—CONT’D

71 S. Ct. 576 (1951) (special police officer who operated a detective agency acted under color of

law, and not as a private person, when he used brutal methods to obtain confessions from

alleged thieves after being hired by a privately-owned company). Such officers are formally

affiliated with the government and usually given authority beyond that of an ordinary citizen.

Thus, they may be treated as state agents and subject to the constraints of the Fourth

Amendment. Leone, 386 Mass. at. . .435 N.E.2d at 1040 (1982) (comparing public and “purely

private” searches).

Emerson, a long-time licensed police officer and special deputy, directed and authorized the

searches and instructed security personnel. As a result, private actions became entwined with

governmental policies. See Evans v. Newton, 382 U.S. 296, 299, 15 L. Ed. 2d 373, 86 S. Ct. 486

(1966). Emerson cannot escape Fourth Amendment limitations by directing a third party to

perform a search he could not otherwise conduct himself. See United States v. West, 453 F.2d

1351, 1356 (3rd Cir. 1972).

In sum, we observe a combination of factors requiring the conclusion that the activity of

private security personnel in this case took on a public character. There was significant

official police involvement as indicated by the presearch meetings between Emerson and law

enforcement officials. North Country Security agents were engaged in the “public function” of

law enforcement. Emerson, as well as a number of the security agents, were licensed police

officers. Finally, the searches involved a significant degree of intrusion.

Decision

Because the trial court concluded the search was private, it did not address evidence and

argument on the Fourth Amendment issue. On remand, the trial court must weigh the issues

for unreasonableness in the search activity, including consent for the scope of the search and

the question of whether any contraband was found in the agent’s plain view.

Reversed and remanded.

DISSENT BY: BOWEN

DISSENT: BOWEN, Judge (dissenting).

I respectfully dissent. The record before us and before the trial court does not support the

majority’s conclusion, even applying the majority’s criteria, that the searches here were

public rather than private.

I agree with the majority that the test, enunciated in Coolidge v. New Hampshire, 403 U.S.

443, 487, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), and most recently reiterated by the Supreme

Court in Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S. Ct. 1402, 1411, 103

L. Ed. 2d 639 (1989), is whether the private citizen who conducted the search and seizure acted

as an instrument or agent of the government. I part company with the majority, however, on the

issue of whether the application of their criteria, or any other criteria recognized by case law,

establishes that either Gately or his boss, Emerson, acted here as an instrument or agent of

Crow Wing County or the State of Minnesota.

(Continued)

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STATE OF MINNESOTA V. JEFFREY SCOTT BUSWELL—CONT’D

The meeting between Emerson and law enforcement personnel, discussing procedures to be

followed upon discovery of contraband, was not initiated by the BCA or by the county sheriff;

rather, it was held to inform Emerson how to contact a law enforcement officer to take over

after Emerson or one of his employees discovered contraband and made a citizen’s arrest on the

BIR property. The law enforcement personnel attending the meeting gave no instructions as to

how searches or arrests were to be made. They did, however, insist that one individual,

Emerson, call them in, rather than be subjected to the prospect of being called by any of 60

security guards. On the law enforcement side, one deputy sheriff, Dave Bjerga, was assigned as

the individual to be called by Emerson. Bjerga, however, was not standing by awaiting calls, but

went on performing his regular duties. (In fact, when he was called by Emerson about the

searches and arrests here, he was on his way to Long Prairie on another case.) The meeting was

the result of Emerson’s legitimate concern, on behalf of his private employer, about the logistics

of promptly turning over citizen’s arrestees to a peace officer, both to comply with statutory

requirements and to avoid liability for false arrest. The meeting did not constitute the

government instigation or participation required to make these “public” searches. See 1 W.

LaFave, Search and Seizure } 1.8(b), at 178 (2d ed. 1987). BIR had an obvious legitimate interest in avoiding open drug use or drug-induced behavior

on its property, something which could jeopardize its continuation in business. BIR initiated

entrance-gate vehicle searches to insure that no one entered without having paid for

admission, as well as to keep order. The record is devoid of any evidence that BIR’s primary

purpose was the assistance of public authorities in the prosecution of persons for drug

violations.

Admittedly, Gately’s searches would not have passed Fourth Amendment muster had they

been public searches. However, I can find no authority for assuming a nexus between the

unreasonableness of a search and its public or private nature. The fact that Gately engaged

in conduct forbidden to a police officer does not make his searches public.

Finally, the fact that seven of Emerson’s 127 employees were moonlighting policemen

from other jurisdictions does not bring this case within Williams v. United States, 341

U.S. 97, 95 L. Ed. 774, 71 S. Ct. 576 (1951). These security guards are not formally affiliated

with the government and have no authority beyond that of an ordinary citizen. We cannot treat

them as state agents on the record before us. In referring to Emerson as “along-time licensed

police officer and special deputy,” the majority fails to note that Emerson was a Brainerd police

officer, that the BIR is not located in the City of Brainerd, and that Emerson had no authority as

a special deputy to make arrests. Neither Emerson nor Gately could lawfully conduct a search

or make an arrest except as a private citizen. Nor did either of them hold himself out as a police

officer in making the searches and arrests in question.

I find nothing in the majority’s reasoning, or in this record, to convince me that Emerson’s

and Gately’s conduct was government-instigated, or that the state or county participated

therein. I believe the searches were private searches, not covered by the fourth amendment;

I would affirm the judgments of conviction.

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KELLEY ET AL. V. BAKER PROTECTIVE SERVICES, INC. 198 Ga. App. 378; 401 S.E.2d 585 (1991)

Sognier, Chief Judge. McMurray, P. J., and Carley, J., concur.

OPINION BY: SOGNIER

Forrest Kelley and Janet Kelley brought a wrongful death suit against Baker Protective Services,

Inc. and its predecessor, Burns International Investigation Services, Inc., for the negligent hiring

and retention of an employee, David Scott Goza, an unarmed security guard involved in the

murder of Mark Stephen Kelley, the plaintiffs’ son. The trial court granted the defendants’

motion for summary judgment, and the Kelleys appeal.

We affirm. The record establishes that Goza, who began working for appellee

Burns International Investigation Services, Inc. (hereinafter “appellee”) in November 1986,

was the sole security guard at the Hormel Plant in Tucker, Georgia on January 19, 1987. Goza

allowed appellants’ decedent and three other men (none of them Hormel employees) to enter

the plant premises, apparently to conduct a drug deal. Two of the men then murdered

appellants’ decedent and the fourth man. Goza did not participate in the murders but did assist

in the disposal of the bodies. It is uncontroverted that a background investigation performed on

Goza by appellee and various State agencies revealed that Goza had no convictions for any

crimes or any record of criminal activity or dangerous propensities, or that any accusations of

criminal activities or violent behavior had been made against Goza. Appellants’ own

investigation into Goza’s background uncovered only a traffic warning ticket. Although

appellants place great emphasis on evidence in the record indicating that Goza’s training as an

unarmed security guard did not comport with O.C.G.A. } 43-38-7.1 (a) (training of unarmed private security guards) and the rules and regulations promulgated by the Georgia Board

of Private Detective and Security Agencies pursuant to O.C.G.A. } 43-38-4 (d) (3), in his deposition Goza acknowledged that he knew, without being so instructed by anyone at

appellee, that he was not supposed to participate in illegal drug transactions or in

murdering anyone while on his job.

“‘For [appellee] to be negligent in hiring and retaining any employee with violent and

criminal propensities, it would be necessary that [appellee] knew or should have known of

those dangerous propensities alleged to have resulted in [appellants’ decedent’s death.] (Cits.)

The record contains absolutely no evidence which would authorize a finding that appellee

knew or should have known that [Goza] was violently or criminally prone. [Cit.]” Southern Bell

Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 666 (307 S.E.2d 129) (1983). See also Big Brother/Big

Sister &c. v. Terrell, 183 Ga. App. 496, 497 (1) (359 S.E.2d 241) (1987); Edwards v. Robinson-

Humphrey Co., 164 Ga. App. 876, 880 (298 S.E.2d 600) (1982). The submission of evidence by

appellee that it did not know of Goza’s criminal propensities after investigating his criminal and

employment record and the absence of any evidence controverting appellee’s evidence or

indicating that appellee should have known of Goza’s criminal propensities entitled appellee to

summary judgment. Southern Bell, supra at 667 (1).

We are not persuaded by appellants’ arguments that the trial court’s judgment was

erroneous. First, we do not agree with appellants that the training Goza was required by

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KELLEY ET AL. V. BAKER PROTECTIVE SERVICES, INC.—CONT’D

statute and agency regulations to receive was designed to uncover the trainee’s latent character

defects for purposes of placing the employer on notice that the trainee possessed violent or

criminal propensities. Thus, appellee’s failure to provide that training does not avail appellants.

Next, in view of Goza’s testimony that he was totally aware that illegal drug transactions and

murder were not part of his employment with appellee, we cannot agree with appellants that

appellee, in its training, was negligent in failing to state these prohibitions to Goza explicitly.

Finally, we cannot agree that a question for jury resolution was created by appellants’

supposition, unsupported by any evidence in the record, that Goza would not have allowed the

men onto the Hormel plant premises where the murder of their son occurred had appellee

informed Goza during his training that participating in drug deals and murder was not

appropriate while he was on the job. Appellants having failed to counter appellee’s evidence by

setting forth specific facts showing that there is a genuine issue for trial, the trial court did not

err by granting summary judgment in favor of appellee. O.C.G.A. } 9-11-56 (e). JUDGMENT AFFIRMED.

LEROY ROSS V. TEXAS ONE 796 S.W.2d 206 (Tx. App. 1990)

Justices Whitham, Gordon Rowe, and Baker. Opinion By Justice Gordon Rowe.

OPINION BY: ROWE

ROWE, Justice. Leroy Ross appeals from rendition of a summary judgment in favor of Texas

One Partnership, doing business as Ewing Estates Apartments. Ross suffered injuries incurred

when a security guard patrolling the Ewing Estates Apartments shot Ross with a shotgun.

Ross sued James Neal, individually and doing business as Neal Security Company; Johnny

Thompson, the security guard; and Texas One Partnership, the owner of the apartments. Texas

One moved for summary judgment, contending that it could not be held liable as a matter of

law because the security company was an independent contractor. The trial court granted

summary judgment in favor of Texas One and severed that action from the rest of the case.

In eight points of error, Ross asserts that the trial court erred in granting the summary

judgment. We affirm the trial court’s judgment.

Summary judgment is proper if the summary judgment record shows that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter

of law. See Tex. R. Civ. P. 166a(c). The purpose of summary judgment is the elimination of

patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of

their right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 151

Tex. 412, 416, 252 S.W.2d 929, 931 (1952). In reviewing the propriety of a summary judgment,

we are bound by these standards: (1) the movant has the burden of showing that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in

deciding whether there is a disputed material fact issue, evidence favorable to the nonmovant

will be taken as true; and (3) every reasonable inference must be indulged in favor of the

376 PRIVATE SECURITY AND THE LAW

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LEROY ROSS V. TEXAS ONE—CONT’D

nonmovant and any doubts must be resolved in its favor. Nixon v. Mr. Property Management

Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

In the seventh point of error, Ross contends that the summary judgment was erroneously

granted because a material fact issue existed as to whether the security company acted as an

agent of Texas One. In its motion for summary judgment, Texas One asserted, among other

things, thatthe security company was an independent contractor. The general rule is that an

owner of premises is not liable for harm arising out of activity conducted by, and under the

control of, an independent contractor. See Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex. 1987);

Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex. 1976). The doctrine of respondeat

superior is not applicable in such a situation. Phillips Pipe Line Co. v. McKown, 580 S.W.2d 435,

438 (Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.).

An agency relationship cannot be presumed to exist. Johnsonv. Owens, 629 S.W.2d 873, 875

(Tex. App.—Fort Worth 1982, writ ref’d n.r.e.). Although the question of agency is generally

one of fact, Horne v. Charter Nat’l Ins. Co., 614 S.W.2d 182, 184 (Tex. Civ. App.—Fort Worth 1981,

writ ref’d n.r.e.), the question of whether a principal-agent relationship exists under established

facts is a question of law for the court. Norton v. Martin, 703 S.W.2d 267, 272 (Tex. App.—San

Antonio 1985, writ ref’d n.r.e.). Thus, the existence of an agency relationship can be a question

of law to be determined by the agreement between, and the words and conduct of, the parties.

See Mercedes-Benz of North America, Inc. v. Dickenson, 720 S.W.2d 844, 858 (Tex. App.—Fort

Worth 1986, no writ). In other words, if the facts are uncontroverted or otherwise established,

the existence of an agency relationship is a pure question of law. See American Int’l Trading

Corp. v. Petroleos Mexicanos, 835 F.2d 536, 539 (5th Cir. 1987) (applying Texas law). Proof of

agency requires a showing that the alleged principal has the right to assign the agent’s task and

the right to control the means and details of the process to be used to accomplish the task.

Johnson v. Owens, 629 S.W.2d at 875.

On the other hand, an independent contractor is one who, in the pursuit of an independent

business, undertakes a specific job for another person, using his own means and methods,

without submitting himself to the other’s control regarding details of the job. Pitchfork Land

and Cattle Co. v. King, 162 Tex. 331, 338, 346 S.W.2d 598, 602-03 (1961). Thus, the primary test

used to decide whether a party is an independent contractor involves determination as to

which of the parties to the relationship possesses the “right of control” over the details of the

work. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex. 1964). Factors used to determine

whether one is an independent contractor include: (1) the independent nature of the

contractor’s business; (2) his obligation to supply necessary tools, supplies, and materials;

(3) his right to control the progress of the work except as to final results; (4) the time for which

he is employed; and (5) the method by which he is paid, whether by the time or by the job.

Pitchfork, 346 S.W.2d at 603. When the controlling facts are undisputed and only one

reasonable conclusion can be inferred from those facts, the question of whether a party is an

independent contractor is a question of law. Id.

A contract between the parties which establishes an independent contractor relationship

is determinative of the parties’ relationship in the absence of extrinsic evidence indicating

that the contract was a subterfuge or that the hiring party exercised control in a manner

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LEROY ROSS V. TEXAS ONE—CONT’D

inconsistent with the contractual provisions. See Newspapers, Inc., 380 S.W.2d at 590, 592. The

contract between Texas One and the security company specified certain tasks to be undertaken

by the security company, but it did not grant to Texas One the right to control the methods and

details involved in accomplishing those tasks. The contract provided that the security company

would be self-employed and responsible for all insurance.

Ross emphasizes the fact that the contract specified several tasks to be accomplished,

as opposed to the one “specific piece of work” referred to in the Pitchfork case. See

Pitchfork, 346 S.W.2d at 602. This distinction has little or no bearing on the question of

whether the security company was an independent contractor. We find no authority

suggesting that an independent contractor relationship is confined only to cases in which the

contractor undertakes only one task. Ross notes that the contract contemplated that the

security company would provide services for an indefinite period of time. Although the

period of employment is a factor to be considered, Pitchfork, 346 S.W.2d at 603, it is certainly

not determinative, since the primary test involves the right of control. We note that the

contract granted to both Texas One and the security company the right to terminate the

contract upon thirty days’ written notice. Ross relies on the fact that the security company

was to be paid at regular intervals rather than for any discrete job. The method of

payment may be considered, id., but it is not a controlling factor in relation to the

ultimate “right of control” test.

We conclude that the contract, viewed alone, established an independent contractor

relationship between Texas One and the security company. The contract did not provide

that Texas One would possess the right to control the manner and means to be used in

accomplishing the tasks assigned to the security company. The contract merely specified some

of the tasks to be undertaken. It expressly provided that the security company would be

self-employed.

The question remains as to whether the contract was a sham designed to conceal the true

relationship between the parties. Establishing that the contract was such a subterfuge

requires evidence that Texas One actually exercised control over the details of the work

performed by the security company. See Newspapers, Inc., 380 S.W.2d at 590, 592. The

summary judgment proof included excerpts from the deposition of James Neal, the owner

of the security company. Neal testified that he and another man that he hired as a supervisor

were responsible for supervising the security guards employed by the security company.

He stated that he had established certain rules and regulations governing the conduct of his

security guards. Neal said that he was not an employee of the Ewing Estates Apartments

(Texas One), and he stated that his security company provided services to Texas One as an

independent contractor. He testified that his company was hired to provide security services

using his expertise as he saw fit. Neal said that he used his own means and methods in

performing the security services for the Ewing Estates Apartments. This deposition

testimony was uncontroverted.

Ross suggests that this testimony was not competent summary judgment evidence because

it came from an interested witness. According to the applicable rule, uncontroverted

testimonial evidence of an interested witness can provide a basis for summary judgment if the

evidence is clear, positive, and direct, otherwise credible and free from contradictions and

378 PRIVATE SECURITY AND THE LAW

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LEROY ROSS V. TEXAS ONE—CONT’D

inconsistencies, and it could have been readily controverted. See Tex. R. Civ. P. 166a(c). We note

that, although Neal was an interested witness, we do not see that it was necessarily in his

interest to testify to facts that would support the elimination of a fellow defendant. In any

event, Ross does not explain how the requirements of rule 166a(c) were not satisfied. In our

view, Neal’s testimony was clear, positive, direct, otherwise credible, and free from

contradictions and inconsistencies. His testimony was consistent with the provisions of the

contract between Texas One and the security company. Neal was not the only person who

could have testified about the right of control and the nature of the relationship between Texas

One and the security company. Under these circumstances, we conclude that Neal’s testimony

was subject to being readily controverted. See Kimble v. Aetna Cas. & Sur. Co., 767 S.W.2d 846,

848-49 (Tex. App.—Amarillo 1989, writ denied); Fitzgerald v. Caterpillar Tractor Co., 683 S.W.2d

162, 164 (Tex. App.—Fort Worth 1985, writ ref’d n.r.e.). Neal’s deposition testimony was

competent summary judgment evidence as authorized by rule 166a(c).

Applying the primary “right of control” test, Neal’s uncontradicted testimony indicates that

the security company was an independent contractor. Other factors that can be considered

support this determination. Neal stated that his company performed security work for a

number of other customers besides Texas One. This certainly indicates that the security

company was a business independent of Texas One. Neal testified that his company supplied

the necessary tools and materials used by the security guards (badges, flashlights, guns,

ammunition, handcuffs, etc.).

Ross argues that some of the tasks delineated in the contract between Texas One and the

security company raise reasonable inferences that the security company personnel received

directions from Texas One. Ross notes that the contract provided that the security personnel

would show apartments and pass out notices. However, we view the contractual provisions

as merely designating some of the tasks to be accomplished. The fact that additional

information would have to be conveyed to the security company personnel before the tasks

could be carried out does not imply that Texas One would exercise control over the details of

the assigned jobs. Specifying the apartments to be shown or the types of notices to be

distributed would involve description of the tasks to be accomplished, as opposed to direction

as to the manner and means of accomplishment. There was no evidence indicating, for

example, that the security personnel were required to follow a script or checklist when

showing apartments. Neal testified that the security guards received training arranged by the

security company. There was no evidence that Texas One provided any training to the

security company personnel.

Based on the evidence and reasonable inferences, we determine that the security company

was an independent contractor as a matter of law. We overrule the seventh point of error.

In his first point of error, Ross contends that the trial court erred in granting summary

judgment because his petition gave fair notice of an alleged intentional tort, an issue which

was not addressed by Texas One’s motion for summary judgment. Of course, when allegations

in a plaintiff’s petition are not controverted by a defendant’s summary judgment motion or

proof, the granting of summary judgment in favor of the defendant is improper. See Pollard v.

Missouri Pac. R.R., 759 S.W.2d 670, 671 (Tex. 1988).

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Assuming for the moment that Texas One would be liable for an intentional tort committed

by the security company, we nevertheless conclude that Ross’s first point of error lacks merit.

His petition simply did not allege an intentional tort. The petition describes the alleged

shooting incident and then alleges numerous specific acts and omissions, including the

shooting itself, which were described as constituting negligence or gross negligence. One of the

listed acts of negligence or gross negligence was “willfully discharging a firearm at the

Plaintiff with the malicious intent to cause bodily harm and/or death.” In a paragraph

requesting exemplary damages, Ross alleged “acts and/or omissions of wanton, willful and

malicious misconduct.” Read in context, the allegations now asserted to be allegations of

intentional conduct were in fact allegations of gross negligence. Ross suggests that shooting

someone with a gun may be presumed to be intentional. We reject this contention because

of the obvious possibility that any given shooting may well have been negligent as opposed

to intentional.

Ross relies on the rule that a petition will be construed liberally in favor of the pleader

when there are no special exceptions. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).

That rule does not help Ross because his petition contained no fair indication that an

intentional tort was being alleged. To be sufficient, a petition must provide fair and adequate

notice of the facts upon which the pleader’s claim is based, and the opposing party must be

supplied with information sufficient to enable him to prepare a defense. Id. at 810. Ross’s

petition specifically alleged both negligence and gross negligence, whereas allegations of

intentional conduct were conspicuously absent. Allegations of wantonness, willfulness, and

malice were raised in the context of charges of gross negligence and a request for exemplary

damages. Ross suggests that Texas One could have specially excepted to the petition to

seek clarification. This argument is without merit. We are aware of no authority indicating that

a defendant must specially except because a plaintiff has wholly failed to plead an alternative

cause of action. Our judicial system rests upon the foundation of adversary presentation,

Fikes v. Ports, 373 S.W.2d 806, 808 (Tex. Civ. App.—Fort Worth 1963, writ ref’d n.r.e.), and one

party is under no obligation to help his adversary plead an unpleaded cause of action.

We overrule the first point of error.

We now address the question of whether the summary judgment was warranted in view

of the exceptions to the general rule that an owner of premises is not liable for harm

caused by the activity of an independent contractor. Ross argues in his second point of error

that the summary judgment was erroneously granted because a material fact issue existed as to

the personal character of the premises owner’s duties owed to the public when taking measures

to protect its property. In support of this point of error, Ross relies on Dupree v. Piggly

Wiggly Shop Rite Foods, Inc., 542 S.W.2d 882 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.

e). In that case, the court of appeals held that a grocery chain was liable for an incident of

false imprisonment perpetrated by employees of an independent contractor. Id. at 890.

There is a crucial distinction between that case and the case before us: the fact that the court

was dealing with a case involving an intentional tort, false imprisonment. The court considered

an exception to the general rule that an owner of premises is not liable for the conduct of an

independent contractor. The court described the exception in this manner:

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[B]ecause of the “personal character” of duties owed to the public by one adopting

measures to protect his property, owners and operators of enterprises cannot, by securing

special personnel through an independent contractor for the purposes of protecting

property, obtain immunity from liability for at least the intentional torts of the protecting

agency or its employees.

Id. at 888; see Annotation, Liability of One Contracting for Private Police or Security Service

for Acts of Personnel Supplied, 38 A.L.R.3d 1332, 1339 (1971). The court then analyzed what it

described as the leading case adopting this exception, a case involving the intentional tort of

false arrest. See Adams v. F. W. Woolworth Co., 144 Misc. 27, 257 N.Y.S. 776 (N.Y. Sup. Ct.

1932). The court quoted extensively from the New York case, including the following:

This is not the case of a contractor doing his work negligently. Where negligence is the sole

basis of the liability, the doctrine of respondeat superior has been held inapplicable to

independent contracts. Negligence does not enter into the tort of false arrest. The act itself,

if not justified under statute. . .is tortious, irrespective of negligence.

Dupree, 542 S.W.2d at 889. The court cited a number of other cases from other jurisdictions

and stated:

The weight of the above authorities seems to be that one may not employ or contract with

a special agency or detective firm to ferret out the irregularities of its customers or

employees and then escape liability for the malicious prosecution or false arrest on the

ground that the agency and or its employees are independent contractors. . . . Such cases

adopting this policy have been founded on the principle that he who expects to derive

advantage from an act which is done by another for him, must answer for any intentional

injury which a third party may sustain from it.

Id. (emphasis added). The Dupree court adopted the exception as stated above, and the

language used by the court demonstrates that it viewed the exception as applying to

intentional torts. The court stated its holding in this way:

We hold that Piggly Wiggly by securing through the guise of an independent

contractor, security guards to protect its property by various means, cannot obtain

immunity from liability for false imprisonment which such store owner would not be

equally entitled to if such owner itself directly selected and paid the agents expressly

retaining the power of control and removal. When a store owner undertakes these

functions its duties are personal and nonassignable and where the company arranges

for and accepts the service, it will not be permitted to say that the relationship of

master and servant as far as responsibility is concerned, does not exist. Negligence

does not enter into the tort of false imprisonment. The act itself is tortious irrespective of

negligence.

Id. at 890 (emphasis in original). Although the court made some abstract statements about

nondelegable duty cases involving only negligence, see id., it is clear that the court’s holding

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was based on the fact that the tortious act was intentional. Because the case before us does not

involve an intentional tort, Dupree is inapplicable. We therefore overrule Ross’s second point of

error.

In the third point of error, Ross maintains that the trial court erred in granting summary

judgment because a material fact issue existed as to the inherently dangerous activity

performed by the security company. There is an exception to the general rule of a hiring party’s

nonliability for harm caused by an independent contractor. One who hires an independent

contractor is liable for injuries caused by the contractor’s failure to exercise due care in

performing work which is inherently dangerous. Loyd v. Herrington, 143 Tex. 135, 138, 182

S.W.2d 1003, 1004 (1944); Gragg v. Allen, 481 S.W.2d 452, 454 (Tex. Civ. App.—Waco 1972, writ

dism’d w.o.j.). The theory underlying this kind of liability is that one who engages a contractor

to do inherently dangerous work remains subject to an absolute, nondelegable duty to see

that the work is performed with that degree of care which is appropriate to the circumstances.

Loyd, 182 S.W.2d at 1004.

The Texas case most closely analogous to this case is Gessell v. Traweek, 628 S.W.2d 479 (Tex.

App.—Texarkana 1982, writ ref’d n.r.e.). In Gessell, a house owned by Elmer Gessell was

occupied by his daughter and son-in-law, Betsy and T. W. Larkin. One evening, T. W. Larkin

went outside the house to investigate a noise. When he saw a pickup truck speeding away,

he shot at the truck, and one of the occupants of the truck was injured. The injured plaintiff

argued that T. W. Larkin was an independent contractor hired by Gessell to protect the

house and the premises and that the work to be performed was inherently dangerous. Id. at

481. The court of appeals quoted two relevant sections of the Restatement (Second) of

Torts. Those provisions state:

One who employs an independent contractor to do work which the employer

should recognize as likely to create during its progress a peculiar risk of physical harm

to others unless special precautions are taken, is subject to liability for physical harm caused

to them by the failure of the contractor to exercise reasonable care to take such

precautions, even though the employer has provided for such precautions in the contract or

otherwise.

RESTATEMENT (SECOND) OF TORTS } 416 (1965) One who employs an independent contractor to do work involving a special danger to others

which the employer knows or has reason to know to be inherent in or normal to the work,

or which he contemplates or has reason to contemplate when making the contract, is subject

to liability for physical harm caused to such others by the contractor’s failure to take

reasonable precautions against such danger.

Id. } 427. The court of appeals then stated that “these sections have no application where the negligence of the contractor creates a new risk not inherent in the work itself.” Gessell, 628

S.W.2d at 482. The court held as a matter of law that the work of caring for and protecting

the property was not inherently dangerous. See id. at 482.

Ross argues that the present case is significantly different from the Gessell case. He notes

that there was summary judgment evidence that Texas One discussed the use of firearms

with the security company. The contract between Texas One and the security company listed

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the duties of the security company, and those duties included stopping vandalism and drug

traffic. Texas One knew that security company personnel were carrying weapons and provided

an office on the premises for storage of those weapons. Based on these facts and “reasonable

inferences” associated therewith, Ross argues that there was a factual issue as to whether the

work undertaken by the security company was inherently dangerous. Specifically, Ross

contends that a fact finder could reasonably infer that confrontations would take place between

the armed guards and third parties.

At least one Texas court has noted, however, that it has been held that the protection of

one’s property with firearms does not, in and of itself, constitute an inherently dangerous

activity. See Dupree, 542 S.W.2d at 888 (citing Brien v. 18925 Collins Avenue Corp., 233 So. 2d 847

(Fla. Dist. Ct. App. 1970), and 38 A.L.R.3d 1332, 1340). In the cited Florida case, the plaintiff

appealed from a summary judgment granted in favor of the premises owner. Brien, 233 So. 2d at

847-48. The appellate court held as a matter of law that an owner of real property who hires an

independent contractor security company to protect his property is not liable for harm allegedly

caused by the negligent discharge of a firearm by an employee of the security company. Id.

at 849. The court reasoned that lawful activity involving the use of firearms is not inherently

dangerous activity. Id. The court’s holding is consistent with the previously discussedGessell case.

We conclude that owners of premises should be able to hire independent contractors for

purposes of providing armed security and protection of their property without being exposed

to automatic liability for the negligent discharge of firearms by employees of the independent

contractor. We do not consider it particularly uncommon that protection of property may

involve stopping vandalism or drug trafficking. In any event, the summary judgment record

contains no indication that the incident involved in this case was related to vandalism or drug

trafficking. We follow Brien and hold as a matter of law that the work undertaken by the

security company in this case was not inherently dangerous work. The alleged negligent act of

discharging the shotgun was not a risk inherent in the work contracted for. See Gessell, 628

S.W.2d at 482. We overrule the third point of error.

In his fourth point of error, Ross contends that the summary judgment was erroneous

because a material fact issue existed as to whether the activities complained of were

contemplated by the contract or in furtherance of the premises owner’s business. This point of

error is without merit because the “exceptions” to the general rule of nonliability allegedly

relied on by Ross simply do not exist, and Ross’s reliance on certain cases is misplaced. He

states that a party who hires an independent contractor may be found liable for the contractor’s

activities that are reasonably contemplated by the contract. He cites Texas Compensation

Insurance Co. v. Matthews, 504 S.W.2d 545, 549 (Tex. Civ. App.—Dallas 1973), rev’d, 519 S.W.2d

630 (Tex. 1974), for this proposition. We note initially that Ross failed to inform this Court that

the cited case was reversed. Secondly, the case does not state the proposition asserted by Ross.

This Court in Matthews held that the acts of an independent contractor are the acts of the

hiring party to the extent that they are required by the contract. 504 S.W.2d at 549. The Court

also based its decision on the rule that when work required by a contract is necessarily

dangerous, the premises owner and the contractor have a duty to take precautions against

the danger. Id. The other case cited by Ross in support of his nonexistent “exception” states

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that an employer may be held liable for injuries which might reasonably have been

contemplated by the parties and which result directly from inherently dangerous work.

See Loyd, 182 S.W.2d at 1004.

Ross states the other “exception” to the rule of nonliability in this manner: a party who

hires an independent contractor may be found liable for the contractor’s activities that are

in furtherance of the hiring party’s business and/or part of the contractor’s duties as agent

of the hiring party. Of course, if a contractor is in fact an agent of the hiring party, there is

no need to resort to an exception to the general rule of nonliability for the acts of

independent contractors. In any event, we have already determined that the security

company was not an agent of Texas One. We conclude that Ross is apparently attempting

to suggest that the security company was in fact Texas One’s agent, since the cases he

cites in support of his second “exception” involve questions as to whether there was an

agency relationship. See Moore’s, Inc. v. Garcia, 604 S.W.2d 261, 264 (Tex. Civ.

App.—Corpus Christi 1980, writ refd n.r.e.); Patrick v. Miss New Mexico-USA Universe

Pageant, 490 F. Supp. 833, 839 (W.D. Tex. 1980). We find no merit in the fourth point

and overrule it.

In the fifth point of error, Ross contends that the trial court erred in granting summary

judgment because a material fact issue existed as to whether Texas One used reasonable care

in keeping the premises under its control in a safe condition. In arguing this point of error, Ross

relies on a number of premises defect cases. However, the present case is not such a case; it is a

case involving injury caused by activity conducted on the premises. See Redinger v. Living, Inc.,

689 S.W.2d 415, 417 (Tex. 1985). Ross also invokes cases holding that a premises owner may be

liable for the acts of an independent contractor if the owner has the right to control, or

exercises actual control over, the contractor’s acts. See Pollard, 759 S.W.2d at 671; Redinger, 689

S.W.2d at 418. Redinger states that a premises owner may be liable for harm caused by an

independent contractor even if the owner retains only some control over the contractor, albeit

not the degree of control which would subject him to liability as a master. The owner’s role

must involve more than a general right to order work to start or stop, to inspect progress, or to

receive reports. Redinger, 689 S.W.2d at 418.

We have previously discussed the questions of right of control and exercise of control in

connection with the seventh point of error. The summary judgment record simply does not

indicate that any material fact issues existed regarding control. Both Pollard and Redinger are

readily distinguishable from this case. Ross’s reliance on Nixon v. Mr. Property Management Co.,

690 S.W.2d 546 (Tex. 1985), is also misplaced because Nixon was a premises defect case, and the

asserted negligence per se was committed by the premises owner. As noted, the present case is

not a premises defect case, and it involves the acts of an independent contractor. We overrule

the fifth point of error.

Ross maintains in his sixth point of error that the summary judgment was erroneous

because a material fact issue existed as to whether Texas One was negligent in hiring the

security company. An employer has a duty to use ordinary care in employing an independent

contractor. Smith v. Baptist Memorial Hosp. Sys., 720 S.W.2d 618, 627 (Tex. App.—San

Antonio 1986, writ ref’d n.r.e.). One who hires an independent contractor may be held

responsible for the contractor’s acts if the employer knew or should have known that the

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contractor was incompetent and a third party is injured because of that incompetency.

Texas American Bank v. Boggess, 673 S.W.2d 398, 400 (Tex. App.—Fort Worth 1984, writ dism’d

by agr.). Thus, one who hires an independent contractor has a duty of ordinary care and

reasonable inquiry.

The summary judgment record shows that while the contract between Texas One and

the security company was being negotiated, Neal provided to Texas One documentation

showing that the security company was licensed by the State of Texas. The record also

contains affidavits indicating that Texas One contacted two references regarding the

security company. Both references provided favorable reports about the security company.

This evidence is uncontroverted. In the absence of controverting evidence or other

evidence concerning the duty of reasonable inquiry, we find no basis for Ross’s assertion that

a material fact issue existed as to whether Texas One knew or should have known

that the security company was incompetent when hired. We overrule the sixth

point of error.

In the eighth point of error, Ross argues that the trial court erred in granting summary

judgment because Texas One’s operative pleading did not provide a basis for the summary

judgment. Although the record before us does not indicate that Texas One’s first amended

answer (raising the issues dealt with in the motion for summary judgment) had been

separately filed, the answer was attached to Texas One’s motion for summary judgment.

Moreover, we find no indication that Ross raised this alleged error at the trial court level.

Had Ross objected to the alleged defect in pleadings, the defect could have been easily

cured. See Jones v. McSpedden, 560 S.W.2d 177, 179-80 (Tex. Civ. App.—Dallas 1977, no

writ). Because the error now raised on appeal was not brought to the attention of the trial

court, any error was waived. See Tex. R. App. P. 52(a); Tex. R. Civ. P. 90, 166a(c). We overrule the

eighth point of error.

WE AFFIRM THE JUDGMENT OF THE TRIAL COURT.

MARTA RIVAS & ALBERTO RIVAS V. NATIONWIDE PERSONAL SECURITY CORPORATION 559 So. 2d 668, 15 Fla. L. Weekly D 871 (Fl. App. 1990)

JUDGES: Hubbart and Cope and Goderich, JJ.

OPINION BY: PER CURIAM

This is an appeal by the plaintiffs Marta and Alberto Rivas from a final judgment entered in an

action for personal injuries arising out of an assault and battery committed by the defendant

Arthur Hinton while he was employed at a supermarket for the defendant Nationwide Personal

Security Corporation. The jury returned a verdict of $25,000 in compensatory damages and zero

dollars in punitive damages against both defendants on the plaintiff Marta Rivas’ claim—as

well as a verdict of zero dollars against both defendants on the plaintiff Alberto Rivas’ claim.

(Continued)

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The trial court thereafter granted the defendant Nationwide Personal Security Corporation’s

renewed motion for directed verdict on the plaintiff Marta Rivas’ claim. We affirm in part and

reverse in part.

First, the plaintiffs are not entitled, as urged, to a new trial based on (1) the trial

court’s unobjected-to comments during voir dire of the jury, and (2) the trial court’s refusal

to allow two of the plaintiffs’ witnesses to testify through an interpreter. The trial

court’s comments were in no way improper and fall far short of constituting a fundamental

error. See Lusk v. State, 446 So.2d 1038, 1042 (Fla.), cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83

L. Ed. 2d 158 (1984); Little v. Bankers Nat’l Life Ins. Co., 369 So.2d 637, 638 (Fla. 3d DCA 1979);

cf. Whitenight v. International Patrol & Detective Agency, Inc., 483 So.2d 473 (Fla. 3d DCA),

rev. denied, 492 So.2d 1333 (Fla. 1986). Moreover, there is no showing that the trial court

abused its discretion in refusing an interpreter, as requested, inasmuch as the two witnesses

in question testified satisfactorily in English; indeed, there is no indication in this record that

their testimony was in any way garbled or incomplete. Bolender v. State, 422 So.2d 833, 836-37

(Fla. 1982), cert. denied, 461 U.S. 939, 103 S. Ct. 2111, 77 L. Ed. 2d 315 (1983). This being so,

(1) the final judgment entered upon the jury verdict as to the defendant Arthur Hinton on

both plaintiffs’ claims is affirmed, and (2) the final judgment entered in favor of the

defendant Nationwide Security Corporation on the plaintiff Alberto Rivas’ claim

is affirmed.

Second, the trial court, however, committed reversible error in directing a verdict in favor

of the defendant Nationwide Personal Security Corporation on the plaintiff Marta Rivas’

claim. Contrary to the trial court’s determination, we conclude that on this record a jury

question was presented as to whether the assault and battery sued upon was committed by

the defendant Arthur Hinton within the scope of his employment with the defendant

Nationwide Personal Security Corporation. The defendant Hinton was on the job in the

supermarket when he became embroiled in a job dispute with the supermarket manager; the

plaintiff Marta Rivas, a supermarket cashier, screamed for help when Hinton began choking

the manager; Hinton then struck Marta Rivas to silence her and thus diffuse a disruptive

situation in the store. In our view, the jury was entitled to conclude, as it did by special

interrogatory verdict, that the assault and battery sued upon arose out of a job dispute and was

therefore within the scope of Hinton’s employment with Nationwide Personal Security

Corporation. Gonpere Corp. v. Rebull, 440 So.2d 1307 (Fla. 3d DCA 1983); Parsons v. Weinstein

Enter., Inc., 387 So.2d 1044 (Fla. 3d DCA 1980); Lay v. Roux Laboratories, Inc., 379 So.2d 451

(Fla. 1st DCA 1980); Williams v. Florida Realty & Management Co., 272 So.2d 176 (Fla. 3d

DCA 1973); Forster v. Red Top Sedan Serv., Inc., 257 So.2d 95 (Fla. 3d DCA 1972); Sixty-Six,

Inc. v. Finley, 224 So.2d 381 (Fla. 3d DCA 1969); Columbia by the Sea, Inc. v. Petty, 157 So.2d

190 (Fla. 2d DCA 1963). This being so, the final judgment entered upon the directed verdict

in favor of the defendant Nationwide Personal Security Corporation on the plaintiff

Marta Rivas’ claim is reversed, and the cause is remanded to the trial court with directions

to enter judgment in favor of the plaintiff Marta Rivas based on the jury verdict

previously returned.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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N.C. PRIVATE PROTECTIVE SERVICES BOARD V. GRAY, INC., D/B/A SUPERIOR SECURITY 87 N.C. App. 143; 360 S.E.2d 135 (1987)

JUDGES: Jack Cozort, Judge. Judges Charles L. Becton and John C. Martin concur.

OPINION BY: COZORT

Gray, Inc., formerly d/b/a Superior Security, is a guard and patrol company that was, at

all times relevant to this appeal, licensed by the North Carolina Private Protective Services

Board (the Board). On 26 August 1985 Gray was notified by letter from the Board that a hearing

was scheduled for 4 October 1985 to look into allegations that Gray had failed to register

unarmed guards and armed guards in accordance with Chapter 74C of the North Carolina

General Statutes and regulations adopted pursuant to those statutes. The hearing was

rescheduled for 18 December 1985. On 18 December 1985 the Board and Gray entered into a

stipulation agreement which stated, among other things, that, in 1983, Gray employed six

armed guards and twenty-two unarmed guards which were not registered with the Board; and,

in 1984, Gray employed twenty-seven armed guards and twenty unarmed guards which were

not registered with the Board. Gray and the Board had agreed to all terms of a settlement except

for a $2,000.00 “reimbursement” to which Gray objected. On 21 March 1986 the Board issued its

final agency decision which, among other things, assessed a civil penalty of $2,000.00 and

an order for Gray to submit $1,071.36 in back registration fees and interest for the

unregistered guards.

On 28 April 1986 Gray petitioned for judicial review asking that the $2,000.00 assessment be

reversed and the matter remanded to the Board for entry of a modified decision. On 17

November 1986, Superior Court Judge Donald L. Smith granted the relief requested by Gray and

remanded the case to the Board, ordering that the $2,000.00 civil penalty be stricken, and that

the Board reconsider “its final agency decision in light of State, ex rel. Lanier v. Vines, 274 N.C.

486, 164 S.E. 2d 161 (1968).” The Board appeals. We reverse.

The trial court did not state its reasons for modifying the decision of the agency, as is

required under the last sentence of N.C. Gen. Stat. }150A-51 (1983), which provides: “If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which

writing shall become a part of the record, the reasons for such reversal or modification.”12 By

the trial court’s reference to Lanier, id., and by the briefs submitted by the Board and Gray, it is

evident that the trial court based its decision on a legal conclusion that the authority of the

Board to assess a civil penalty, under N.C. Gen. Stat. } 74C-17(c), violated Art. IV. } 3 of the North Carolina Constitution.

That section provides:

The General Assembly may vest in administrative agencies established pursuant to law

such judicial powers as may be reasonably necessary as an incident to the

accomplishment of the purposes for which the agencies were created. Appeals from

administrative agencies shall be to the General Court of Justice.

In Lanier, our Supreme Court was called upon to consider the constitutionality of statutes

which empowered the Commissioner of Insurance to assess a civil penalty of up to

(Continued)

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$25,000.00, in addition to, or in lieu of, license revocation, against those found in violation of

certain insurance laws. In an opinion by Justice Lake, the court found the statute to be in

violation of Art. IV, } 3: The power to revoke a license granted to an insurance agent by the Commissioner, pursuant

to chapter 58 of the General Statutes, is “reasonably necessary” to the effective policing of the

activities of such agents so as to protect the public from fraud and imposition, one of the

purposes for which the Department of Insurance was established. The power to hold hearings

and determine facts relating to the conduct of such agent is “reasonably necessary” to the

effective and just exercise of the power to grant and revoke such license. The grant of such

judicial power to the Commissioner for that purpose is clearly within the authority conferred

upon the Legislature by Art. IV, } 3, of the Constitution. We find, however, no reasonable necessity for conferring upon the Commissioner the

judicial power to impose upon an agent a monetary penalty, varying, in the Commissioner’s

discretion, from a nominal sum to $25,000 for each violation.

Whether a judicial power is “reasonably necessary as an incident to the accomplishment

of a purpose for which” an administrative office or agency was created must be determined

in each instance in the light of the purpose for which the agency was established and in

the light of the nature and extent of the judicial power undertaken to be conferred. We have

before us only the attempted grant to the Commissioner of Insurance of the judicial power to

impose upon an insurance agent, for one or more of the violations of law specified in G.S.

58-44.6, a penalty, varying in the Commissioner’s discretion from a nominal sum to $25,000.

We hold such power cannot be granted to him under Art. IV, } 3, of the Constitution of North Carolina.

Lanier, Comr. of Insurance v. Vines, 274 N.C. at 497, 164 S.E. 2d at 167-68. Our review

of Lanier leads us to the conclusion that the trial court below erred in its apparent

conclusion that N.C. Gen. Stat. } 74C-17(c) violated Art. IV, } 3 of the N.C. Constitution. We note initially that the trial court’s action in striking the penalty in its entirety and remanding the

cause to the Board to “reconsider its final agency decision in light of. . . Lanier. . .and proceed as

otherwise is provided or required by Chapter 74C of the General Statutes of North Carolina”

(emphasis supplied) is subject to being interpreted as a conclusion by the trial court that

Lanier stands for the proposition that administrative agencies are constitutionally barred

from assessing civil penalties. We do not find Lanier to mean that all administrative civil

penalties are per se in violation of the State Constitution, and we so hold. Rather, the

granting of the judicial power to assess a civil penalty must be “reasonably necessary” to the

purposes for which the agency was created and with appropriate guidelines for the exercise of

the discretion.

Viewing the case at bar in light of Justice Lake’s guidelines from Lanier, we hold that the

authority of the Board under N.C. Gen. Stat. } 74C-17(c) to assess a civil penalty of up to $2,000.00 in lieu of revocation or suspension of a license is not an unconstitutional attempt to

confer a judicial power on a state agency. This case is readily distinguishable from the situation

in Lanier. In Lanier, the Commissioner could assess a fine from a nominal amount up to

$25,000.00 for each violation, in his discretion, and in addition to license revocation or

suspension. Under N.C. Gen. Stat. } 74C-17(c), the civil penalty is limited to $2,000.00, must

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be in lieu of license revocation or suspension, and the Board has been given statutory guidance

in determining the amount of the penalty: “In determining the amount of any penalty, the

Board shall consider the degree and extent of the harm caused by the violation.” N.C. Gen. Stat.

} 74C-17(c) (1985). We find the provision authorizing civil penalties to be reasonably necessary to the Board in fulfilling its duties to require that those who hold themselves out as

providing private protective services to citizens must meet high standards of training and

professionalism. The Board’s decision was not in violation of any constitutional provisions, and

the trial court erred in concluding to the contrary.

We have reviewed the Board’s decision under the other five standards set out in N.C. Gen.

Stat. } 150A-51 (1983),13 and we find the decisionof the agency should be affirmed. The decision of the Superior Court modifying the Board’s decision is reversed, and the matter is

remandedto the Superior Court for entry of an order affirming the decision of the Board.

REVERSED AND REMANDED.

ANDREW J. NEUENS V. CITY OF COLUMBUS 169 F. Supp. 2d 780 (S.D. Ohio, 2001)

JUDGES: ALGENON L. MARBLEY, UNITED STATES DISTRICT COURT.

OPINION BY: ALGENON L. MARBLEY

I. INTRODUCTION

This matter is before the Court on all of the Defendants’ Motions for Summary Judgment.

Defendant City of Columbus, which also filed a Motion for Summary Judgment, has been

dismissed as a party by stipulation. Jurisdiction lies under 42 U.S.C. } 1983. A hearing on the Motions for Summary Judgment was held on October 12, 2001.

For the following reasons, the Court hereby GRANTS summary judgment as to the state

claim for intentional infliction of emotional distress, and DENIES summary judgment as to

the federal claim under 42 U.S.C. } 1983 and the state claim for negligence.

II. FACTS

Because this case comes before the Court on the Defendants’ Motions for Summary Judgment,

the Court views the facts in the light most favorable to the Plaintiff.

On the evening of December 25, 1998, the Plaintiff, Andrew Neuens, went out with two

friends, Nate Faught and Chad Spinosi. The men went first to a neighborhood establishment,

then to a dance club. Subsequently, they decided to go to the Waffle House restaurant to eat.

They arrived at the Waffle House at 3385 E. Dublin-Granville Road at approximately 2:00 A.M.,

the morning of December 26, 1998.

According to the Plaintiff, the Waffle House restaurant is fairly small. The outer door leads

into a small foyer or hallway, and an inner door opens from that foyer into the restaurant.

Inside, the cash registers are directly across from the doorway. To the right of the registers is a

jukebox, behind which are three of the restaurant’s booths.

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When the Plaintiff and his companions entered the Waffle House, they seated themselves in

the first booth nearest the door, behind the jukebox. The Plaintiff sat alone on the side of the

booth that allowed him to face the door and cash registers. Mr. Faught and Mr. Spinosi sat

across from him, facing the other booths. Upon entering the restaurant, the men noticed a

security guard, Defendant John Padgett, by the door.

Soon after the Plaintiff and his friends began to eat the food they had ordered, a group of

people consisting of Defendants Bridges, Parker, and Kincaid, along with another man and

two women (“Defendant group”), entered the restaurant. Prior to entering the Waffle House, the

Defendant group had been at a bowling alley. While there, some members of the group,

including Defendant Parker, engaged in a fight, which Defendant Bridges, who is a police

officer, took no action to prevent, stop, or report. According to the Plaintiff, the Defendant

group began creating problems as soon as they entered the Waffle House by acting “loud,

drunk, and obnoxious.” Defendant Bridges acknowledged that at least two members of his

group were visibly inebriated, and that he himself had probably consumed alcohol that night,

as well. When they came in, the Defendant group seated itself at the third booth behind the

jukebox.

According to the Plaintiff, the Defendant group continued to harass the Plaintiff and his

companions even after they sat down at their booth. Specifically, Defendant Kincaid yelled

expletives toward them. Although neither the Plaintiff nor his friends had ever met anyone in

the Defendant group prior to that encounter, apparently some members of the Defendant

group mistook the Plaintiff and his friends for the people with whom they had fought at the

bowling alley earlier that evening.

As the Plaintiff, Mr. Faught, and Mr. Spinosi finished their meals, the tension between the

two groups grew. Margaret Tracy, the waitress for both tables, believed that the tension was

escalating to the point that it would ultimately lead to violence. According to Waffle House

policy as printed in the Waffle House employee handbook, if an employee sees a situation in

the restaurant that she believes will imminently turn to violence, she has a duty to report that

situation to a manager. Despite this Waffle House rule, Ms. Tracy did not report the situation

that she observed between the Plaintiff and the Defendants to her manager. According to her

deposition testimony, however, Ms. Tracy did inform the security guard, Defendant Padgett,

that she was concerned that a fight would soon erupt.

When the Plaintiff and his companions finished eating their meal, Defendant

Padgett approached their table and advised them to leave the restaurant. Subsequently,

Mr. Spinosi got out of the booth, and turned to walk out of the restaurant. According to the

Plaintiff, as soon as Mr. Spinosi got up, the Defendant group also got up, passed the Plaintiff’s

table, and moved toward the exit. Before Mr. Spinosi reached the outer door, but after he had

gone through the inner door, Defendant Parker pushed him from behind. As Mr. Spinosi turned

around, he was then punched twice in the face, first by Defendant Parker, and then by

Defendant Kincaid.

The Plaintiff stood up from his table after the Defendant group had already passed by. As he

approached the cash register, he heard a commotion behind him, and turned to see what was

happening. The next thing the Plaintiff remembers is waking up in the hospital hours later. The

Plaintiff subsequently learned that Defendant Parker, after punching Mr. Spinosi, walked

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toward the register and punched the Plaintiff from behind, knocking him to the floor,

unconscious. Apparently, Defendant Parker then kicked the Plaintiff in the head. Defendant

Officer Bridges admits seeing Defendant Parker standing near the Plaintiff, but denies seeing

Defendant Parker punch or kick him. Nonetheless, at that point, Defendant Bridges grabbed

Defendant Parker and pulled him out of the restaurant. The Defendant group then departed the

Waffle House in two separate vehicles.

It is unclear whether Defendant Padgett tried physically to restrain Defendants Kincaid and

Parker during this incident. Mr. Faught testified during his deposition that the security guard

did nothing other than caution the other members of the Defendant group not to get involved.

After the Defendant group left, however, Defendant Padgett radioed his employer, Defendant

Smith Detective & Security, Inc. (“SDSI” or “Smith Security”) for backup. After contacting his

employer, a Smith Security supervisor and a uniformed Columbus police officer arrived at the

Waffle House within four minutes.

As a result of this incident, the Plaintiff was taken to a hospital, where he was treated for

injuries to his eye, severe lacerations to his eyebrows and lips, and a concussion, along with

other minor injuries. On December 23, 1999, the Plaintiff filed a Complaint against Defendants

City of Columbus, Ohio, Officer Bridges, Ernest Parker, Josh Kincaid, John Padgett, Smith

Detective & Security, Inc., and J. Thomas & Co., Inc. (d/b/a Waffle House). The Complaint

raised federal claims against the City of Columbus and Officer Bridges for violations of 42 U.S.

C. } 1983 and 42 U.S.C. } 1985. The Complaint additionally raised state claims against the Defendants for assault and battery, intentional infliction of emotional distress, negligent

infliction of emotional distress, and negligence.

III. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law.” FED.R. CIV. P.

56(c). The movant has the burden of establishing that there are no genuine issues of material

fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to

support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed.

2d 265, 106 S.Ct. 2548 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89

(6th Cir. 1993). The nonmoving party must then present “significant probative evidence” to

show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v.

Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993) (citation omitted). “Summary judgment will

not lie if the dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that

a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (finding

summary judgment appropriate when the evidence could not lead a trier of fact to find for the

nonmoving party).

In evaluating a motion for summary judgment, the evidence must be viewed in the light

most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L.

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Ed. 2d 142, 90 S. Ct. 1598 (1970). In responding to a motion for summary judgment, however,

the nonmoving party “may not rest upon its mere allegations. . .but. . .must set forth specific

facts showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e); see Celotex, 477 U.S. at

324; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). Furthermore, the existence of a

mere scintilla of evidence in support of the nonmoving party’s position will not be sufficient;

there must be evidence on which the jury could reasonably find for the nonmoving party.

Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995).

IV. DISCUSSION

A. Federal Claims

The Plaintiff’s First Amended Complaint asserted federal claims under 42 U.S.C. }} 1983 and 1985 against the City of Columbus and Defendant Officer Bridges. On June 25, 2001, a

Stipulation was entered dismissing the City of Columbus as a party. At the hearing on the

Motions for Summary Judgment, the Plaintiff acknowledged that he is no longer pursuing his

claim under } 1985. Therefore, the only remaining federal claim is the } 1983 claim brought against Defendant Bridges. Specifically, the Plaintiff asserts that Defendant Bridges violated his

right to substantive due process, protected by the Fourteenth Amendment to the United States

Constitution. Defendant Officer Bridges has asserted the affirmative defense of qualified

immunity against this claim.

1. 42 U.S.C. } 1983 The Plaintiff has alleged that Defendant Bridges infringed the Plaintiff’s constitutional rights in violation of 42 U.S.C. } 1983.15 To succeed on a} 1983 claim, the plaintiff must show that (1) a person acting under color of law (2) deprived him of his rights secured by

the United State Constitution or its laws. O’Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th

Cir. 1994). At oral argument on the Motions for Summary Judgment, Defendant Bridges

conceded that he was acting under color of law at the time of this incident. Therefore, the Court

addresses only the issue of whether Defendant Bridges deprived the Plaintiff of his substantive

due process rights under the Fourteenth Amendment.

The Due Process Clause of the Fourteenth Amendment does not impose upon the state

an affirmative duty to protect its citizens against private acts of violence; rather, the

amendment only limits the state’s ability to take affirmative action that denies an individual of

life, liberty, or property without due process. DeShaney v. Winnebago County Dep’t of Social

Servs., 489 U.S. 189, 195, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). Nonetheless, the state may be

liable for private acts when the state acts in some way to increase the danger to individuals

from those private acts. Id. at 201 (“While the State may have been aware of the dangers that

[the plaintiff] faced in the free world, it played no part in their creation, nor did it do anything

to render him any more vulnerable to them.”). The Sixth Circuit has relied on DeShaney to

establish a state-created danger theory of substantive due process liability. Kallstrom v. City

of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); Gazette v. City of Pontiac, 41 F.3d 1061,

1065 (6th Cir. 1994) (“In DeShaney, the Supreme Court. . .stated that a duty to protect can arise

in a noncustodial setting if the state does anything to render an individual more vulnerable

to danger.”).

Specifically, a plaintiff must show three elements to succeed on a state-created danger claim.

First, the Plaintiff must demonstrate that the state actor took affirmative actions that “either

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create or increase the risk that an individual will be exposed to private acts of violence.”

Kallstrom, 136 F.3d at 1066 (citing Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 913 (6th Cir.

1995)). Second, the Plaintiff must show that the state actor created a “special danger,” which

can be done through a showing that the state’s actions placed the specific victim at risk, as

opposed to placing the general public at risk. Id. (explaining that this element is necessary to

distinguish actions giving rise to liability from actions that the state takes every day that can

potentially increase any person’s risk of harm, such as releasing someone from police custody).

Third, the state actor must have known, or clearly should have known, that his actions

“specifically endangered an individual.” Id. (citations omitted).

The affirmative action requirement of the state-created danger claim arises out of

DeShaney’s holding that the state generally is under no obligation to protect citizens from

the private acts of others. Although it is true that the state cannot be liable when it has done

nothing to increase the risk of harm to an individual, the converse is also true. Thus, “if the

state puts a man in a position of danger from private persons and then fails to protect him,

it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if

it had thrown him into a snake pit.” Kallstrom, 136 F.3d at 1066 (quoting Bowers v. DeVito, 686

F.2d 616, 618 (7th Cir. 1982)). Accordingly, state actors have been found liable for violating

an individual’s right to substantive due process when they have affirmatively placed that

individual in a position of increased risk of harm. See Kallstrom, 136 F.3d at 1066 (finding that

the city’s affirmative act of giving personal information regarding officers and their families to

defense counsel for a violent gang that the officers helped to prosecute placed the officers

in serious risk of harm); Davis v. Brady, 143 F.3d 1021, 1023-25 (6th Cir. 1998) (concluding that

officers placed the plaintiff in greater harm than he would have been if they had not acted at

all when they abandoned the plaintiff, while he was inebriated, on an unfamiliar highway,

and was subsequently hit by a car); Stemler v. City of Florence, 126 F.3d 856, 868-69 (6th Cir.

1997) (stating that officers did not merely fail to protect the victim, but increased her risk of

harm when they took her out of her friend’s car and physically placed her in the truck of

her intoxicated boyfriend, who subsequently crashed into a guardrail, killing the victim).

Furthermore, state actors have been found liable when they have deliberately decided not

to act in a certain way, such that their inaction increased the risk of harm to a

particular individual. See Culberson v. Doan, 125 F. Supp. 2d 252 (S.D. 2000); Sheets

v. Mullins, 109 F. Supp. 2d 879 (S.D. Ohio 2000); Smith v. City of Elyria, 857 F. Supp. 1203

(N.D. Ohio 1994).

In Culberson, the police chief was alerted to the fact that the body of the decedent whose

murder was being investigated was probably located in a certain pond. Culberson, 125 F.

Supp. 2d at 268. Although the police chief was alerted to this fact in the presence of the

suspected killer, a man who was a good friend of the police chief, he nonetheless determined

not to secure the decedent’s body, and to postpone searching the pond until the next day,

despite the risk that the evidence could be tampered with or the body removed. Id. The next

day, when the pond was drained, no body was found, but there were footprints on the bottom

of the pond and muddy prints coming out of the water, indicating that someone could have

recently removed something from the pond. Id. at 269. The court determined that these facts

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presented a genuine issue of material fact as to whether the police chief made the plaintiffs

more vulnerable to the danger that their daughter’s body would be removed from the pond. Id.

Thus, the court determined that the plaintiffs raised a genuine issue of material fact when the

defendant’s alleged affirmative action was a “deliberate choice” not to act in such a way as to

prevent the ultimate harm.

In Sheets, the plaintiff called the police, seeking help to retrieve her daughter from the father,

Roger Montgomery, who had custody of the daughter and who had assaulted and threatened

the plaintiff with a gun and a knife, and threatened to kill their daughter. Sheets, 109 F. Supp. 2d

at 882. The officer, however, (1) told the plaintiff that she would have to go to court to try to get

custody of the child, rather than try to get her daughter back herself; (2) stopped looking for

Montgomery after not finding him at his home, even though the plaintiff had already said he

was elsewhere; and (3) failed to indicate to officers who took over his shift that Montgomery

had threatened to kill the child over whom he had physical custody. Id. Furthermore, when

Montgomery called the officer, with whom he was close friends, a couple days later, the officer

failed to try to ascertain his location. Id. at 883. Four days after the plaintiff made her initial

complaints, Montgomery killed the child and himself. Id. Based on these facts, the court found

that the plaintiff had raised a genuine issue of material fact as to whether the officer increased

the danger to the baby who was killed. Id. at 890. Thus, the court in Sheets, like the court in

Culberson, looked to the officer’s decisions not to act in such a way that could have prevented

the crime to conclude that the plaintiff posed a genuine issue as to whether the officer’s actions

increased the risk of harm to the minor child.

In Smith, the plaintiffs alleged that officers who were called out to a woman’s home when she

sought to have her ex-husband removed there from refused to remove him and merely told the

woman to initiate eviction proceedings if she wanted him out. Smith, 857 F. Supp. at 1206.

Furthermore, the officers told the ex-husband that if his ex-wife continued to throw his

belongings out of the house, he could bring them back in. Id. Subsequently, the ex-husband

stabbed and killed the woman. Id. at 1207. The court found that “the facts here support a claim

that the police officers’ affirmative acts created or increased the danger to [the decedent]. The

police officers did not merely fail to perform their duties; they told [the ex-husband] that he did

not have to leave, and advised him to go back if [his ex-wife] tried to throw him out.” Id. at 1210.

Thus, the court found that the plaintiffs had presented sufficient evidence to prevent summary

judgment on their substantive due process claim, on the ground that the private actor may have

used the “apparent authority” given to him by the officers to remain in his ex-wife’s home, where

he later killed her. Id. (finding that the plaintiffs raised a genuine issue of material fact as to

whether the police officers “affirmatively increased the danger to [the decedent] while limiting her

ability to help herself and [making] her more vulnerable to attack”).

Here, as in the above cited cases, the Plaintiff has presented sufficient evidence to raise a

genuine issue of material fact as to whether Defendant Officer Bridges’ actions on the night

of the altercation increased the Plaintiff’s vulnerability to harm, giving rise to liability under the

state-created danger theory. Specifically, a reasonable trier of fact could conclude that, although

Defendant Bridges took no part in either the planning or commission of this assault, he made a

deliberate decision not to prevent his friends from acting as they did, either at the Waffle House

or earlier at the bowling alley. A reasonable trier of fact could conclude that this purposeful

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decision by Defendant Bridges, evidenced by his failure to prevent, intervene in, or report the

altercations, caused Defendants Parker and Kincaid to feel more bold in their assault on the

Plaintiff. A trier of fact might conclude that, were it not for the presence and tacit approval

of their friend, the police officer, Defendants Parker and Kincaid would not have acted

toward the Plaintiff as they did. Like the ex-husband in Smith, Defendants Parker and Kincaid

may have used the apparent authority given to them by Defendant Bridges to attack, assault

and batter the Plaintiff. Thus, Defendant Bridges’ affirmative decision could be found to be the

affirmative act that formed the basis of a substantive due process violation because that

decision created an atmosphere of increased danger to the Plaintiff.

In addition to the affirmative act requirement, the Plaintiff must show that the Defendant’s

actions created a “special danger” that placed the Plaintiff specifically at risk. Sheets, 109 F.

Supp. 2d at 889. This Court finds that the Plaintiff has presented sufficient evidence for a

reasonable trier of fact to conclude that Defendant Bridges’s failure to act under the

circumstances created a danger specifically to the Plaintiff and his companions. As alleged

herein, the evidence gives no indication that anyone else in the restaurant, let alone in the

general public, would have been endangered by Defendant Bridges’ actions.

Finally, the Plaintiff must show that the Defendant knew or should have known that his

actions would result in harm to the Plaintiff, the specific individual who was ultimately

harmed. See Duvall v. Ford, 1999 U.S. App. LEXIS 15161, No. 98-5777, 1999 WL 486531, at *3

(6th Cir. July 1, 1999) (determining that the defendants’ conduct of releasing a prisoner into a

work release program with minimal supervision without first checking his criminal

background was too attenuated from the ultimate harm resulted after the prisoner escaped

from that program for the defendants to have known that their actions would cause harm to

the victim); Gazette, 41 F.3d at 1066-67 (concluding that there could be no substantive due

process violation because the defendant police officers’ failure to aggressively investigate a

missing person’s report was too remote from the ultimate harm of the victim’s death for

them to have known that such harm could result from their actions). A reasonable trier of fact

could conclude that, under the circumstances, Defendant Bridges knew or should have

known that his failure to prevent his friends from acting as they did would result in harm

specifically to the Plaintiff.

Based on the foregoing, the Court finds that the Plaintiff has presented sufficient evidence to

raise genuine issues of material fact as to whether Defendant Bridges infringed the Plaintiff’s

right to substantive due process under a state-created danger theory of liability. The Court,

therefore, DENIES the Defendant’s Motion for Summary Judgment on the Plaintiff’s

} 1983 claim. 2. Qualified Immunity Government officials sued in their individual capacities are entitled to

seek qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727

(1982). Qualified immunity extends to individuals performing discretionary functions unless

their actions violate “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Id. A right is “clearly established” if “[a] reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,

640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). This means only that the unlawfulness of the

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act must have been apparent in light of preexisting law, even if the precise action at issue was

not previously held to be unlawful. Id. at 640.

At the time of this incident, it was clearly established within the Sixth Circuit that an

individual has a right to be free from state-created danger. Kallstrom, 136 F.3d at 1066;

Gazette, 41 F.3d at 1065 (citing DeShaney for the proposition that there may be a duty to

protect when the state leaves an individual more vulnerable to danger than he would have

been had the state actor not intervened at all). The Sixth Circuit and district courts within

the circuit had clearly recognized that a state actor can be liable if he acts so as to significantly

increase the risk of danger to an individual from a third party. See discussion supra Part IV.

A.1. Based on the state of the case law in December 1998, the Court finds that a reasonable

person in Defendant Bridges’s position would have known that a state actor could be liable

under } 1983 for taking actions that increase an individual’s vulnerability to harm from third parties. Therefore, Defendant Bridges is not entitled to the affirmative defense of

qualified immunity.

B. State Law Claims

The Plaintiff has raised numerous state law claims against each of the Defendants. First, the

Plaintiff asserted claims of assault and battery against Defendants Parker, Kincaid, and Bridges.

He subsequently voluntarily dismissed that claim as against Defendant Bridges, and

Defendants Parker and Kincaid have not filed motions for summary judgment. Second, the

Plaintiff asserted a claim of intentional infliction of emotional distress against Defendants

Parker, Kincaid, and Bridges. Only Defendant Bridges has filed a Motion for Summary Judgment

on that claim. Third, the Plaintiff asserted claims of negligence against Defendants J. Thomas

& Co. (“Waffle House”), SDSI, and John Padgett. Each of those Defendants has filed a Motion

for Summary Judgment. Therefore, for the purpose of ruling on the Defendants’ Motions for

Summary Judgment, the Court will discuss only the Plaintiff’s claims of intentional infliction

of emotional distress and negligence.

1. Intentional Infliction of Emotional Distress The Plaintiff’s First Amended Complaint

alleged a cause of action for intentional infliction of emotional distress against Defendants

Bridges, Kincaid, and Parker. Only Defendant Bridges has moved for summary judgment with

respect to this claim.

In order to prove a claim of intentional infliction of emotional distress, the plaintiff must

show that the defendant intentionally or recklessly caused him serious emotional distress by

extreme and outrageous conduct. McNeil v. Case W. Reserve Univ., 105 Ohio App. 3d 588, 664 N.

E.2d 973, 975 (Ohio 1995) (citing Yeager v. Local Union 20, 6 Ohio St. 3d 369, 453 N.E.2d 666

(Ohio 1983)). The behavior complained of must go beyond the intentionally tortious or even

the criminal. Yeager, 453 N.E.2d at 671. Rather, the conduct must be so extreme and outrageous

as “‘to be regarded as atrocious, and utterly intolerable in a civilized community.’” 453

N.E.2d at 671 (quoting Rest. 2d of Torts } 46, cmt. d (1965)). Furthermore, the emotional distress allegedly suffered must be serious. Id. In order to defeat a Motion for Summary

Judgment on a claim of intentional infliction of emotional distress, the plaintiff must present

evidence sufficient to create a genuine issue of material fact as to the defendant’s behavior and

the severity of the injury suffered. McNeil, 664 N.E.2d at 975-76; see Uebelacker v. Cincom

Systems, Inc., 48 Ohio App. 3d 268, 549 N.E.2d 1210, 1220 (Ohio Ct. App. 1988) (finding that

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ANDREW J. NEUENS V. CITY OF COLUMBUS—CONT’D

the plaintiff raised a genuine issue of material fact as to his emotional distress when he

submitted along with his pleadings an affidavit from his wife detailing the various symptoms

of his distress).

The Court finds that the Plaintiff has not presented sufficient evidence to create a

genuine issue of material fact on his claim of intentional infliction of emotional distress.

First, even when viewed in the light most favorable to the Plaintiff, Defendant Bridges’ actions,

while possibly negligent or even reckless, do not rise to the level of extreme or outrageous

conduct, as that standard has been interpreted by the case law. See Retterer v. Whirlpool

Corp., 111 Ohio App. 3d 847, 677 N.E.2d 417, 421-23 (Ohio Ct. App. 1996) (upholding the lower

court’s grant of summary judgment for the defendants on a claim of intentional infliction of

emotional distress where, among other things, the defendants, the plaintiff’s supervisors at

work, repeatedly called him into their office under threat of termination and then restrained

him by his wrists as they “poked” and “tickled” him on his chest and stomach so that he

would “jump and flop”); McNeil, 664 N.E.2d at 976 (finding no extreme or outrageous conduct

by the employer when an employee continuously harassed and threatened to assault a

fellow employee).

Even if a trier of fact finds that the Defendant did make a conscious decision to allow his

friends to commit assault and battery upon the Plaintiff and then help them flee, those

actions without more are not extreme and outrageous. Second, although the Plaintiff has

alleged that he has suffered emotional distress to the point of not being able to perform

normal daily functions or work for some period of time, this bare allegation without any

evidentiary support is insufficient to defeat the Defendant’s Motion for Summary Judgment.

See Hockenberry v. Village of Carrollton, 110 F. Supp. 2d 597, 605 (N.D. Ohio 2000)

(granting summary judgment for the defendant where the plaintiff failed to provide any

specific evidence that would support his allegation that he and his family suffered serious

emotional distress).

Therefore, the Court hereby GRANTS summary judgment in favor of Defendant Bridges on

the Plaintiff’s claim of intentional infliction of emotional distress.

2. Negligence The Plaintiff has asserted claims of negligence against the Waffle House, SDSI,

John Padgett, and Officer Bridges.

In order to assert a successful claim of negligence under Ohio law, a plaintiff must show that

(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; and (3) as a

result of that breach, the defendant proximately caused actual loss or damage to the plaintiff.

Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265, 270 (Ohio 1989); Deeds v. Am. Sec., 39

Ohio App. 3d 31, 528 N.E.2d 1308, 1311 (Ohio Ct. App. 1987).

a. Officer Bridges

The Plaintiff states in his Memorandum Contra Defendant Bridges’ Motion for Summary

Judgment that he asserted a state law claim of negligence against Defendant Bridges. In the

First Amended Complaint, however, the Plaintiff raised allegations of negligence only as to

Defendants Waffle House, SDSI, and Padgett. The Plaintiff has not subsequently amended his

Complaint to add a claim of negligence against Defendant Bridges.

(Continued)

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ANDREW J. NEUENS V. CITY OF COLUMBUS—CONT’D

Under the Federal Rules of Civil Procedure, “[a] pleading which sets forth a claim for

relief. . .shall contain. . .a short and plain statement of the claim showing that the pleader is

entitled to relief.” FED.R. CIV. P. 8(a). Furthermore, a plaintiff may not use a summary

judgment motion to raise a claim that he failed to state in his complaint. Lombard v. MCI

Telecomm.Corp., 13 F. Supp. 2d 621, 626 (N.D. Ohio 1998) (citations omitted). Although usually

this rule applies to prevent a plaintiff from asserting additional claims in his own motion for

summary judgment, it applies equally here, where the Plaintiff is attempting to use the

Defendant’s Motion for Summary Judgment to state a claim that he omitted from

his Complaint.

Based on the above rules, the Court finds that the Plaintiff has not adequately set forth a

claim of negligence against Defendant Bridges in his Complaint, and he cannot now use the

Defendant’s Motion for Summary Judgment to do so. Defendant Bridges’ Motion for Summary

Judgment on the Plaintiff’s alleged negligence claim is GRANTED.

b. Waffle House

The Plaintiff alleges that the Waffle House is negligent because it had a duty to provide a

safe, secure, and reasonable environment to Waffle House patrons, and breached that duty

when it allowed the Defendants to strike him.

As the owner of the premises on which this incident occurred, the Waffle House owed

the Plaintiff, an invitee, a duty of ordinary care. Newton v. Penn. Iron & Coal, Inc., 85 Ohio

App. 3d 353, 619 N.E.2d 1081, 1083 (Ohio Ct. App. 1993) (recognizing the common law rule

that landowners owe a duty of ordinary care to invitees, people whom the landowner invites

onto his land for his own benefit). Where the premises owner does not, and in the exercise of

ordinary care could not, know of a danger that causes injury to the invitee, the owner is not

liable for the injury. Howard v. Rogers, 19 Ohio St. 2d 42, 249 N.E.2d 804, 807 (Ohio 1969).

Such knowledge of a danger depends on the foreseeability of the harm. Daily v. K-Mart Corp.,

9 Ohio Misc. 2d 1, 458 N.E.2d 471, 474 (Ohio Com. Pl. 1981). Foreseeability of the harm may

arise from prior incidents of a similar nature on the premises. Townsley v. Cincinnati

Gardens, Inc., 39 Ohio App. 2d 5, 314 N.E.2d 409, 411 (Ohio Ct. App. 1974). Ohio courts,

however, have ruled that a totality of the circumstances approach is the preferable method

for determining whether the ultimate harm was foreseeable. Reitz v. May Co. Dept. Stores, 66

Ohio App. 3d 188, 583 N.E.2d 1071, 1074 (Ohio Ct. App. 1990). Under either approach, the

ultimate harm may be generally foreseeable, based on the type of activity that could be

expected to occur on the premises at any time, specifically foreseeable due to the particular

circumstances leading up to the harm. See 583 N.E.2d at 1075 (discussing Rest. 2d of Torts } 344, which provides that if the premises owner, based on his past experience or knowledge of

his business, “should reasonably anticipate careless or criminal conduct on the part of third

persons, either generally or at some particular time, he may be under a duty to take

precautions against it”)

The Court believes that the Plaintiff has presented sufficient evidence to raise a genuine

issue of material fact as to whether the harm that the Plaintiff incurred was foreseeable to

the Waffle House. The Plaintiff has presented evidence that, under the totality of the

circumstances approach, this particular incident was foreseeable based on the behavior of the

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ANDREW J. NEUENS V. CITY OF COLUMBUS—CONT’D

Defendants and their interactions with the Plaintiff and his companions throughout their time

at the Waffle House on this particular night. Additionally, the Plaintiff has presented some

evidentiary support for his claim that, not only was the incident foreseeable, but it was actually

foreseen by at least one Waffle House employee.

The Court finds, based on the above, that a reasonable trier of fact could find that the harm

to the Plaintiff was foreseeable to the Waffle House. Furthermore, a trier of fact drawing such a

conclusion could also find that the Waffle House breached its duty of ordinary care when it

failed to prevent this foreseeable harm. Therefore, the Court DENIES Defendant Waffle House’s

Motion for Summary Judgment as to the Plaintiff’s claim of negligence.

c. SDSI and John Padgett

SDSI has a contract with the Waffle House to provide security for the restaurant. Under

the contract, SDSI assigns one of its employee security guards to work in the restaurant.

On the night in question, SDSI employee John Padgett was the security guard at the

Waffle House.

The Plaintiff alleges that SDSI and Security Officer John Padgett were negligent because they

breached their duty to provide a safe, secure, and reasonable environment to Waffle House

patrons. The claim against SDSI is premised on a respondeat superior theory of liability for the

Security Officer’s negligence, as well as claims of negligent hiring, retention, and supervision of

Defendant Padgett. As to the respondeat superior theory, the Plaintiff alleges that because the

security officer acted negligently while acting as an employee of SDSI, within the scope of his

employment, SDSI can be liable for his negligence. See Cooper v. Grace Baptist Church of

Columbus, Ohio, Inc., 81 Ohio App. 3d 728, 612 N.E.2d 357, 362 (Ohio Ct. App. 1992) (asserting

that for respondeat superior to apply, the employee must be liable for a tort committed in the

scope of his employment). The Plaintiff bases his allegation of Defendant Padgett’s negligence

on his failure to prevent the harm to the Plaintiff, particularly in light of the fact that,

according to the Plaintiff, a Waffle House waitress had notified him that a fight was

probably going to ensue.

Ohio law imposes no heightened duty to prevent a third party from harming another absent

a special relationship between the would-be rescuer and the victim. Gelbman v. Second Nat’l

Bank of Warren, 9 Ohio St. 3d 77, 458 N.E.2d 1262, 1263 (Ohio 1984) (citing Rest. 2d of Torts }} 314, 315). In the case of private security guards, an increased duty to protect individuals from

harm by third parties will be imposed only when such a duty is specified in the guard’s

contract. Eagle v. Mathews-Click-Bauman, Inc., 104 Ohio App. 3d 792, 663 N.E.2d 399, 402 (Ohio

Ct. App. 1995). In the absence of such a contractual duty, private security officers may be held

liable in negligence only for failure to exercise ordinary care. Id.

The Court believes that the Plaintiff has presented sufficient evidence to raise a genuine

issue of material fact as to whether Defendant Padgett breached a duty to exercise ordinary

care. Although Defendants SDSI and Padgett have asserted that the contract between SDSI and

Waffle House specifies that guards are hired only to protect the Company’s property, and

therefore have no heightened duty under Ohio law to protect customers from harm by third

parties, the Plaintiff has presented evidence that, in practice, the guards had additional duties

(Continued)

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ANDREW J. NEUENS V. CITY OF COLUMBUS—CONT’D

that were not specifically written into the terms of the contract. Both the Waffle House and

SDSI have acknowledged that the manager at the Waffle House would tell Defendant Padgett

what he was supposed to do each night he reported for work. On the night in question, the

manager told Padgett, among other things, to prevent any “rowdiness,” and help provide

“crowd control.” Although Defendant Padgett has claimed that his instructions from the

Waffle House manager pertained only to his duty to protect the Company’s property, a

question of fact remains as to whether such instructions really go beyond the protection of

property, and extend to the protection of customers.

The Court finds that a reasonable trier of fact could conclude that the manager’s instructions

to Defendant Padgett did, in fact, relate to persons and not just property. As such, under Eagle v.

Mathews-Click-Bauman, Defendant Padgett would be subject to a heightened standard of care,

which the trier of fact may find he breached by failing to prevent the harm to the Plaintiff.

The Court also finds, however, that a reasonable trier of fact could conclude that the manager’s

instructions really did not extend Defendant Padgett’s duties beyond the protection of property.

Were the trier of fact to so find, it could nonetheless conclude that Defendant Padgett

breached his duty of ordinary care under the circumstances. Under either standard, the

Court believes that if a breach by Defendant Padgett were found, the trier of fact could further

conclude that SDSI is liable for Defendant Padgett’s breach under a respondeat superior

theory of liability. Therefore, the Court DENIES summary judgment to Defendants SDSI and

Padgett on the Plaintiff’s claim of negligence.

V. CONCLUSION

Based on the foregoing, the Court DENIES summary judgment as to the 42 U.S.C. } 1983 claim and the negligence claims, and GRANTS summary judgment as to the claim of intentional

infliction of emotional distress.

IT IS SO ORDERED.

ALGENON L. MARBLEY.

BARRY WALKER V. MAY DEPARTMENT STORES CO. 83 F. Supp. 2d 525 (E.D. Pa. 2000).

JUDGES: J. CURTIS JOYNER, J.

MEMORANDUM AND ORDER

JOYNER, J.

JANUARY 24, 2000

This case has been brought before the Court on motion of the defendants for summary

judgment. For the reasons which follow, the motion shall be granted in part and denied

in part.

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BARRY WALKER V. MAY DEPARTMENT STORES CO.—CONT’D

STATEMENT OF FACTS

On January 3, 1997, the plaintiff, Barry Walker, was observed via closed circuit television in

the Strawbridge’s department store in Center City Philadelphia by defendant Kim Stone, a

store detective. In Ms. Stone’s opinion, Mr. Walker, whom she had apprehended less than a

week before for shoplifting, was acting suspiciously and she believed he may have again

taken store merchandise without paying for it. Using the store security department’s radio

system, Ms. Stone directed uniformed guard Robert Bryant, who was in the vicinity of

Mr. Walker, to follow him and try to “spook him” into dropping the shopping bag that

he was carrying.

By the time that Mr. Bryant could locate the plaintiff, he was already out of the Strawbridge’s

store and in the Gallery mall, walking toward the Food Court area. Mr. Bryant began to follow

Mr. Walker, but was soon passed by Anthony Battle, a plainclothes store detective, who caught

up to the plaintiff and stopped him outside of the McDonald’s Restaurant. According to the

plaintiff, Mr. Battle pushed him toward the wall of the McDonald’s, grabbed him by the arm and

asked him what he had in the bag. According to Mr. Battle and Mr. Bryant, however, Mr. Battle

put his arm around the plaintiff’s shoulders and asked him what was in the bag. The plaintiff

produced a receipt for three of the items that he was carrying from the nearby Ross store and

since Mr. Bryant’s search of the remaining contents of the bag revealed no tags or other marks

identifying them as Strawbridge’s merchandise, the items were returned to the plaintiff and he

was released, with apologies from Mr. Bryant.

Mr. Walker followed Messrs. Bryant and Battle back into the Strawbridge’s store to complain

of the treatment that he had received and to get their names. Neither man would identify

themselves but Mr. Battle introduced the plaintiff to Anthony Robinson, one of the security

managers on duty, who in turn, listened to his complaint and gave him the phone number and

name of his supervisor, Philip Bonafiglia. Mr. Walker contends that he tried to reach Mr.

Bonafiglia on several occasions, but was unsuccessful. Plaintiff thereafter filed this lawsuit

against Strawbridges and its employees, alleging negligence, “intentional actions,” and

“discrimination.” Discovery in this matter having now been completed, Defendants move for

summary judgment in their favor as a matter of law.

STANDARDS GOVERNING SUMMARY JUDGMENT MOTIONS

The standards for determining whether summary judgment is properly entered in cases

pending before the district courts are governed by Fed. R. Civ.P. 56. Subsection (c) of that rule

states, in pertinent part,

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as to the amount

of damages.

In this way, a Motion for Summary Judgment requires the court to look beyond the bare

allegations of the pleadings to determine if they have sufficient factual support to warrant

(Continued)

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BARRY WALKER V. MAY DEPARTMENT STORES CO.—CONT’D

their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 267 U.S. App. D.C. 337, 838

F.2d 1287 (D.C. Cir. 1988), cert. denied, 488 U.S. 825, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988).

See Also: Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D. N.Y. 1990).

As a general rule, the party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its motion and identifying those

portions of the pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). In considering a summary judgment motion, the court must view the facts in the

light most favorable to the party opposing the motion and all reasonable inferences from

the facts must be drawn in favor of that party as well. U.S. v. Kensington Hospital, 760 F.

Supp. 1120 (E.D. Pa. 1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169

(E.D. Pa. 1990).

When, however, “a Motion for Summary Judgment is made and supported [by affidavits or

otherwise], an adverse party may not rest upon the mere allegations or denials of the adverse

party’s pleading, but the adverse party’s response. . .must set forth specific facts showing that

there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate may be entered against [it].” Fed.R.Civ.P. 56(e).

A material fact has been defined as one which might affect the outcome of the suit under

relevant substantive law. Boykin v. Bloomsburg University of Pennsylvania, 893 F. Supp. 378,

393 (M.D.Pa. 1995) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed.

2d 202 (1986). A dispute about a material fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id., citing Anderson, 477 U.S. at

248, 106 S. Ct. at 2510.

DISCUSSION

A. Immunity from Civil Liability under Pennsylvania’s Retail Theft Statute, 18 Pa.C.S. } 3929 Defendants first argue that they are entitled to summary judgment in their favor on all counts

of the complaint because they are effectively immune under the Pennsylvania Retail Theft

Statute, 18 Pa.C.S. } 3929. Specifically, that statute provides in relevant part:

store or other mercantile establishment, either on the premises or outside the premises of

such store, shall be prima facie presumed to have so concealed such property with the

intention of depriving the merchant of the possession, use or benefit of such merchandise

without paying the full retail value thereof within the meaning of subsection (a), and the

finding of such unpurchased property concealed, upon the person or among the

belongings of such person, shall be prima facie evidence of intentional concealment, and,

if such person conceals, or causes to be concealed, such unpurchased property, upon the

person or among the belongings of another, such fact shall also be prima facie evidence of

intentional concealment on the part of the person so concealing such property.

(d) Detention.—A peace officer, merchant or merchant’s employee or an agent under

contract with a merchant, who has probable cause to believe that retail theft has occurred

or is occurring on or about a store or other retail mercantile establishment and who has

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BARRY WALKER V. MAY DEPARTMENT STORES CO.—CONT’D

probable cause to believe that a specific person has committed or is committing the retail

theft may detain the suspect in a reasonable manner for a reasonable time on or off the

premises for all or any of the following purposes: to require the suspect to identify himself,

to verify such identification, to determine whether such suspect has in his possession

unpurchased merchandise taken from the mercantile establishment and, if so, to recover

such merchandise, to inform a peace officer, or to institute criminal proceedings against

the suspect. Such detention shall not impose civil or criminal liability upon the peace

officer, merchant, employee or agent so detaining.

It should be noted that store employees who stop, detain and search individuals who they

reasonably suspect of retail theft do not act under color of state authority and hence it is not

necessary to first apply for or obtain a search warrant. Commonwealth v. Lacy, 324 Pa. Super.

379, 471 A.2d 888, 890 (1984); Commonwealth v. Martin, 300 Pa. Super.497, 446 A.2d 965, 968

(1982). However, since the Retail Theft Statute does require that probable cause have existed

to justify a stop and to trigger a shopkeeper’s immunity, the threshold issue with which we

are now faced is whether or not Mr. Bryant and Mr. Battle had the requisite probable cause

to stop and detain Mr. Walker.

Probable cause has been said to be a fluid concept turning on the assessment of

probabilities in particular factual contexts not readily or even usefully reduced to a neat set

of legal rules. Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527 (1983).

Probable cause is determined by the totality of the circumstances based upon a practical,

common-sense decision whether, given all the facts presented, including the veracity and basis

of knowledge of any persons supplying hearsay information, there is a fair probability that a

crime has been or is being committed by the suspect or that contraband or evidence of a crime

will be found in a particular place. See: Illinois v. Gates, 462 U.S. at 238, 103 S. Ct. at 2332;

Sharrar v. Felsing, 128 F.3d 810, 817-818 (3rd Cir. 1997); Commonwealth v. Banks, 540 Pa. 453,

454, 658 A.2d 752, 753 (1995). Probable cause thus means more than mere suspicion but does

not require the police to have evidence sufficient to prove guilt beyond a reasonable doubt.

Cronin v. West Whiteland Township, 994 F. Supp. 595 (E.D.Pa. 1998). It should further be noted

that the appropriate inquiry for application of the “shopkeeper privilege” focuses only on

whether the merchant or his agent had probable cause at the moment he decided to detain the

plaintiff. Doe v. Dendrinos, 1997 U.S. Dist. LEXIS 2052 (E.D.Pa. 1997). In this case, the totality of

the circumstances reflect that the plaintiff was stopped because (1) Kim Stone observed him as

a previously known shoplifter in the store one week after he had previously been detained and

questioned for shoplifting; (2) Ms. Stone believed he may have been carrying a shopping bag

full of Strawbridge’s merchandise and she directed store guard Robert Bryant to follow him and

try to scare him into dropping the bag; (3) Store Detective Anthony Battle also heard the radio

transmission from Stone to Bryant and decided to assist Bryant. When Battle saw the plaintiff

turn around and look over his shoulder, he recognized him from his earlier shoplifting incident

one week previously and made the decision to stop the plaintiff when he caught up to him

outside the McDonald’s Restaurant. Given that it appears that the plaintiff may have been

stopped solely because he had been caught shoplifting one week before and was carrying a

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BARRY WALKER V. MAY DEPARTMENT STORES CO.—CONT’D

shopping bag, we cannot find that there is no material issue of fact as to whether these

circumstances, without more, constituted sufficient probable cause to believe that the plaintiff

was again shoplifting on the day at issue so as to trigger the “shopkeeper’s immunity” under the

Retail Theft Statute. Defendant’s Motion for Summary Judgment on this basis must therefore

be denied.

B. Entitlement to Summary Judgment on Punitive Damages

Defendants next assert that since there is no evidence in this case to support a claim for

punitive damages, they are likewise entitled to judgment in their favor as a matter of law on

plaintiff’s punitive damages claims. We agree.

In order to impose punitive damages, the wrongful conduct must be outrageous and

conduct is said to be outrageous when it is “malicious, wanton, reckless, willful or

oppressive.” Rizzo v. Haines, 520 Pa. 484, 506, 555 A.2d 58, 69 (1989); Trotman v. Mecchella, 421

Pa. Super.620, 618 A.2d 982, 985 (1992). Such conduct must show the actor’s evil motive or

reckless indifference to the rights of others. Trotman v. Mecchella, 618 A.2d at 985, citing Feld v.

Merriam, 506 Pa. 383, 485 A.2d 742 (1984) and Hess v. Hess, 397 Pa. Super.395, 399, 580 A.2d 357,

359 (1990). In assessing punitives, the trier of fact can properly consider the character of the

defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or

intended to cause and the wealth of the defendant. Feld v. Merriam, 485 A.2d at 748. See Also:

Polselli v. Nationwide Mutual Fire Insurance Co., 23 F.3d 747, 751 (3rd Cir. 1994).

In applying these principles to the case at hand, we first observe that despite having

captioned two counts of his complaint as seeking damages for “Intentional Acts,” virtually

plaintiff’s entire complaint alleges nothing more than negligence on the part of the defendants.

This, coupled with the complete lack of any evidence that any of the defendants acted other

than negligently, let alone recklessly, maliciously, willfully or oppressively or with an evil

motive, warrants the entry of judgment in defendants’ favor as a matter of law. Summary

judgment shall therefore be entered in favor of all of the defendants with respect to

plaintiff’s claims for punitive damages.

C. Summary Judgment as to Defendant Anthony Robinson

Finally, Defendants assert that summary judgment is properly entered with regard to defendant

Robinson, as there is no evidence that he played any role in the plaintiff’s stop and detention.

Again, we agree.

A careful review of the entire record in this case reflects thatMr. Robinson in no way

participated in the stop or the decision to stop and detain Mr. Walker for suspected

shoplifting on January 3, 1997. To the contrary, Mr. Robinson’s only contact with the

plaintiff occurred after he followed Messrs. Bryant and Battle back into the store after he had

been detained and searched. At that time, Mr. Battle introduced Mr. Robinson to the plaintiff as

a supervisor who would hear his complaints about how Mr. Bryant and Mr. Battle had

treated him. Mr. Robinson did nothing more than listen to the plaintiff’s complaints and give

him the name and telephone number of his supervisor. We thus find that there is no basis

upon which Mr. Robinson could be held liable to Mr. Walker and we therefore shall enter

judgment in favor of this defendant as a matter of law as to all of the plaintiff’s claims

against him.

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BARRY WALKER V. MAY DEPARTMENT STORES CO.—CONT’D

An order follows.

Order

AND NOW, this 24th day of January, 2000, upon consideration of Defendants’ Motions for

Summary Judgment and Plaintiff’s Response thereto, it is hereby ORDERED that the Motions

are GRANTED in PART and DENIED in PART and Judgment is entered in favor of all Defendants

on Plaintiff’s claims for punitive damages and in favor of Defendant Anthony Robinson on all

Counts of the Plaintiff’s Complaint.

BY THE COURT:

J. CURTIS JOYNER, J.

KYONG WOOD & SHEILA COPELAND V. THE CITY OF TOPEKA Case No. 01-4016-SAC (Kansas 2003)

JUDGES: Sam A. Crow, U.S. District Senior Judge.

OPINION BY: Sam A. Crow

This case comes before the court on the motion of the Kroger Co., d.b.a. Dillon Stores

Division (“Dillons”), and American Sentry Security System, Inc., (“Sentry”) to dismiss the

case. Defendant City of Topeka has previously been dismissed as a party. See Dk. 56.

Plaintiffs represent that after the City’s dismissal, plaintiff Sheila Copeland is no longer

a plaintiff in the case, as “she has no claims against defendants Dillons or Sentry.”

(Dk. 53, p. 2).

Plaintiff brings 42 U.S.C. } 1983 and supplemental state law claims against Dillons and Sentry based upon an incident in which she was detained at a Dillons store due to suspicion

of shoplifting and/or destruction of property. Defendants move to dismiss the case, alleging

that it fails to state a claim for relief, pursuant to Fed. R.Civ.P. 12(b)(6). Specifically, defendants

allege that plaintiff has failed to properly plead state action, or action under color of law, as is

required for all } 1983 cases. Before examining the merits of the motions, the court addresses plaintiff’s objection that

defendants failed to follow the local rules regarding the manner in which motions and

supporting memoranda are to be filed. D.Kan. R. 7.1 states, in pertinent part, that motions in

civil cases “shall be accompanied by a brief or memorandum. . ..” This rule contemplates that

a motion and its supporting memorandum shall be filed as two separate pleadings, not as

one, as both defendants have done.

The court believes that the violation apparently flows from defense counsels’ lack

of familiarity with the rules, rather than from blatant disregard for their requirements.

Accordingly, the court shall permit the pleadings to remain as they are, but advises counsel for

defendants that they shall not be excused from any future lack of compliance with the court’s

rules. The court thus examines the merits of the motions to dismiss.

(Continued)

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KYONG WOOD & SHEILA COPELAND V. THE CITY OF TOPEKA—CONT’D

12(B)(6) STANDARDS

A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). Dismissal should not be granted “unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,”

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting

Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)), or unless an issue of law

is dispositive, Neitzke v. Williams, 490 U.S. 319, 326, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).

“The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the

plaintiff is entitled to legal relief even if everything alleged in the complaint is true.” Mayer v.

Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of

Oklahoma, 944 F.2d 752, 753 (10th Cir. 1991).

The Tenth Circuit has observed that the federal rules “erect a powerful presumption

against rejecting pleadings for failure to state a claim.”Maez v. Mountain States Tel. and Tel.,

Inc., 54 F.3d 1488, 1496 (10th Cir. 1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978

(10th Cir. 1986)). A court judges the sufficiency of the complaint accepting as true all well-pleaded

facts, as distinguished from conclusory allegations, Maher v. Durango Metals, Inc., 144 F.3d

1302, 1304 (10thCir. 1998), 1219, and drawing all reasonable inferences from those facts in favor of

the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881,

142 L. Ed. 2d 154, 119 S. Ct. 188 (1998); see Southern Disposal, Inc. v. Texas Waste Management,

161 F.3d 1259, 1262 (10th Cir. 1998). It is not the court’s function “to weigh potential evidence

that the parties might present at trial.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes,

416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Hall v. Bellmon, 935 F.2d 1106,

1109 (10th Cir. 1991).

These deferential rules, however, do not allow the court to assume that a plaintiff “can prove

facts that it has not alleged or that the defendants have violated the. . .laws in ways that have

not been alleged.” Associated General Contractors v. California State Council of Carpenters,

459 U.S. 519, 526, 74 L. Ed. 2d 723, 103 S. Ct. 897 (1983) (footnote omitted). Dismissal is a

harsh remedy to be used cautiously so as to promote the liberal rules of pleading while

protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co.,

873 F.2d 1357, 1359 (10th Cir. 1989).

} 1983 REQUIREMENTS Defendants claim that plaintiff has failed to allege that they, as private security

guards and/or store employees, acted under color of law, as is required for all } 1983 claims. It is well established that private actors are not usually subject to liability under } 1983. Plaintiffs alleging a violation of } 1983 must demonstrate they have been deprived of a right

“secured by the Constitution and the laws of the United States,” and that the defendants

deprived them of this right acting under color of law. Lugar v. Edmondson Oil Co., 457 U.S. 922,

930, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982) (citations omitted). “Thus, the only proper

defendants in a Section 1983 claim are those who represent [the state] in some capacity,

whether they act in accordance with their authority or misuse it.” See Gallagher v. Neil Young

Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (citations and quotations omitted).

406 PRIVATE SECURITY AND THE LAW

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KYONG WOOD & SHEILA COPELAND V. THE CITY OF TOPEKA—CONT’D

However, a defendant need not be an officer of the state in order to act under color of state law

for purposes of } 1983. (citation omitted). Rather, courts have applied four separate tests to determine whether a private party acted under color of law in causing an alleged deprivation

of federal rights: (1) the nexus test; (2) the symbiotic relation test; (3) the joint action

test; and (4) the traditional public powers test or public functions test. See Gallagher,

49 F.3d at 1447.

SIGMON V. COMMUNITY CARE HMO, INC., 234 F.3D 1121, 1125(10TH CIR. 2000)

Plaintiff states that the gravamen of her argument is not that the defendants conspired with the

City of Topeka officers to violate her civil rights, but that they engaged in other acts sufficient to

meet the requirements of the joint action test. Compare Anaya v. Crossroads Managed Care

Systems, 195 F.3d 584, 596 (10th Cir. 1999) (“a requirement of the joint action charge. . . is that

both public and private actors share a common, unconstitutional goal.”); Hunt v. Bennett, 17

F.3d 1263, 1268 (10th Cir. 1994) (} 1983 pleadings must specifically present facts tending to show agreement and concerted action).

Defendants allege that none of the acts they engaged in are sufficient, under any of the

four tests noted above, to meet plaintiff’s burden to plead state action. Defendants rely

primarily upon the general rule that “an individual does not act under color of law merely

by reporting an alleged crime to police officers who take action thereon.” Benavidez v.

Gunnell, 722 F.2d 615, 618 (10th Cir. 1983). Nor does the making of a citizen’s arrest

constitute acting under color of law for } 1983 purposes. See Carey v. Continental Airlines, 823 F.2d 1402, 1404 (10th Cir. 1987); Lee v. Town of Estes Park, 820 F.2d 1112, 1114-15

(10th Cir. 1987); see also, Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984) (finding no acts under

color of law where a shopkeeper called the police to search a suspected shoplifter, but the

police found nothing); see generally Sarner v. Luce, 129 F.3d 131, [published in full-text

format at 1997 U.S. App. LEXIS 29814], 1997 WL 687449, *1 (10th Cir. 1997) (finding plaintiff

failed to plead overt or significant action by the other defendants such that defendant

was a state actor).

These same principles apply to merchants, as the Tenth Circuit has stated:

Generally, merchants are not considered to be acting under color of law for purposes of

1983 when they detain a person suspected of shoplifting or other crimes, call the police, or

make a citizen’s arrest. See Gramenos v. Jewel Cos., 797 F.2d 432, 435-36 (7th Cir. 1986),

cert. denied, 481 U.S. 1028, 95 L. Ed. 2d 525, 107 S. Ct. 1952 (1987); Cruz v. Donnelly, 727

F.2d 79, 81 (3d Cir. 1984); White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir. 1979);

Hurt v. G.C. Murphy Co., 624 F. Supp. 512, 514 (S.D. W. Va.), aff ’d, 800 F.2d 260 (4th

Cir. 1986); cf. Flagg Bros. v. Brooks, 436 U.S. 149, 165-66, 56 L. Ed. 2d 185, 98 S. Ct. 1729

(1978) (holding that state enacted provisions which permit self-help do not automatically

convert private action into state action); Carey, 823 F.2d. at 1404 (holding that

complaint to police and citizen’s arrest by Continental Airlines employee does not

constitute state action).

Jones v. Wal-Mart Stores, Inc., 33 F.3d 62, 1994 WL 387887, *3 (10th Cir. 1994) (Table).

(Continued)

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KYONG WOOD & SHEILA COPELAND V. THE CITY OF TOPEKA—CONT’D

ANALYSIS

The court has reviewed plaintiff’s complaint to determine whether it sufficiently alleges facts

showing the defendants acted under the color of law as required by 42 U.S.C. } 1983. Two paragraphs of plaintiff’s } 1983 claim refer generally to state action. Paragraph 2 states:

Defendants used their powers under color of state law to direct and control the City police

department for purposes that were adverse to plaintiffs. . .and were detrimental to the

public welfare and safety.

Paragraph 8 states:

Defendants the Kroger Co., d.b.a. Dillons, and Sentry wrongfully invoked the police

power of the City of Topeka. The City of Topeka, by and through its police officers,

wrongfully acceded to the request and participated in the unlawful actions of the

other defendants.

These conclusory allegations fall far short of meeting the pleading requirements in } 1983 cases. See Fries v. Helsper, 146 F.3d 452, 458 (7th Cir.), cert. denied, 525 U.S. 930, 142 L. Ed.

2d 278, 119 S. Ct. 337 (1998) (“Mere allegations of joint action or a conspiracy do not

demonstrate that the defendants acted under color of state law and are not sufficient to

survive a motion to dismiss”).

The factual allegations of plaintiff’s complaint, incorporated by reference, include the

following allegations of acts by defendants, prior to the arrival of the City of Topeka police

officers: “A Dillons security guard supplied by Sentry came up behind [plaintiff] in the parking

lot and without notice or warning grabbed her hand, removing her car keys”; “one or more

employees of Dillons wrongfully detained and falsely imprisoned plaintiff”; “the guard then

directed [plaintiff ] to go back into the store where the security guard was joined by another

guard”; the “security guards refused to allow [plaintiff ] to call her husband or get a glass of

water that she had requested”; the security guards did not respond to her when she asked if she

was being charged; and “Dillons security guards together pulled her arms behind her in a

forceful and painful manner, and placed handcuffs on her forcibly pushed (sic) her backward

causing her to strike a railing in the room, [injuring her].” Dk 1, p. 3.

City of Topeka police officers then arrived, having been called by one or more

Dillons employees. The following allegations relate to acts thereafter: “The police officers

declined to take plaintiff’s complaint” that she had been “physically injured by the treatment of

Dillons security guards”; one of the officers called her residence and stated that plaintiff had

been arrested for shoplifting; and when plaintiff asked one or more of the City officers to

loosen her handcuffs, “at first the officer declined, telling her that if she didn’t move her

hands, the cuffs would not be so tight.” Dk. 1, p. 4. Plaintiff’s daughter then arrived,

demanded that plaintiff’s handcuffs be removed, and was removed from the detention room

by one of the police officers who told her that her mother was going to be charged with

criminal damage to property. The remaining relevant allegation is that “together the security

guards and Topeka police watched a video on multiple occasions that purported to record

the action of [plaintiff.] Thereafter, the officers removed the cuffs from [plaintiff ] and allowed

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KYONG WOOD & SHEILA COPELAND V. THE CITY OF TOPEKA—CONT’D

her and Sheila Copeland to leave.” Dk. 1, p. 4. No charges were filed against plaintiff or

her daughter.

Nothing in plaintiff’s complaint sufficiently alleges that defendants, or either of them,

engaged in acts under color of state law. Instead, the seizure and subsequent treatment of

plaintiff at Dillons cannot be fairly attributed to the City of Topeka under any of the tests for

state action. For a merchant or its security officers to call the police when they suspect

shoplifting or destruction of property is insufficient to constitute state action. No acts allegedly

taken by officers of the City of Topeka at the scene reveal prior collusion with defendants, or

compliance with any requests by the defendants, or either of them, let alone the requisite joint

action. Plaintiff’s assertion that defendants “directed and controlled” the City police

department is conclusory and unsupported by the facts alleged in the complaint. No allegations

in the complaint support a conclusion that plaintiff’s treatment resulted from any concerted

action, prearranged plan, customary procedure, or policy that substituted the judgment of a

private party for that of the police, or allowed a private party to exercise state power. See Carey,

823 F.2d at 1404. Thus even if everything alleged in the complaint is true, plaintiff fails to state a

claim under } 1983.

STATE LAW CLAIMS

Plaintiff’s complaint includes state law claims of false arrest and imprisonment, assault and

battery, and outrage and/or negligent infliction of emotional distress. Over these claims, this

court has no original jurisdiction.

Having dismissed the federal claims over which this court has original jurisdiction, the

court in the exercise of its statutory discretion declines to assume supplemental jurisdiction

over the plaintiff’s state law claims against the defendants. 28 U.S.C. } 1367 (c)(3); see Tonkovich v. Kansas Bd. of Regents, 254 F.3d 941, 945 (10th Cir. 2001). The plaintiff advances

no substantial reasons for exercising such jurisdiction. “Given the relative lack of pretrial

proceedings—including a total absence of discovery—considerations of ‘judicial economy,

convenience, fairness’ do not favor ‘retaining jurisdiction.’” Tonkovich, 254 F.3d at 945

(quoting in part Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995)).

At this juncture, the most common response is to dismiss the state law claims without

prejudice. Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1237 (10th

Cir. 1997).

Plaintiff requests that the state law claims “should be remanded to state court for trial” so

that she will not lose her remedies for defendant’s behavior. Given the state’s savings statute,

see K.S.A. } 60-518, plaintiff’s fear of losing her state law remedies is unfounded. The court finds no unique circumstances justifying its exercise of supplemental jurisdiction.

IT IS THEREFORE ORDERED that Dillons’ motion to dismiss (Dk. 42), and Sentry’s motion

to dismiss (Dk. 37) are granted.

IT IS FURTHER ORDERED that the court declines to exercise supplemental jurisdiction over

the remaining state law claims and dismisses the same without prejudice.

Dated this 23rd day of May, 2003, Topeka, Kansas.

SAM A. CROW, U.S. DISTRICT SENIOR JUDGE.

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THE PEOPLE V. VIRGINIA ALVINIA ZELINSKI 24 Cal. 3d 357; 594 P.2d 1000 (1979)

Opinion by Manuel, J., with Tobriner, Mosk, Richardson, and Newman, JJ., concurring.

Bird, C. J., concurred in the result. Separate dissenting opinion by Clark, J.

Virginia Zelinski was charged with unlawful possession of a controlled substance, heroin

(Health & Saf. Code, } 11350). A motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. She entered a plea of guilty and appeals. (Pen. Code, } 1538.5, subd. (m).) We reverse.

On March 21, 1976, Bruce Moore, a store detective employed by Zody’s Department Store,

observed defendant place a blouse into her purse. Moore alerted Ann O’Connor, another

Zody detective, and the two thereafter observed defendant select a pair of sandals, which she

put on her feet, and a hat, which she put on her head. Defendant also took a straw bag into

which she placed her purse. Defendant then selected and paid for a pair of blue shoes and left

the store.

Detectives Moore and O’Connor stopped defendant outside the store. Moore placed

defendant under arrest for violation of Penal Code section 484 (theft) and asked her to

accompany him and detective O’Connor into the store. Defendant was taken by O’Connor to

the security office where Pat Forrest, another female store detective, conducted a routine

“cursory search in case of weapons” on the person of defendant.

Moore testified that he reentered the security office when the search of defendant’s person

was completed, opened defendant’s purse to retrieve the blouse taken from Zody’s, and

removed the blouse and a pill vial that lay on top of the blouse. Moore examined the vial,

removed a balloon from the bottle, examined the fine powdery substance contained in the

balloon, and set the vial and balloon on the security office desk to await the police who had

been called.

Detective O’Connor, who testified to the search of defendant’s person by Forrest, was

initially confused as to whether the pill vial containing the balloon had been taken from the

defendant’s purse or from her brassiere. On cross-examination, O’Connor was certain that she

saw Forrest taking it from defendant’s brassiere. According to O’Connor, the pill bottle was

placed on the security office desk where detective Moore shortly thereafter opened it and

examined the powdery substance in the balloon. Later the police took custody of the vial and

defendant was thereafter charged with unlawful possession of heroin.

(1a) (2a) Defendant’s appeal involves two questions—(1) whether store detectives Moore,

O’Connor, and Forrest exceeded the permissible scope of search incident to the arrest, and

(2) if they did, whether the evidence thus obtained should be excluded as violative of

defendant’s rights under federal or state Constitutions. We have concluded that the narcotics

evidence was obtained by unlawful search and that the constitutional prohibition against

unreasonable search and seizure affords protection against the unlawful intrusive conduct of

these private security personnel.

(3) Store detectives and security guards are retained primarily to protect their employer’s

interest in property. They have no more powers to enforce the law than other private

persons. (See Private Police in California: A Legislative Proposal (1975) 5 Golden Gate L. Rev.

115,129-134; cf. Stapleton v. Superior Court (1968) 70 Cal. 2d 97, 100-101, fn. 3 [73 Cal. Rptr. 575,

447 P.2d 967].) Like all private persons, security employees can arrest or detain an offender

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THE PEOPLE V. VIRGINIA ALVINIA ZELINSKI—CONT’D

(Pen. Code, } 837) and search for weapons (Pen. Code, } 846) before taking the offender to a magistrate or delivering him to a peace officer (Pen. Code, }} 847, 849). Store personnel Moore and O’Connor were acting under this statutory authority when they arrested defendant and

took her into custody for leaving the store with stolen merchandise.

(4) Merchants have traditionally had the right to restrain and detain shoplifters. At the time

of the incident at Zody’s, merchants were protected from civil liability for false arrest or false

imprisonment in their reasonable efforts to detain shoplifters by a common law privilege

that permitted detention for a reasonable time for investigation in a reasonable manner of any

person whom the merchant had probable cause to believe had unlawfully taken or

attempted to take merchandise from the premises. (Collyer v. S.H. Kress & Co. (1936) 5 Cal.2d

175 [54 P.2d 20].) That privilege has since been enacted into statute as subdivision (e) of Penal

Code section 490.5.

Thus, pursuant to the Penal Code or the civil common law privilege, store personnel Moore

and O’Connor had authority to arrest or detain defendant. The question remains, however,

whether they exceeded their authority in their subsequent search for and seizure of evidence.

(5) The permissible scope of search incident to a citizen’s arrest is set out in People v.

Sandoval (1966) 65 Cal. 2d 303, 311, footnote 5 [54 Cal. Rptr. 123, 419 P.2d 187]: “A citizen

effecting such an arrest is authorized only to ‘take from the person arrested all offensive

weapons which he may have about his person’ (Pen. Code, } 846), not to conduct a search for contraband ‘incidental’ to the arrest, or to seize such contraband upon recovering it.[Citation.]

We reject the suggestion of People v. Alvarado (1962) 208 Cal. App. 2d 629, 631 [25 Cal. Rptr.

437], that the search of one private individual or his premises by another is lawful simply

because ‘incidental’ to a lawful citizen’s arrest.” (See also People v. Cheatham (1968) 263 Cal.

App. 2d 458, 462, fn. 2 [69 Cal. Rptr. 679]; People v. Sjosten (1968) 262 Cal. App. 2d 539 [68 Cal.

Rptr. 832]; People v. Martin (1964) 225 Cal. App. 2d 91, 94 [36 Cal. Rptr. 924].) The rationale

behind the rule is that, absent statutory authorization, private citizens are not and should not

be permitted to take property from other private citizens.

(6) The limits of the merchant’s authority to search is now expressly stated in Penal Code

section 490.5. Paragraph of subdivision (e) provides that “During the period of detention any

items which a merchant has reasonable cause to believe are unlawfully taken from his premises

and which are in plain view may be examined by the merchant for the purposes of ascertaining

the ownership thereof.” (Italics added.) Neither the statute nor the privilege which it codified

purport to give to the merchant or his employees the authority to search.

(1b) In the present case, instead of holding defendant and her handbag until the arrival of a

peace officer who may have been authorized to search, the employees instituted a search to

recover goods that were not in plain view. Such intrusion into defendant’s person and effects

was not authorized as incident to a citizen’s arrest pursuant to section 837 of the Penal Code

(Sandoval, supra, 65 Cal.2d at p. 311, fn. 5), or pursuant to the merchant’s privilege

subsequently codified in subdivision (e) of section 490.5. It was unnecessary to achieve the

employees’ reasonable concerns of assuring that defendant carried no weapons and of

preventing loss of store property. As a matter of law, therefore, the fruits of that search were

illegally obtained.

(Continued)

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THE PEOPLE V. VIRGINIA ALVINIA ZELINSKI—CONT’D

(2b) The People contend that the evidence is nevertheless admissible because the search

and seizure were made by private persons. They urge that Burdeau v. McDowell (1921) 256 U.

S. 465 [65 L. Ed. 1048, 41 S. Ct. 574, 13 A.L.R. 1159], holding that Fourth Amendment

proscriptions against unreasonable searches and seizures do not apply to private conduct, is

still good law and controlling. (See People v. Randazzo (1963) 220 Cal. App. 2d 768, 770-775 [34

Cal. Rptr. 65]; People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 128-129 [74 Cal. Rptr. 294,

449 P.2d 230],[“. . .acquisition of property by a private citizen from another person cannot be

deemed reasonable or unreasonable. . .”]; cf. Stapleton v. Superior Court, supra, 70 Cal.2d at p.

00, fn. 2.) Defendant contends, on the other hand, that only by applying the exclusionary rule to

all searches conducted by store detectives and other private security personnel can freedoms

embodied in the Fourth Amendment of the federal Constitution and article I, section 13 of the

state Constitution be protected from the abuses and dangers inherent in the growth of private

security activities.

More than a decade ago we expressed concern that searches by private security forces can

involve a “particularly serious threat to privacy” (Stapleton, supra, 70 Cal.2d at pp. 100-101,

fn. 3); in Stapleton and later in Dyas v. Superior Court (1974) 11 Cal. 3d 628, 633 [114 Cal. Rptr.

114, 522 P.2d 674], we left open the question whether searches by such private individuals

should be held subject to the constitutional proscriptions. We now address the problem.

Article I, section 13 of the California Constitution provides in part that: “The right of the

people to be secure in their persons, houses, papers and effects against unreasonable

seizures and searches may not be violated. . ..” Although the constitutional provision contains

no language indicating that the “security” protected by the provision is limited to security from

governmental searches or seizures, California cases have generally interpreted this provision as

primarily intended as a protection of the people against such governmentally initiated or

governmentally directed intrusions. The exclusionary rule, fashioned to implement the rights

secured by the constitutional provision, has therefore been applied to exclude evidence

illegally obtained by private citizens only where it served the purpose of the exclusionary rule

in restraining abuses by the police of their statutory powers. (Stapleton v. Superior Court,

supra, 70 Cal.2d 97; People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513]; Mapp

v. Ohio (1961) 367 U.S. 643 [6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R.2d 933]; cf. People v. Payne

(1969) 1 Cal. App. 3d 361 [81 Cal. Rptr. 635]; People v. Randazzo, supra, 220 Cal. App. 2d 768;

People v. Cheatham, supra, 263 Cal. App. 2d 458, 461-462; cf. People v. Millard (1971) 15 Cal.

App. 3d 759, 761-762 [93 Cal. Rptr. 402]; People v. Superior Court (Smith), supra, 70 Cal.2d 123;

People v. Mangiefico (1972) 25 Cal. App. 3d 1041, 1947-1048 [102 Cal. Rptr. 449].

We have recognized that private security personnel, like police, have the authority to detain

suspects, conduct investigations, and make arrests. They are not police, however, and we have

refused to accord them the special privileges and protections enjoyed by official police officers.

(See People v. Corey (1978) 21 Cal. 3d 738 [147 Cal. Rptr. 639, 581 P.2d 644].) We have excluded

the fruits of their illegal investigations only when they were acting in concert with the police or

when the police were standing silently by. (Stapleton, supra, 70 Cal.2d at p. 103.) We are

mindful, however, of the increasing reliance placed upon private security personnel by local law

enforcement authorities for the prevention of crime and enforcement of the criminal law and

the increasing threat to privacy rights posed thereby. Since Stapleton was decided, the private

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security industry has grown tremendously, and, from all indications, the number of private

security personnel continues to increase today. A recent report prepared by the Private Security

Advisory Council to the United States Department of Justice describes this phenomenon in the

following terms:

A vast army of workers are employed in local, state and federal government to prevent

crime and to deal with criminal activity. Generally thought of as the country’s major crime

prevention force are the more than 40,000 public law enforcement agencies with their

475,000 employees. While they constitute the. . .most visible component of the criminal

justice system, another group has been fast rising in both numbers and responsibility in

the area of crime prevention. With a rate of increase exceeding even that of the public

police, the private security sector has become the largest single group in the country

engaged in the prevention of crime. (Private Security Adv. Coun. to U.S. Dept. of Justice,

LEAA, Report on the Regulation of Private Security Services (1976) p. 1.)

Realistically, therefore, we recognize that in our state today illegal conduct of privately

employed security personnel poses a threat to privacy rights of Californians that is comparable

to that which may be posed by the unlawful conduct of police officers. (See generally, Private

Police in California—A Legislative Proposal, supra, 5 Golden Gate L. Rev. 115; Bassiouni,

Citizen’s Arrest: The Law of Arrest, Search and Seizure for Private Citizens and Private Police

(1977) p. 72.) Moreover, the application of the exclusionary rule can be expected to have a

deterrent effect on such unlawful search and seizure practices since private security personnel,

unlike ordinary private citizens, may regularly perform such quasi-law enforcement activities in

the course of their employment. (See “Seizures by Private Parties: Exclusion in Criminal Cases”

(1967) 19 Stan. L. Rev. 608, 614-615.)

In the instant case, however, we need not, and do not, decide whether the constitutional

constraints of article I, section 13, apply to all of the varied activities of private security

personnel, for here the store security forces did not act in a purely private capacity but rather

were fulfilling a public function in bringing violators of the law to public justice. For reasons

hereinafter expressed, we conclude that under such circumstances, i.e., when private security

personnel conduct an illegal search or seizure while engaged in a statutorily authorized citizen’s

arrest and detention of a person in aid of law enforcement authorities, the constitutional

proscriptions of article I, section 13 are applicable.

Although past cases have not applied the constitutional restrictions to purely private

searches, we have recognized that some minimal official participation or encouragement may

bring private action within the constitutional constraints on state action. (Stapleton v. Superior

Court, supra, 70Cal.2d 97, 101.) (7) As noted by theUnited States SupremeCourt inUnited States v.

Price (1965) 383U.S. 787 [16 L. Ed. 2d 267, 86 S. Ct. 1152], a person does not need to be an officer of

the state to act under color of law and therefore be responsible, along with such officers, for

actions prohibited to state officials when such actions are engaged in under color of law. (Id.,

p. 794, and fn. 7 thereunder [16 L. Ed. 2d at p. 272]; cf.Burton v.Wilminton Pkg. Auth. (1961) 365U.

S. 715, 725 [6 L. Ed. 2d 45, 52, 81 S. Ct. 856];Weeks v. U.S. (1914) 232U.S. 383, 398 [58 L. Ed. 652, 657,

34 S. Ct. 341];Marsh v. Alabama (1946) 326 U.S. 501 [90 L. Ed. 265, 66 S. Ct. 276].)

(Continued)

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THE PEOPLE V. VIRGINIA ALVINIA ZELINSKI—CONT’D

(2c) In the instant case, the store employees arrested defendant pursuant to the

authorization contained in Penal Code section 837, and the search which yielded the

narcotics was conducted incident to that arrest. Their acts, engaged in pursuant to the statute,

were not those of a private citizen acting in a purely private capacity. Although the search

exceeded lawful authority, it was nevertheless an integral part of the exercise of sovereignty

allowed by the state to private citizens. In arresting the offender, the store employees were

utilizing the coercive power of the state to further a state interest. Had the security

guards sought only the vindication of the merchant’s private interests they would have simply

exercised self-help and demanded the return of the stolen merchandise. Upon satisfaction

of the merchant’s interests, the offender would have been released. By holding

defendant for criminal process and searching her, they went beyond their employer’s

private interests.

(8) (See fn. 10.) Persons so acting should be subject to the constitutional proscriptions that

secure an individual’s right to privacy, for their actions are taken pursuant to statutory authority

to promote a state interest in bringing offenders to public accounting. Unrestrained, such

action would subvert state authority in defiance of its established limits. It would destroy the

protection those carefully defined limits were intended to afford to everyone, the guilty and

innocent alike. It would afford de facto authorizations for searches and seizures incident to

arrests or detentions made by private individuals that even peace officers are not authorized to

make. Accordingly, we hold that in any case where private security personnel assert the power

of the state to make an arrest or to detain another person for transfer to custody of the state, the

state involvement is sufficient for the court to enforce the proper exercise of that power

(cf. People v. Haydel (1974) 12 Cal. 3d 190, 194 [115 Cal. Rptr. 394, 524 P.2d 866]) by excluding

the fruits of illegal abuse thereof. We hold that exclusion of the illegally seized evidence is

required by article I, section 13 of the California Constitution.

The judgment (order granting probation) is reversed.

DISSENT BY: CLARK

DISSENT: CLARK, J. I dissent for the reasons expressed in my dissenting opinion in Dyas v.

Superior Court (1974) 11 Cal. 3d 628, 637-638 [114 Cal. Rptr. 114, 522 P.2d 674]. The judgment

should be affirmed.

DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C. 279 Mich. App. 195; 755 N.W.2d 686 (Mich. App. 2008)

OPINION BY: Elizabeth L. Gleicher

Plaintiff commenced this action alleging multiple state-law intentional torts and a violation

of 42 USC 1983 after Detroit Entertainment, L.L.C., doing business as Motor City Casino,

through several casino employees, denied plaintiff entry into the casino, thereafter detained

him inside the casino, and ultimately banned him permanently from the casino. Defendant

appeals as of right, challenging various aspects of a final judgment entered by the trial court

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

after a jury trial, at the conclusion of which the jury returned a special verdict in plaintiff’s

favor. Plaintiff cross-appeals, contesting the trial court’s pretrial order granting summary

disposition of his abuse-of-process and malicious-prosecution claims. We affirm.

I. UNDERLYING FACTS AND PROCEEDINGS

Plaintiff and five companions traveled to the Motor City Casino on the evening of September

14, 2002, to take advantage of a complimentary meal and to gamble. When the group’s

Metro car arrived at the casino’s valet entrance, some members of the group, including plaintiff,

held cups containing alcoholic beverages, but disposed of the cups when advised that they

could not enter the casino with them. Much trial testimony disputed whether (1) plaintiff

stumbled while alighting from the group’s Metro car and approaching the valet lobby,

(2) plaintiff’s speech was slurred, (3) plaintiff’s eyes appeared glassy, or (4) plaintiff’s breath

smelled of alcohol.

There is no dispute, however, that in the valet lobby, defendant Jose Oscar Martinez, a casino

security manager who had obtained “PA 330 certification” under MCL 338.1079, barred

plaintiff’s entry on the basis that he appeared inebriated and thus constituted a potential

liability to the casino. Plaintiff and some of his companions expressed disbelief, denied that

plaintiff was intoxicated, and asked to speak with a manager. But the evidence diverged

concerning the extent of plaintiff’s physical reaction to Martinez’s announcement: some

testimony described that while protesting his exclusion and demanding a manager, plaintiff

may have made “nonchalant” gestures with his arm or hand, although this testimony varied

regarding plaintiff’s proximity to Martinez at the time of the gestures, while other testimony

recounted that plaintiff seemed to have intentionally pointed a finger or directed an open

hand that made contact with Martinez’s chest. Many witnesses recalled seeing Martinez step

backward.

Other nearby casino security personnel announced that an assault had occurred,

which prompted plaintiff and his companions to depart from the valet lobby and walk across

the street. A group consisting of several casino security officers, at some point accompanied by

two Detroit police officers, eventually confronted plaintiff and his companions. Another PA

330-certified casino security manager, John Grzadzinski, offered plaintiff the choice to either

return to the casino to discuss the alleged assault, or to place himself in the custody of the

Detroit Police Department. At trial, Grzadzinski replied affirmatively to plaintiff’s counsel’s

inquiry whether the Detroit police officers present likewise “suggested to [plaintiff ] that he

go back with [Grzadzinski] into the casino, is that right?” Richard Novak, one of plaintiff’s

companions and his longtime business attorney, recounted at trial that after

Grzadzinski announced the two choices “loud enough for everybody to hear,” Novak spoke with

the Detroit police officers present in the group, and “asked the DPD” whether they agreed

with Grzadzinski’s two alternative proposals. According to Novak, the officers “said we don’t

care, it’s your call.” Plaintiff, who initially declined to return to the casino, ultimately elected,

on Novak’s advice, to allow himself to be escorted back to the casino’s security office.

In a detention room, pursuant to casino policies and applicable administrative rules,

plaintiff underwent a pat-down search and the removal and inventory of his personal

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

property, before being left alone in the locked detention room. At plaintiff’s request, someone

later escorted him to a bathroom. On returning to the detention room, against plaintiff’s

expressed wishes, security personnel locked him back inside the detention room. Ultimately,

Grzadzinski obtained plaintiff’s signature on an “86 form” permanently banning him from the

casino, although Grzadzinski denied plaintiff’s requests that Novak review the form or that

plaintiff receive a copy of the form.

The trial evidence established that plaintiff’s detention period was about 2-1/2 hours.

Plaintiff then left the Motor City Casino with his companions, and everyone went to the

Greektown Casino.

In May 2003, a Wayne County Sheriff’s deputy arrested plaintiff at Detroit Metropolitan

Airport when he learned plaintiff had outstanding assault and battery warrants arising from

the September 14, 2002, incident at the Motor City Casino. The criminal proceedings against

plaintiff were temporarily terminated in September 2003, when the 36th District Court

dismissed the charge without prejudice because no prosecution witnesses appeared. Sometime

in 2005, plaintiff discovered the existence of resurrected arrest warrants relating to September

14, 2002. After a December 2005 trial in the 36th District Court, a jury acquitted plaintiff.

II. CHALLENGES TO 42 USC } 1983 SPECIAL VERDICT Defendant first contends that the trial court erred by denying its motion for a directed verdict

regarding plaintiff’s } 1983 claim. Defendant specifically challenges the trial court’s ruling as a matter of law that the casino, through the conduct of its PA 330-certified security officers, acted

under color of state law during the September 14, 2002, detention of plaintiff.

This Court reviews de novo a trial court’s ruling on a litigant’s motion for a directed

verdict. Candelaria v B C Gen Contractors, Inc, 236 Mich App 67, 71; 600 NW2d 348 (1999).

In reviewing the trial court’s ruling, this Court examines the evidence presented and all

legitimate inferences arising there from in the light most favorable to the nonmoving party.

Farm Credit Serv’s of Michigan’s Heartland, PCA v Weldon, 232 Mich App 662, 668; 591 NW2d 438

(1998). “A directed verdict is appropriate only when no material factual question exists upon

which reasonable minds could differ.” Candelaria, supra at 71-72. “If reasonable jurors could

honestly have reached different conclusions, neither the trial court nor this Court may substitute

its judgment for that of the jury.” Hunt v Freeman, 217 Mich App 92, 99; 550 NW2d 817 (1996).

The “appellate court recognizes the jury’s and the judge’s unique opportunity to observe the

witnesses, as well as the fact finder’s responsibility to determine the credibility and weight of

trial testimony.” Zeeland Farm Serv’s, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555

NW2d 733 (1996).

According to 42USC 1983, any personwho experiences “the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws” because of the actions of another person acting

“under color of any statute, ordinance, regulation, custom, or usage, of any State “may file an action

seeking relief against the party that caused the deprivation. (Emphasis added.) The dispute in this

appeal focuses on the “under color of” state law element of a } 1983 claim.

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

The United States Court of Appeals for the Sixth Circuit recently examined, in relevant part

as follows, the contours of the requisite state-action element:

The issue in this appeal is whether Plaintiffs can demonstrate that Defendant acted

“under color of state law” by showing that Defendant’s conduct constituted state action.

See Lugar v Edmondson Oil Co, Inc, 457 U.S. 922, 942; 102 SCt 2744; 73 L Ed 2d 482

(1982) . . . . Section 1983 does not, as a general rule, prohibit the conduct of private parties

acting in their individual capacities. . . . However, “[a] private actor acts under color of

state law when its conduct is ‘fairly attributable to the state.’“ Romanski [v Detroit

Entertainment, LLC, 428 F3d 629, 636 (CA 6, 2005)] (quoting Lugar [supra at 937]).

“What [conduct] is fairly attributable [to the state] is a matter of normative judgment, and

the criteria lack rigid simplicity.” Brentwood [Academy v Tennessee Secondary School

Athletic Ass’n, 531 U.S. 288, 295; 121 S Ct 924; 148 L Ed 2d 807 (2001). The Supreme Court

and this Court, however, have provided several significant milestones to guide our inquiry

as to whether Defendant’s conduct constitutes state action. As we recognized in Chapman

[v Higbee Co, 319 F3d 825, 833 (CA 6, 2003),] “[t]he Supreme Court has developed three

tests for determining the existence of state action in a particular case: (1) the public

function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus

test.” Of these three tests, the only one relevant to the instant case is the public function

test. Under the public function test, courts have found “state action present in the exercise

by a private entity of powers traditionally exclusively reserved to the State.” Jackson v

Metro Edison Co, 419 U.S. 345, 352; 95 S Ct 449; 42 L Ed 2d 477 (1974). The Supreme

Court has found this requirement satisfied where the state permitted a private entity to

hold elections, allowed a private company to own a town, or established private

ownership of a municipal park. However, the Supreme Court has explicitly declined to

decide the question of “whether and under what circumstances private police officers may

be said to perform a public function for purposes of } 1983.” Romanski, 428 F3d at 636. [Lindsey v Detroit Entertainment, LLC, 484 F3d 824, 827-828 (CA 6, 2007) (some

citations omitted).]

The trial court in this case invoked Romanski, supra, when finding that Martinez, Grzadzinski,

and other casino security personnel acted under color of state law in detaining plaintiff.

Because the parties argue at length concerning the propriety of the trial court’s application of

Romanski, we now turn to a careful examination of Romanski.

Romanski involved a casino patron’s claim against the instant defendant. In Romanski, the

plaintiff, age 72, “took a walk around the gaming floor,” during which she “noticed a five cent

token lying in a slot machine’s tray. Seeing no chair at the machine, she picked up the token

and returned to the machine at which she had earlier played, intending to use the token there.”

Romanski, supra at 632. Several casino security officers descended on the plaintiff and advised

her that the casino had a “policy not to permit patrons to pick up tokens, which appeared to be

abandoned, found at other slot machines, a practice known as ‘slot-walking,’“ despite the fact

that the casino had not posted notice of such a policy. Id. at 633. One defendant security officer,

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

Marlene Brown, recalled that because Romanski “became loud and belligerent,” several

security personnel escorted her to the casino’s “small and windowless” security office “located

off the casino’s floor.” Id. at 633.

According to Romanski, once they had taken their seats, Brown accused Romanski of

stealing the token, whereupon Brown counted Romanski’s money and removed one nickel

from Romanski’s winnings. [Brown’s supervisor JoEtta] Stevenson asked Romanski to turn

over her social security card and driver’s license; Romanski complied and these items were

photocopied. Romanski was then photographed. Romanski testified that she acquiesced to

these requests because Brown said she was a police officer, had a badge, and appeared to

have handcuffs. . . . [A] uniformed casino security officer stood just outside the room for

the duration of the questioning. Romanski was ejected from the casino for a period of 6

months; Stevenson made the final decision to eject, or “86,” Romanski. . . . Although

unknown to Romanski at the time, it is now undisputed that Brown and some of her

colleagues on the casino’s security staff were licensed under state law as “private security

police officer[s].” MCL 338.1079. By virtue of being so licensed, a private security police

officer has “the authority to arrest a person without a warrant as set forth for public peace

officers . . .when that private security police officer is on the employer’s premises.” MCL

338.1080. The statute additionally requires that private security police officers make

arrests only when they are on duty and in “the full uniform of their employer.” Id. It is

undisputed that Brown was on duty during the events of this case. It is also undisputed

that Brown was not wearing the uniform worn by some of the other security guards, but

Defendants have never contended that this rendered Brown out of uniform for purposes of

MCL 338.1080; indeed, Defendants have conceded from the beginning that the statute

applies in this case. Their argument is simply that the power admittedly conferred on

Brown by the statute did not make her actions under color of state law. See 42 USC 1983.

[Romanski, supra at 633 (emphasis added).]

The plaintiff filed an amended complaint that contained several state-law tort claims and “a

claim under 42 USC } 1983 that Defendants had violated Romanski’s Fourth Amendment rights,” specifically “that Defendants, acting under color of state law, had arrested her

without probable cause because the token she picked up was abandoned, i.e., not the

casino’s property.” Romanski, supra at 634.

When the defendants sought summary judgment of Romanski’s } 1983 claim on the basis that they had not acted under color of state law, the district court denied the motion, holding

“as a matter of law that Defendants had acted under color of state law . . .because Brown, the

defendant who initiated Romanski’s detention, did so while on duty in her capacity as a

licensed private security police officer empowered with the same arrest authority as a public

police officer.” Romanski, supra at 635. A jury found in the plaintiff’s favor regarding her } 1983 claim that the defendants violated her Fourth Amendment rights, and consequently awarded “$

500 in punitive damages against Brown, and $ 875,000 in punitive damages against the casino.”

Id. The district court denied a motion for a judgment notwithstanding the verdict, and the

defendants appealed. Id. at 635-636.

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

The Sixth Circuit affirmed in Romanski, rejecting the defendants’ contention that they did

not qualify as state actors. The Sixth Circuit commenced its analysis by surveying federal

case law that had considered whether private security officers acted under color of state law,

including Payton v Rush-Presbyterian-St Luke’s Med Ctr, 184 F3d 623, 627-630 (CA 7, 1999), in

which “the Seventh Circuit held that private police officers licensed to make arrests could be

state actors under the public function test.” Romanski, supra at 637. In discussion highly

relevant to the instant case, the Sixth Circuit ascertained and applied the following guiding

principles:

[T]he crucial fact in [Payton ]-assumed to be true there but indisputable here-was that by

virtue of their status as on-duty special police officers, licensed by the city of Chicago, the

defendants enjoyed “virtually the same power as public police officers.” Id. at 629. Indeed,

the defendants in Payton operated under an ordinance which provided that special police

officers licensed under it “shall possess the powers of the regular police patrol at the places

for which they are respectively appointed or in the line of duty for which they are

engaged.” Id. at 625.

* * *

Payton illustrates a line that has been drawn in the case law. The line divides cases in

which a private actor exercises a power traditionally reserved to the state, but not

exclusively reserved to it, e.g., the common law shopkeeper’s privilege, from cases in

which a private actor exercises a power exclusively reserved to the state, e.g., the police

power. Where private security guards are endowed by law with plenary police powers such

that they are de facto police officers, they may qualify as state actors under the public

function test. . .. The rationale of these cases is that when the state delegates a power

traditionally reserved to it alone-the police power-to private actors in order that they may

provide police services to institutions that need it, a “plaintiff ’s ability to claim relief under

} 1983 [for abuses of that power] should be unaffected.” Payton, supra at 629. On the other side of the line illustrated by Payton are cases in which the private

defendants have some police-like powers but not plenary police authority. . . . A subset of

these cases are cases in which a private institution’s security employees have been

dispatched to protect the institution’s interests or enforce its policies. The canonical

example here is when a store avails itself of the common law shopkeeper’s privilege . . . .

Like the district court, we think this case falls on the Payton side of the line. It is

undisputed that Brown (and some of her colleagues) were private security police officers

licensed under [MCL 338.1079]. This means that Brown’s qualifications for being so

licensed were vetted by Michigan’s department of state police, id.} (1), and that Brown was subject to certain statutes administered by that department. Id. } (2); see MCL 338.1067, MCL 338.1069. More critical for present purposes are the undisputed facts that Brown was

on duty and on the casino’s premises at all times relevant to this case. These undisputed

facts lead to an inescapable conclusion of law-namely, that at all times relevant to this

case, Brown “had the authority to arrest a person without a warrant as set forth for

public peace officers . . ..”[MCL 338.1080].One consequence of Brown’s possession of this

(Continued)

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authority, the authority to make arrests at one’s discretion and for any offenses, is clear:

at all times relevant to this case, Brown was a state actor as a matter of law.

Unlike the common law privileges at issue in Wade[ v Byles, 83 F3d 902 (CA 7, 1996)]

(the use of deadly force in self-defense, the right to detain for trespass, and the right to

carry a weapon) and Chapman[, supra, 319 F3d 825] (the shopkeeper’s privilege), which

may be invoked by any citizen under appropriate circumstances, the plenary arrest power

enjoyed by private security police officers licensed pursuant to MCL 338.1079 is a power

traditionally reserved to the state alone. . . .

Defendants contend that Wade ought to control here because, as in that case, private

security police officers’ power to make arrests is subject to spatial or geographic limits. See

[MCL 338.1080]. But the spatial or geographic limitation in Wade was profound-it

prohibited housing authority security guards from exercising their (already minimal)

powers anywhere except in the lobbies of buildings operated by the housing authority. See

Wade, [supra at 906]. By contrast, [MCL 338.1080] invests private security police officers

with full arrest authority on the entirety of their employer’s premises, which makes this

case distinguishable from Wade and similar to Payton and Henderson [v Fisher, 631

F2d 1115 (CA 3, 1980)], each of which involved a statute or ordinance that imposed or

contemplated some spatial or geographic limits on the private defendants’ police

powers. See Payton, [supra at 625](special police officers “shall possess the powers of

the regular police patrol at the places for which they are respectively appointed”)

(emphasis added) . . .; Henderson, supra at 1117-1119 (authority of the university police

was limited to the university campus in question). Furthermore, as we have discussed,

private security police officers in Michigan are endowed with plenary arrest authority,

see [MCL 338.1080 ], while the defendant in Wade was permitted to exercise only what

were in effect citizens’ arrests. [Romanski, supra at 637-639 (emphasis added; some

citations omitted).]

The Sixth Circuit subsequently addressed } 1983 claims filed by several plaintiffs who underwent similar detentions by Motor City Casino security personnel in Lindsey, supra at

826. The Lindsey court did not question or criticize the legal principles espoused or the

conclusion reached by the court in Romanski, which it reviewed in detail. Lindsey, supra at

828-831. The Sixth Circuit held, however, that the defendants in Lindsey had not acted under

color of state law, citing the following factual distinction:

Plaintiffs argue that Romanski supports a finding that Defendant’s security personnel

were likewise state actors in this case. We disagree. Unlike Romanski, where it was

undisputed that Defendant’s security personnel were licensed under [MCL 338.1079], here,

exactly the opposite appears to be the case. Plaintiffs’ complaint alleges that: “At the time

of the seizure[s] and detention[s] . . . , none of [Defendant’s] security guards were

authorized to make misdemeanor arrests. . . .”

If Defendant’s security personnel had in fact been licensed pursuant to [MCL 338.1079],

they would have had misdemeanor arrest authority at the time that they seized and

detained Plaintiffs. Hence, Plaintiffs’ allegation that Defendant’s security personnel

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

lacked such authority is by implication an assertion that Defendant’s security personnel

were not licensed under [MCL 338.1079]. Moreover, at oral argument, Plaintiffs were

asked to point the Court to any information in the record that suggested that Defendant’s

security personnel were licensed pursuant to [MCL 338.1079] at the time of Plaintiffs’

arrests, and Plaintiffs could point to no such information. Plaintiffs have therefore

not carried their burden of demonstrating that any of Defendant’s security guards

were licensed under [MCL 338.1079], and we must proceed under the assumption

that all of Defendant’s security personnel who interfaced with Plaintiffs were not so

licensed.

The fact that Defendant’s security personnel were not licensed in this case means that,

under the facts of this case, Defendant’s conduct in detaining Plaintiffs was not “fairly

attributable to the state.” . . .

* * *

This analysis [inRomanski ] demonstrates that the fact thatMichigan delegated a part of the

police power to licensed private security guards, which it had traditionally and exclusively

reserved for itself, was the key fact that justified finding state action in Romanski . Although

the police power that Michigan bestowed upon licensed security guards pursuant to [MCL

338.1080] was limited in certain respects, the plaintiff in Romanski could point to an

identifiable police power-the power of arrest-which was not possessed by the citizens of

Michigan at large, but instead resided only in the state, its agents, and those persons who the

state empowered and regulated by statute. By contrast, Plaintiffs here cannot point to any

powers above and beyond those possessed by ordinary citizens that the state ofMichigan had

delegated to Defendant’s unlicensed security personnel at the time of Plaintiffs’ arrests. The

instant case is thus squarely within the rule of Chapman, where this Court held that a

merchant exercising the “shopkeeper’s privilege” was not a state actor under the public

function test. [Chapman, supra at 834]. Because Plaintiffs cannot demonstrate that

Defendant’s security personnel were licensed under [MCL 338.1079], they cannot show that

Defendant engaged in action attributable to the state. Plaintiffs therefore cannot

demonstrate that Defendant deprived them of their rights secured by the Constitution by

acting under color of state law, and their } 1983 claim must fail. [Lindsey, supra at 829-831 (emphasis added; some citations omitted).]

After reviewing the record in this case, we find that it falls squarely within the facts and legal

analysis presented in Romanski, which properly concluded as a matter of law that the state-

licensed private security officers involved in the casino detention acted under color of state

law. Here, the parties do not dispute that at the time of plaintiff’s detention on September 14,

2002, Martinez, security manager Chenine McDowell, and Grzadzinski had obtained

certification pursuant to MCL 338.1079. During trial, Martinez, McDowell, and Grzadzinski

elaborated on the training they had received, under the tutelage of a Detroit police officer

and through the Michigan State Police, to obtain their statutory certifications, which they

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

understood to invest them with the authority to make certain arrests inside the casino. Because

the record indisputably establishes that Martinez and others involved in plaintiff’s detention on

September 14, 2002, primarily Grzadzinski and McDowell, had obtained state licensure

pursuant to MCL 338.1079, and, consequently, pursuant to MCL 338.1080, Martinez,

Grzadzinski, and McDowell all possessed the power to arrest plaintiff on casino premises for

his alleged assault (“a part of the police power” that the state “had traditionally and

exclusively reserved for itself,” Lindsey, supra at 831, citing Romanski, supra at 637), and

Martinez, Grzadzinski, and McDowell arranged for plaintiff to be held within the casino’s

security detention room on the basis of this statutory authority, we conclude that the trial

court correctly ruled as a matter of law that defendant, through Martinez, Grzadzinski, and

McDowell, acted under color of state law for purposes of } 1983. We stress that ours is decidedly a fact-specific holding, in accordance with the United States

Supreme Court’s observations in Lugar, supra at 939, that the state-action inquiry is

“necessarily fact-bound,” and that a court’s approach to the inquiry must be closely tailored to

the evidence before it. We further emphasize that our holding is entirely inconsistent with the

notions that licensed, private security guards are always state-actors, or that the mere

performance of a task specifically authorized by a state statute confers state actor status.

Contrary to the dissent’s hyperbolic and dire prophesy, Michigan’s day-care providers,

plumbers, barbers, beauticians, electricians, and cab drivers need not fear an onslaught of

litigation triggered by our ruling today. Those licensed professionals obviously do not qualify as

state actors because they do not exercise powers “traditionally exclusively reserved to the

State.” Jackson, supra at 352. No portion of our opinion conflicts with the oft-repeated

principle, first articulated in Jackson, that “[t]he mere fact that a business is subject to state

regulation does not by itself convert its action into that of the State for purposes of the

Fourteenth Amendment.” Id. at 350.

In the instant case, the casino’s employees arrested and detained a casino customer because

they suspected that he had committed an assault and battery. Those employees’ ability to

arrest plaintiff derived solely from their special state licensure. Officers of the Detroit Police

Department expressly approved the casino employees’ actions. These facts conclusively

demonstrate that the casino’s employees exercised powers “traditionally exclusively reserved

to the state,” and did so with the encouragement and approbation of the state itself.

Indeed, the record of state action here far exceeds the state action involved in Romanski.

Here, licensed security guards effectuated an arrest to investigate a violent crime, while Mrs.

Romanski’s detention arose from a suspected larceny. The power to arrest and detain a

larcenous customer does not rest exclusively with the state of Michigan, but resides in all

Michigan security guards by virtue of MCL 338.1079(2). Furthermore, the city police officers

here watched and helped direct the security personnel’s decision to take plaintiff into custody,

while the security personnel in Romanski acted in the absence of any police presence. We

therefore reject as completely unfounded the dissent’s suggestion that our decision

unreasonably expands state-action concepts.

Although defendant urges that we reject Romanski as a nonbinding intermediate federal

appellate court decision, this Court plainly may adopt as persuasive a “lower federal court

decision” involving federal law. Abela v General Motors Corp, 469 Mich 603, 607; 677 NW2d 325

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

(2004). Furthermore, as noted, we view the similar relevant facts and applicable legal analysis in

Romanski as persuasive in this case, and defendant has not identified, and we have not located,

any United States Supreme Court decision casting doubt on the state-actor conclusion in

Romanski. The Supreme Court declined to consider the holding in Romanski, denying certiorari

at 549 U.S. 946; 127 S Ct 209; 166 L Ed 2d 257 (2006).

We additionally note that the United States Supreme Court has provided a succinct principle

to aid in the analysis of the state-action requirement in } 1983 cases, which we view as instructive to our state-action conclusion in this case. “[I]n the usual case we ask whether the

State provided a mantle of authority that enhanced the power of the harm-causing

individual actor.” Nat’l Collegiate Athletic Ass’n v Tarkanian, 488 U.S. 179, 192; 109 S Ct 454;

102 L Ed 2d 469 (1988). The instant record establishes indisputably that plaintiff’s detention

within the locked casino security room commenced immediately after a combined force

of Detroit police officers and casino security personnel confronted plaintiff, his attorney,

and his other companions as they attempted to leave the casino grounds. Both Grzadzinski

and Richard Novak testified that the Detroit police officers authorized, and indeed

encouraged, defendant’s security personnel to seize plaintiff and escort him back to the

casino. This evidence strongly supports our conclusion that the state “provided a mantle

of authority” that constrained plaintiff to subject himself to detention by defendant.

[T]o act “under color of” state law for } 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with

the State or its agents. Private persons, jointly engaged with state officials in the

challenged action, are acting “under color” of law for purposes of } 1983 actions. [Dennis v Sparks, 449 U.S. 24, 27-28; 101 S Ct 183; 66 L Ed 2d 185 (1980).]

In Chapman, supra, at 835, the Sixth Circuit, sitting en banc, concluded that a customer’s

detention by a store security guard could qualify as an act “that may fairly be attributed to

the state.” The security guard, an off-duty, armed, uniformed sheriff’s deputy, initiated a strip

search of the customer, and store policy mandated “police intervention in strip search

situations . . ..” Id. at 835. Utilizing the “symbiotic or nexus test,” the Sixth Circuit held that a

genuine issue of material fact existed “as to whether the security officer acted under ‘color of

state law’“ when he initiated the search. Id. at 834-835. The Sixth Circuit explained that a } 1983 claimant could satisfy the symbiotic or nexus test by demonstrating “that there is a

sufficiently close nexus between the government and the private party’s conduct so that the

conduct may be fairly attributed to the state itself.” Chapman, supra at 834.

The testimony in the instant case established not only a close working relationship between

defendant’s security personnel and the Detroit police officers posted near the casino, but a joint

and cooperative effort to detain plaintiff either in a city jail cell or its casino equivalent. We

therefore hold, in conformity with the Chapman majority, that defendants’ joint engagement

with the Detroit police in the arrest and detention of plaintiff also satisfies the symbiotic

relationship or nexus test of action “under color of state law.”

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

In response to defendant’s protestation on appeal that in the trial court plaintiff never

proposed the symbiotic relationship or nexus test as a potential basis for finding state

action, we observe that we have the authority to consider this question of law for the first

time on appeal because all facts necessary for its resolution appear in the existing record.

Royce v Chatwell Club Apartments, 276 Mich App 389, 399; 740 NW2d 547 (2007),

application for leave to appeal held in abeyance 743 NW2d 213 (2008).

We do not find persuasive defendant’s suggestion that the “private detention” of plaintiff

could not constitute state action. According to this argument, defendant’s employees’

“conduct in detaining, processing and eventually 86’ing Plaintiff, constituted, at most, an

‘arrest’ for purposes of state civil liability,” and the jury’s rejection of plaintiff’s false arrest

claim eliminated defendant’s “state action” liability. In our view, this distinction lacks a

meaningful difference, particularly under the circumstances presented here. Defendant’s

security personnel restrained plaintiff’s freedom of movement because they believed he

assaulted and battered Martinez. Defendant’s employees’ entitlement to detain plaintiff-either

momentarily or for two hours and 15 minutes-derived directly from their state licensure. Their

conduct, therefore, qualified as state action, and deprived plaintiff of a right “secured by the

Constitution.” See Davis v Mississippi, 394 U.S. 721, 726-727; 89 S Ct 1394; 22 L Ed 2d 676

(1969), in which the United States Supreme Court observed that “the Fourth Amendment was

meant to prevent wholesale intrusions upon the personal security of our citizenry, whether

these intrusions be termed ‘arrests’ or ‘investigatory detentions,’“ and Dunaway v New York,

442 U.S. 200, 216; 99 S Ct 2248; 60 L Ed 2d 824 (1979) (observing that “detention for custodial

interrogation-regardless of its label-intrudes so severely on interests protected by the Fourth

Amendment as necessarily to trigger the traditional safeguards against illegal arrest”).

The trial testimony here shows that when plaintiff and his companions were surrounded by

casino security personnel and Detroit police officers, Grzadzinski offered plaintiff two choices,

go with the police or return to the casino security office to discuss the matter; at no time was

plaintiff advised he could simply continue his departure from casino property. Although

plaintiff’s testimony suggested that he returned to the casino voluntarily, other trial testimony

shows that after Grzadzinski escorted plaintiff to the casino detention room, plaintiff remained

there against his will for more than two hours. Under these circumstances, the jury reasonably

could have found a violation of } 1983. The dissent also asserts that “[t]he security guards never exercised any power to arrest,” and

points to the jury’s verdict that “no false arrest occurred in this case.” [Citation omitted]

Although defendants did not falsely arrest plaintiff, the evidence demonstrates that he was

detained, placed into custody, and thereafter subjected to the will of defendant’s security

personnel. In People v Gonzales, 356 Mich 247, 253; 97 NW2d 16 (1959), our Supreme Court

adopted the following definition of “arrest”:

An arrest is the taking, seizing, or detaining of the person of another, either by touching or

putting hands on him, or by any act which indicates an intention to take him into custody

and subjects the person arrested to the actual control and will of the person making the

arrest. The act relied upon as constituting an arrest must have been performed with the

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

intent to effect an arrest and must have been so understood by the party arrest. [Internal

quotation marks and citation omitted.]

The jury’s rejection of plaintiff’s false-arrest claim does not alter the fact that defendant’s

security officers restricted plaintiff’s freedom of movement during the two hours and 15

minutes of his detention, and did so on the basis of the authority provided by MCL 338.1080

to the security officers. The dissent has identified no basis other than MCL 338.1080 that

would have permitted plaintiff’s arrest and detention, and we are unaware of any. The

licensing statute provided the mantel of authority for defendant’s security personnel, and

imbued them with virtually the same powers as the Detroit police officers who explicitly

approved defendants’ decision to escort plaintiff back to the casino.

We also find unpersuasive defendant’s related suggestion that no state action existed here

because, although several of its officers had certification under MCL 338.1079 and the authority

to arrest pursuant to MCL 338.1080, they routinely did not employ their authority to arrest

casino patrons. We agree with the following portion of Romanski, in which the Sixth Circuit

rejected this precise contention:

Finally, we address Defendants’ repeated representation that, although empowered to

make arrests under [MCL 338.1080], Brown and the other casino employees licensed under

the statute are, as a matter of casino policy, not permitted to exercise this statutory

authority to effectuate arrests. For this argument Defendants again rely on Wade, in which

the very document that was the source of the defendant’s police-type powers, his contract

with the public housing authority, at the same time imposed profound limits on those

powers. SeeWade, [supra at 905-906]. Here the source of Brown’s power to make arrests is

a statute that includes no qualitative limits on that power, so Wade is inapplicable.

Defendants do not cite a case in which a private security officer licensed to make arrests as

under [ MCL 338.1080] was held not to be a state actor on the ground that the officer’s

employer substantially circumscribed the arrest power conferred on the officer by having

been licensed. [Romanski, supra at 639-640.]

We additionally reject that Grand Rapids v Impens, 414 Mich 667; 327 NW2d 278 (1982), on

which defendant and the dissent rely heavily, controls the state- actor analysis in this case. In

Impens, the Michigan Supreme Court considered “whether a signed statement procured by

private security guards, one of whom was an off-duty deputy sheriff, may be admitted into

evidence against a defendant even though no Miranda warnings were given.” Id. at 670

(citation omitted). The Supreme Court surveyed several decisions holding “that private security

guards who receive direct assistance from public police officers or who work in close

connection with the police may be acting under color of state law, subject to constitutional

restrictions.” Id. at 674. The Supreme Court concluded, in relevant part, as follows:

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

We do not believe that the activities of the store security guards and the city police in this

case demonstrated the coordinated effort necessary to constitute state action. The Meijer

security personnel were working with the view of furthering their employer’s interest only;

they were not acting as police agents. Their role may be viewed as an extension of the

common-law shopkeepers’ privilege to detain for a reasonable period of time a person

suspected of theft or failure to pay. There was no complicity with the police department or

any indication that their acts were instigated or motivated by the police.

* * *

Defendant also contends that Meijer security personnel qualified as law enforcement

officers because state action has granted them greater authority than that possessed by

private citizens. . . . [D]efendant believes that the licensing statutes which regulate private

security guards demonstrate the requisite degree of state action to bring their activities

under color of state law, subject to constitutional restraints. See MCL 338.1051 et seq. . . . . .

We disagree. We do not believe that the mere licensing of security guards constitutes

sufficient government involvement to require the giving of Miranda warnings. . . .

* * *

Our statute specifically states that “private security police employed for the purpose

for guarding the property and employees of their employer and generally maintaining

plant security for their employer” need not be licensed. MCL 338.1079. . .. This language

speaks to the exact function performed by Meijer’s security personnel. We do not believe

that qualification for such licensing exclusion equates the actions of private security

guards with those of law enforcement officers. [Impens, supra at 675-677 (citation

omitted).]

The Supreme Court did not elaborate regarding whether the defendant security officers had

obtained state licensing, thus investing them with the authority to make arrests pursuant to

MCL 338.1080. The Supreme Court made no reference whatsoever to MCL 338.1080.

As reflected in the following portion of Romanski, which we also find persuasive, the Sixth

Circuit likewise considered the effect of the Michigan Supreme Court’s decision in Impens on

the question of state action in the context of a } 1983 action:

The dissent’s repeated reliance on City of Grand Rapids v. Impens . . .is misplaced. There,

private security officers suspected the defendant and two others of shoplifting. Id. at 279.

The officers asked the three individuals to come to the security office. Id . The officers

searched the three and found merchandise on one of the other individuals. Id. The officers

then elicited information from the defendant to complete a “Loss Prevention

Department Voluntary Statement.” Id. The officers read the statement to the defendant

and asked the defendant to sign it, which he did. Id. “There was no indication that

defendant would not be released if the statement were not signed.” Id. Prior to his trial, the

defendant moved to suppress the signed statement, arguing that it was obtained in

violation of Miranda. Id. The Michigan Court held that the private security officers

were not required to give Miranda warnings. Id. at 282.

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

One obvious distinction between the instant case and Impens is that Impens did not

involve an arrest in any form. There, the defendant was not held against his will. He was

asked to go to the security office; he was asked to sign a form. There was no indication of

arrest.

The key distinction, however, is that the security officers did not exercise power

exclusively reserved to the states. The contested conduct was the security officers’

elicitation of the defendant’s statements. Simply put, asking questions in a non-custodial

setting is a power not within the exclusive province of the state. [Romanski, supra at 638 n

2 (some emphasis added).]

The dissent asserts that Impens should control the outcome of this case because it held that

“the simple fact of licensure would not transform a private security guard into a state actor.”

Post at . As we have emphasized, however, “the simple fact of licensure” did not “transform”

defendant’s security guards into state actors. Rather, their licensure triggered the security

guards’ exercise of a power traditionally and exclusively reserved to the state. And unlike the

security guards in Impens, defendant’s security personnel here employed a “coordinated effort”

with police officers, thus unquestionably acting as “police agents.” These distinctions are not

“immaterial,” as the dissent claims, but central to the Impens decision, at least according to the

justices who wrote and joined that opinion.

We conclude that, irrespective of whether the trial court may have employed incorrect

logic, the court correctly distinguished Impens from the instant case. Coates v Bastian Bros,

Inc, 276 Mich App 498, 508-509; 741 NW2d 539 (2007) (observing that this Court “will not

reverse if the right result is reached, albeit for the wrong reason”).

Defendant alternatively maintains that the trial court should have ordered a new trial, in light

of the defective jury instructions concerning plaintiff’s } 1983 claim. This Court reviews for an abuse of discretion a trial court’s ultimate decision whether to grant a new trial, but considers

“de novo any questions of law that arise.” Kelly v Builders Square, Inc, 465 Mich 29, 34; 632

NW2d 912 (2001).

This Court reviews claims of instructional error de novo. MCR 2.516(D)(2) states that the

trial court must give a jury instruction if a party requests such instruction and it is

applicable to the case. We review for abuse of discretion the trial court’s determination

whether a standard jury instruction is applicable and accurate. The trial court’s jury

instructions must include all the elements of the plaintiffs’ claims and should not omit

any material issues, defenses, or theories of the parties that the evidence supports. . .. If, on

balance, the theories of the parties and the applicable law are adequately and fairly

presented to the jury, no error requiring reversal occurs. Reversal based on instructional

error is only required where the failure to reverse would be inconsistent with substantial

justice. MCR 2.613(A) . . . . [Lewis v LeGrow, 258 Mich App 175, 211-212; 670 NW2d

675 (2003).]

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

1 Defendant first complains that the trial court erred by failing to explain to the jury that

the casino could only face vicarious liability for any constitutional violation by its

employees “pursuant to a custom, policy or practice of th[e] employer.” (Defendant’s brief,

p 33.) Before instructing the jury, the trial court agreed, over plaintiff’s objection, to instruct

the jury regarding the concept of respondeat superior. But when instructing the jury, the

trial court failed to incorporate any reference to vicarious liability. After the jury retired to

deliberate, defense counsel apprised the trial court that it had “omitted instructing on

private security officer, MCL 338 [.1079].” Plaintiff’s counsel replied that he had no

objection to the private-security-officer instruction, and the following exchange then occurred:

The Court: Alright, I’ll give it. Anything else?

Defense Counsel: No, we’ve been through it all.

The jury returned and received instruction with respect to the authority of private security

officers, after which the parties again discussed the propriety of the instructions:

The Court: Gentlemen, are the, is the Plaintiff satisfied with the instructions and form of

the verdict?

Plaintiff’s Counsel: Your Honor, other than the previously positions [sic], yes your Honor.

The Court: And the Defendant.

Defense Counsel: Ditto.

The above-quoted exchanges reflect defendant’s forfeiture (“No, we’ve been through it all”)

and waiver of a vicarious-liability-instruction objection, because defense counsel ultimately

and affirmatively expressed satisfaction with the instructions to the jury. Defendant’s expression

of satisfaction with the instructions, which omitted the vicarious-liability instruction,

constitutes a waiver that extinguishes any error concerning vicarious liability. Grant v AAA

Michigan/ Wisconsin, Inc (On Remand), 272 Mich App 142, 148; 724 NW2d 498 (2006).

2 Defendant next maintains that the trial court insufficiently defined for the jury the

parameters of a Fourth Amendment violation, but we once again conclude that defendant

waived any claim of error. After the jury began deliberating, it requested clarification regarding

the Fourth Amendment, prompting the following exchange:

The Court: And then they say re-read Fourth Amendment, Fourteenth Amendment

parameters. Well technically it’s not in evidence. What I propose to do is just tell them

what the Fourth Amendment is, that citizens of the United States shall be protected

against unlawful searches and seizures. And the Fourteenth Amendment applies that to

Michigan. Any objections?

Plaintiff’s Counsel: No your Honor.

Defense Counsel: I do your Honor. I think you’ve read the illegal search and seizure

instruction. And I think to instruct them in something different at this point may even

cause greater confusion.

The Court: Well shall I simply-

Plaintiff’s Counsel: Reread that instruction.

The Court: Reread that instruction[?]

Defense Counsel: Yes, I think that’s the way it should be done.

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

The trial court proceeded to reiterate to the jury the two constitutional elements of } 1983, but did not include the detailed paragraph regarding probable cause that initially had

followed the } 1983 elements. Nonetheless, when the trial court inquired whether “[d]efendant [was] satisfied,” his counsel affirmatively replied, “Yes your Honor.” To the extent that the trial

court’s reinstruction-at defense counsel’s request-qualified as erroneous, defense counsel’s

affirmative expression of satisfaction with the trial court’s charge extinguished any error. Grant,

supra at 148.

Ladies and gentlemen, I’m now going to begin a series of instructions on . . . . unlawful

search. Under the Constitution of the United States, that is the Fourth Amendment, every

person has the right not to be subjected to unreasonable searches and seizures. In order to

prove this claim, Plaintiff must prove by a preponderance of evidence each of the following

elements. First, the Defendant intentionally violated Plaintiff ’s constitutional right by

conducting an unreasonable search and seizure. Second, that the Defendant’s acts were the

proximate cause of damages sustained by the Plaintiff.

Additional instructions. . . .

It is also a statement of our law that any person who assaults or assaults and batters an

individual shall be guilty of a misdemeanor. This is the definition of probable cause. If an

arrest is lawful when made, there has not been a false arrest or false imprisonment.

Instead, claims of false arrest and false imprisonment require Plaintiff prove that the

arrest or detention lacked probable cause. Probable cause that a particular person has

committed a crime is established by a reasonable ground of suspicion supported by

circumstances sufficiently strong in themselves to warrant the cautious person in the belief

that the accused is guilty of the offense. If you find the Defendants had probable cause to

believe that Plaintiff committed an assault on the Motor City Casino security officer, then

you decide, you must decide that Motor City Casino personnel were entitled to detain

Plaintiff.

After reviewing these instructions in their entirety, we conclude that they adequately

describe the legal principles governing a determination whether defendants unlawfully

searched or seized plaintiff, in violation of the Fourth Amendment. Lewis, supra at

211-212.

III. CHALLENGES TO PUNITIVE-DAMAGES AWARD

Defendant next contends that the trial court should have granted a new trial on the issue

of }1983 punitive damages because the jury’s award was inconsistent with its rejection of plaintiff’s counts alleging false arrest, assault and battery, and intentional infliction of

emotional distress, and with plaintiff’s request for exemplary damages.

Our review of the record leads us to conclude, however, that the entirety of the jury’s special

verdict comports with the trial evidence and the trial court’s careful and extended delineation

of the distinctions between, and components of, compensatory damages, exemplary damages,

and punitive damages. As this Court has observed, “The Michigan Supreme Court has

repeatedly held that the jury’s verdict must be upheld, even [if] it is arguably inconsistent, if

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

there is an interpretation of the evidence that provides a logical explanation for the findings of

the jury.” Allard v State Farm Ins Co, 271 Mich App 394, 407; 722 NW2d 268 (2006) (internal

quotation marks omitted). Furthermore, a reviewing court must make “every attempt . . .to

harmonize a jury’s verdicts. Only where verdicts are so logically and legally inconsistent that

they cannot be reconciled will they be set aside.” Id. (internal quotation marks omitted).

The jury’s finding that defendants unlawfully detained plaintiff (special verdict question 1),

its somewhat similar finding that defendants falsely imprisoned plaintiff (special verdict

question 3), coupled with its rejections of plaintiff’s other proffered tort claims, namely false

arrest, assault and battery, and intentional infliction of emotional distress (special verdict

questions 2, 4, and 5), suggest that the jury viewed defendants’ initial arrest or seizure of

plaintiff and the placement of plaintiff in the casino’s security office as premised on probable

cause that plaintiff may have unlawfully touched Martinez, but concluded that defendants

eventually detained plaintiff against his will, or extended the seizure’s duration for too long. The

jury’s special verdicts 1 through 5 find support in the evidence and appear to be at a minimum

reasonably consistent.

Regarding defendant’s specific challenge to the jury’s awards of damages, in special verdict

question 6 the jury found that defendant had caused plaintiff $ 125,000 in “non-economic

loss compensatory damages,” which the trial court explained should “fairly and adequately

compensate[] him” “for mental anguish, fright and shock and embarrassment.” The jury then

rejected the claim that plaintiff would sustain future compensatory damages. (Special verdict

question 7.) In special verdict question 8, the jury considered and rejected the claim that

plaintiff had endured exemplary damages, which the trial court defined as “injury to Plaintiff’s

feelings,” in this case “humiliation, outrage or indignity.” Lastly, the jury found that defendants

had violated “plaintiff’s right to be free from unreasonable searches and seizures under the [f]

ourth and [f]ourteenth [a]mendments to the U.S. Constitution” (special verdict question 9), and

awarded plaintiff $ 400,000 in punitive damages (special verdict question 10), which the trial

court described as an amount “appropriate to punish the Defendants or to deter the

Defendants and others from like conduct in the future.”

In summary, we fail to detect any manner by which the jury rendered an inconsistent verdict

regarding defendant’s liability or plaintiff’s entitlement to the three distinct types of damages he

sought. Allard, supra at 407.

IV. CHALLENGES TO FALSE-IMPRISONMENT SPECIAL VERDICT

Defendant additionally asserts that the trial court erred by denying its motion for a directed

verdict with respect to plaintiff’s false-imprisonment count because Grzadzinski indisputably

had probable cause to detain plaintiff. The trial testimony plainly reflects that plaintiff and the

several members of his group offered recollections of the September 14, 2002, confrontation

that differed markedly from the testimony of Martinez, Grzadzinski, McDowell, and Jeanne

Snyder, plaintiff’s former fiancee, regarding the important issues whether (1) plaintiff made

nonchalant arm gestures, (2) plaintiff might have been close to or distant from Martinez at the

time plaintiff gestured, and (3) plaintiff intentionally poked, punched, struck, or otherwise

touched Martinez’s chest. Given the widely contradictory testimony offered in these areas,

which were central to a determination whether defendant possessed probable cause through its

security personnel to arrest or detain plaintiff, it was the jury’s prerogative to resolve this issue

430 PRIVATE SECURITY AND THE LAW

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

of fact, including the inherent credibility questions. Zeeland Farm Serv’s, supra at 195; Hunt,

supra at 99. Consequently, the trial court properly denied a directed verdict on plaintiff’s

false-imprisonment count.

Alternatively, defendant suggests that the trial court should have granted a new trial because

it inadequately explained to the jury the elements of false imprisonment, and that the

instructions given did not support the jury’s rejection of the false-arrest claim while finding

liability for false imprisonment. The trial court read to the jury four paragraphs of instructions

differentiating the elements of false arrest from false imprisonment. As defendant

acknowledges, these instructions very closely tracked Michigan Model Civil Jury Instructions

116.01 (“False Arrest-Definition”), 116.02 (“False Imprisonment-Definition”), 116.20 (“False

Arrest-Burden of Proof”), and 116.21 (“False Imprisonment-Burden of Proof”). Defendant also

concedes that within the next two to four paragraphs, the trial court fleshed out, in the context

of plaintiff’s } 1983 claim, the concept of probable cause necessary to render a search or seizure reasonable and lawful.

We conclude that, taken as a whole, the trial court’s extended and indisputably accurate

recitation of the relevant legal principles regarding false arrest, false imprisonment, and

probable cause fully and fairly set forth for the jury the elements of false arrest and false

imprisonment. Lewis, supra at 211-212. And as discussed in part III of this opinion, applying

the false-arrest and false-imprisonment instructions to the facts of this case demonstrates that

the jury likely, and reasonably, viewed the casino’s initial detention of plaintiff in its security

area as supported by probable cause that he assaulted Martinez, but deemed plaintiff’s more

than two-hour detention locked in the casino’s security office as unsupported by any legal

basis, and therefore amounting to false imprisonment.

V. REMITTITUR REQUEST CONCERNING NONECONOMIC-DAMAGES AWARD

Defendant lastly complains that the trial court should have remitted the jury’s award

of $ 125,000 in compensatory damages, which lacked support in the trial evidence,

especially given that the jury rejected that defendants had intentionally inflicted emotional

distress.

In determining whether remittitur is appropriate, a trial court must decide whether

the jury award was supported by the evidence. This determination must be based on

objective criteria relating to the actual conduct of the trial or the evidence presented.

The power of remittitur should be exercised with restraint. If the award for economic

damages falls reasonably within the range of the evidence and within the limits of what

reasonable minds would deem just compensation, the jury award should not be

disturbed. A trial court’s decision regarding remittitur is reviewed for an abuse of

discretion. We review all of the evidence in the light most favorable to the nonmoving

party. [Silberstein v Pro-Golf of America, Inc, 278 Mich. App. 446, 462; 750 N.W.2d 615

(2008) (citations omitted).]

Plaintiff testified that he endured extreme embarrassment on multiple occasions because

of defendants’ detention of him for more than two hours on September 14, 2002, their

decision to eject and ban him from the casino, and Martinez’s pursuit of criminal assault and

battery charges against him. Specifically, plaintiff averred that on a daily basis he experienced

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

extreme feelings of upset and embarrassment because of (1) the casino’s treatment of him on

September 14, 2002; (2) his May 2003 Metro Airport arrest on an outstanding assault and

battery warrant while attempting to pick up his girlfriend; (3) his September 2003 appearance

in the 36th District Court for a scheduled criminal trial; (4) his 2005 discovery of the

existence of more arrest warrants stemming from September 14, 2002; (5) the 2005 jury trial for

assault and battery that ultimately ended in his acquittal, and (6) his testimony in the instant

civil case. Although plaintiff did not substantiate that he experienced any significant change in

the course of his daily activities, his testimony that defendants’ conduct caused him extreme

upset and embarrassment on multiple occasions, especially when viewed in the light most

favorable to plaintiff, amply supports the jury’s award of $ 125,000 in noneconomic

compensatory damages.

Affirmed.

Borrello, J., concurred.

/s/ Elizabeth L. Gleicher

/s/ Stephen L. Borrello

DISSENT BY: Peter D. O’Connell

DISSENT

O’CONNELL, P.J. (dissenting).

I respectfully dissent. In my opinion, the trial court erred when it failed to grant defendant’s

motion for directed verdict regarding plaintiff’s 42 USCS } 1983 claim because private security guards are not state actors. The trial court also erred by adopting federal precedent as

persuasive and rejecting the Michigan Supreme Court’s reasoning in Grand Rapids v Impens,

414 Mich 667, 670; 327 NW2d 278 (1982). I would reverse the decision of the trial court.

In order to maintain an action under } 1983, a plaintiff is required to establish that he or she was “deprived of a right secured by the Constitution or laws of the United States” and that the

defendant was a “state actor,” i.e. acting under color of state law at the relevant time. Am Mfrs

Mut Ins Co v Sullivan, 526 U.S. 40, 49; 119 S Ct 977; 143 L Ed 2d 130 (1999). “[M]erely private

conduct, no matter how discriminatory or wrongful” will not support a } 1983 claim. Id. at 50 (internal quotation marks and citations omitted). The plaintiff bears the burden to show state

action because it is an element of the claim. Brentwood Academy v Tenn Secondary School

Athletic Ass’n, 531 U.S. 288, 308-309; 121 S Ct 924; 148 L Ed 2d 807 (2001). Accordingly, in order

for plaintiff to maintain his } 1983 claim, he was required to establish that the casino’s private security officers were state actors.

The trial court held as a matter of law that the casino’s private security guards were acting

under color of state law by virtue of the fact that they were certified under MCL 338.1079,

relying on Romanski v Detroit Entertainment, LLC, 428 F3d 629, 636 (CA 6, 2005). “Although

state courts are bound by the decisions of the United States Supreme Court construing federal

law, there is no similar obligation with respect to decisions of the lower federal courts.” Abela v

Gen Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004) (citations omitted). On the other

hand, Michigan Supreme Court cases on point are binding on lower courts, regardless of

whether the lower courts agree with the decision. Detroit v Vavro, 177 Mich App 682, 685; 442

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

NW2d 730 (1989). In my opinion, it is clear that the trial court erred by not following the

Michigan Supreme Court decision in Impens, because the logic behind the decision is

controlling and dispositive of the issue.

In Impens, our Supreme Court impliedly determined that private security guards are not

state actors simply because they are certified under MCL 338.1079. Indeed, at least one

federal district court recognized this fact:

Plaintiff here has not identified any state or local legislation that confers broad police

powers upon security personnel. In fact, Michigan’s security guard licensing statute limits

the powers of security guards. Pursuant to the statute, upon obtaining a license, a private

security officer is granted “the authority to arrest a person without a warrant” to the same

extent possessed by public police officers, but only when this officer “is on the employer’s

premises.” Mich. Comp. Laws } 338.1080. This authority is further limited to the security guard’s “hours of employment as a private security police officer and does not extend

beyond the boundaries of the property of the employer.” Mich. Comp. Laws } 338.1080. The limited powers conferred under this statute do not convert private security guards

into state actors. This has been confirmed by the definitive arbiter of the proper meaning

of this statute, the Michigan Supreme Court. . . .

[In Impens, t]he Michigan Supreme Court held that the defendant had not identified

any state action that would trigger the requirement of Miranda warnings. In so ruling, the

Court specifically rejected the defendant’s contention that “the licensing statutes which

regulate private security guards demonstrate the requisite degree of state action to bring

their activities under color of state law, subject to constitutional restraints.” 327 N.W.2d at

281. Instead, the Court concluded that “we do not believe that the mere licensing of

security guards constitutes sufficient government involvement to require the giving of

Miranda warnings.” 327 N.W.2d at 281. This Court, of course, is bound by the views of

Michigan’s highest court as to the extent of authority conferred under the Michigan

security guard licensing statute. [Smith v Detroit Entertainment, LLC, 338 F Supp 2d

775,780-781 (ED Mich, 2004) (emphasis added).]

In my opinion, this is the better analysis, because it recognizes the implications of the

logic behind Impens and gives the ruling of our state’s highest court the deference the law

requires. It is this case, and not Romanski, on which the trial court should have relied.

The majority attempts to avoid the application of Impens with immaterial distinctions.

Specifically, the majority notes that our Supreme Court did not determine whether the

security officers in the Impens case had been licensed and that the opinion made no reference

MCL 338.1080. A review of the opinion indicates that it was unnecessary for the Impens Court

to determine whether the security officers were licensed. The Court “[did] not believe that the

mere licensing of security guards constitutes sufficient government involvement to require the

giving of Miranda warnings.” Id. at 676. Accordingly, it was unnecessary for the Court to

determine, or even mention, whether the security guards were licensed because the simple fact

of licensure would not transform a private security guard into a state actor.

Similarly, the Court’s failure to reference MCL 338.1080 does not render Impens inapposite.

MCL 338.1080 provides for a limited power of arrest to those security guards licensed under

(Continued)

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DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

MCL 338.1079. Because the power to arrest under MCL 338.1080 is conferred solely by licensure

under MCL 338.1079, if licensure alone does not constitute state action, then acknowledgment

that licensure confers an arrest power is similarly insufficient. Importantly, in the instant case,

plaintiff was not arrested, but voluntarily went with the security officers back to the casino’s

security office. The security guards never exercised any power to arrest. Accordingly, it must be

simply the existence of this limited power of arrest pursuant to MCL 338.1080 that gave the

security officers in the present case a police power traditionally and exclusively reserved to the

state. Such a conclusion broadly confers “state actor” status to all security guards who are

licensed under MCL 338.1080 and is at odds with Impens.

One of the men who aided in the apprehension in Impens was an off-duty deputy sheriff.

The Court held that his presence did not constitute “color of law,” in part because he was

off-duty and identified himself as a store employee. Impens, supra at 677. If the mere existence

of arrest authority under MCL 338.1080 were sufficient to confer “state actor” status, there

would be no logical basis for our Supreme Court’s holding that the off-duty deputy sheriff in

Impens was not acting under color of law, because even off-duty, he still had the power to

arrest. The holding of the United States Court of Appeals for the Sixth Circuit, sitting en banc, in

Chapman v The Higbee Co, 319 F3d 825 (CA 6, 2003), is similarly irreconcilable with the

majority’s broad conclusion. The security guard in Chapman was “an off-duty sheriff’s deputy,

wearing his official sheriff’s department uniform, badge, and sidearm.” Id. at 834. As a police

officer, the security guard possessed plenary police power. Yet the Chapman court did not

conclude that mere possession of that authority resulted in state action. Instead, it examined

the specific actions taken by the security officer, which included a strip search, and noted that

store policy mandated police involvement for such an action. Id. at 834-835. If the security

guards in Impens and Chapman were not state actors, despite having been licensed by the state

as police officers with full arrest powers, it is clear that licensure under MCL 338.1079 alone

cannot transform the casino’s private security guards into state actors in the present case.

The majority argues that because the security guards were licensed under MCL 338.1079,

they had the power to arrest plaintiff pursuant to MCL 338.1080, and that because plaintiff

was held in a room on the basis of this authority, the security guards acted under color of state

law. Application of such reasoning to other Michigan statutes would result in absurd and

unintended outcomes that would destroy the “state actor” requirement of } 1983 altogether. Under MCL 764.16, private persons are given the authority to make arrests under certain

situations. Every security guard who is unlicensed and, therefore, without authority under MCL

338.1080, still has the limited power given to all private persons under MCL 764.16. Having

received authority from the state to arrest, any security guard who locked someone in an office

pursuant to that authority becomes a state actor, notwithstanding all the prior case law that

finds such actions to be that of private individuals. See, e.g., Lindsey v Detroit Entertainment,

LLC, 484 F3d 824, 827-828 (CA 6, 2007). The fact that a private person has the power to arrest

does not transform the person into a state actor. Rather, it would be the exercise of that power

that would create state action. That is why the presence of state action is “fact-specific, and

. . . determined on a case-by-case basis.” Id. at 834.

It takes very little imagination to envision the havoc that would result from the application

of the majority’s holding. Whether it is the licensed day-care provider who places a four-year-

434 PRIVATE SECURITY AND THE LAW

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RAMIREZ V. FIFTH CLUB, INC. 114 S.W. 3d 574 (Tex. App. 2004)

Before Justices Kidd, Puryear and Pemberton.

OPINION BY: Mack Kidd

This case stems from an altercation at an Austin nightclub. Luis a/k/a Louis Medrano and

David A. West were employed to work as security personnel for the club. Roberto, Adolfo, and

Laura Ramirez were all allegedly assaulted by West or Medrano. Following a ten-day jury trial, a

jury found Fifth Club and West liable for injuries to Roberto but determined that West and

Medrano were not liable to Adolfo and Laura because they were functioning as peace officers

and entitled to official immunity.

Adolfo and Laura appeal, arguing West and Medrano were not entitled to official immunity

and that the district court erred in submitting a jury question on official immunity. Fifth Club

and West appeal, contesting the legal and factual sufficiency of seven jury findings favoring

Roberto. We will affirm the judgment of the district court.

BACKGROUND

Factual Background

The facts of this case were hotly contested at trial. What is undisputed is that on September 16,

2000, Roberto Ramirez and his brother, Adolfo Ramirez, attended a party to celebrate the

baptism of their cousin. After the party, around 12:30 or 1:00 a.m. on September 17, Roberto

and Adolfo arrived at Club Rodeo with some friends. Roberto and Adolfo were, at some point,

denied admission into Club Rodeo. West and Medrano, both of whom were working security in

the Club Rodeo parking lot, were signaled by the Club Rodeo doorman and proceeded to the

doorway of the club. An altercation between Roberto and West ensued, during which Roberto’s

head struck a wall, fracturing a bone in his skull. Apparently, Adolfo intervened in the

altercation between Roberto and West, causing Medrano to restrain Adolfo.

(Continued)

DOUGLAS MOORE V. DETROIT ENTERTAINMENT, L.L.C.—CONT’D

old child in “time-out” for hitting another child, or the licensed cab driver who refuses to let

a passenger leave the cab until the fare is paid, the majority would conclude that because

MCL 764.16 gives these private persons the power to arrest, they are state actors. Thousands

of everyday private actions would be distorted into state action for which plaintiffs

will seek monetary remedies from taxpayer funds and overwhelm our already

burdened courts.

Because I find Impens controlling, Romanski is inapplicable, and the trial court erred in

relying on it to deny defendant’s motion for directed verdict. The simple fact of licensure

under MCL 338.1079 cannot, does not, and should not transform private security guards into

state actors. To hold otherwise expands state action to a point that strains credulity.

I would reverse the decision of the trial court.

/s/ Peter D. O’Connell

Chapter 8 • Selected Case Readings 435

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RAMIREZ V. FIFTH CLUB, INC.—CONT’D

Eventually, West and Medrano took Roberto, who was unconscious, and Adolfo into the

parking lot and handcuffed them. Laura Ramirez, who was dropping off another brother at

Club Rodeo, soon arrived to find her brothers Roberto, who had regained consciousness, and

Adolfo lying handcuffed on the parking-lot pavement. She and West became embroiled in a

verbal altercation, and West eventually handcuffed Laura and placed her under arrest as well.

Both Medrano and an eyewitness called 911; Austin Police Department (APD) officers soon

arrived and transported Roberto, Adolfo, and Laura Ramirez to the city jail.

Trial Proceedings

Roberto sued West for assault, false imprisonment, malicious prosecution, intentional infliction

of emotional distress, negligence, and malice, and he sued Fifth Club for negligence and

respondeat superior.

Adolfo sued Medrano for assault, false imprisonment, malicious prosecution, intentional

infliction of emotional distress, negligence, and malice. He sued West for negligence and

malice, and he sued Fifth Club for negligence and respondeat superior.

Laura sued West for assault, false imprisonment, malicious prosecution, intentional

infliction of emotional distress, negligence, and malice. Laura sued Fifth Club for negligence

and respondeat superior.

West and Medrano asserted the affirmative defense of official immunity. At the time of

this incident, peace officers outside of their jurisdiction could make a warrantless arrest of a

person who commits a felony, a breach of the peace, or public intoxication within the officer’s

presence or view. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, } 3.02, 1993 Tex. Gen. Laws 3586, 3715 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 14.03(d)

(West Supp. 2004)) (hereinafter cited as Former Tex. Code Crim. Proc. Ann. art. 14.03(d)). West

and Medrano argued that they observed Roberto, Adolfo, and Laura commit felonies, breaches

of the peace, public intoxication, or some combination thereof. Because West and Medrano

were commissioned by Huston-Tillotson College to function as peace officers, they assert they

were entitled to function as peace officers and were therefore entitled to official immunity.

See id.; see also Tex. Educ. Code Ann. } 51.212 (West 1996) (permitting private institutions of higher education to commission campus security personnel); Tex. Code Crim. Proc. Ann.

art. 2.12(8) (West Supp. 2004) (defining officers commissioned under chapter 51, education

code, as “peace officers”).

At the conclusion of a ten-day jury trial, the district court submitted questions to the

jury regarding official immunity. The jury granted official immunity to West for his actions

toward Laura and to Medrano for his actions toward Adolfo, but refused to grant official

immunity to West for his actions toward Roberto.

Based on its official-immunity findings, the jury did not reach any liability questions

stemming from Laura’s and Adolfo’s complaints. The jury did, however, find both West and

Fifth Club liable to Roberto and awarded him $ 80,000 for physical pain and mental anguish

sustained in the past, $ 20,000 for mental anguish that he will reasonably sustain in the future, $

2,100 for loss of earning capacity in the past, $ 7,000 for physical impairment sustained in the

past, $ 1,198 for medical care in the past, and $ 35,000 as exemplary damages against Fifth

Club.

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RAMIREZ V. FIFTH CLUB, INC.—CONT’D

Issues on Appeal

Adolfo and Laura appeal, arguing that the submission of the immunity question to the jury was

in error because the education code only authorized West and Medrano to function as peace

officers while working for Huston-Tillotson. See Tex. Educ. Code Ann. } 51.212. They therefore request that the cause be remanded so a jury can determine whether Fifth Club, West, or

Medrano are liable to Adolfo and Laura for the injuries they allegedly sustained.

Fifth Club and West also appeal and argue that the evidence is legally and factually

insufficient to support the jury’s finding that (1) Fifth Club is responsible for the acts of West;

(2) Fifth Club was negligent and that its proportionate responsibility for the damages to

Roberto was 55 percent; (3) Roberto was entitled to an award of $ 80,000 for past physical pain

and mental anguish and $ 20,000 for future physical pain and mental anguish; (4) Roberto was

entitled to an award of $ 7,000 for physical impairment in the past; (5) Fifth Club or West acted

with malice; (6) Fifth Club should pay Roberto $ 35,000 in exemplary damages; and (7) West

was not entitled to official immunity.

DISCUSSION

Laura’s and Adolfo’s Issue: Authority to Act as “Peace Officers”

Laura and Adolfo argue in one issue that they are entitled to a remand because the district

court improperly submitted to the jury a question regarding official immunity for West and

Medrano. West and Medrano were both employed by Huston-Tillotson College, a private

institution of higher education, as campus security personnel. In empowering private

institutions to hire security personnel, the legislature provided:

The governing boards of private institutions of higher education, including private junior

colleges, are authorized to employ and commission campus security personnel for the

purpose of enforcing the law of this state on the campuses of private institutions of higher

education. Any officer commissioned under the provisions of this section is vested with all

the powers, privileges, and immunities of peace officers while on the property under the

control and jurisdiction of the respective private institution of higher education or

otherwise in the performance of his assigned duties.

Tex. Educ. Code Ann. } 51.212 (emphasis added). Because this section states that a campus officer has the powers, privileges, and immunities of peace officers “while on the property . . .or

otherwise in the performance of his assigned duties,” Laura and Adolfo argue that West and

Medrano could not function as peace officers while working at Club Rodeo.

However, article 2.12 of the code of criminal procedure unambiguously defines “officers

commissioned under . . .Subchapter E, Chapter 51, Education Code” as “peace officers,” Tex.

Code Crim. Proc. Ann. art. 2.12(8), and former article 14.03(d) provides:

A peace officer who is outside his jurisdiction may arrest, without warrant, a person who

commits an offense within the officer’s presence or view, if the offense is a felony, a violation

of Title 9, Chapter 42, Penal Code [disorderly conduct and related offenses], a breach of the

peace, or an offense under Section 49.02, Penal Code [public intoxication]. A peace officer

making an arrest under this subsection shall, as soon as practicable after making the arrest,

notify a law enforcement agency having jurisdiction where the arrest was made. The law

(Continued)

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RAMIREZ V. FIFTH CLUB, INC.—CONT’D

enforcement agency shall then take custody of the person committing the offense and take the

person before a magistrate in compliance with Article 14.06 of this code.

Former Tex. Code Crim. Proc. Ann. art. 14.03(d) (emphasis added). We believe the

interaction between these statutes is clear. Section 51.212 of the education code establishes

the jurisdiction for campus security personnel. Within this jurisdiction, campus security

personnel are “vested with all the powers, privileges, and immunities of peace officers.” Tex.

Educ. Code Ann. } 51.212 (emphasis added). But former article 14.03(d) acts as an exception to the general rule that a peace officer’s authority to act is limited to his own geographic

jurisdiction. Brother v. State, 85 S.W.3d 377, 383 & n.3 (Tex. App.—Fort Worth 2002, no pet.); see

also Angel v. State, 740 S.W.2d 727, 734 (Tex. Crim. App. 1987) (plurality opinion) (legislature

likely used term “jurisdiction” to restrict geographic scope of peace officer’s power, rights, and

authority). Outside of their primary jurisdiction, officers are vested with the limited authority to

arrest for certain enumerated offenses committed within the officer’s presence or view. Former

Tex. Code Crim. Proc. Ann. art.14.03(d).

After thoroughly analyzing the education code, the code of criminal procedure, and Texas

case law, Laura and Adolfo argue that interpreting former article 14.03(d) to include campus

security personnel commissioned under section 51.212 of the education code would lead to

absurd results. First, they argue that article 2.123 of the code of criminal procedure expressly

addresses the limited circumstances under which officers commissioned by private institutions

may act as peace officers outside their ordinary jurisdiction. This section provides in part:

(a) Within counties under 200,000 population, the chief of police of a municipality or the

sheriff of the county, if the institution is outside the corporate limits of a municipality, that

has jurisdiction over the geographical area of a private institution of higher education,

provided the governing board of such institution consents, may appoint up to 50 peace

officers who are commissioned under Section 51.212, Education Code, and who are

employed by a private institution of higher education located in the municipality or county,

to serve as adjunct police officers of the municipality or county. Officers appointed under

this article shall aid law enforcement agencies in the protection of the municipality or

county in a geographical area that is designated by agreement on an annual basis between

the appointing chief of police or sheriff and the private institution.

(b) The geographical area that is subject to designation under Subsection (a) of this article may

include only the private institution’s campus area and an area that:

(1) is adjacent to the campus of the private institution;

(2) does not extend further than a distance of one mile from the perimeter of the campus

of the private institution; and

(3) is inhabited primarily by students or employees of the private institution.

authority given peace officers under this code only within the geographical area designated

by agreement between the appointing chief of police or sheriff and the private institution.

(d) A peace officer serving as an adjunct police officer has all the rights, privileges, and

immunities of a peace officer but is not entitled to state compensation and retirement

benefits normally provided by the state to a peace officer.

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RAMIREZ V. FIFTH CLUB, INC.—CONT’D

Tex. Code Crim. Proc. Ann. art.2.123(a)-(d) (West Supp. 2004). Laura and Adolfo argue that

this specific section, which explains the circumstances under which a campus security officer

at a private educational institution may function outside of his jurisdiction, should control over

the more general former article 14.03(d). See, e.g., Horizon/CMS Healthcare Corp. v. Auld, 34 S.

W.3d 887, 901, 43 Tex. Sup. Ct. J. 1151 (Tex. 2000) (“more specific statute controls over the more

general”). However, this rule of statutory construction only applies when different code

provisions are “irreconcilable.” See id.; see also Tex. Gov’t Code Ann. } 311.026(a) (West 1998) (“If a general provision conflicts with a special or local provision, the provisions shall be construed,

if possible, so that effect is given to both.”).

Here, we do not find that article 2.123 and former article 14.03(d) conflict. The fundamental

difference between these two articles is that article 2.123 provides the specific circumstances,

including geographic restrictions, for when a campus security officer may exercise all the

rights, privileges, and immunities of a peace officer, while former article 14.03(d) provides an

additional situation where a peace officer, including a campus security officer, can exercise the

limited function of arresting an individual for specific offenses committed within the officer’s

presence or view. Compare Tex. Code Crim. Proc. Ann. art. 2.123(d) (“peace officer serving as an

adjunct police officer has all the rights, privileges, and immunities of a peace officer”), with

Former Tex. Code Crim. Proc. Ann. art. 14.03(d) (peace officer must follow procedure for

making warrantless arrest outside his jurisdiction for limited range of offenses). Article 2.123

allows a campus security officer functioning as an adjunct officer to make all arrests, but only

within a specified geographic area. Tex. Code Crim. Proc. Ann. art.2.123(c). Former article 14.03

(d), on the other hand, allows a campus security officer to make a warrantless arrest without

regard to geographic boundaries within the state only if the offense is committed “within the

officer’s presence or view” and only if the offense observed is specifically listed. See Former Tex.

Code Crim. Proc. Ann. art.14.03(d). We conclude that the plain language of these two articles

does not conflict, and we overrule Laura’s and Adolfo’s issue insofar as it is based on article

2.123 of the code of criminal procedure.

Next, Laura and Adolfo point to section 51.203 of the education code to support their

argument that West and Medrano were not entitled to official immunity. Section 51.203

provides in part:

(a) The governing boards of each state institution of higher education and public technical

institute may employ and commission peace officers for the purpose of carrying out the

provisions of this subchapter. The primary jurisdiction of a peace officer commissioned

under this section includes all counties in which property is owned, leased, rented, or

otherwise under the control of the institution of higher education or public technical

institute that employs the peace officer.

(b) Within a peace officer’s primary jurisdiction, a peace officer commissioned under this

section:

(1) is vested with all the powers, privileges, and immunities of peace officers;

(2) may, in accordance with Chapter 14, Code of Criminal Procedure, arrest without a

warrant any person who violates a law of the state; and

(3) may enforce all traffic laws on streets and highways.

(Continued)

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section is vested with all the powers, privileges, and immunities of peace officers and may

arrest any person who violates any law of the state if the peace officer:

(1) is summoned by another law enforcement agency to provide assistance;

(2) is assisting another law enforcement agency; or

(3) is otherwise performing his duties as a peace officer for the institution of higher

education or public technical institute that employs the peace officer.

Tex. Educ. Code Ann. } 51.203(a)-(c) (West Supp. 2004).

Laura and Adolfo argue that construing former article 14.03(d) to include campus security

personnel commissioned by private institutions under section 51.212 of the education code

would empower such officers with more power than similar officers commissioned by public

institutions of higher education under section 51.203 of the education code. This argument

stems from the fact that section 51.203(c) limits the instances when an officer commissioned

by a public institution may act outside of his primary jurisdiction, yet section 51.212 contains

no such restrictions. See id.}} 51.203(c), .212. Therefore, according to Laura and Adolfo, construing former article 14.03(d) to include campus security personnel at private institutions

would grant them more power than similar officers at public institutions, who can only

act outside of their jurisdiction when the limited circumstances described in section

51.203(c) apply.

We disagree with Laura’s and Adolfo’s reading of the statutes in question. Section 51.203(c) of

the education code describes three instances when a campus officer at a public institution who

is outside of his primary jurisdiction is “vested with all the powers, privileges, and immunities

of peace officers and may arrest any person who violates any law of the state.” Id. } 51.203(c) (emphasis added). Section 51.203(c) is narrowly tailored to describe the circumstances under

which a campus police officer maintains full peace-officer status, even if outside the officer’s

jurisdiction. This does not conflict with former article 14.03(d), which empowers campus police

officers—those employed by public and private institutions alike—to make warrantless arrests

for a small number of offenses committed within the officer’s presence or view. See Former Tex.

Code Crim. Proc. Ann. art.14.03(d). Because section 14.03(d) applies equally to campus officers

employed by public institutions and campus officers employed by private institutions and is

not in conflict with section 51.203 of the education code, we overrule Laura’s and Adolfo’s issue

insofar as it is based on section 51.203 of the education code.

Finally, Laura and Adolfo cite numerous cases in support of their argument that former

article 14.03(d) cannot apply to West and Medrano, but these cases are easily distinguishable

from the situation now before us. See, e.g., Perkins v. State, 812 S.W.2d 326 (Tex. Crim. App.

1991) (article 14.03(d) not at issue); Brother v. State, 85 S.W.3d 377 (Tex. App.—Fort Worth 2002,

no pet.) (same); State v. Backus, 881 S.W.2d 591 (Tex. App.—Austin 1994, pet. ref’d) (pertinent

facts occurred before legislature amended former article 14.03(d) to include additional

alcoholic-beverage offenses); State v. Carroll, 855 S.W.2d 128 (Tex. App.—Austin 1993, no pet.)

(same); Garza v. State, 822 S.W.2d 174 (Tex. App.—San Antonio 1991, no pet.) (article 14.03(d)

not at issue). In citing these cases, Laura and Adolfo focus on where West and Medrano were

empowered to function with full peace-officer authority, yet they fail to address that the

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legislature specifically provided for limited situations in which peace officers, outside of their

jurisdiction, may make warrantless arrests for a limited number of offenses committed within

their presence or view. See Former Tex. Code Crim. Proc. Ann. art.14.03(d).

We conclude that article 2.12(8) and former article 14.03(d) of the code of criminal

procedure are clear and unambiguous and do not conflict with sections 51.203 or 51.212 of

the education code, or with article 2.123 of the code of criminal procedure. See Tex. Code Crim.

Proc. Ann. arts. 2.12(8), 2.123; Former Tex. Code Crim. Proc. Ann. art.14.03(d); Tex. Educ. Code

Ann. }} 51.203, .212. We therefore hold that the district court properly submitted the question of official immunity to the jury. We overrule Laura’s and Adolfo’s sole issue.

Fifth Club’s and West’s Issues: Legal and Factual Sufficiency

In seven issues, Fifth Club and West challenge the legal and factual sufficiency of the jury’s

findings. When reviewing a no-evidence challenge, we consider all the evidence in the light

most favorable to the judgment, making every reasonable inference in its favor. Associated

Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86, 41 Tex. Sup. Ct. J. 389 (Tex. 1998).

We will uphold the jury’s finding if more than a scintilla of evidence supports it. Burroughs

Wellcome Co. v. Crye, 907 S.W.2d 497, 499, 38 Tex. Sup. Ct. J. 848 (Tex. 1995). The evidence

supporting a finding is more than a scintilla if reasonable minds could arrive at the finding

given the facts proved in the particular case. Id. When reviewing a factual-sufficiency challenge,

we consider all the evidence and uphold the jury’s verdict unless we find that (1) the evidence is

too weak to support the finding or (2) the finding is so against the overwhelming weight of the

evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176, 29 Tex. Sup. Ct. J. 214

(Tex. 1986).

Because all seven issues turn on an examination of the evidence presented at trial,

a recounting of the evidence before the jury is necessary. The parties hotly contested what

actually happened at Club Rodeo, and we will address their different accounts of the incident

in turn.

The Plaintiffs’ Account Roberto and Adolfo both testified that when they were waiting in line

in a front hallway to enter Club Rodeo, the club doorman allowed two men to cut in front of

Roberto and Adolfo. Adolfo complained to the doorman, who then said Adolfo was not getting

in. Adolfo apologized and showed his identification to the doorman, who said, “Get the

[expletive] out of here.” Roberto told the doorman not to speak to Adolfo that way, and the

doorman then said Roberto was not getting into Club Rodeo either.

At this point, Roberto was under the impression that his friends, who were at the cash

money was returned, he and Adolfo would leave. Upon learning that their friends had not, in

fact, already paid for their admission, Roberto and Adolfo turned around to leave. As Roberto

was walking toward the exit, West approached from behind and grabbed his hands. When

Roberto resisted West’s effort to restrain Roberto’s hands, West allegedly “got very mad” and

pushed Roberto’s face against a limestone or concrete wall, fracturing a bone in Roberto’s skull

and rendering him unconscious. When Roberto regained consciousness, he was lying

handcuffed in the parking lot.

Adolfo testified that after West pushed Roberto into the wall, West “was beating [Roberto]

several times,” prompting Medrano to tell West “that was enough.” When Adolfo tried to

(Continued)

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push West away from Roberto, Medrano grabbed Adolfo by the neck and threw him to the floor.

Medrano dragged Adolfo outside, where Medrano and West allegedly kicked both Adolfo and

Roberto after they had been handcuffed.

Laura Ramirez, who was dropping off another brother at Club Rodeo, soon arrived to find

her brothers Roberto and Adolfo lying handcuffed on the parking-lot pavement. She exited

her vehicle and attempted to ascertain what had happened from West, who was initially non-

responsive. West told Laura to move her car, but Laura attempted to move closer to Roberto,

whose face was swollen and bleeding. West again told Laura to move her car, allegedly telling

her “it wasn’t [her] [expletive] business what was happening there.”

Laura inquired about Roberto’s injuries, which West admitted to causing. Laura stated she

was going to call an attorney and returned to her truck to get her cellular phone. When Laura

obtained her phone, West grabbed her from behind, threw her against a car, handcuffed her,

told her she was under arrest, and pushed her to the ground. While Laura was handcuffed on

the ground, Thomas Romero, Club Rodeo’s manager at that time, purportedly laughed at and

mocked Laura’s predicament. Laura testified that at no point did West ever identify himself as a

police officer, and at no point did she touch West or Medrano.

APD officers arrived after being called by both a witness to the incident and Medrano. APD

officers transported Adolfo, Roberto, and Laura to jail. Roberto and Adolfo spent two days in

jail, and were subsequently no-billed by the grand jury for assault on a police officer, the only

crime with which they were charged. Laura spent three days in jail, purportedly for assault on a

police officer, but was never charged with any crime.

The Defendants’ Account Fifth Club, West, and Medrano present a much different account

of the events of September 17. Fifth Club’s doorman testified that when he asked for

Roberto’s identification to get into the club, Roberto seemed intoxicated and shoved his ID

against the doorman’s chest. The doorman asked Roberto to leave, and Roberto refused.

The doorman threatened to call the police if Roberto did not leave, and Roberto again refused.

The doorman then signaled with a flashlight to West and Medrano that they were needed

inside the club.

West was sitting in his car in the parking lot when the doorman signaled that he and

Medrano, who was near the entrance, were needed inside the club. West and Medrano

proceeded inside the club, where the doorman informed them that Roberto was intoxicated

and should not enter the club. Roberto and Adolfo refused to leave, at which point Medrano

grabbed Roberto by the wrist or hand to escort him out. Roberto pulled away and was then

grabbed by West. As West was escorting Roberto to the door, Roberto kneed West in the groin,

and West lost his grip on Roberto. West then pushed Roberto against a wall. Roberto attempted

to strike West, at which point West began to throw a forearm at Roberto. Adolfo then punched

West in the head, causing West and Roberto to fall either against the wall or onto the floor.

Roberto was not moving, and West surmised he may have passed out. West handcuffed Roberto

and moved him outside.

After Adolfo punched West, Medrano pushed Adolfo out the door of the club, and Adolfo

tried to kick and punch Medrano. Both Medrano and Adolfo fell to the ground outside the

door to the club. Adolfo repeatedly kicked Medrano while Adolfo was on the ground, causing

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Medrano to strike Adolfo with a flashlight several times while saying, “Police, stop kicking me.”

Medrano eventually subdued and handcuffed Adolfo.

Laura soon arrived, parking her car where it would block APD efforts to arrest and transport

Roberto and Adolfo. She immediately threatened to sue West, who repeatedly asked her to

move her car. West escorted Laura by the elbow to her car, and Laura snatched her elbow away

from West and elbowed him. West then informed Laura she was under arrest and handcuffed

her. Romero, Club Rodeo’s manager, testified via deposition that he simply told Laura, “If you

calm down, they’ll probably let you go.” APD officers then transported Roberto, Adolfo, and

Laura to jail.

Issue 7: Whether West Was Entitled to Official Immunity Fifth Club and West argue that West

was entitled to official immunity as a matter of law because he was functioning as a peace

officer during the early morning hours of September 17. This argument, however, presupposes

that Roberto committed one of the enumerated offenses in former article 14.03(d) within West’s

presence or view, thereby entitling West to function as a peace officer. See Former Tex. Code

Crim. Proc. Ann. art.14.03(d). To be entitled to immunity, West was required to show that he

was acting at all relevant times pursuant to his authority as a peace officer and that his actions

were discretionary and in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653, 37

Tex. Sup. Ct. J. 980 (Tex. 1994).

Here, the district court presented to the jury the following question and instructions

regarding official immunity:

Could a reasonably prudent officer, under the same or similar circumstances, have

believed that the disputed conduct of David West was justified based on the information

David West possessed when the conduct occurred?

You are instructed that David West may arrest someone if he reasonably believed the

person committed an offense within his presence or view if the offense is a felony, a breach

of the peace, public intoxication, disorderly conduct, criminal trespass, interference with

an arrest, assault, assault on a police officer, or failure to obey a lawful order.

The term “breach of the peace” includes all violations of the public peace or order, or

decorum; in other words, it signifies the offense of disturbing the public peace or

tranquility enjoyed by the citizens of a community; a disturbance of the public tranquility

by any act or conduct inciting to violence or tending to provoke or excite others to break

the peace; a disturbance of public order by an act of violence, or by any act likely to

produce violence, or which, by causing consternation and alarm disturbs the peace and

quiet of the community.

A person commits an offense if the person appears in a public place while intoxicated to

the degree that the person may endanger the person or another.

The jury was essentially asked to determine two questions. First, whether West was entitled

to “switch hats” and transform from his role as private security for the club into a separate role

as a peace officer. Next, if West was acting within his authority as a peace officer, the jury was

asked to determine whether his actions were in good faith. Fifth Club and West argue that the

evidence conclusively shows that West acted as a “reasonably prudent officer” and was entitled

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to immunity, but they ignore that the jury, from the evidence presented, could have concluded

that Roberto never committed a crime within West’s presence or view that entitled him to

function as a peace officer under former article 14.03(d) and arrest Roberto. There is, at best,

conflicting evidence of whether Roberto committed any crimes at all, and the jury is the sole

judge of the credibility of witnesses and the weight to be given to their testimony. Golden

Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761, 46 Tex. Sup. Ct. J. 1133 (Tex. 2003).

Additionally, Fifth Club and West assert that because West and another one of their

witnesses testified that West’s actions were reasonable, the jury’s refusal to grant official

immunity to West was based on factually insufficient evidence. We disagree. Even Officer

Payne, an expert witness for Fifth Club and West, testified that he had never seen an officer

slam someone’s head into a wall, and had never seen an officer hit a suspect who was already

handcuffed, as West was alleged to have done. Officer Tidwell, an expert witness for Roberto,

testified that the crimes allegedly committed by Roberto would not justify an officer slamming

a suspect’s head against a wall. Officer Tidwell also testified it would not have been reasonable

for West to grab Roberto’s arms from behind without announcing his presence as a police

officer. We hold the evidence was both legally and factually sufficient to support the jury’s

finding that West was not entitled to official immunity for his actions toward Roberto, and we

overrule Fifth Club’s and West’s seventh issue.

Issue 1: Whether Fifth Club is Responsible for West’s Actions The district court submitted to

the jury the following question: “On the occasion in question was David West acting in the

furtherance of a mission for the benefit of Fifth Club, Inc. and subject to control by Fifth Club,

Inc. as to the details of the mission?” The jury answered, “Yes.” Fifth Club now asserts that it is

not responsible for West’s actions because he was acting as a peace officer.

This Court has previously explained the process for determining when a security guard

ceases functioning as an employee and functions instead as a peace officer:

In determining the status of a police officer, we ask “in what capacity was the officer acting

at the time he committed the acts for which the complaint is made?” If the officer is

performing a public duty, such as the enforcement of general laws, the officer’s private

employer incurs no vicarious responsibility for that officer’s acts, even though the employer

may have directed the activities. If the officer was engaged in protecting the employer’s

property, ejecting trespassers, or enforcing rules and regulations promulgated by the

employer, however, the trier of fact decides whether the officer was acting as a public

officer or as a servant of the employer.

Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship, 37 S.W.3d 145, 149 (Tex. App.—Austin 2001,

no pet.) (emphasis added). As explained above, there is both legally and factually sufficient

evidence to support a conclusion that West was not acting as a peace officer under former

article 14.03(d) when Roberto’s injuries were inflicted. We therefore reject Fifth Club’s

contention that it is not responsible for West’s actions because he was functioning as a peace

officer.

Fifth Club also asserts it is not responsible for West’s actions because he was an independent

contractor. In the employment context, it is the right of control that commonly justifies

imposing liability on the employer for the actions of the employee, and an employer may be

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vicariously liable for his independent contractor’s acts if he retains the “right to control the

means, methods, or details of the independent contractor’s work.” St. Joseph Hosp. v. Wolff, 94

S.W.3d 513, 542, 46 Tex. Sup. Ct. J. 142 & n.91 (Tex. 2003) (quoting Baptist Mem’l Hosp. Sys. v.

Sampson, 969 S.W.2d 945, 947, 41 Tex. Sup. Ct. J. 833 (Tex. 1998)).

An employer can also be liable for the acts of an independent contractor if the “personal

character exception” applies. See Ross v. Texas One P’ship, 796 S.W.2d 206, 213 (Tex. App.—

Dallas 1990), writ denied, 806 S.W.2d 222, 34 Tex. Sup. Ct. J. 293 (Tex. 1991) (per curiam); Duran

v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 787 (Tex. App.—El Paso 1996, writ denied). If the

duties being carried out by an independent contractor are of a personal character owed to the

public by one adopting measures to protect his property, owners and operators of enterprises

cannot, by securing independent contractors for the purpose of protecting property, obtain

immunity from liability for at least the intentional torts of those hired. See Ross, 796 S.W.2d at

213; Duran, 921 S.W.2d at 787-88.

Here, the uncontroverted evidence established that the doorman signaled West and

Medrano to enter the club and remove Roberto and Adolfo. The doorman then directed West

and Medrano to eject Adolfo and Roberto, which they did. Salim Salem, one of Fifth Club’s

owners, testified that it was the club’s responsibility to ensure the safety of patrons and that one

of the reasons for hiring outside security like West was to deter crime, both inside and outside

the club. This is evidence that West was carrying out the exact functions he was hired to

perform, and was performing those functions at the direction of Club Rodeo employees. We

hold that the record contains both legally and factually sufficient evidence that West was acting

in the furtherance of a mission for the benefit of Fifth Club and subject to control by Fifth Club

as to the details of the mission. We overrule Fifth Club’s and West’s first issue.

Issue 2: Fifth’s Club’s Negligence and Apportionment of Responsibility Fifth Club and West

next argue there is insufficient evidence to support the jury’s finding that Fifth Club was

negligent and that its proportionate responsibility was 55 percent. Roberto claims that Fifth

Club was negligent in both its hiring and retention of West and Medrano. Salim Salem testified

that he did not personally hire the off-duty peace officers who worked as outside security, but

instead entrusted another officer to make these arrangements. Fifth Club gave this officer no

instructions, did not require applicants to fill out applications, and was not even aware of

which officers were working. Although Fifth Club had policy manuals for inside security,

including directives not to use profanity with customers because profanity can “escalate[] an

incident,” the manuals were not provided to security personnel working outside. Finally, Fifth

Club failed to perform background checks on any of the security personnel working outside.

Roberto presented expert testimony that Fifth Club’s conduct in hiring and retaining West

constituted gross negligence and proximately caused the injuries to Roberto. We conclude there

was legally and factually sufficient evidence to support the jury’s finding that Fifth Club was

negligent.

Regarding the jury’s apportionment of 55 percent of the responsibility to Fifth Club, the jury

is given wide latitude in performing its sworn duty to serve as fact finder in allocating

responsibility. Tex. Civ. Prac. & Rem. Code Ann. } 33.003 (West Supp. 2004); Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 659 (Tex. App.—Dallas 2002, no pet.). Even if the

(Continued)

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evidence could support a different percentage allocation of responsibility, an appellate court

may not substitute its judgment for that of the jury. Rosell, 89 S.W.3d at 659. We conclude the

evidence is legally and factually sufficient to support the jury’s finding, and we overrule Fifth

Club’s and West’s second issue.

Issues 5 & 6: Malice Finding and Exemplary Damages

Fifth Club challenges the jury’s award of exemplary damages against Fifth Club and the

jury’s finding that both Fifth Club and West acted with malice. Here, Roberto’s expert testified

that Fifth Club acted with gross negligence in hiring and retaining West. An employer can also

be liable for exemplary damages due to the malicious acts of an employee if the employee was

unfit and the corporation was grossly negligent in employing him. Mobil Oil Corp. v. Ellender,

968 S.W.2d 917, 921, 41 Tex. Sup. Ct. J. 763 (Tex. 1998). We conclude the evidence was legally

and factually sufficient to support an award of exemplary damages.

Fifth Club also argues that the amount of $ 35,000 in exemplary damages is excessive.

Exemplary damages must be reasonably proportioned to actual damages. Alamo Nat’l Bank

v. Kraus, 616 S.W.2d 908, 910, 24 Tex. Sup. Ct. J. 343 (Tex. 1981). There is no set rule of ratio

between the amount of actual and exemplary damages that will be considered reasonable.

Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 835 (Tex. App.—Austin 1992, writ denied). An award of

exemplary damages rests largely in the discretion of the fact finder and will not be set aside as

excessive unless the amount is so large as to indicate that it is the result of passion, prejudice,

or corruption, or that the evidence has been disregarded. Id. Factors to consider when

determining whether an exemplary-damages award is reasonable include: (1) the nature of the

wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer,

(4) the situation and sensibilities of the parties concerned, and (5) the extent to which such

conduct offends a public sense of justice and propriety. Id.

Here, the jury awarded over $ 110,000 in actual damages and $ 35,000 in exemplary

damages. Examining the Kraus factors to determine whether this proportion is reasonable,

we note first that the nature of the wrong consists of serious bodily injury inflicted by Fifth

Club personnel to Roberto, who subsequently spent two days in jail for crimes for which he

was later no-billed. We concluded above that the evidence is legally and factually sufficient to

support the jury’s findings that Fifth Club is responsible for West’s actions and that Fifth Club

was itself grossly negligent. Second, Fifth Club delegated the hiring of security officers to a

third party, failed to perform background checks, did not require applications to be completed,

did not provide policy manuals or instructions to outside security personnel, and was not even

aware of the identities of the security personnel it was employing. Moreover, there is evidence

in the record that Club Rodeo’s manager laughed at and mocked Laura while she was

handcuffed. It is undisputed that West and Medrano were paid in full at the end of their shift

and that Fifth Club took no action as a result of this incident. Third, regarding Fifth Club’s

culpability, the jury heard expert testimony that Fifth Club’s conduct constituted gross

negligence and proximately caused Roberto’s injuries. Fourth, considering the situation and

sensibilities of the parties concerned, we concluded that the evidence is legally and factually

sufficient to support the conclusion that Roberto suffered, and continues to suffer from,

injuries proximately caused by Fifth Club’s gross negligence. Finally, Fifth Club’s conduct

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offends a public sense of justice and propriety. Fifth Club representatives testified that

personnel such as West were hired, in part, to protect its patrons. However, Fifth Club did

nothing to ensure that the security personnel hired were qualified for employment.

Furthermore, Fifth Club failed to inform its outside security personnel of club policies, as it did

with other club employees. This is the type of conduct exemplary damages is meant to punish

and deter. In light of the Kraus factors, the jury’s award of exemplary damages equal to

approximately one third the amount of actual damages is not clearly wrong and unjust. See

Kraus, 616 S.W.2d at 910; Martinez, 835 S.W.2d at 835. We therefore overrule Fifth Club’s

exemplary-damages issue.

Issues 3 & 4: Award for Physical Pain, Mental Anguish, and Physical Impairment Fifth Club

and West argue that the evidence is insufficient to support three awards: $ 80,000 for physical

pain and mental anguish Roberto sustained in the past, $ 20,000 for mental anguish that he will

reasonably sustain in the future, and $ 7,000 for physical impairment he suffered in the past.

Matters of past and future physical pain, mental anguish, and physical impairment are

particularly within the jury’s province. Marvelli v. Alston, 100 S.W.3d 460, 482 (Tex. App.—Fort

Worth 2003, pet. denied). As long as sufficient probative evidence exists to support the jury’s

verdict, neither the reviewing court nor the trial court is entitled to substitute its judgment for

that of the jury. Id. (citing Larson v. Cactus Util. Co., 730 S.W.2d 640, 641, 30 Tex. Sup. Ct. J. 331

(Tex. 1987)); see also Rehabilitation Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151, 155 (Tex.

App.—Austin 1998, no pet.).

Roberto presented evidence at trial that he suffered a fracture of his left zygomatic arch, a

bone in his skull. His face was swollen and bloody. When he arrived at the jail after the

incident, it was determined he needed to be taken to the hospital for treatment. While in the

hospital, he asked that his daughter not be allowed to see him in his condition. He could not

sleep or eat when in jail, was in pain, and had problems communicating following this incident.

Roberto had recurring headaches, required additional visits to the doctor, and missed a week of

work. We conclude the evidence is legally and factually sufficient to support an award for

physical pain and mental anguish Roberto sustained in the past.

Roberto’s wife testified that at the time of trial, over a year after the incident, Roberto

continued to have trouble talking to people, was “always tossing and turning,” and was

having nightmares. She testified he was eating less, suffering from depression, and pushing her

away. We conclude the evidence is legally and factually sufficient to support an award for

physical pain and mental anguish that Roberto will reasonably sustain in the future.

Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss

of the injured party’s former lifestyle. Dawson v. Briggs, 107 S.W.3d 739, 752 (Tex. App.—

Fort Worth 2003, no pet.). To recover damages for past impairment, the plaintiff must prove

that the effect of his physical impairment extends beyond any impediment to his earning

capacity and beyond any pain and suffering and mental anguish to the extent that it

produces a separate and distinct loss that is substantial and for which he should be

compensated. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772, 46 Tex. Sup. Ct.

J. 1133 (Tex. 2003); Blankenship v. Mirick, 984 S.W.2d 771, 777 (Tex. App.—Waco 1999, pet.

denied); Lawson-Avila Constr., Inc. v. Stoutamire, 791 S.W.2d 584, 599 (Tex. App.—San

Antonio 1990, writ denied).

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON 986 So. 2d 843(La. Ct. App. 2008)

Before CARAWAY, PEATROSS and MOORE, JJ.

OPINION BY: CARAWAY

The defendant was convicted of operating a motor vehicle while intoxicated, fourth offense.

He was ultimately sentenced to twelve years at hard labor, to run consecutively with another

sentence being served for a prior conviction. For the following reasons, defendant’s

conviction is affirmed, and the sentence is amended.

FACTS

At approximately 5:00 p.m. on November 13, 2006, Clay Morgan, a security officer at Willis-

Knighton Hospital (“WK”), received a report of possible automobile theft in the hospital

parking lot. Morgan and his acting supervisor, Jerry Johnson, arrived at the parking lot at the

same time and approached the defendant, Steven Michael Presson (“Presson”). Presson

explained that he locked his keys in the car. Johnson smelled alcohol on Presson’s breath and

inquired about how much alcohol he had consumed. Although the details of their conversation

are not known, Johnson advised Presson not to drive due to his suspected intoxication. Once

the security officers unlocked the defendant’s vehicle, they had the car driven to the north

hospital parking lot by a third party, and left the scene.

Presson admitted at trial that Johnson informed him that he smelled alcohol on his breath

and told him not to drive his car. Nevertheless, by 5:20 p.m. and in spite of the explicit

warning against driving, Morgan observed Presson drive away in the vehicle. Morgan

RAMIREZ V. FIFTH CLUB, INC.—CONT’D

Here, Roberto suffered a fracture to a bone in his skull. He spent a week recovering from

this injury, had difficulty eating and communicating with others, and sought to avoid his

daughter so that she would not observe his condition. His wife testified that before the

incident he used to exercise and eat frequently; after the incident he would not eat, had

difficulty communicating, and would spend time in his room by himself. This represents more

than a scintilla of evidence of physical impairment in the past, and we cannot say the jury’s

decision to award damages for physical impairment suffered in the past is “so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust.” See Crye, 907 S.W.2d

at 499; Cain, 709 S.W.2d at 176. Accordingly, the evidence is legally and factually sufficient to

support the jury’s award for physical impairment in the past. Our review of the record also

leads us to conclude that there is legally and factually sufficient evidence to support the

amount of all damages the jury awarded. We therefore overrule Fifth Club’s and West’s third

and fourth issues.

CONCLUSION

We have overruled Laura’s and Adolfo’s one issue on appeal, and Fifth Club’s and West’s seven

issues. The final judgment of the district court is therefore affirmed.

Mack Kidd, Justice.

448 PRIVATE SECURITY AND THE LAW

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON—CONT’D

immediately notified Johnson, who stated he would contact the local police and begin

following Presson.

Shreveport Police Department Officer Scott Deen was on patrol when he received a dispatch

concerning a possible DWI. Officer Deen was told that the WK security officer (Johnson) was

following the suspect (Presson) and Johnson was giving directions while driving behind the

defendant. These directions were relayed to the responding officers, including Officer Deen.

The police were ultimately directed to the Circle K convenience store at the corner of Fairfield

Avenue and Jordan Street.

When Officer Deen arrived at Circle K at 5:30 p.m., Presson, Johnson, and other police

officers were already there. Presson was outside of his car, which was parked in the Circle K

lot. Officer Deen, a police force veteran experienced in DWI field sobriety testing, approached

Presson. He also detected the odor of alcohol on defendant’s breath. After he was Mirandized,

Presson submitted to the standard field sobriety tests.

Presson was asked to recite the alphabet. Officer Deen noted his speech was slurred and

“thick tongued,” indicators of intoxication. Next, he was asked to hold one foot up six inches

above the ground for thirty seconds. Presson did not mention any condition he suffered from

that could cause poor performance on this particular test. Within a few seconds, defendant

placed his foot back down on the ground three times and also had to use his arms for balance,

further indicating he was intoxicated. Officer Deen performed the HGN (horizontal gaze

nystagmus) test, but no testimony was elicited at trial as to Presson’s actual performance on

this test.

Officer Deen believed Presson was intoxicated and transported him to the Traffic Unit for

additional chemical testing. After defendant was advised of his rights relating to chemical

testing, he consented to take the breath test. At 6:12 p.m., the Intoxilyzer 5000 revealed

Presson’s blood alcohol concentration level was 0.085%.

Presson was charged by bill of information with operating a motor vehicle while intoxicated,

fourth offense. During trial, the defendant admitted drinking some alcohol earlier on the day of

his arrest, admitted his encounter with the security officers in the WK parking lot, and admitted

being told not to drive because of his suspected intoxication. However, he denied that he was

intoxicated when he left WK in his car.

Presson testified that he was upset because his mother was ill, and his car had overheated

(causing him to pull into Circle K). He drank some Jagermeister and another “quarter of a

pint,” but only after he had already parked his car at Circle K. He blamed his poor performance

on the field sobriety tests on a purported brain injury. Defendant admitted at least three prior

DWI convictions during the ten years preceding the instant offense.

The unanimous jury found the defendant guilty as charged. The trial court originally

sentenced defendant to fifteen years at hard labor to run concurrently with any other

sentence he was then serving. Both parties filed timely motions for reconsideration, and as a

result, Presson’s sentence was reduced to twelve years at hard labor, to run consecutively to any

other sentence Presson was serving, as required by La. R.S. 14:98(E)(4)(b) (Presson had

previously received the benefits of suspension of sentence and probation as a DWI fourth

offender for his conviction in Suit No. 225,931). This appeal ensued.

(Continued)

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON—CONT’D

DISCUSSION

Presson contends in his first assignment of error that the evidence was insufficient to prove he

was guilty beyond a reasonable doubt of driving while intoxicated. He argues that even though

his blood alcohol concentration was 0.085% after his arrest, no evidence showed that he

operated his car while he was intoxicated. Rather, he argues, the evidence only proved he

became legally intoxicated after parking his car at Circle K.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or

more trial errors, the reviewing court should first determine the sufficiency of the evidence. The

reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under

Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981), if a rational trier of fact,

viewing the evidence in accord with Jackson v. Virginia, 443 U. S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that

all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold,

603 So.2d 731 (La. 1992); State v. Bosley, 29,253 (La. App. 2d Cir. 4/2/97), 691 So. 2d 347, writ

denied, 97-1203 (La. 10/17/97), 701 So. 2d 1333.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the

appellate court with a vehicle to substitute its own appreciation of the evidence for that of

the fact finder. State v. Robertson,96-1048 (La. 10/4/96), 680 So.2d 1165. The appellate court

does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/

16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial

evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve

any conflict in the direct evidence by viewing that evidence in the light most favorable to the

prosecution. When the direct evidence is thus viewed, the facts established by the direct

evidence and inferred from the circumstances established by that evidence must be sufficient

for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty

of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Owens,

30,903 (La. App. 2d Cir. 9/25/98), 719 So. 2d 610, writ denied, 98-2723 (La. 2/5/99),

737 So. 2d 747.

When circumstantial evidence forms the basis of the conviction, such evidence must

exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not

determine whether another possible hypothesis suggested by the defendant could afford an

exculpatory explanation of the events; rather, when evaluating the evidence in the light most

favorable to the prosecution, the court determines whether the possible alternative hypothesis

is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a

reasonable doubt under Jackson v. Virginia, supra.State v. Davis, 92-1623 (La. 5/23/94), 637 So.

2d 1012, cert. denied, 513 U.S. 975, 115 S. Ct. 450, 130 L. Ed. 2d 359 (1994); State v. Owens, 30,903

(La. App. 2d Cir. 9/25/98), 719 So. 2d 610, writ denied, 98-2723 (La. 2/5/99), 737 So. 2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends

upon a determination of the credibility of the witnesses, the matter is one of the weight of the

evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2d Cir. 9/18/02), 828 So. 2d 622,

writs denied, 02-2595 (La. 3/28/03), 840 So. 2d 566, and 02-2997 (La. 6/27/03), 847 So. 2d 1255,

cert. denied, 540 U.S. 1185, 124 S. Ct. 1404, 158 L. Ed. 2d 90 (2004).

450 PRIVATE SECURITY AND THE LAW

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON—CONT’D

In the absence of internal contradiction or irreconcilable conflict with physical evidence,

one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite

factual conclusion. State v. White, 28,095 (La. App. 2d Cir. 5/8/96), 674 So. 2d 1018, writs denied,

96-1459 (La. 11/15/96), 682 So. 2d 760, and 98-0282 (La. 6/26/98), 719 So.2d 1048.

La. R.S. 14:98 provides in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle,

aircraft, watercraft, vessel, or other means of conveyance when:

(a) The operator is under the influence of alcoholic beverages; or

(b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on

grams of alcohol per one hundred cubic centimeters of blood; or

* * * *

Thus, the state need only prove to the jury that the defendant was operating a vehicle and

that the defendant was under the influence of alcohol. La. R.S. 14:98(A)(1)(a); State v.

Minnifield, 31,527 (La. App. 2d Cir. 1/20/99), 727 So. 2d 1207, writ denied, 99-0516 (La. 6/18/99),

745 So. 2d 19. To convict a defendant of driving while intoxicated, fourth offense, the state must

also prove that the defendant has had three prior valid convictions, as defined in La. R.S. 14:98

(F)(1). State v. Inzina, 31,439 (La. App. 2d Cir. 12/9/98), 728 So.2d 458.

This court has noted that the term “operating” is broader than the term “driving.” The

jurisprudence generally holds that in order to operate a motor vehicle, the defendant must

have exercised some control or manipulation over the vehicle, such as steering, backing, or any

physical handling of the controls for the purpose of putting the car in motion. State v. Johnson,

580 So.2d 998, 1001 (La. App. 3d Cir. 1991); City of Bastrop v. Paxton, 457 So.2d 168 (La. App. 2d

Cir. 1984). It is not necessary that these actions have any effect on the engine, nor is it essential

that the car move in order for the state to prove the element of operation. Id.

An officer must conduct a general observation of the defendant for a period of 15 minutes

prior to testing, whereby the defendant shall not have ingested alcohol, alcoholic beverages,

regurgitated, vomited or taken anything by mouth. State v. Meredith, 36,483 (La. App. 2d

Cir. 12/11/02), 833 So.2d 1125.

Some behavioral manifestations, independent of any scientific test, are sufficient to support

a charge of driving while intoxicated. State v. McDonald, 33,013 (La. App. 2d Cir. 3/1/00), 754

So.2d 382, 386; State v. Pitre, 532 So. 2d 424 (La. App. 1st Cir. 1988), writ denied, 538 So. 2d 590

(La. 1989). It is not necessary that a conviction for DWI be based upon a blood or breath alcohol

test, and the observations of an arresting officer may be sufficient to establish a defendant’s

guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen,

440 So.2d 1330 (La. 1983); State v. Blackburn, 37,918 (La. App. 2d Cir. 1/28/04), 865 So.2d 912;

State v. McDonald, supra.

The evidence conclusively established that Presson was intoxicated by the time police

arrived at the scene, after defendant was out of his vehicle. There is an irrebuttable

presumption of intoxication when a person’s blood alcohol concentration level is 0.08% or

more. La. R.S. 14:98(A)(2); State v. Downer, 460 So. 2d 1184 (La. App. 2d Cir. 1984), superseded by

(Continued)

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON—CONT’D

statute, as recognized by State v. McGuire, 493 So.2d 559 (La. 1986). The central issue presented

in this appeal is whether defendant was intoxicated while he “operated” his car after leaving the

WK parking lot.

The uncontroverted evidence shows that when Presson was initially confronted in the

hospital parking lot shortly after 5:00 p.m., there was a strong smell of alcohol on his breath.

It is clear that the WK security officers suspected that defendant was already intoxicated at that

time, and they specifically instructed him not to drive his car. Nonetheless, Presson disobeyed

their instructions and drove away at 5:20 p.m.

Although there is an evidentiary gap due to Johnson’s unavailability to testify at trial, other

testimony reveals that Johnson was able to follow Presson and remained in contact with

police, reporting Presson’s trip between WK and Circle K. Once police arrived at Circle K,

Presson and Johnson were already parked. The evidence shows that Officer Deen immediately

detected alcohol on defendant’s breath, defendant’s speech was slurred and “thick-tongued,”

and defendant failed at least two of three standardized field sobriety tests. The police records

show that the police officers first came into contact with defendant at 5:30 p.m. Although

Presson disputes the exact timing, he nevertheless admitted at trial that the police arrived no

more than eight minutes after he first drove into the Circle K parking lot. There was no evidence

that defendant consumed any alcohol once police arrived on the scene.

Defendant’s version of the events is that he consumed some Jagermeister earlier in the day,

prior to his encounter with WK security officers in the hospital parking lot, then drank another

“quarter of a pint” after he parked at Circle K, but before the police arrived. The only possible

hypothesis of innocence which can be advanced under these facts is that the defendant parked

and exited his car at Circle K, and then consumed enough alcoholic beverages to become

intoxicated prior to the arrival of police shortly thereafter. Any consumption of alcoholic

beverages while parked, but still in the car, would be sufficient to constitute “operation”

because he still had control of the vehicle. As explained above, movement of the vehicle is not

the determinative factor. See, State v. Johnson, supra. Given the facts of this case, however, this

hypothesis is not reasonable. Moreover, the physical evidence and circumstantial evidence

demonstrate that Presson’s self-serving version of the events could be rejected by the jury.

There was no evidence that any alcoholic beverage containers were found in Presson’s car or

in the vicinity thereof. There were no eyewitnesses or direct proof that Presson actually drank

any alcoholic beverages outside of his vehicle during the brief interval at Circle K. The sequence

of events does not support this hypothesis. The evidence suggests that everything happened

within a span of ten minutes (i.e., between the time defendant left the WK parking lot until the

time he was stopped by police). During this time, according to defendant, he drove from WK to

Circle K, at the intersection of Jordan and Fairfield, parked his car, used a pay phone to find a

motel room, and then drank enough Jagermeister to affect his speech and impair his

performance on the field sobriety tests minutes later. Defendant’s version of the events finds

little support when the overall timeline of his actions is considered, and on credibility grounds,

the jury clearly rejected his testimony.

The only reasonable hypothesis is that defendant was already intoxicated when he drove out

of the WK parking lot. Viewing the evidence in a light most favorable to the prosecution, a

rational trier of fact could have concluded beyond a reasonable doubt that every reasonable

452 PRIVATE SECURITY AND THE LAW

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON—CONT’D

hypothesis of innocence had been excluded. The evidence was sufficient to support defendant’s

conviction. This assignment is therefore without merit.

The defendant’s second assignment of error argues that his sentence is excessive in that it

does take his emotional state at the time of the commission of the offense, or his personal or

work history, into consideration. Further, the trial court did not consider his longstanding

substance abuse problem.

Because defendant’s motion for reconsideration of the July 18, 2007 resentencing was

untimely, and merely urges that his sentence is excessive, the defendant is relegated only to a

claim of constitutional excessiveness. A sentence violates La. Const. art. 1, } 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and

needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1;

State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A

sentence is considered grossly disproportionate if, when the crime and punishment are viewed

in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.

1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Hogan, 480 So. 2d 288

(La. 1985); State v. Bradford, 29,519 (La. App. 2d Cir. 4/2/97), 691 So. 2d 864.

A trial court has broad discretion to sentence. Absent a showing of manifest abuse of that

discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528 and

99-1753 (La. 5/16/00), 769 So.2d 1158; State v. June, 38,440 (La. App. 2d Cir. 5/12/04), 873 So.2d 939.

At the time of the instant offense, La. R.S. 14:98(E)(1)(a) provided:

Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a

fourth or subsequent offense, notwithstanding any other provision of law to the contrary

and regardless ofwhether the fourth offense occurred before or after an earlier conviction, the

offender shall be imprisoned with or without hard labor for not less than ten years normore

than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of

imprisonment shall be imposed without the benefit of probation, parole, or suspension of

sentence. The court, in its discretion, may suspend all or any part of the remainder of the

sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be

placed on supervised probation with the Department of Public Safety and Corrections,

division of probation and parole, for a period of time not to exceed five years, which

probation shall commence on the day after the offender’s release from custody.

La. R.S. 14:98(E)(4)(b) provided:

If the offender has previously received the benefit of suspension, probation, or parole as a

fourth offender, no part of the sentence may be imposed with benefit of suspension of

sentence, probation, or parole, and no portion of the sentence shall be imposed

concurrently with the remaining balance of any sentence to be served for a prior

conviction for any offense.

Prior to imposing sentence, the trial court reviewed the facts of the instant offense and

defendant’s extensive criminal history, including more than ten prior arrests and/or

convictions for DWI. See also, State v. Presson, 39,688 (La. App. 2d Cir. 4/6/05), 900 So. 2d 240 (in

(Continued)

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON—CONT’D

affirming this defendant’s prior DWI fourth offense conviction, this court noted that “defendant

had a predisposition to commit the offense of driving while intoxicated” based on his prior

criminal record). Indeed, he was on probation for DWI, fourth offense, when the instant offense

was committed. The record shows that defendant previously underwent evaluation and

treatment for substance abuse in Suit No. 225,931 (see, State v. Presson, supra), contrary to his

contention here, but that did nothing to preclude his commission of this offense. The trial

judge noted that defendant had received a “series of breaks” over the past twenty years, but he

has continued to drink and drive. Considering these factors, and notwithstanding defendant’s

request to consider his emotional state as a mitigating factor, the trial court concluded he was

in need of incarceration, that a lesser sentence would deprecate the seriousness of the offense,

and that these circumstances were likely to recur based upon his habitual intemperate conduct.

The trial court originally sentenced defendant to fifteen years at hard labor concurrent with

any other sentence he was then serving. After reconsideration at the behest of both parties,

defendant’s sentence was reduced to twelve years at hard labor but made to run consecutively

to any other sentence he was serving, as required by La. R.S. 14:98(E)(4)(b) (the record confirms

that defendant previously received the benefits of suspension of sentence and probation as a

DWI fourth offender.)

Considering this defendant’s prior DWI fourth offense conviction (to say nothing of his other

DWI multiple offense convictions), and the fact that the defendant was on probation when he

committed this offense, the sentence imposed in this case is not constitutionally excessive. See,

State v. Masters, 37,967 (La. App. 2d Cir. 12/17/03), 862 So. 2d 1121. In terms of prison time, the

defendant’s sentence barely exceeds the statutory minimum mandated in this case. On this

record, nothing about this sentence shocks the sense of justice. This assignment is therefore

without merit.

ERROR PATENT

A review of the record reveals two errors patent.

The trial court did not impose the twelve year sentence without benefit of probation, parole,

or suspension of sentence, as mandated by La. R.S. 14:98(E)(4)(b). The trial court explicitly

found that La. R.S. 14:98(E)(4)(b) applied when it ordered the consecutive sentence. La. R.S.

15:301.1 is self-activating, however, and makes the denial of benefits self-operative. See, State v.

Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790; State v. Batts, 43,142 (La. App. 2d Cir. 4/2/08),

979 So.2d 684, 2008 WL 867290.

La. R.S. 14:98(E)(1)(a) provides that upon conviction of DWI, fourth offense, in addition to

the prison sentence, the offender “shall be fined five thousand dollars.” Here, the trial court

did not impose the mandatory fine, resulting in an illegally lenient sentence.

A court of appeal has the authority on its own motion to correct the sentence imposed under

La. R.S. 14:98(E)(1)(a) by directing the trial court to add the mandatory fine of $ 5,000 as

required by the statute. State v. Decrevel, 03-0259 (La. 5/16/03), 847 So.2d 1197; State v.

Williams, supra. Further, an appellate court may amend a defendant’s sentence without the

necessity of remanding the matter to the trial court. State v. Sermons, 41,746 (La. App. 2d Cir. 2/

28/07), 953 So. 2d 958, writ denied, 07-0789 (La. 11/2/07), 966 So. 2d 601. The defendant’s

sentence is therefore amended to impose the statutorily mandated fine of $ 5,000.

454 PRIVATE SECURITY AND THE LAW

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STATE OF LOUISIANA V. STEVEN MICHAEL PRESSON—CONT’D

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed, the sentence is amended to

impose the mandatory $ 5,000 fine and to recognize the denial of benefits in accordance with

La. R.S. 14:98(E)(4)(b), and the sentence, as amended, is affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

WESLEY LOCKE V. OZARK CITY BOARD OF EDUCATION 910 So. 2d 1247 (Ala. 2005)

JUDGES: SEE, Justice. Nabers, C.J., and Harwood, Stuart, and Bolin, JJ., concur.

OPINION BY: SEE

Wesley Locke appeals from a summary judgment in favor of the defendant, the Ozark City

Board of Education. We reverse and remand.

Wesley Locke is a physical education teacher employed by the Dale County Department of

Education. For a number of years, Locke also served as an umpire for high school baseball

games. Locke was a member of the Southeast Alabama Umpires Association (“SAUA”), which

provides officials to athletic events sponsored by the Alabama High School Athletic Association

(“AHSAA”).

On March 30, 1999, Locke was serving as the head umpire in a baseball game between

Carroll High School and George W. Long High School. The game was being played at Carroll

High School, and the principal and the athletic director of Carroll High School were in

attendance; however, Carroll High School did not provide police protection or other security

personnel for the game. After the baseball game, Mixon Cook, the parent of one of the baseball

players for Carroll High School, attacked Locke, punching him three times in the face—in his

right eye, on the right side of his face, and on the left side of his neck. As a result, Locke

sustained physical injuries to his neck and face that caused him pain, discomfort, scarring, and

blurred vision. Locke sued the Ozark City Board of Education (“the Board”) alleging breach of

contract.

Locke specifically alleged that because Carroll High School, through the Board, is a member

of the AHSAA, it is therefore required to follow the rules and regulations of the AHSAA.

According to Locke, the AHSAA Directory provides that all school principals have the duty to

“insure good game administration and supervision by providing for the following: . . . adequate

police protection” at athletic events. Locke alleged that, by not fulfilling its duty under the

Directory, the Board breached its contract with the AHSAA by failing to provide police

protection at the baseball game, that he was an intended third-party beneficiary of the contract,

and that he was injured as a result of the Board’s breach of the contract.

The Board moved for a summary judgment, arguing that it did not have a duty to protect

Locke, that Locke was not an intended third-party beneficiary of the contract between it and

(Continued)

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WESLEY LOCKE V. OZARK CITY BOARD OF EDUCATION—CONT’D

AHSAA, that Locke’s claims were tort claims and not contract claims, that the Board is not

responsible for the criminal actions of a third party, and that the Board did not breach “any

alleged contract” with AHSAA. The trial court entered a summary judgment in favor of the

Board. Locke appeals.

II.

The standard for review of a summary judgment is well established:

“The standard of review applicable to a summary judgment is the same as the standard for

granting the motion, that is, we must determine whether there was a genuine issue of

material fact and, if not, whether the movant was entitled to a judgment as a matter of law.

Our review is further subject to the caveat that this Court must review the record in a light

most favorable to the nonmovant and resolve all reasonable doubts against the movant.

Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986); Harrell v. Reynolds Metals Co., 495 So.2d

1381 (Ala. 1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990).

“. . . Ala. Code 1975 } 12-21-12, mandates that the [nonmovants] meet their burden by ‘substantial evidence.’ Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98

(Ala. 1989). Under the substantial evidence test the nonmovant must present ‘evidence of

such weight and quality that fair-minded persons in the exercise of impartial judgment

can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life

Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).”

Brewer v. Woodall, 608 So. 2d 370, 372 (Ala. 1992).

III.

For the purposes of this appeal, we assume that the AHSAA Directory constitutes [*1250] a

valid contract between the Board and AHSAA.

(The Board’s brief, p. 11.) Because there apparently is a genuine issue of material fact as to

whether the AHSAA Directory is a contract between the AHSAA and the Board, we do not

review that question. This Court “will address on appeal only those issues presented and

for which supporting authorities have been cited to the court.” Messer v. Messer, 621 So.2d

1343, 1344 (Ala. Civ. App. 1993).

On appeal, Locke first argues that he is an intended third-party beneficiary of a contract

between the Board and the AHSAA. “If one person makes a promise for the benefit of a third

party, such beneficiary may maintain an action thereon, though the consideration does not

move from the latter.” Franklin Fire Ins. Co. v. Howard, 230 Ala. 666, 667-68, 162 So.683, 684 (1935).

To recover under a third-party beneficiary theory, the complainant must show: 1) that the

contracting parties intended, at the time the contract was created, to bestow a direct

benefit upon a third party; 2) that the complainant was the intended beneficiary of the

contract; and 3) that the contract was breached.

H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 24 (Ala. 2002)(quoting Sheetz, Aiken & Aiken, Inc.

v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99, 101-02 (Ala. 1987)). Further, “it has long been the rule

in Alabama that one who seeks recovery as a third-party beneficiary of a contract must

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establish that the contract was intended for his direct, as opposed to incidental, benefit.” Morris

Concrete, Inc. v. Warrick, 868 So. 2d 429, 434 (Ala. Civ. App. 2003) (quoting McGowan v. Chrysler

Corp., 631 So. 2d 842, 848 (Ala. 1993)(quoting in turn Mills v. Welk, 470 So. 2d 1226, 1228 (Ala.

1985))). “We look[] to the complaints and the surrounding circumstances of the parties to

ascertain the existence of that direct benefit.” Holley v. St. Paul Fire & Marine Ins. Co., 396 So.

2d 75, 80 (Ala. 1981)(citing Zeigler v. Blount Bros. Constr. Co., 364 So. 2d 1163 (Ala. 1978)); see

also Anderson v. Howard Hall Co., 278 Ala. 491, 179 So. 2d 71 (1965).

In Zeigler, this Court addressed what is necessary to establish status as a third-party

beneficiary of a contract. 364 So. 2d at 1163. In that case, a dam commissioned by a power

company and built by a contractor collapsed. 364 So. 2d at 1165. Zeigler, a customer of the

electrical power company, sued the contractor that had built the dam, arguing that his status as

a consumer of electrical power made him a third-party beneficiary of the contract between the

electrical power company and the contractor. Id. Specifically, Zeigler argued that because the

contractor failed to construct the dam properly and the dam subsequently collapsed, he was

being forced to pay higher bills for electricity than he would have had to pay had the dam been

properly constructed. Id.

In determining whether Zeigler was a third-party beneficiary of the contract under the

“surrounding circumstances” test, this Court looked to whether the power company itself was

directly benefited by the contract, or whether the benefit manifested itself mainly to third

parties. Zeigler, 364 So. 2d at 1166. This Court noted that the contract itself did not mention

third parties or any benefits third parties would reap from the construction of the dam. Id. This

Court found that “performance of the contracts would, and did, result in an enhancement of

[the power company’s] real and riparian property holdings, to the direct benefit of the [power

company] itself.” 364 So. 2d at 1166. This Court further noted that there was no evidence

indicating that the power company had considered the fees their customers would have to pay

if the dam was built, and that there was no evidence indicating that a properly constructed dam

would have necessarily resulted in lower electrical bills for the consumer. Zeigler, 364 So. 2d at

1166. Therefore, this Court held that because the contract directly benefited the power

company and would not necessarily benefit the customer, Zeigler was an incidental, rather

than an intended direct, beneficiary of the contract between the power company and the

contractor. Id.

On the other hand, in H.R.H. Metals, Inc., Vulcan Materials Company contracted with H.R.H

Metals, Inc., to purchase and remove three buildings located on property belonging to Vulcan.

833 So. 2d at 21. H.R.H. signed a contract with Vulcan that provided, in pertinent part:

[H.R.H] covenants to follow Vulcan’s safety rules and to maintain its own safety and health

program for its employees, subcontractors, and agents sufficient to prevent injury or illness

to such persons resulting from their presence on the Vulcan premises. . ..

H.R.H. Metals, Inc., 833 So. 2d at 21. H.R.H. hired a subcontractor, Carl Miller, to demolish

and remove one of the buildings. Id. at 22. While in the process of demolishing the building,

Miller walked across a skylight and fell 20 feet, seriously injuring himself. Id. Miller sued H.R.

H., alleging, among other things, that H.R.H. had breached its contract with Vulcan to

(Continued)

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provide safety equipment to subcontractors, that he was a third-party beneficiary of the

contract between Vulcan and H.R.H, that H.R.H. had breached that contract, and that he had

been injured by H.R.H.’s breach of the contract.

On appeal, this Court noted that in order for a person to be a third-party beneficiary of a

contract, the contracting parties must have intended to bestow benefits on third parties. H.R.

H. Metals, Inc., 833 So. 2d at 24. This Court held that to ascertain the intent of the parties “we

must first look to the contract itself, because while ‘the intention of the parties controls in

construing a written contract,’ ‘the intention of the parties is to be derived from the contract

itself where the language is plain and unambiguous.’“ H.R.H. Metals, Inc., 833 So. 2d at 24

(quoting Loerch v. National Bank of Commerce of Birmingham, 624 So. 2d 552, 553 (Ala. 1993)).

We then noted that the contract between H.R.H. and Vulcan specifically provided that H.R.H.

was to “maintain its own safety and health program for its employees, subcontractors, and

agents sufficient to prevent injury or illness to such persons resulting from their presence on the

Vulcan premises.” 833 So. 2d at 25. This Court held that “the emphasized language reflects an

intention on the part of the contracting parties to bestow a direct benefit on [the plaintiff] . . . .”

833 So. 2d at 25.

In this case, the Board argues that “Locke was not an intended beneficiary of the AHSAA

contract.” The Board relies on Gardner v. Vinson Guard Service, Inc., 538 So. 2d 13 (Ala. 1988),

in which a corporation hired a security company to provide protection in the corporation’s

parking lot to its employees as they were arriving at and leaving work. 518 So. 2d at 13. The

instructions to the security guards specified certain times and places female employees would

be arriving at work, and provided that the security guards were to escort them into the building.

Id. at 14. The security guards were also to perform security checks around the perimeter of the

company’s property at certain intervals. Id. However, the contract also provided that, “Guards

will use bathroom facilities in [the company’s] building, but will not visit or linger in the

building for any extended period of time.” Gardner, 538 So. 2d at 14.

One morning, when a group of female employees, including the plaintiff, arrived for work, a

security guard met them at the door and told them that “he had interrupted someone trying to

break into the cigarette machine and that there was no need to call the police because the man

had left and he (the security guard) had recovered all of the merchandise.” 538 So. 2d at 14.

The security guard further informed the female employees that he had apprehended the man

and that they could safely enter the building to start work. Id. A short time later, a female

employee, Hazel Gardner, entered a bathroom in the building where she was attacked by a

second man who had apparently broken into the building. Id. Gardner and her husband

sued the security company, alleging, among other things, breach of contract. Gardner argued

that she was a third-party beneficiary of the contract between the security company and her

employer. Gardner, 538 So. 2d at 14. The company moved for a summary judgment, and

the trial court granted that motion.

On appeal, this Court upheld the summary judgment for the security company. However,

it was not, as the Board contends, because this Court found that Gardner was not an

intended third-party beneficiary. This Court stated that “in their brief, the Gardners argue that a

cause of action may exist for a third-party beneficiary for a breach of contract. We do not

dispute that a cause of action may exist, but we can find no contractual duty imposed upon

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[the security company].” Gardner, 538 So. 2d at 15. Thus, in Gardner this Court held that the

security guards did not have a contractual duty to protect Gardner inside the building; it did not

hold that Gardner was not a third-party beneficiary.

The Board also cites DuPont v. Yellow Cab Co. of Birmingham, 565 So. 2d 190 (Ala. 1990), in

support of its argument that Locke is not an intended third-party beneficiary of the contract

between the Board and AHSAA. In DuPont, a school board contracted with a cab company to

provide drivers and maintenance for school buses. 565 So. 2d at 192. The cab company

subcontracted with another company to provide drivers for the buses. Id. One of the buses

was not maintained properly, and the driver was injured when the brakes failed, causing the

bus to collide with a tree. Id. at 191. The driver sued the cab company, alleging that he was a

third-party beneficiary of the contract between the school board and the cab company.

Id. The trial court found that the driver was not a third-party beneficiary of the contract

and entered a summary judgment for the cab company.

This Court stated that the cab company “was under an obligation, independent of the

contract, to maintain its fleet of vehicles for the safety of its drivers.” DuPont, 565 So. 2d at

192 (citing } 25-1-1, Ala. Code 1975). The contract at issue in DuPont provided solely for the transportation of students to and from school; therefore, the only group that could benefit

from the contract was the students. 565 So. 2d at 192. We held, therefore, that the only

“reasonable inference” that could be drawn from the contract was that the children riding the

school buses, not the drivers, were the intended direct beneficiaries of the contract, and we

affirmed. Dupont, 565 So. 2d at 192.

In this case, the contract between the Board and the AHSAA specifically provides

that principals are to “provide good game administration and supervision by providing . . .

adequate police protection.” Therefore, we must determine from the surrounding

circumstances whether Locke is an intended direct beneficiary.

The contract before us between the Board and the AHSAA, like the one in H.R.H. and unlike

the one in Zeigler, anticipates the existence of a third party. SAUA, which provided umpires,

specifically Locke, for the game, provides officials only to athletic events that are sponsored by

the AHSAA. The contract states that the purpose of “adequate police protection” is to “provide

good game administration and supervision.” Game administration and supervision necessarily

involve umpires. The fact that the AHSAA and the Board intended for the police protection to

directly benefit the umpires, who are involved in game administration and supervision, is

evidenced by the letter from the AHSAA sanctioning Carroll High School for the incident

involving Locke. The AHSAA stated:

According to information received . . . there were administrators present at the baseball

game from both schools but there was no police protection provided. . . . At the conclusion

of the game, Mr. Mixon Cook made his way to the area where the umpires were exiting the

field. Mr. Wesley Locke, Jr., the umpire in chief was struck three times in the face and neck

area by Mr. Mixon Cook, a parent of a Carroll High School athlete. Mr. Cook used his fist

with striking blows to Mr. Locke’s right eye, left neck area and right side of his face.

Because of this physical attack by Mr. Mixon Cook on the game official, Mr. Wesley Locke,

Jr., Carroll High School is assessed a monetary fine of $ 1,000.00 and placed on probation

for a period of one year.

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Because this matter is before us on the appeal of a summary judgment, we need determine

only whether Locke, as the nonmovant, has presented substantial evidence creating a genuine

issue of material fact as to whether he was an intended direct beneficiary of the contract. We

hold, based on the plain language of the contract and on the surrounding circumstances,

that the contract anticipates third-party umpires, that the contract was intended to directly

benefit umpires like Locke, and that Locke has presented substantial evidence creating a

genuine issue of fact as to whether he was an intended direct beneficiary of the contract

between the Board and the AHSAA.

IV.

The Board next argues that Locke’s allegations sound in tort rather than in contract. Locke

argues that his claim sounds in contract because, he says, the Board had a contractual duty to

provide police protection at the baseball game Locke was umpiring, the Board failed to do so,

and as a result Locke was assaulted by a spectator. Locke relies on Sims v. Etowah County Board

of Education, 337 So. 2d 1310, 1313 (Ala. 1976), in which this Court stated: “‘It will be observed

that a negligent failure to perform a contract express or implied . . . is but a breach of the

contract.’“ (quoting Berry v. Druid City Hosp. Bd., 333 So. 2d 796, 799 (Ala. 1976)(quoting in turn

Vines v. Crescent Transit Co., 264 Ala. 114, 119, 85 So. 2d 436, 440 (1955))). On the other hand,

it is true that

if in performing [the contract], it is alleged that the defendant negligently caused personal

injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a

contract express or implied, but the breach of an implied duty to exercise due care not to

injure plaintiff or her property which is the gravamen of the action.

Vines, 264 Ala. at 119, 85 So.2d at 440.

Cook testified that if police protection had been provided, he would not have attacked

Locke. Therefore, viewing the record in a light most favorable to Locke, the nonmovant, we

conclude that he has presented substantial evidence showing that the Board failed to perform

its contractual duties and that as a result of the Board’s breach of the contract Locke was

harmed. Locke’s complaint sounds in contract, not in tort.

The Board argues that “absent special relationships or circumstances, a person has no duty

to protect another from criminal acts of a third person.” Steiger v. Huntsville City Bd. of Educ.,

653 So. 2d 975 (Ala. 1995)(quoting Young v. Huntsville Hosp., 595 So. 2d 1386, 1387 (Ala. 1992)).

While this is a correct statement of law, the principle applies to claims sounding in tort, not

to those in contract. See Steiger, 653 So. 2d at 978 (“We have noted, ‘It is difficult to impose

liability on one person for an intentional criminal act committed by a third person.’ In this case,

the Board has no tort liability. The only liability it could have to plaintiff Steiger is through a

contract theory.”)(citations omitted). Locke has presented evidence indicating that one of the

purposes of the contract was providing “good game administration and supervision . . ..”

Viewed in a light most favorable to Locke, this evidence creates a question of material fact as to

whether the Board had a contractual duty to protect Locke from the criminal acts of third

parties at sporting events by providing adequate police protection.

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VI.

Finally, the Board argues that it did not breach the contract with the AHSAA. The Board

concedes that the AHSAA Directory “provides that the school principal is required to insure

good game administration and supervision by providing for adequate police protection.”

The Board, however, also offers testimony from Dan Washburn, the executive director of

the AHSAA, to the effect that the AHSAA has recommended that “security at non-revenue

games . . . be in the form of administrators . . . .” Nevertheless, “it is elementary that it is the

terms of the written contract, not the mental operations of one of the parties, that control its

interpretation.” Harbison v. Strickland, 900 So. 2d 385, 391, 2004 Ala. LEXIS 275, *13 (Ala. 2004)

(quoting Kinmon v. J.P. King Auction Co., 290 Ala. 323, 325, 276 So. 2d 569, 570 (1973)). The

AHSAA Directory specifically provides that “adequate police protection” is to be provided at all

athletic events sponsored by the AHSAA. Locke has offered undisputed evidence that there was

no police protection at the baseball game at which he was injured and that the Board provided

police protection at other athletic events. Further, a letter sent by the AHSAA to the Board,

fining the Board for the incident involving Locke, specifically cites the fact that no police

protection was provided at the baseball game. There is a genuine issue of material fact as to

whether the Board provided “adequate” police protection at the baseball game at which Locke

was injured under its contract with the AHSAA; therefore, a summary judgment is not

appropriate as to this issue.

VII.

Locke has presented substantial evidence indicating that the Board and the AHSAA intended to

provide a direct benefit to umpires, that he was an intended direct beneficiary of the contract,

and that the Board breached the contract. Locke’s complaint sounds in contract, and the

evidence, viewed in a light most favorable to Locke, presents a question of material fact as to

whether the Board had a contractual duty to protect Locke from the criminal acts of third

parties and whether the Board did in fact provide adequate police protection at the game.

For these reasons, a summary judgment was not appropriate. Therefore, the summary

judgment in favor of the Board is reversed, and this case is remanded for proceedings

consistent with this opinion.

REVERSED AND REMANDED.

Nabers, C.J., and Harwood, Stuart, and Bolin, JJ., concur.

MICHAEL WELLS V. SECURITAS SECURITY SERVICES USA, INC. AND THE UNIVERSITY OF MICHIGAN Case No. 07-15500 (E.D. Mich. 2009)

JUDGES: Present: The Honorable Lawrence P. Zatkoff, United States District Judge.

OPINION BY: Lawrence P. Zatkoff

I. INTRODUCTION

This matter comes before the Court on Defendants’ respective motions for summary judgment

[dkt 27 & 28]. The parties have fully briefed the motions. The Court finds that the facts and legal

arguments are adequately presented in the parties’ papers such that the decision process would

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not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(e)(2), it is

hereby ORDERED that the motions be resolved on the briefs submitted. For the reasons set

forth below, Defendant Securitas Security Services’ motion for summary judgment is

GRANTED, and Defendant The University of Michigan’s motion for summary judgment is

GRANTED.

Also before the Court is Plaintiff’s motion for leave to file a sur-reply brief [dkt 39]. In this

motion, Plaintiff contends that Securitas’s reply brief to its motion for summary judgment

“contains multiple misstatements of fact and law.” Defendants respond that the Federal and

Local Rules do not contemplate sur-reply briefs, that Plaintiff’s proposed sur-reply is redundant

of his initial responses, and that Plaintiff’s proposed sur-reply brief exceeds the page limitation

imposed on reply briefs by E.D. Mich. L.R. 7.1. Because this matter is before the Court on

summary-judgment motions filed by Defendants, the Court must construe all facts in favor of

Plaintiff as the non-moving party. Therefore, Plaintiff’s concerns of factual misstatements are

immaterial, and the Court finds no other compelling reason to consider Plaintiff’s sur-reply

brief. Accordingly, Plaintiff’s motion for leave to file sur-reply brief is HEREBY DENIED.

II. Background

Securitas provides private security officers to clients throughout the United States. Securitas’s

predecessor hired Plaintiff as a security officer in 2000. Generally, prior to assigning its

employees to a client, Securitas sends its employees to interview with the client. If the client

finds the employee to be satisfactory, the employee is assigned to that client. Pursuant to that

process, Plaintiff was assigned to the central power plant of the University of Michigan in the

fall of 2002. In December 2002, Plaintiff was promoted to the position of site supervisor for the

central power plant.

In January 2006, an employee of the University named Gerald Avery sexually assaulted

another employee of the University, Katherine McCarty. McCarty reported the assault in

March of that same year. The University of Michigan investigated the incident and ultimately

suspended Avery for one month without pay, demoted his position, transferred him to another

plant, and entered into a “Last Chance Settlement Agreement” with Avery whereby the latter

was “not to make any effort to contact, talk to or otherwise seek out [McCarty].” At that time,

Avery was the chief steward for his union, Local 547, International Union of Operating

Engineers—a position that apparently required him to visit the central power plant periodically.

On April 4, 2007, Plaintiff encountered McCarty in an agitated state. McCarty informed

Plaintiff of Avery’s 2006 assault against her. She further informed Plaintiff that she had seen

Avery on the premises of the power plant earlier that morning. McCarty, however,

misrepresented the terms of the Last Chance Settlement Agreement to Plaintiff, indicating that

Avery was not permitted at the central power plant while McCarty was on the premises.

McCarty indicated to Plaintiff that she had seen Avery at the power plant on several other

occasions and that his presence upset her.

Plaintiff contacted the University’s Department of Public Safety (“DPS”) on behalf of

McCarty. At that time, he had not independently verified the actual terms of the Last Chance

Settlement Agreement. It is not entirely clear what Plaintiff conveyed to DPS during his initial

phone call but approximately one week later, DPS Officer Kevin Rice came to the power plant to

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