Reconsideration denied December 12, 2014
False arrest, etc. Bibb State Court. Before Judge Hanson.
Edwards & Youmas, Lonzy F. Edwards, Brenda C. Youmas, for appellant.
McLain & Merritt, Albert J. DeCusati, Ashley A. Bagiatis, Nicholas E. Deeb, for appellee.
BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.
In November 2010, plaintiff Felicia Smith was showing a male customer some iPods in the Macon Wal-Mart where she was working when another man stole a number of the devices from the case Smith had left open. A few weeks later, Smith's supervisors ushered her into a back office at the store, showed her a videotape of the incident, and accused her of acting in concert with the thieves. Smith denied these accusations. After Wal-Mart referred the matter to the Macon police, Smith voluntarily went to a precinct, where she was arrested on fourteen counts of fiduciary theft and one count of making a false statement. After the charges were dropped, Smith brought the instant action for false arrest and false imprisonment against Wal-Mart. On appeal from the trial court's grant of summary judgment to Wal-Mart, Smith argues that genuine issues of
material fact remain as to her claims. We agree as to her claim for false imprisonment arising from her arrest and therefore affirm in part and reverse in part.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
[330 Ga.App. 341] Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991) (citation omitted).
Viewed in Smith's favor, the record shows that Smith was working on the early morning of November 19, 2010, when she unlocked an electronics case in order to show a man some of the iPods inside. During Smith's conversation with him, the man moved back and forth in front of Smith, thereby blocking her view of a second man, who also moved toward and away from the case as well as from side to side so as to avoid being seen by Smith. While Smith was distracted by the first man, the second man removed a number of iPods from the case and walked away in the opposite direction from Smith. After the second man turned the corner at the end of the aisle, the first man told Smith that he needed to check his bank balance on an ATM, walked toward the front of the store, and left without further contact with Smith. Smith never realized that any iPods were missing. Both men were later apprehended and charged with the theft of the iPods.
A few weeks later, on the night of December 7, 2010, Smith was working when the manager asked her to come to a back office. Although Smith thought that she might be interviewed for a promotion she had applied for, the manager left her in the office with loss prevention officers Richard Vining and Vashali Patel. Smith later averred that Vining and Patel blocked the door of the office so that she could not leave. Smith testified at deposition, however, that Vining and Patel told Smith at or before the conclusion of the meeting that she was free to leave, never touched her, and never suggested that they were going to arrest her or have her arrested. When Vining asked Smith if she knew why she had been called in, Smith replied that she did not. Vining then told Smith that they had her " on camera letting some guys get some iPods" and showed her the videotape of the incident on the early morning of November 19. When Smith began to cry, Vining told her that she was " putting on an act" and that although he had believed her at first, he was now going to suspend her. Smith gave a statement denying any involvement in the theft and later testified that she did so in order to disprove the accusations against her. Vining then recalled the manager, who escorted Smith out of the store.
On December 15, 2010, Officer Spikes with the Macon Police Department called Smith and asked her to come to the precinct to give a statement on the iPod incident. Although Smith's infant daughter had just been released from the hospital, Smith went to the precinct with the infant the same day. When Smith arrived, police offered to assist her in making " arrangements for somebody to come and get [her] daughter." According to both Smith and Spikes, Spikes then called Patel. According to Smith, Spikes told Patel that Smith and her [330 Ga.App. 342] daughter were at the precinct, and asked, " What do you want us to do with her?" Spikes also asked Patel to allow Smith's sister, who worked at the same Wal-Mart, to come to the precinct to pick up Smith's daughter.
After Smith's sister picked up Smith's daughter, Spikes, Detective Johnson, and another police officer questioned Smith about the iPod incident and viewed the videotape with her. When Smith said that she had not seen the second man pictured in the videotape and denied any involvement in the thefts, Johnson told her that she was " fixing to go to jail, trying to protect somebody else." When Smith continued to protest that she was innocent, she was handcuffed and charged with fourteen counts of fiduciary theft and
one count of making a false statement. Johnson testified that he arrested Smith after conducting an " independent" investigation on the basis of evidence, including the videotape and Smith's denials, that gave him probable cause to arrest her for both theft and making a false statement. Johnson also averred ...