Rogers v. T.J.X. Companies, Inc. , 101 N.C. App. 99 ( 1990 )

HEDRICK, Chief Judge.

Plaintiff first contends the trial court erred in granting defendants’ motion for summary judgment with respect to her false imprisonment claim “for the reason that the pleadings and deposition. testimony presented disclose that there are genuine issues as to material facts and that the defendants are not entitled to judgment as a matter of law.” We agree.

Summary judgment is a drastic remedy and must be used cautiously. Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908 (1983). Summary judgment is appropriate only where there are no genuine and material issues of fact to be resolved. Harris-Teeter Supermarkets, Inc. v. Hampton, 76 N.C. App. 649, 334 S.E.2d 81, disc. review denied, 315 N.C. 183, 337 S.E.2d 857 (1985).

The tort of false imprisonment is defined in Hales v. McCrory-McLellan Corp., 260 N.C. 568, 133 S.E.2d 225 (1963), as follows:

‘False imprisonment is the illegal restraint of the person of any one against his will’ (citation omitted). . . . There is no legal wrong unless the detention was involuntary. False imprisonment may be committed by words alone, or by acts alone, or by both; it is not necessary that the individual be actually confined or assaulted, or even that he should be touched. Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment ....

Id. at 570, 133 S.E.2d at 227.

In the present case, defendants contend that plaintiff failed to establish facts sufficient to support her claim of false imprisonment. However, the deposition testimony offered by defendants in support of their motion for summary judgment tends to show that: (1) plaintiff was stopped by defendant Nourse as she was leaving the store; (2) defendant Nourse produced a badge identifying himself as store security and asked plaintiff to accompany him back into the store; (3) plaintiff felt that she had no choice but to return to the store with defendant Nourse; (4) defendant Nourse directed plaintiff to his office at the rear of the store and followed closely behind her as she walked to the office; (5) defendant Nourse asked another store employee to join them in his office; (6) once inside his office, defendant Nourse questioned plaintiff for approximately thirty to thirty-five minutes about some merchandise he had allegedly seen her remove from the lingerie department; (7) after repeated attempts by plaintiff to prove to defendant Nourse that she had not taken any of the store’s merchandise and that in fact she had not been in the lingerie department that day, defendant threatened to “handcuff her to a chair,” call the police, and have her arrested; and (8) defendant told plaintiff that she could not leave until she had signed documents stating that she released the store from liability and which indicated that she knew and understood her Miranda rights. We find that this evidence, offered by defendants in support of their claim for summary judgment, supports the inference that plaintiff was “compelled to remain where [she did] not wish to remain, or to go where [she did] not wish to go” and certainly raises genuine issues of material fact sufficient to support plaintiff’s claim of false imprisonment.

Defendants further argue that the trial court properly granted summary judgment in their favor with respect to this claim because “N.C.G.S. 14-72.1 provides a complete defense ... ”, and they were thus entitled to judgment as a matter of law. G.S. 14-72.1(c) provides in pertinent part:

A merchant, or his agent or employee, or a peace officer who detains or causes the arrest of any person shall not be held civilly liable for detention, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, where such detention is in a reasonable manner for a reasonable length of time, if in detaining or in causing the arrest of such person, the merchant, or his agent or employee, or the peace officer had at the time of the detention or arrest probable cause to believe that the person committed the offense created by this section.

In Ayscue v. Mullen, 78 N.C. App. 145, 336 S.E.2d 863 (1985), this Court held that G.S. 14-72.1 does not absolutely immunize merchants and their employees from liability for false imprisonment and that a jury could find that the statute is not applicable where the evidence shows that the detention was unreasonable. We cannot say that a jury could not find the conduct of defendant Nourse to have been unreasonable; and, therefore, defendants were not entitled to judgment as a matter of law based on this statute.

We therefore hold the trial court erred in entering summary judgment against plaintiff on her claim for false imprisonment, and the judgment of the trial court will be reversed with respect to this claim.

Next, plaintiff contends the trial court erred in entering summary judgment in favor of defendants on her claim for intentional infliction of emotional distress. Again, we agree with plaintiff and must reverse the judgment of the trial court with respect to this claim.

In Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), our Supreme Court held that liability for the tort of intentional infliction of emotional distress arises “when a defendant’s conduct exceeds all bounds of decency tolerated by society and the conduct causes mental distress of a very serious kind.” West v. King’s Dept. Store, Inc., 321 N.C. 698, 704, 365 S.E.2d 621, 625 (1988). To assert a claim for intentional infliction of emotional or mental distress, plaintiff must allege facts sufficient to show: “(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). “The tort may also exist where defendant’s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress.” Id.

In the present case, plaintiff alleged facts in her pleadings sufficient to assert a claim for intentional infliction of emotional distress. Furthermore, in her deposition, plaintiff alleges that defendant Nourse (1) followed closely behind her as she proceeded through the store toward his office in plain view of customers shopping in the store at the time; (2) repeatedly demanded the store’s merchandise, but refused to tell plaintiff what item in particular he was looking for; (3) resisted all attempts by the plaintiff to prove her innocence; (4) insulted plaintiff with statements such as “Usually the dog that barks the loudest is guilty”; and (5) threatened to “handcuff her to a chair” and have her arrested. Plaintiff stated that following the incident she became very sick, nervous and upset and required medical attention for a sleep disturbance. Additionally, plaintiff felt “stripped of her dignity.”

In a similar case, our Supreme Court found that a store employee’s “unrelenting attack, in the face of explanation, was both extreme and reckless under the circumstances.” West, 321 N.C. at 706, 365 S.E.2d at 626. We find the facts of the case sub judice sufficient to raise genuine issues of material fact as to whether “defendant’s actions indicate a reckless indifference to the likelihood that they will cause emotional distress” and hold the trial court erred in entering summary judgment against plaintiff with respect to her claim for intentional infliction of emotional distress.

Finally, plaintiff contends the trial court erred in entering summary judgment against her and dismissing her claim for punitive damages. On this contention, we disagree with plaintiff.

It is well settled that a plaintiff seeking to collect punitive damages must allege and prove “some additional element of a social behavior which goes beyond the facts necessary to create a simple case of tort.” Shugar v. Guill, 51 N.C. App. 466, 469, 277 S.E.2d 126, 129 (1981). “Punitive damages are recoverable only in tort actions where there are allegations and proof of facts showing some aggravating factors surrounding the commission of the tort such as actual malice, oppression, gross and willful wrong, insult, indignity or a reckless or wanton disregard of plaintiff’s rights.” Id. Whether plaintiff has alleged and proven sufficient facts to bring the case within the rule allowing punitive damages is a question of law for the court. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976).

In the present case, we hold the forecast of evidence lacks “those elements of outrageous conduct which would subject the defendants to punitive damages.” Ayscue, at 149, 336 S.E.2d at 866. Therefore, the trial court properly granted defendants’ motion for summary judgment with respect to this claim.

The result is: summary judgment in favor of defendants with respect to plaintiff’s claims for false imprisonment and intentional infliction of emotional distress will be reversed; summary judgment in favor of defendants with respect to plaintiff’s claim for punitive damages will be affirmed.

Reversed in part; affirmed in part.

Judge Arnold concurs. Judge PHILLIPS concurs in part and dissents in part.