PRYOR, Associate Judge:
This is an appeal from a jury finding of liability against Safeway Stores, Inc., for assault and battery, and false arrest arising from the actions of a security guard working at a Safeway grocery store. Appellant contends that it is not liable in respondeat superior for these actions and that in any event probable cause existed for the arrest of appellee.
One evening in February 1976, as George I. Kelly entered a Safeway store in Southeast Washington, D.C. to shop for groceries, he noticed that an automatic exit door was not working properly and that it was necessary to exert pressure on the door to push it open. According to appellee's testimony, he completed his shopping and later advised a cashier that he wanted to make a complaint about the broken door. The cashier suggested that Kelly talk to the assistant manager, Mr. Wheeler. When Kelly did so, the assistant manager responded that the door would be fixed in two or three months, and that Kelly was always making trouble for him. Kelly testified that he had never made a complaint to Mr. Wheeler before that night and also stated that the assistant manager said to him, "[B]oy, if you don't get out of this store, I'm going to have you arrested." Kelly responded, "[W]ell, call the police, I want to file a complaint." He explained that it was unclear to him that the assistant manager was directing him to leave the store. Holding his bag of groceries, Kelly stood in the front of the store to await the police. The assistant manager beckoned to a security guard, Larry Moore, who was assigned to the store by Seaboard Security Systems, Ltd., and at the same time asked someone in the back of the store to call the police. Within a few minutes Officer Knowles of the Metropolitan Police Department came into the store. According to appellee, Knowles first spoke with the assistant manager, who had called him over, and then approached appellee and said, "[T]he manager wants you to leave the store." Kelly testified that he was about to respond to the officer when the security guard approached from the rear and grabbed him around his throat; simultaneously, the police officer stuck his knee into Kelly's chest. The two pushed him to the ground, and handcuffed him. Without resistance from Kelly, the officer and the security guard took Kelly to the back of the store where he stood in handcuffs in view of store customers. After 10 or 15 minutes a police car arrived and transported him to the precinct where the police charged him with unlawful entry,
The chief security investigator for Safeway Stores, Inc., Mr. Kubicek, stated that Safeway did not hire, pay or train the Seaboard guards or tell them specifically how to do their work. He said that there was an oral understanding between Safeway and Seaboard that Seaboard would supply security guards for 16 Safeway stores. Safeway paid for their services in one lump sum to Seaboard. Kubicek explained that a guard was under the general direction of the store manager, who had operational control over the guard. Specifically, he
Testifying for appellant, Seaboard security guard Moore contradicted appellee's version in some respects. Moore stated that he noticed Kelly and the assistant manager in the front of the store talking loudly. Contrary to appellee's assertion that the assistant manager motioned to the guard, Moore said he approached the assistant manager on his own initiative in an attempt to resolve an emerging problem. At the same time, Moore stated, Officer Knowles of the Metropolitan Police Department entered the store and came directly over to the assistant manager and Kelly. When Kelly became louder, the police officer decided to place him under arrest. The security guard grabbed Kelly, who then swung at the officer. A scuffle broke out between the guard, the officer and Kelly, resulting in Officer Knowles handcuffing Kelly and placing him under arrest with the assistance of the guard.
Although Moore differed with Kubicek as to the question of who determined a guard's working hours, he generally supported the latter's testimony in other respects. Moore also explained that Seaboard trained the guards placing primary emphasis on apprehension and arrest of shoplifters. He added that he would follow specific requests of the manager, such as locking the doors in the evenings, and would act under the general direction of the manager if he were having a problem with a customer.
Also testifying for appellant, the assistant store manager Wheeler recollected that the police officer first came over to talk to him, and then approached Kelly and told him the assistant manager wanted him to leave the store. Wheeler also said that Kelly threw a punch at the officer before the security guard touched Kelly to assist in the arrest. The store manager denied that he had called Kelly a troublemaker. He explained that, in response to Kelly's boisterous complaints about the broken door, he told Kelly that if he could not "keep it down," Wheeler would call the police to remove him. Wheeler also stated that the only instructions Safeway gave to the guards were to keep juveniles out of the doorway and to watch for shoplifters.
Officer Knowles stated that a short interval after entering the store on routine patrol, he heard loud shouting on the premises. Seeing the assistant manager and Kelly in the front of the store, he approached the assistant manager, who told him that he had asked Kelly to leave but Kelly refused. The officer approached Kelly and informed him that he would have to leave if he would not quiet down. When Kelly continued to shout, Officer Knowles told him he was under arrest. The officer could not tell if Kelly swung at him, but did know Kelly raised his fist or fists. The officer grabbed Kelly around the neck, and pulled him to the ground. Moore then grabbed Kelly and helped the officer handcuff him.
In his suit against Safeway,
The threshold determination is whether Safeway is liable for the alleged assault and battery and false arrest of appellee by a security guard who was working at a Safeway store and was employed by an independent security service. Safeway argues that it avoids liability since the guard service company was an independent contractor
Determining whether a master and servant
In characterizing the right to control as the determinative factor, we mean the right to control an employee in the performance of a task and in its result, and not the actual exercise of control or supervision. Dovell v.
In a similar case, we held that a guard employed by an independent security service at a Safeway store was a servant acting within the scope of employment when he assaulted a customer. Safeway Stores, Inc. v. Gibson, D.C.Mun.App., 118 A.2d 386, 388 (1955), aff'd, 99 U.S.App.D.C. 111, 237 F.2d 592 (1956). However, in that case, this Court did not discuss the distinction between an independent contractor and a servant since Safeway only challenged whether the guard was acting within the scope of his employment, and whether Safeway was liable for punitive damages. Id. at 388-89.
A discussion of the factors relevant to determining whether a store's security service is in a master/servant relationship or is an independent contractor appears in Adams v. F. W. Woolworth Co., 257 N.Y.S. 776, 144 Misc. 27 (Sup.Ct.1932). The court held that a detective agency, which was employed to protect the store's property, was a servant and not an independent contractor of the store owner. Id. at 781, 144 Misc. at 31. The court found the following factors relevant: the contract was performed at the store; the store could determine which people the guards should investigate; the agency had no specific job or piece of work to perform; the agency rendered continuous service for which the store paid it weekly; and the store could terminate the particular service whenever it chose. Id. at 780, 144 Misc. at 30. The court emphasized that no single fact is more conclusive of a master and servant relationship than the unrestricted right of the employer to terminate the employment whenever he chose. Id. at 780, 144 Misc. at 30-31.
Appellant argues that the trial court should have granted its motion for judgment notwithstanding the verdict (n.o.v.)
Next we turn to appellant's allegation that the trial court should have granted judgment n.o.v. on the false arrest claim since probable cause existed to arrest appellee for unlawful entry.
The issue of probable cause for false arrest is a mixed question of law and fact. Lansburgh's, Inc. v. Ruffin, D.C.App., 372 A.2d 561, 564 (1977); Neisner Brothers, Inc. v. Ramos, D.C.App., 326 A.2d 239, 240 (1974). Where the facts are in dispute, the issue of probable cause is for the jury, but where the facts are undisputed or clearly established, a question of law arises for the court. Lansburgh's, Inc. v. Ruffin, supra at 564-65; Nichols v. Woodward & Lothrop, Inc., D.C.App., 322 A.2d 283, 285 nn.1 & 4 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975); Smith v. Tucker, D.C.App., 304 A.2d 303, 306 (1973); Wolter
In this case security guard Moore assisted Officer Knowles in arresting Kelly for unlawful entry.
Appellee does not allege any constitutional or statutory basis to remain on the premises against the wishes of the Safeway manager. Rather, he argues that he had a good faith belief in his right to remain since he had not yet completed the business transaction for which Safeway had invited him onto the premises and that the manager did not specifically ask him to leave. The facts, considered in the light most favorable to appellee, do not support this contention. According to the testimony of Officer Knowles and the assistant manager, the latter told Knowles that he (the manager) wanted Kelly to leave the store and that when Knowles conveyed this information to Kelly, Kelly refused to leave. As appellee himself testified, the manager told him that if he did not leave, the manager would call the police and have him arrested. This testimony renders incredible Kelly's subsequent statement that he did not know the manager wanted him to leave. Thus, the record reflects that it was undisputed that probable cause existed to arrest Kelly for unlawful entry. Accordingly, we reverse the judgment against Safeway for false arrest.
Safeway also argues that the trial court should have granted judgment n.o.v. on the assault and battery claim. If the person making a lawful arrest used excessive force, the person arrested may have a claim for assault and battery. Jackson v. District of Columbia, supra at 955; see F. HARPER & F. JAMES, THE LAW OF TORTS § 3.18, at 280-81 (1956). In this case the action of the Seaboard guard may impose liability on Safeway. As we have said:
Appellee alleges that although he offered no resistance, the Seaboard guard grabbed him from behind around the throat
Appellant also challenges the trial court's grant of a new trial conditioned on appellee's refusal of the remittitur. A trial court's broad discretion to grant or deny a motion for a new trial based on the excessiveness of the verdict will be reversed only for an abuse of discretion. Wingfield v. Peoples Drug Store, Inc., D.C.App., 379 A.2d 685, 687 (1977); May Department Stores Co., Inc. v. Devercelli, D.C.App., 314 A.2d 767, 775 (1973); City Stores Co. v. Gibson, D.C.App., 263 A.2d 252-53 (1970); Munsey v. Safeway Stores, Inc., D.C.Mun. App., 65 A.2d 598, 600 (1949). Upon this record we do not find that the trial court's award of a remittitur, or a new trial if appellee refused the remittitur, was so beyond the range of reason as to require reversal.
Affirmed in part and reversed in part.
In addition, courts have held a grocery store liable for the intentional torts committed by their independent contractors based on the store's personal nondelegable duty to protect its property and customers. Malvo v. J. C. Penney Co., Inc., 512 P.2d 575, 583 n.13 (Alaska 1973); Dupree v. Piggly Wiggly Shop Rite Foods, Inc., 542 S.W.2d 882, 890 (Tex.Civ.App. 1976); see Nash v. Sears, Roebuck & Co., 12 Mich.App. 553, 163 N.W.2d 471 (1968), rev'd on other grounds, 383 Mich. 136, 174 N.W.2d 818 (1970); Adams v. F. W. Woolworth Co., supra; Szymanski v. Great Atlantic & Pacific Tea Co., 79 Ohio App. 407, 74 N.E.2d 205 (1947); Note, Independent Contractors—Liability of Employers—Grocery Store is Liable for False Imprisonment by Its Independent Contractor Providing Security Service, 9 ST. MARY'S L.J. 153 (1977); 38 A.L.R.3d 1332 (1971). See generally RESTATEMENT (SECOND) OF TORTS §§ 409-429 (1965); F. HARRIS & F. JAMES, THE LAW OF TORTS § 26.11 (1956).