Do the facts presented to the jury below support a finding of negligence against defendant Safeway Stores, Inc. (Safeway) for the harm it caused when, as part of its campaign to detect counterfeit currency, it
Does the trial court's error in instructing the jury on the issue of reasonable cause to arrest require reversal of the general verdict against defendant City of Oakland (Oakland)?
On the afternoon of May 1, 1977, plaintiff George Lloyd Pool was arrested at a Safeway supermarket after tendering a $100 bill that did not bear the phrase "In God We Trust." The Safeway employee, believing the bill might be counterfeit, summoned the Oakland Police Department. The police eventually arrested Pool and held him in jail overnight. Mr. Pool's bill was not counterfeit, nor was he attempting to defraud Safeway.
The events leading to Pool's arrest occurred as follows.
In the week preceding the incident, Pool had cashed a paycheck at a local Wells Fargo bank. The bank issued him a few small bills and fifteen $100 bills. At least one of these $100 bills was from series 1950A — a series upon which the motto "In God We Trust" does not appear. The record shows that all valid $100 bills "of series dated through 1950" do not bear the words "In God We Trust."
At Safeway, Pool tendered such a bill to pay for approximately $7 worth of groceries. The checker told him to wait in line while she got his change. He waited patiently for about 10 minutes for the checker to return. However, a new checker took over the post. As Pool began to ask the new checker about his change, a store employee pointed him out to two uniformed Oakland police officers who immediately seized him by the arm and placed him in handcuffs.
The police had been summoned because Safeway was on the alert for counterfeit $100 bills. Apparently, Safeway stores in the Oakland area had been receiving an inordinate number of counterfeit $100 bills. All Safeway
When Pool presented his bill, the checker brought it to the cashier's booth for change and allowed the assistant manager to inspect it closely. The checker testified that she saw the assistant manager check the bill against the list of serial numbers. However, the assistant manager denied ever having seen such a list, although he said he had heard about it.
Safeway employees had also been instructed to look for the motto "In God We Trust" on $100 bills because Safeway management believed that bills lacking that motto might be counterfeit. No basis for this belief appears in the record. Indeed, if any inference may be drawn, it is that the lack of "In God We Trust" on $100 bills is not an indicium of counterfeit status. The police report states that valid "bills of series dated through 1950 did not have `In God We Trust' on the rear." (Italics added.) Pool's bill was a "1950 Series A."
Nevertheless, when the assistant manager saw that "In God We Trust" was missing from Pool's bill, he treated the bill as a possible counterfeit, as instructed. He reported his suspicions to the police. When the police arrived, the assistant manager showed them Pool's "suspicious" bill, next to a "legitimate" bill — i.e., one of more recent vintage — to illustrate where the "missing" motto should be.
Mr. Pool, waiting in the checkout line, knew none of this. When the officers approached him, he protested that he had done nothing wrong and that he merely wanted to pay for his groceries or get his money back. The officers ignored his pleas.
One officer held Pool's wrist behind his back and threatened to break his arm. The officers asked Pool for identification, which he produced. They also asked him where he obtained the bill. At no time did they explain the nature of the problem. Pool continued to insist that he had done nothing wrong.
As the officers escorted Pool from the store with his arms behind his back and an officer holding each arm, he was shoved up against a cigarette machine. Apparently he did not suffer physical injuries. In the parking lot, the officers frisked Pool in public view, then pushed him into the back of a patrol car and took him to the police station. At no time did they advise him of his rights.
Within minutes after arriving at the police station, the officers determined that Pool's $100 bill was valid. The verification procedure consisted of calling a telephone service instituted by the Department of Treasury for this purpose. The entire process took less than six minutes.
Nevertheless, the police held Pool overnight on charges of interfering with a police investigation.
Pool brought an action against Safeway for negligent and intentional infliction of emotional distress, false arrest, and false imprisonment. Pool sued Oakland for false arrest, false imprisonment, assault and battery (i.e., using excessive force to effectuate the arrest), intentional infliction of emotional distress, and violation of his civil rights (42 U.S.C. §§ 1983, 1985).
The case was heard by a jury in 1981. At the close of plaintiff's case, Safeway moved for nonsuit under section 581c of the Code of Civil Procedure.
The jury returned a general verdict against each defendant and assessed damages at $45,000. Safeway moved for a judgment notwithstanding the verdict or in the alternative a new trial, claiming that the evidence did not support the jury's findings of negligence. Safeway also argued that the magnitude of the damage award indicated improper consideration of sympathy, passion or prejudice. Oakland moved for a new trial, claiming that the jury was improperly instructed on the charge of false arrest and that the damage award was excessive. The trial court denied both motions and this appeal followed.
The discussion may be simplified by noting what is not at issue in this case. Safeway concedes that it owes its customers a duty of due care to avoid exposing them to foreseeable harms. (Cf. Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923 [167 Cal.Rptr. 831, 616 P.2d 813] [hospital's duty to patient]; Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389 [143 Cal.Rptr. 13, 572 P.2d 1155] [bartender's duty to bar patron]; Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 813 [148 Cal.Rptr. 22, 582 P.2d 109] [bank's duty to customer to prevent misappropriation of funds]; Weaver v. Bank of America (1963) 59 Cal.2d 428, 431 [30 Cal.Rptr. 4, 380 P.2d 644] [bank's duty to customer to honor duly presented check].)
Pool counters with several theories under which the jury could have reasonably found Safeway negligent in this case. First, both Safeway employees who testified agreed that Safeway had published a list of serial numbers found on bogus bills. The checker testified that she saw the assistant manager check that list. From this the jury could infer either that the list was incorrect, or that the manager misread it. In either case a mistake was made and that mistake foreseeably led to Pool's injury.
A second theory assumes that the jury could have found credible the assistant manager's testimony that he never saw the list of serial numbers and did not check it. Under this version of the facts, the failure of Safeway to give the assistant manager a copy of the list was negligent, especially since he was in charge of the store that day.
Finally, regardless of the existence of the list, Safeway could be found liable for giving incomplete and misleading information regarding the "In God We Trust" motto. Safeway instructed its employees that bills without the words "In God We Trust" should be treated as potential counterfeits. Safeway failed to tell its employees that valid bills in current circulation lack that motto. Safeway could have told its employees which issues of $100 bills in circulation lack the motto, or instructed them to call the Treasury Department's service to verify the validity of any bills lacking the motto. Safeway took none of these steps. This carelessness resulted in the needless harassment and arrest of an innocent customer.
Safeway contends, however, that the record does not support the jury's verdict because Safeway discharged its duty of reasonable care by summoning the police when presented with a "suspect" $100 bill. Safeway argues that the police, not Safeway's employees, should have conducted an investigation of the bill's validity.
This court, then, must view the evidence most favorably to Pool
Given the volume of Safeway's business, and the existence of valid bills lacking the "In God We Trust" motto, the jury could reasonably have found foreseeable that a customer would eventually present Safeway with a legitimate bill lacking the words "In God We Trust." Similarly, it was foreseeable that an innocent customer suspected of counterfeiting would be subjected to a police investigation, and perhaps arrested, and would suffer emotional distress as a result. Therefore, a reasonable jury could have concluded that Safeway should have foreseen it was creating such a risk in instructing its employees to treat a bill lacking the motto as a possible counterfeit.
The jury also could have found that Safeway had the ability to protect customers from this risk of harm with minimum effort. Safeway could have: (1) informed its employees that some valid bills lacked the "In God We Trust" legend; (2) prepared and distributed an accurate list of serial numbers found on counterfeit bills; and (3) instructed its employees to telephone the 24-hour Treasury Department service to check on the validity of suspect bills. The record shows that by calling the Treasury Department service the police were able to verify the legitimacy of Pool's bill within six minutes.
Merchants of Safeway's size presumably handle thousands of purchases by credit card or personal check each day. Safeway undoubtedly has established a means of verifying the validity of such transactions without the aid of repeated police intervention. Safeway does not contend that it is reasonable to summon the police whenever it is uncertain as to the validity of a customer's check or credit card. Presumably the preferred approach in such cases is to refuse to accept the questionable tender. Safeway does not explain why different standards should govern this case.
Each of the foregoing methods would have significantly reduced the risk of harm to Safeway customers and averted the incident in this case. These alternatives were not burdensome and would not have undermined Safeway's anticounterfeit program. Nevertheless, they were not employed.
Accordingly, a reasonable jury could have found, under the evidence presented in this case, that although Safeway should have "foreseen ...
Moreover, "what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence." (Id.
Since the resulting injuries were foreseeable, the acts of the police officers — even if wrongful — do not relieve Safeway of liability for Pool's injuries. (See Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d at p. 521; Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1201-1202 [213 Cal.Rptr. 781].)
Safeway did not raise this argument below. Nor did it request jury instructions embodying these principles. Its contention, therefore, may not
However, even if this court were to consider the merchant's privilege issue, Pool's recovery here would not be precluded. The plain language of former section 490.5 refers only to "detentions"; it does not grant protection from liability for summoning the police.
Although Safeway requested a general instruction on contributory negligence, it failed to request an instruction on mitigation of damages. (Cf.
However, the court need not reach this issue. Safeway presented no evidence to support its theory that a phone call would have shortened Pool's stay in jail. Therefore, the jury would have had no means of determining whether, and to what extent, a phone call would have reduced Pool's damages. Accordingly, Safeway was not entitled to a mitigation of damages instruction.
"[A] reviewing court must give considerable deference in matters relating to damages to the jury in the first instance and to the trial court secondarily." (Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 17 [130 Cal.Rptr. 414]; see Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64 [118 Cal.Rptr. 184, 529 P.2d 608].) The trial court's ruling is entitled to deference "because having been present at the trial, the trial judge was necessarily more familiar with the evidence." (Ibid.) Here the jury found that Pool's injuries warranted an award of $45,000. The trial court found sufficient evidence to support the award and denied defendant's motion for new trial on this issue.
Pool also testified that he suffered lingering effects from his ordeal. His doctor informed him that his blood pressure was higher and his heartbeat was irregular after the incident. Pool testified that he would never forget the incident as long as he lived.
In light of this evidence, the jury award cannot be said to be "`"so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice."'" (Bertero v. National General Corp., supra, 13 Cal.3d at p. 64, quoting Cunningham v. Simpson (1969) 1 Cal.3d 301, 308-309 [81 Cal.Rptr. 855, 461 P.2d 39].) Accordingly, this court should not disturb the jury's award.
In sum, the jury's determination that Safeway acted negligently in calling the police is not unreasonable as a matter of law. Moreover, neither of Safeway's claimed defenses withstand scrutiny. First, the police action here was not an unforeseeable "superseding cause" of Pool's injury as a matter of law. Second, the so-called "merchants' privilege" does not protect Safeway, because Safeway failed to raise the issue at trial and, at any rate, the privilege does not bar liability for calling the police. Finally, the jury verdict was not excessive as a matter of law. Therefore, this court will affirm the judgment against Safeway.
Pool emphatically denied ever "flailing his arms," swinging at an officer, or refusing to leave the store when ordered. Although he was admittedly upset and protested his innocence, he produced identification upon request and left the store with the officers when ordered to do so. According to the police, Pool flailed his arms and attempted to either swing at one of the officers or grab his $100 bill from the lapel of one of the officers. One officer testified that Pool also refused to let go of a cigarette machine as they were attempting to escort him out of the store. The police report does
Were this the only evidence presented on the matter, a conflict would be present and a finding that the instructional error was prejudicial might be supportable. However, the only neutral witness, the Safeway checker, agreed with Pool's version of the facts. She observed the officers leading Pool out of the store and testified that Pool was not flailing his arms and appeared to be cooperating the whole time.
Since Pool's version of the facts was confirmed by the only neutral witness, it is likely that the jury resolved the conflict in critical issues in Pool's favor. If so, the jury properly held Oakland liable because there was no reasonable cause for arrest under Pool's version of the facts. Thus, the first factor does not support a finding of prejudice.
Turning to the second factor, it does not appear that the arguments to the jury "`contributed to the instruction's misleading effect ...'" (Seaman's Direct Buying Service, Inc. v. Standard Oil Co., supra, 36 Cal.3d at p. 771.) To the contrary, it appears that counsels' arguments significantly reduced any prejudicial effect the erroneous instruction might have had. Both parties' closing arguments on the issue of reasonable cause focused the jury's attention on the critical facts needed to support a finding that the arrest was improper.
Oakland's closing argument was limited to persuading the jury that the police officers' version of the facts was true and that Pool was lying. The jury was read the text of section 148 and specifically informed that the critical fact was whether the officers thought Pool was swinging at them. As expressed to the jury, Oakland's case hinged on the finding that Pool "attempted to either strike Officer Gallaway or retrieve the bill or appeared to be doing one of those acts."
Pool agreed with Oakland's argument that if he flailed his arms or grabbed for the $100 bill, i.e., appeared to be striking the officers, the arrest was proper. However, he argued that the officers were lying, and that the jury should believe the checker's testimony that Pool cooperated with the police as they led him from the store. Pool's attorney concluded his argument to the jury stating: "Mr. Pool isn't going to fight the policeman at 56 or 60, whatever his age at the time, not in this town, not in that area. He cooperated."
In sum, both parties suggested to the jury that if it believed the officers' version of the facts, Oakland was not liable for false arrest. Thus, the closing
An assessment of factors (3) through (5) further indicates that the instructional error had little prejudicial effect. Since the jury did not ask for further instructions, factor (3) argues against finding prejudice because the jury did not ask for a rereading of the reasonable cause instruction or evidence relating to that issue. Factor (4) also weighs against prejudice because the jury's 11-to-1 verdict was a clear victory for Pool.
Finally, the fifth Seaman's factor is "`the effect of other instructions in remedying the error....'" (Seaman's Direct Buying Service, Inc. v. Standard Oil Co., supra, 36 Cal.3d at p. 771.) Since none of the other instructions pertained to reasonable cause, they could not have remedied the instructional error. Therefore, the fifth factor weighs in favor of finding prejudice.
Since this case involves multiple causes of action, one consideration in addition to those listed in Seaman's weighs against a finding of prejudice. The jury here rendered a general verdict against Oakland after being instructed on several causes of action — assault and battery, intentional infliction of emotional distress, and false arrest and imprisonment. Oakland alleges instructional error only as to the false arrest cause of action. Oakland did not ask for a special verdict. Therefore, this court does not know which cause of action the jury relied on in finding liability. If the jury relied on a theory other than false arrest, the instructional error is irrelevant and clearly not prejudicial. This further reduces the likelihood that the result would have been favorable to Oakland absent the improper reasonable cause instruction.
As discussed above, an appellate court may reverse for instructional error only if it is reasonably probable that a different result would have occurred in the absence of the error. (Seaman's Direct Buying Service, Inc. v. Standard Oil Co., supra, 36 Cal.3d at p. 770.) Reviewing this record in light of the factors set forth above, it does not appear that the jury would have ruled in Oakland's favor had it been properly instructed.
The parties' closing arguments focused the jury's attention on the critical facts and suggested that acceptance of Oakland's version of the facts was
The record shows that Safeway gave its employees incomplete, and possibly incorrect, information about the validity of $100 bills lacking the motto "In God We Trust." Safeway thereby created the risk that an innocent customer would be wrongly suspected of committing a felony. Although this risk was foreseeable, Safeway failed to utilize easily available means by which it could have avoided the potential harm. Therefore, the evidence is sufficient to support the jury's finding of negligence.
Accordingly, the judgments against Safeway and Oakland are affirmed.
Mosk, J., Broussard, J., Reynoso, J., and Panelli, J., concurred.
I concur in the judgment, but wish to make clear my understanding of the narrow basis of the majority opinion's holding with respect to the liability of Safeway. As I read the opinion, the majority does not purport to hold that under general principles of California law a store
As the majority notes, with respect to Safeway's liability the case was submitted to the jury solely on a negligent-infliction-of-emotional-distress theory. Safeway's sole argument on appeal is that the evidence at trial is insufficient as a matter of law to support a verdict on that theory. I agree with the majority that, on the assumption that the ordinary elements of the tort of negligent infliction of emotional distress are applicable here, the evidence is sufficient to support the verdict. That assumption — the validity of which is not at issue here — is reflected in the instructions to the jury to which Safeway did not object.
Because of the narrow basis of the majority's ruling, I concur in the judgment.
Lucas, J., concurred.
Therefore, this factual summary reflects Pool's version of the events. Conflicts in the evidence are noted only where pertinent.
The arresting officer testified that Pool was arrested when he grabbed onto the cigarette machine and refused to let go as they were escorting him from the store. The police report makes no mention of the cigarette machine incident. The report states that Pool refused to let go of a shopping cart containing his groceries.
The Safeway checker testified that she observed the incident from a glass enclosed booth where she was taking her break. Although she heard some shouting, she did not see Pool flail his arms. She saw the police come up to Pool, grab him by the arms and escort him from the store. From her vantage point, Pool appeared to be cooperative.
"(b) If it appears that the evidence presented, or to be presented, supports the granting of the motion as to some but not all of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining...."
"It is the failure to use ordinary or reasonable care.
"Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid damages to themselves or others under circumstances similar to those shown by the evidence.
"You will note that the person whose conduct is set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.
"A test that is helpful in determining whether or not a person is negligent is to ask and answer whether or not if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that someone might have been damaged by or as a result of his action or inaction.
"If that answer is `yes,' and if the action or inaction reasonably could be avoided, then not to avoid it would be negligence."
Plaintiff sought damages against Bank of America for his arrest. The bank claimed that it could not be held liable because the store owner's act of calling the police and the police arrest were superseding causes of the plaintiff's injury.
This court held that plaintiff could recover in tort against the negligent bank. The court reasoned that it could not hold "as a matter of law that the intervening arrest was so remote a possibility that the bank could not reasonably have foreseen it.... `[B]y the exercise of reasonable diligence, the bank could have foreseen that this exact consequence would occur, for the issuance of a check upon a bank without funds or credit to meet it is a public offense which, notoriously, frequently results in the arrest and imprisonment of the drawer of the check.'" (59 Cal.2d at p. 434, quoting Mouse v. Central Savings & Trust Co. (1929) 120 Ohio St. 599 [167 N.E. 868, 870].)
"(2) In making the detention a merchant may use a reasonable amount of nondeadly force necessary to protect himself and to prevent escape of the person detained or the loss of property.
"(3) 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.
"(4) In any action for false arrest, false imprisonment, slander or unlawful detention brought by any person detained by a merchant, it shall be a defense to such action that the merchant detaining such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances."
"Now, a peace officer may, without a warrant, lawfully arrest a person whenever he has reasonable cause to believe that the person to be arrested has committed a criminal offense.
"Now, to constitute reasonable cause for the arrest of the plaintiff in this case, the evidence must establish that the police officers had reasonable cause to believe that the plaintiff committed a criminal offense.
"If you find from all the evidence that the foregoing fact is true, you must find that there was reasonable cause to arrest the plaintiff.
"If you find that such fact is not true, you must find that there was not reasonable cause to arrest him."