Archer v. Wal-Mart Stores East, LP

          ORDER

          Charlene Edwards Honeywell United States District Judge.

         This matter comes before the Court upon Defendants' Motion for Summary Judgment (Doc. 259) (the “Motion”), Plaintiff's response in opposition (Doc. 276), and Defendants' reply in support of the Motion (Doc. 278). In the Motion, Defendants seek final summary judgment in their favor on all remaining counts of Plaintiff's complaint. The Court, having considered the parties' submissions and being fully advised in the premises, will grant the Motion.

         I. STATEMENT OF FACTS ^[1]

         On or near the date of the incident that is the subject of this lawsuit, Wal-Mart maintained a standard operating procedure entitled “APCS: Receipt Checking” (the “policy”). Doc. 276-1.^[2]The policy provided direction to certain Wal-Mart employees tasked with checking customer receipts. Id.; Doc. 209-3, Deposition of Kristina Wood (“Wood Depo.”) at 15:1-15:6; Doc. 209-2, Deposition of Charles Caraway (“Caraway Depo.”) at 27:3-27:25, 28:22-29:5. Under the policy, receipt checkers should ask to see a receipt when a customer is leaving with “[l]arge un-bagged high value items, i.e., all TVs, totes, bikes, etc., ” when a customer is seen leaving “from the salesfloor and not the frontend, ” or when management or asset protection requests a receipt check. Doc. 276-1. If a customer who is asked for a receipt does not have one, the receipt checker should “offer to hold the merchandise until the customer can find their receipt.” Id. If the customer cannot find their receipt, the receipt checker should relay information provided by the customer-such as which register lane they checked out at-to management to verify the purchase. Id.

         In the event that a customer “refuses to produce a receipt, ” the receipt checker should “[p]olitely offer to hold the merchandise until the customer can find their receipt.” Id. at p. 2. If the customer “refuses” to allow the employee to hold the merchandise, the employee should “allow them to leave, and document the event” on a standard form and notify management or asset protection. Id. The provision allowing a customer who refuses to provide his receipt to leave the store is in place for the protection of Wal-Mart's employees. Doc. 215-1, Deposition of Mark Gammon (“Gammon Depo.”) at 7:21-7:23.^[3]

         The policy applies on normal days of business, but may not apply on non-standard days. Wood Depo. at 15:18-15:25; Gammon Depo. at 15:17-15:21. November 26, 2015 was Thanksgiving. On that evening, Wal-Mart Stores East, LP (“Wal-Mart” or the “store”) located at 7450 Cypress Gardens Boulevard, Winter Haven, Florida was having a major sales event. SF at ¶¶ 3a-3b. Because the sales event would attract a “magnitude of people” that evening, Wal-Mart decided to implement different procedures, requiring receipt checking for at least all merchandise that was not bagged.^[4] Wood Depo. at 58:3-58:9; Caraway Depo. at 23:15-23:19; Gammon Depo. at 15:17-15:21; Phillips Depo. at 18:10-18:12. In addition, Wal-Mart decided to add police presence to the store that day. Gammon Depo. at 15:23-15:24.

         At least three police officers from the City of Winter Haven (the “City”) were present at Wal-Mart for the sales event pursuant to a special detail contract between Wal-Mart and the City. SF at ¶ 3c. The three officers, all dressed in full uniform, were Sergeant Ken Nichols (“Sergeant Nichols”), Sergeant Dan Gaskin (“Sergeant Gaskin”), and Officer Brad Webster (“Officer Webster”) (collectively, the “Officers”).^[5] SF at ¶¶ 3c-3d. The Officers were paid by Wal-Mart for their time, but were not acting under the supervision of Wal-Mart. Phillips Depo. at 10:6-10:10; Wood Depo. at 43:25-44:1, 57:4-57:8; Doc. 209-6, Deposition of Sergeant Gaskin (“Gaskin Depo.”) at 62:24-63:2. See also SF at ¶ 3e (agreeing the Officers were acting in the course and scope of their employment with the City).

         Plaintiff Darrell Archer (“Archer”) went to the store that evening. Id. at ¶ 3a. The store was very busy with holiday shoppers. Id. at ¶ 3b. Using the self-checkout line, Archer purchased a large screen television at the store for a total price of $159.43. Id. at ¶ 3a. A Wal-Mart employee, Diamond Hernandez (“Hernandez”) helped Archer complete his transaction and handed him his receipt. Doc. 209-4, Deposition of Diamond Hernandez (“Hernandez Depo.”) at 9:21-9:24. Archer placed his receipt in his pocket and proceeded to exit the store. SF at ¶ 3g. Archer walked toward the exit, pushing the shopping cart that held the television. Doc. 214, Incident Video (“Video”) at 00:00-00:08.

         As Archer began his exit, another Wal-Mart employee, Kanara Harris (“Harris”), asked Archer to show his receipt for the purchase of the television. SF at ¶ 3h. Harris had routinely attempted to ask all customers for receipts as they exited the store that evening. Id.

         Archer refused to show Harris his receipt. Id. at ¶ 3i. As Archer pushed the shopping cart toward the exit, Harris^[6] followed, stepping to the right of Archer, then stepping in front of the shopping cart and placing his hands on the shopping cart. Video at 00:11-00:22; see also Doc. 209-1, ^[7] Deposition of Darrell Archer (“Archer Depo.”) at 77:19-78:14. Harris continued to block the shopping cart, but did not physically block Archer. Archer Depo. at 161:15-161:19; Video at 00:11-00:33. Archer continued to attempt to leave the store with the shopping cart and television, attempting to maneuver around Harris. Video at 00:22-00:28. Archer testified he believed Harris told him he could not leave without showing his receipt. Archer Depo. at 182:17-183:5.

         Harris gestured, apparently waving to someone, and a few seconds later, Officer Webster arrived at the scene. Video at 00:21-00:40; Archer Depo. at 120:21-120:25, 184:24-185:4. Officer Webster stepped to the right of Archer and placed his hands on the right side of the shopping cart and then at the front of the shopping cart. Video at 00:33-00:49.

         When Officer Webster arrived, Harris walked away, returning to his previous duties. Id. at 00:36-01:32; SF at ¶ 3l. Officer Webster requested Archer's receipt. SF at ¶ 3j. Archer refused to show Officer Webster his receipt. Id. at ¶ 3k; Archer Depo. at 79:1-79:11. Officer Webster continued to keep a hand on the shopping cart. Archer Depo. at 121:21-121:23; Video at 00:49-01:11.

         A male dressed in a t-shirt, Wal-Mart employee Charles Caraway (“Caraway”), was next to arrive at the scene just after Officer Webster. Video at 00:45-00:50; Archer Depo. at 121:16-121:20. Less than one minute later, another Wal-Mart employee, a female named Kristina Wood (“Wood”), arrived. Video at 01:39-01:45; Archer Depo. at 121:24-122:4. A few seconds later, Sergeant Nichols arrived. Video at 01:47-01:54; Archer Depo. at 122:5-123:7, 185:5-185:7; Doc. 276-3 at p. 2. About one minute later, Sergeant Gaskin arrived. Video at 02:53; Archer Depo. at 185:8-185:10.^[8]

         Archer testified that during this time, one of the sergeants told him he was not allowed to leave. Archer Depo. at 55:1-55:9, 55:17-55:24. Archer also testified he could not leave because he “was being blocked.” Archer Depo. at 103:22-103:23. However, Sergeant Gaskin testified no one ever told Archer he was not free to leave. Gaskin Depo. at 90:24-91:1.

         Sergeant Nichols' police report describing the incident provides Archer stated “he had a right to the property and wished to leave with it” and Caraway “advised that [Archer] would not be able to exit the store without a receipt for the television.” Doc. 276-3 at p. 2. Later in the report, Sergeant Nichols also wrote that Archer “was advised that he could not leave with the merchandise without a receipt.” Id.

         Caraway testified Archer was told “over and over again that [he] w[as] free to go.” Caraway Depo. at 32:13-32:14. Caraway's recollection was that Archer was free to leave, but that he could not take the television unless he provided his receipt. Id. at 32:18-32:20, 36:13-36:16, 37:16-37:18 (testifying that Archer “was free to leave at all times” but could not take the television unless he “proved that [he] purchased it”). Caraway recalled telling the Officers that Archer could not leave with the merchandise without proof of purchase. Id. at 62:14-62:17.

         Wood also recalled that Archer was free to leave at any time, and that the Officers told him this. Wood Depo. at 40:12, 40:24-40:25, 42:12-42:18, 49:4-49:10; 49:25-50:12, 55:20, 56:16-56:20, 57:13-57:14. Wood testified she “was not stopping [Archer] from leaving, even with the television.” Id. at 56:21-56:24.

         Throughout, Archer continued to refuse to provide his receipt. Archer raised his voice, pointed a finger at the Officers and the Wal-Mart employees, and was argumentative. Doc. 209-7, Deposition of Sergeant Nichols (“Nichols Depo.”) at 87:18-88:1, 90:8. According to Archer's testimony, one of the two sergeants, possibly Sergeant Nichols, told Archer at some point that he could arrest Archer for theft. Archer Depo. at 54:5-54:21.^[9]

         After approximately three minutes of standing and talking with the Officers and Wal-Mart employees, Archer pushed his shopping cart forward in an attempt to leave with his television. SF at ¶ 3m; Archer Depo. at 123:8-123:13; Video at 03:15-03:21. Sergeant Gaskin removed the television from Archer's shopping cart and set it on the floor. SF at ¶ 3n; Video at 03:21-03:39; Archer Depo. at 187:19-188:7.^[10]

         Caraway requested that Archer be trespassed from the property. SF at ¶ 3o; Doc. 276-3 at p. 2. Sergeant Nichols told Archer he would have to leave or he would be arrested for trespass. Archer Depo. at 90:23-91:6; Nichols Depo. at 43:16-43:24. Archer asked Nichols whether he was free to leave, and Nichols advised he was. Doc. 276-3 at p. 3. Archer asked whether he could leave with the television; Nichols “advised that he could not unless he was able to provide the receipt.” Id.

         Archer testified it was possible he was told he could leave with the television if he showed his receipt. Archer Depo. at 93:12-93:14. Nonetheless, Archer “preferred to assert [his] right not to have to show that receipt.” Id. at 93:15-93:18.

         Archer left the premises without the television, thinking that he would be arrested if he did not leave. SF at ¶ 3p; Video at 05:25-05:35. Officer Webster and Sergeant Nichols followed Archer out into the parking lot as he exited the store. Nichols Depo. at 44:12-44:16; Video at 05:25-05:35.

         Wal-Mart's security camera recorded images of the incident, beginning at approximately 6:57 p.m. when Archer encountered Harris and continuing through to when Archer left the store at approximately 7:02 p.m. Video at 00:00-05:37. During those five to six minutes, Archer was never moved from the scene of the incident, taken to another room, or arrested. SF at ¶¶ 3q-3r; Archer Depo. at 53:18-54:4; Video at 00:00-05:37.

         After Archer left the store, Caraway took the television and stored it in the asset protection office. SF at ¶ 3s; see also Video at 7:30-8:00. Later that evening, Wal-Mart's asset protection team verified that Archer had in fact purchased the television. SF at ¶ 3t; Hernandez Depo. 10:3-10:9.

         Days later, Archer went to the police department and met with an Officer Hoverkamp to discuss the incident. Archer Depo. at 104:19-105:12. Officer Hoverkamp later called Archer and informed him that he was allowed to return to the store to pick up his television and that if he no longer wanted the television, he would be able to get a refund at Wal-Mart's customer service desk. Id. at 105:18-106:4. Archer does not recall Officer Hoverkamp telling him that, but admits that his concern at that point was not about getting the television or his money back. Id. at 106:5-111:4. Archer does not believe he ever attempted to call Wal-Mart to ask about getting his television back. Id. at 106:18-106:20.^[11]

         II. LEGAL STANDARD

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court that there is “an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.

         When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues of fact are “genuine” only if a reasonable jury, considering the evidence present, could find for the nonmoving party, and a fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In determining whether a genuine issue of material fact exists, the court must consider all the evidence in the light most favorable to the nonmoving party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 Fed.Appx. 852, 858 (11th Cir. 2006).

         III. DISCUSSION

         A. Count I - False Imprisonment as to Wal-Mart, Wood, Caraway, Harris

         Defendants^[12] argue they are entitled to judgment as a matter of law on Archer's false imprisonment claim for three reasons. First, Defendants contend Archer cannot establish he was detained by any Wal-Mart employee. Second, Defendants argue, even if Archer could establish he was detained by a Wal-Mart employee, Defendants are immune under Florida's shopkeeper immunity statute. Third, Defendants contend any detention of Archer was lawful because Archer consented. The Court reviews each of Defendants' arguments, and Archer's responses thereto, in turn.

         “False imprisonment is the unlawful restraint of a person against his will, the gist of which action is the unlawful detention of the plaintiff and deprivation of his liberty.” Harder v. Edwards, 174 So.3d 524, 530 (Fla. 4th DCA 2015) (quoting Johnson v. Weiner, 19 So.2d 699, 700 (Fla. 1944)). “Unlawful” means that the confinement was “unreasonable and unwarranted under the circumstances.” Harris v. Lewis State Bank, 436 So.2d 338, 341 (Fla. 1st DCA 1983) (emphasis deleted, citation omitted). Thus, the following elements are required to show false imprisonment: 1) the “detention and deprivation of liberty of a person 2) against that person's will 3) without legal authority or ‘color of authority' and 4) which is unreasonable and unwarranted under the circumstances.” Harder, 174 So.3d at 530 (citation omitted).

         1. Whether Archer was Detained

         a. Detention in general

         The summary judgment record in this case provides little support for the premise that Archer was detained. Less than six minutes elapsed between the time Archer encountered Harris and left the store. During those few minutes, Archer was not touched, was not asked to accompany the Wal-Mart employees or Officers to another location, and was not arrested. These facts alone distinguish this case from the majority of retail-related false imprisonment claims brought pursuant to Florida law. See, e.g., Morris v. Albertson's, Inc., 705 F.2d 406, 408 (11th Cir. 1983) (plaintiff accused of shoplifting agreed to accompany store personnel to store office); Harder, 174 So.3d at 529 (plaintiff arrested and held almost 24 hours); Louis v. Costco Wholesale Corp., 719 So.2d 1226, 1227 (Fla. 4th DCA 1998) (plaintiff arrested and held for several hours); Canto v. J.B. Ivey & Co., 595 So.2d 1025, 1027 (Fla. 1st DCA 1992) (plaintiffs accused of shoplifting agreed to accompany store personnel to store office, where they were held for about two hours); Hood v. Zayre Corp., 529 So.2d 1197, 1198 (Fla. 5th DCA 1988) (plaintiff accused of shoplifting taken to store security office); Hernandez v. K-Mart Corp., 497 So.2d 1259, 1259 (Fla. 3d DCA 1986) (plaintiff accused of shoplifting agreed to accompany store security guard to a room in the back of the store where she was interrogated, threatened with police action, and strip-searched); DeMarie v. Jefferson Stores, Inc., 442 So.2d 1014, 1015 (Fla. 3d DCA 1983) (plaintiff questioned in room in the back of the store and subsequently arrested); Weissman v. K-Mart Corp., 396 So.2d 1164, 1166 (Fla. 3d DCA 1981) (plaintiff invited to store's security office where he was held for at least 15 to 20 minutes, but less than 30 minutes, and charged by police with shoplifting); Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560, 561 (Fla. 2d DCA 1976) (plaintiff accused of shoplifting was asked to step into manager's office, where she was held for about 30 minutes until police arrived and then held another 10 to 15 minutes until she was put in a police car and taken to the police station); Anderson v. Wal-Mart Stores, Inc., No. 12-61047-CIV, 2013 WL 773473, at *2 (S.D. Fla. Feb. 28, 2013) (plaintiff arrested after she failed to cooperate with police officer who had approached her after being alerted by store personnel that plaintiff had refused to show her receipt); Mahani v. Wal-Mart Stores, Inc., No. 08-80654-CIV, 2009 WL 1834224, at *3 (S.D. Fla. June 25, 2009) (plaintiff was escorted to the asset protection office by store personnel); Ciccariello v. Kash N' Karry Food Stores, Inc., No. 8:07-CV-592-T-30TGW, 2008 WL 4426710, at *2 (M.D. Fla. Sept. 26, 2008) (plaintiff arrested for retail theft after being observed by store personnel).

         Archer does not direct the Court to a single case with facts similar to those undisputed here, where a plaintiff, questioned for a matter of minutes and not moved from the scene nor arrested, brought a successful claim for false imprisonment. A case cited by Defendants, however, suggests such circumstances, where a customer is stopped for a few minutes and given the option to leave without property, may not give rise to a detention. See Moore v. Federated Retail Holdings, Inc., No. 6:07-CV-1557-ORL-31GJK, 2009 WL 129628, at *4 (M.D. Fla. Jan. 20, 2009) (stating it was “far from clear” whether plaintiff was “ever detained” where he was stopped near a store exit for about 20 minutes and able to leave the store without his property); see also Anderson, 2013 WL 773473, at *6 (law enforcement did not seek to detain customer upon first approach, but “only sought to get [her] to provide a receipt for her purchases”).

         Nonetheless, viewing all evidence in a light most favorable to Archer, genuine issues of material fact exist with respect to whether Archer was free to leave the store without the television before being issued a trespass warning. Although the Wal-Mart employees and Officers testified Archer was free to leave at any point without the television, Gaskin Depo. at 90:24-91:1; Caraway Depo. at 32:13-32:14, 32:18-32:20, 36:13-36:16; Wood Depo. at 40:12, 40:24-40:25, 42:12-42:18, 49:4-49:10, 49:25-50:12, 55:20, 56:16-56:20, 57:13-57:14, Archer testified to other circumstances, including that at least one of the Officers threatened him with arrest and told him he was not free to go. Archer Depo. at 53:14-53:18, 55:3-55:24.^[13]

         Because genuine issues of material fact exist as to the first element of Archer's claim for false imprisonment, detention, the Court assumes for purposes of further analysis that Archer was not free to leave the store. However, the Court's analysis as to the first element does not end there. Assuming Archer was not free to leave, the Court must address whether there is a dispute of material fact as to which, if any, ^[14] Wal-Mart employee detained Archer. b. Detention by any Wal-Mart employees A private individual cannot be held liable for false imprisonment pursuant to Florida law unless that person “personally and actively participated therein, directly or by indirect procurement.” Harder, 174 So.3d at 530 (quoting Johnson, 19 So.2d at 701). A citizen that provides information to law enforcement, without more, does not commit the tort of false imprisonment. Id. (citing Pokorny v. First Fed. Sav. & Loan Ass'n of Largo, 382 So.2d 678, 682 (Fla. 1980)). That remains true even where an individual “makes an honest, good faith mistake in reporting an incident.” Id.

         To be liable in tort for false imprisonment, an individual must either “actually detain” another or “instigate” such detention. Id. To “instigate” a detention means to take “an active role in encouraging or procuring” the same by

[w]ords or acts which direct, request, invite or encourage the false imprisonment itself. In the case of an arrest, it is the equivalent, in words or conduct, of “Officer, arrest that man!” It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them.

Id. (quoting Restatement (Second) of Torts, section 45A, Comment c).

         In Lozada v. Hobby Lobby Stores, Inc., a manager of the store, Michael Licari, called law enforcement to report that an employee, plaintiff Ismael Lozada, was planning a mass shooting. 702 Fed.Appx. 904, 906 (11th Cir. 2017). Store employees had told Licari about Lozada's recent behavior, including comments about “shooting up” the store. Id. at 907. Licari obtained written statements from the employees and forwarded them to Hobby Lobby's corporate office. Id. Licari was instructed to contact law enforcement and to terminate plaintiff's employment. Id.

         Licari wrote out a statement for law enforcement, summarizing what he had heard about plaintiff from the other employees. Id. One deputy stated he would speak to plaintiff to assess his mental state. Id. at 908. Plaintiff was interviewed by law enforcement, civilly committed, and detained for about 36 hours. Id.

         Plaintiff claimed damages against Hobby Lobby for false arrest. Id. at 907. The district court granted summary judgment in favor of Hobby Lobby on plaintiff's false imprisonment claim, holding Hobby Lobby did not instigate plaintiff's arrest. Id. The Eleventh Circuit affirmed, rejecting plaintiff's argument that Hobby Lobby's involvement of law enforcement was a directive to have plaintiff arrested. Id. at 916-17. The Eleventh Circuit also rejected plaintiff's argument that Hobby Lobby was liable because its employees went beyond mere reporting by asking law enforcement to inform plaintiff that he was fired from his job at Hobby Lobby. Id. While acknowledging Hobby Lobby may have gone beyond mere reporting in this instance, the Eleventh Circuit held such actions “did not amount to instigation because it was not equivalent to asking [law enforcement] to arrest [plaintiff].” Id.

         Archer contends, generally, that Defendants are responsible for the Officers' behavior because Wal-Mart employees “accepted the conduct of the police officers in part by their acquiescence to the officers' conduct toward the plaintiff.” Doc. 276 at p. 3. First, the evidence before the Court does not indicate that any Wal-Mart employee “acquiesced” to the Officers' conduct. Rather, the record evidence shows the Officers and the Wal-Mart employees acted in separate scopes: the Officers acted in the scope of their employment as Officers with the City, and not pursuant to any direction from Wal-Mart. Phillips Depo. at 10:6-10:10; Wood Depo. at 43:25-44:1, 57:4-57:8; Gaskin Depo. at 62:24-63:2; SF at ¶ 3e.

         Second, Archer provides no support for the premise that a private citizen can be liable for false imprisonment by “acquiescence.” To the contrary, as just discussed, such an assertion is not supported by law. To be liable in tort for false imprisonment, a private individual must actually detain a person or must instigate such detention through “an active role.” Harder, 174 ...