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Myers v. Dollar General Corp.

United States District Court, D. South Carolina, Charleston Division

June 1, 2017

Paulette A. Myers, Plaintiff,
v.
Dollar General Corporation, Defendant.

          ORDER

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff filed the instant action in the Georgetown County Court of Common Pleas on May 14, 2015; Defendant subsequently removed the case to this court. (See generally Dkt. No. 1.) After the parties consented to having the case referred to a Magistrate Judge, the Honorable Richard M. Gergel issued an Order on May 26, 2016 referring the case to the undersigned. (Dkt. No. 18.)

         Jury selection was held on August 23, 2016, and the matter was tried before a jury on August 29, 2016 and August 30, 2016. (Dkt. No. 33; Dkt. No. 41; Dkt. No. 45.) On August 29, 2016, the jury returned a verdict in favor of the Plaintiff on Plaintiff's claims for negligence and slander; the jury returned a verdict in favor of Defendant on Plaintiff's claim for false imprisonment. (Dkt. No. 43.)[1] On August 30, 2016, the jury awarded Plaintiff $250, 000 in punitive damages on her claim for slander but found that Plaintiff was not entitled to punitive damages on her claim for negligence. (Dkt. No. 48.) Judgment was entered on August 31, 2016. (Dkt. No. 51.)

         On September 28, 2016, Defendant filed the instant Motion for Judgment Notwithstanding the Verdict (“JNOV”). (Dkt. No. 53; see also Dkt. No. 54.) On November 15, 2016, Plaintiff filed a Response in Opposition to Defendant's motion. (See Dkt. No. 63.) For the reasons set forth herein, Defendant's motion (Dkt. No. 53) is denied.

         STANDARD OF REVIEW

         Pursuant to Rule 50 of the Federal Rules of Civil Procedure, a district court may grant JNOV if “the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party.” Fed.R.Civ.P. 50(a); see also Fed. R. Civ. P. 50(b). In evaluating a motion for JNOV, the court gives the non-movant “‘the benefit of every legitimate inference in his favor'” and denies the motion if “‘there was evidence upon which a jury could reasonably return a verdict'” for the non-movant. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (quoting Abasiekong v. City of Shelby et al., 744 F.2d 1055, 1059 (4th Cir. 1984)). In ruling on a motion for JNOV, the court does not “retry factual findings or credibility determinations reached by the jury.” Id. (citing Duke v. Uniroyal, Inc., 928 F.2d 1413, 1419 (4th Cir. 1991)). The court “assume[s] that testimony in favor of the non-moving party is credible, ‘unless totally incredible on its face, ' and ignore[s] the substantive weight of any evidence supporting the moving party.” Id. (citing Duke, 928 F.2d at 1419).

         A motion for a new trial, pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, “is governed by a different standard.” Id. The Fourth Circuit “ha[s] recognized that, ” pursuant to Rule 59(a),

[T]he district court must “set aside the verdict and grant a new trial[] if . . . (1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.”

Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014) (quoting Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir. 2001)).

         DISCUSSION

         In its post-trial motions, Defendant states that it “moves the Court, pursuant to Rules 50(b), 59, and 60 of the Federal Rules of Civil Procedure and other applicable law, for an order requiring [P]laintiff to elect one measure of recovery for the wrong alleged, granting Defendant judgment as a matter of law or altering or amending the judgment entered in this case . . ., and for a new trial. . . .” (Dkt. No. 53 at 1 of 9.)[2] Defendant first contends that Plaintiff “should be required to elect the jury verdict upon which judgment should be entered against [the] Defendant, and the judgment should be altered and amended to clarify that only the verdict elected by Plaintiff constitutes a judgment against Defendant.” (Dkt. No. 54 at 1.) Next, Defendant seeks relief pursuant to Rule 50(b), asserting it is entitled to judgment as a matter of law as to Plaintiff's claim for slander “because the only reasonable inference from the evidence presented at trial is that the subject statement was privileged and that privilege was not abused.” (Dkt. No. 54 at 5.) Defendant also seeks relief pursuant to Rule 59, asserting it is entitled to a new trial for the following reasons:

A. Defendant is entitled to a new trial because the jury's verdict was inconsistent[;]
B. The Court erred in submitting punitive damages to the jury because Plaintiff failed to present any clear and convincing evidence of actual malice[; and]
C. Defendant is entitled to a new trial because no evidence was presented at trial that Defendant's conduct was reckless, wanton or willful, [and] the verdict shocks the conscience and was the result of caprice, passion and prejudice.

(Dkt. No. 54 at 8-15.) Finally, Defendant contends that it is “entitled to a new trial nisi remittitur because the verdict is excessive and unduly liberal.” (Dkt. No. 54 at 16.)

         Before addressing Defendant's arguments, the undersigned will briefly review the Plaintiff's allegations in this case. Plaintiff alleged that on or about November 8, 2014, she was a business invitee at the Dollar General store located in McClellanville, South Carolina, when Defendant's employees asserted that she was shoplifting. (Compl. ¶¶ 3-4.) She alleged that as a result of the actions of Defendant's employees, she “was detained and served with a Uniform Traffic Ticket for suspected shoplifting.” (Compl. ¶ 5.) Plaintiff further alleged that she “was not charged with shoplifting but detained and held, ” and that she “asked to use the bathroom, but was denied such that she urinated on herself.” (Compl. ¶ 6.) She asserted that Defendant “was negligent, reckless, willful and wanton, through its officers, agents and/or employees, in one or more of the following” manners:

a. in calling the police and asserting that Plaintiff was shoplifting;
b. in calling the police and asserting that Plaintiff had stolen something;
c. in calling the police and causing the Plaintiff to be detained when there was no probable cause or evidence;
d. in banning Plaintiff from the Dollar General;
e. in failing to use reasonable precautions and in insisting that Plaintiff be detained; [and]
f. in not taping the Plaintiff with a recorder.

(Compl. ¶ 7.) Plaintiff's claims for negligence, false imprisonment, and slander were submitted to the jury. As noted above, the jury found in favor of Plaintiff on her claims for negligence and slander; the jury found in favor of the Defendant on Plaintiff's claim for false imprisonment. (Dkt. No. 43.)

         Having reviewed the factual allegations in this case, the undersigned now turns to Defendant's post-trial arguments.

         I. Election of Remedy

         Defendant contends that Plaintiff “should be required to elect the jury verdict upon which judgment should be entered against the Defendant, and the judgment should be altered and amended to clarify that only the verdict elected by Plaintiff constitutes a judgment against Defendant.” (Dkt. No. 54 at 1.) As Defendant notes, the jury awarded Plaintiff actual damages of $25, 000 on her negligence claim and $75, 000 on her slander claim. (Dkt. No. 43.) Defendant asserts the “only evidence presented to the jury at trial that could potentially support a finding of negligence or slander on the part of Defendant or its store manager was the manager's act of calling the police to report a suspected shoplifter.” (Dkt. No. 54 at 2.) While Defendant denies that any wrong was committed, Defendant states that “if there was a wrong committed . . ., that one act of calling the police was the only wrong and there could be no double recovery for that single wrong.” (Dkt. No. 54 at 2.)

         Defendant cites Jones by Robinson v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 456 S.E.2d 429 (Ct. App. 1995), in support of its argument. (See Dkt. No. 54 at 2-4.) In Jones by Robinson, the jury awarded the plaintiff damages on his claims for false imprisonment as well as assault and battery. Jones by Robinson, 318 S.C. at 173, 456 S.E.2d at 430-31. Watson, an employee of Winn-Dixie, suspected Jones of shoplifting shoe inserts, even though Watson “admitted he lost sight of Jones several times and at no time did he see Jones conceal the shoe inserts.” Id. at 173-74, 456 S.E.2d at 431. Watson confronted Jones about the shoe inserts, and Jones was escorted out of the store after he explained to Watson that he put the inserts on another aisle. Id. at 174, 456 S.E.2d at 431. The South Carolina Court of Appeals noted the following evidence:

Jones testified that once they were outside the store, Watson began cursing and threatening him. Watson admitted telling Jones he was “going to kick his [a___ ]” if he came back in the store again. Watson then grabbed Jones by the arm and led him back inside the store and into the store's public restroom. Watson closed the bathroom door, then told Jones to take down his pants, which Jones did. Watson was standing in front of the door. Jones testified he complied with Watson's request because he was scared and nervous and did not know what to do. Finding no evidence of any stolen merchandise, Watson allowed Jones to pull his pants back up and walked him out of the bathroom.
As Jones exited the bathroom, he was confronted by policemen, whom Watson had called after initially confronting Jones. Jones' mother was also present by this time. Watson then admitted to the police officers he found no store merchandise on Jones' person.

Id. at 174, 456 S.E.2d at 431.

         The jury in Jones by Robinson returned verdicts of (a) $25, 000 actual damages and $50, 000 punitive damages on the claim for false imprisonment and (b) $25, 000 actual damages and $50, 000 punitive damages on the claim for assault and battery, but the trial court “reformed the verdict to one award of $75, 000 finding Jones was entitled to only one recovery.” Id. at 174, 456 S.E.2d at 431. The South Carolina Court of Appeals found the trial judge erred by reforming the jury's verdict because an election of remedies was unnecessary. Id. at 175, 456 S.E.2d at 431. The court stated, inter alia,

The doctrine of election of remedies involves a choice between different forms of redress afforded by law for the same injury, or different forms of proceeding on the same cause of action. Stated another way, election of remedies is the act of choosing between different remedies allowed by law on the same state of facts. Boardman v. Lovett Enterprises, Inc., 283 S.C. 425, 323 S.E.2d 784 (Ct.App.1984), rev'd on other grounds, 287 S.C. 303, 338 S.E.2d 323 (1985). Its purpose is to prevent double redress for a single wrong. Save Charleston Foundation v. Murray, 286 S.C. 170, 333 S.E.2d 60 (Ct.App.1985). Where a party has asserted only one primary wrong, he is entitled to only one recovery. Boardman, 283 S.C. 425, 323 S.E.2d 784 (Ct.App.1984). However, the principle has no application where two separate causes of action, each based on different facts, exists. Harmon v. Jenkins, 282 S.C. 189, 318 S.E.2d 371 (Ct.App.1984).
Jones' action for false imprisonment is not based upon the same elements as his action for assault and battery. False imprisonment is the deprivation of one's liberty without justification. Caldwell v. K-Mart Corp., 306 S.C. 27, 410 S.E.2d 21 (Ct.App.1991). In order to recover under a theory of false imprisonment, the complainant must establish (1) the defendant restrained him; (2) the restraint was intentional; and (3) the restraint was unlawful. Andrews v. Piedmont Air Lines, 297 S.C. 367, 377 S.E.2d 127 (Ct.App.1989). The tort of false imprisonment does not require an actual injurious touching. False imprisonment may be committed by words alone, or by acts alone or by both, and by merely operating on the will of the individual, or by personal violence, or by both. Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 317 S.E.2d 748 (Ct.App.1984). On the other hand, an assault occurs when a person has been placed in reasonable fear of bodily harm by the conduct of the defendant, and a battery is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree. Id.
We agree with Jones there is evidence he was the victim of both false imprisonment and assault and battery and these distinctive injuries occurred at different times and were the result of separate and distinct actions on Watson's part. Watson assaulted Jones when he threatened him outside the store. The battery occurred when Watson thereafter grabbed Jones' arm and escorted him back into the store. Even if Watson had taken no further action against Jones, Jones could have recovered damages for assault and battery. Watson, however, did take further injurious action against Jones when he escorted Jones into the bathroom, stood with his back to the door and compelled Jones to pull down his pants before allowing him to leave. We therefore find no merit in Winn-Dixie's argument that Jones is entitled to only a single recovery for a single wrong.

Jones by Robinson, 318 S.C. at 175-76, 456 S.E.2d at 431-32.

         Defendant contends the Jones by Robinson case is distinguishable from the case sub judice, stating,

The Jones by Robinson case is clearly distinct from the instant case in which one alleged wrong resulted in injury to Plaintiff, and under both the negligence and slander causes of action the alleged injury of Plaintiff is the same. In the present case, the only damage Plaintiff has allegedly suffered was the result of the single act of the store manager calling the police and reporting suspected shoplifting. This is in contrast from the Jones by Robinson case where the Plaintiff suffered unique damages resulting from an assault and battery and separate and distinct damages arising from a separate action of the Defendant in detaining her at a later time and place.

(Dkt. No. 54 at 3.) Defendant further states,

[U]nlike the assault and battery claim and the false imprisonment claim in the Jones by Robinson case, here Myers did not suffer an actionable injury based on her slander claim alone that was separate and distinct from an injury resulting from her negligence claim alone. To allow cumulative verdicts in this case would result in double recovery for a single alleged wrong, which is in conflict with the basic purpose of the election of remedies doctrine.

(Dkt. No. 54 at 4.) Plaintiff argues election of remedies is not warranted because “there is evidence of both slander and negligence.” (Dkt. No. 63 at 13.) Plaintiff asserts the “slander was calling the Plaintiff a thief to the police and in front of Kareem Singleton and others, ” while the “negligence was calling the police for an incident that happened two days prior to this incident and misidentifying the Plaintiff.” (Dkt. No. 63 at 13.)

         The undersigned concludes election of remedies is not warranted in the case sub judice. As in Jones by Robinson, Plaintiff's causes of action are based upon different elements.[3] Jones by Robinson, 318 S.C. at 175, 456 S.E.2d at 432. Moreover, “[t]he tort of defamation allows a plaintiff to recover for injury to his or her reputation as the result of the defendant's communications to others of a false message about the plaintiff.” Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 484, 514 S.E.2d 126, 133 (1999) (citation omitted). Damages for the claim of negligence can include loss of enjoyment of life and medical expenses. See, e.g., Boan v. Blackwell, 343 S.C. 498, 541 S.E.2d 242 (2001) (noting that loss of enjoyment of life is a compensable element of damages in negligence claim); Oliver v. Blakeney, 244 S.C. 565, 572, 137 S.E.2d 772, 776 (1964) (stating, in the context of a negligence claim, “The elements of damage which the jury could properly consider in determining the amount which plaintiff was entitled to recover included her loss of earning power, pain and suffering, and medical expenses, including any future damages resulting from permanent injuries.”). Damages to reputation are not part of damages on a claim for negligence, and the jury was instructed as to the different types of damages for each claim.[4] (See Tr. at 164-65, 172.) In sum, election of remedies is not warranted because Plaintiff presented evidence of both slander and negligence; the elements of those two causes of action are distinct; and the damages are also distinct. Defendant's request to require Plaintiff to elect a remedy is denied.

         II. Privilege

         In seeking relief pursuant to Rule 50(b), [5] Defendant asserts that it is entitled to judgment as a matter of law as to Plaintiff's claim for slander “because the only reasonable inference from the evidence presented at trial is that the subject statement was privileged and that privilege was not abused.” (Dkt. No. 54 at 5.) Defendant states, “The only evidence presented at trial was that Defendant's store manager communicated to the proper authorities her honest suspicions that Plaintiff had shoplifted or was in the process of shoplifting. Therefore, there was no evidence presented that Defendant's store manager acted outside the scope of her privilege.” (Dkt. No. 54 at 6.)

         Plaintiff, on the other hand, argues that “[b]ecause Defendant's employee accused Plaintiff of a crime, the publication of that accusation loses its character as privileged and is actionable if there is such a disregard of the rights of the person injured to amount to malice.” (Dkt. No. 63 at 15.)

         The undersigned agrees with Plaintiff. “The tort of defamation allows a plaintiff to recover for injury to his or her reputation as the result of the defendant's communications to others of a false message about the plaintiff.” Erickson v. Jones Street Publishers, LLC, 368 S.C. 444, 464, 629 S.E.2d 653, 664 (2006) (citing Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 508, 506 S.E.2d 497, 501 (1998)). “Slander is a spoken defamation while libel is a written defamation or one accomplished by actions or conduct.” Id. at 465, 629 S.E.2d at 664 (citing Holtzscheiter, 332 S.C. at 508, 506 S.E.2d at 501). The Supreme Court of South Carolina further explained in Erickson,

In order to prove defamation, the plaintiff must show (1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Id. at 465, 629 S.E.2d at 664 (citations omitted).

         As explained in Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 514 S.E.2d 126 (1999), “[i]n a defamation action, the defendant may assert the affirmative defense of conditional or qualified privilege.” Swinton Creek, 334 S.C. at 484, 514 S.E.2d at 134. Pursuant to this defense, “one who publishes a defamatory matter concerning another is not liable for the publication if (1) the matter is published upon an occasion that makes it conditionally privileged, and (2) the privilege is not abused.” Id. at 484, 514 S.E.2d at 134 (citing Restatement (Second) of Torts, § 593 (1977); Bell v. Bank of Abbeville, 208 S.C. 490, 38 S.E.2d 641 (1946)). In Fountain v. First Reliance Bank, 398 S.C. 434, 730 S.E.2d 305 (2012), the Supreme Court of South Carolina explained as follows:

“‘The essential elements of a conditionally privileged communication may be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.'” Manley v. Manley, 291 S.C. 325, 331, 353 S.E.2d 312, 315 (Ct. App. 1987) ...

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