March 19, 2018

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023


General Litigation / Civil Liability / Intentional Torts

David M. Perez

David M. Perez

David M. Tarlow

David M. Tarlow

MIAMI  ― Quintairos, Prieto Wood & Boyer, P.A. Miami office partner David M. Perez and David M. Tarlow, managing partner of the Fort Lauderdale office, obtained final summary judgment in the defense of claims for battery, false arrest, negligent infliction of emotional distress and intentional infliction of emotional distress against Walgreen Co. (“Walgreens”).
The case involved the plaintiff having been formally arrested or held in an investigatory detention by police as he waited outside his son’s elementary school to pick up his child.  A witness asserted that three uniformed Walgreens employees were near the scene of his arrest/detention and pointed toward him just before the police made the arrest/detention.  After being handcuffed, placed in a police car and driven to the nearby Walgreens store, the plaintiff asserted that a Walgreens manager approached the window of the police car and insulted him by calling him a thief and a delinquent.  The plaintiff maintained that an officer “restrained him with such force that he fell to the ground.”  An unidentified woman exited the store and stated that the plaintiff was not the person they were looking for and the plaintiff was released 30 to 60 minutes after his initial encounter with the police.
Thereafter, the plaintiff filed a complaint alleging he suffered a wrist injury from being knocked to the ground by police and shame and embarrassment from the incident.  After taking the deposition of the plaintiff, Walgreens sought summary judgment on the plaintiff’s claims for battery, false arrest, negligent infliction of emotional distress and intentional infliction of emotional distress.
After reviewing memoranda from both parties and extensive oral argument, the Court found:
On the claim for battery, the Court found “it was clear that there was no evidence that any employee or person affiliated with Walgreens ever touched the plaintiff.”  To establish a tortuous battery claim, the plaintiff must show (1) an actual or intentional touching or striking another person against that person’s will or (2) intentionally causing bodily harm to another person.  Fla. Stat. §784.045.  Words alone, absent an intentional touching, cannot support a battery claim. Osepchook v. Gateway Ins. Co., 298 So.2d 169 (Fla. 4th Cir. 1974).
Since there was no evidence that the employees of the defendant ever touched the plaintiff or ordered an agent to do so, the Court found no battery claim could be sustained against Walgreens as a matter of law.  The Court added “if a police officer used excessive force in making an arrest, Walgreens was no more liable for such excessive force than it would be for an officer spilling hot coffee on an arrestee in a police car.”
On the claim for false arrest, the Court noted that under well-established Florida law, a private citizen may not be held liable in tort where he neither actually detained another nor instigated the arrest by law enforcement officers. See e.g., Pokorny v. First Federal Sav. & Loan Ass ‘n of Largo, 382 So.2d 678 (Fla. 1980).  In Pokorny, the court held that “if the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim’s arrest does not make him liable when he did not in fact request any detention.” Id. at 682.
The Florida Supreme Court requires more than simply reporting a suspected crime and more than identifying a suspect in a “show up.”  The Court found “this is hardly surprising, as to hold otherwise would deter businesses and private citizens from reporting crimes and cooperating with police just to avoid potentially ruinous tort liability.”  The Court added to regard the simple action of pointing out a suspect as the “direct procurement of an arrest would plainly require an impermissible stacking of inferences.”
On the claim for negligent infliction of emotional distress, the Court found it failed because there had been no discernible physical injury as required at common law.  The Court added that “there can be little doubt that plaintiff suffered psychological trauma from his wrongful arrest/detention, but this is not enough.”  There is no physical injury caused by the psychological trauma to support such a claim. See Legrande v. Emmanuel, 889 So.2d 991 (Fla. 3d DCA 2004).
On the intentional infliction of emotional distress claim, the Court found it failed as a matter of law because the conduct alleged did not even approach the level of outrageousness required under Florida common law.  The elements for this tort are:

  1. The wrongdoer’s conduct was intentional or reckless,  he intended his behavior when he knew or should have known that emotional distress would likely result;
  2. The conduct was outrageous,  as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
  3. The conduct caused emotional distress; and
  4. The emotional distress was severe.

Clemente v. Horne, 707 So.2d 865, 866 (Fla. 3d DCA 1998).
The Court noted that “the remarks about being a thief or a delinquent fall far short of the outrageousness required by Florida case law and do not even raise a colorable claim.” See Patterson v. Downtown Med. and Diagnostic Ctr., Inc., 866 F. Supp. 1379, 1383 (M.D.Fla. 1994) (“the standard for ‘outrageous conduct’ is particularly high in Florida); State Farm Mut. Auto. Ins. Co. v. Novotny, 657 So.2d 1210 (Fla. 5th DCA 1995) (criminal conduct insufficient; malicious conduct justifying punitive damages insufficient).  The Court added that “although insulting on their face, the remarks attributed to defendant in this case are insufficiently outrageous, as a matter of law, to sustain any claim for intentional infliction of emotional distress.”
The Court found that no genuine issues of material fact remained to be determined, and granted Walgreens’ Motion for Final Summary Judgment.
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David M. Perez is a litigation attorney practicing in the areas of general liability, personal injury and insurance defense, professional malpractice, automobile negligence, employment law, preparation and review of commercial leases, and administrative law.
David M. Tarlow practices in the areas of general liability defense, including personal injury defense, premises liability, product liability defense, wrongful death, automobile liability, negligent security, legal malpractice defense, insurance coverage disputes and bad faith litigation.
Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 360 lawyers serving clients from 21 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.

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