
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Christopher Wayne Smith v. Marjorie Button
    September 24, 1997
    Case No. ML-4566
   By Judge James B. Wilkinson

On June 17,1995, the defendant, Marjorie Button, was robbed at gunpoint while working at the Red Carpet Inn in Richmond, Virginia. Ms. Button told the police that she had been robed by the plaintiff Christopher Smith, who had been a guest at the hotel the evening prior to the robbery. Mr. Smith was arrested on June 23, 1995, and was charged with robbery and tire use of a firearm in tire commission of a robbery. Mr. Smith was incarcerated in tire Henrico County Jail where he was held, being unable to make bond until November 17, ¡995.

At the preliminary hearing, Ms. Button identified Mr. Smith as the person who robbed her. While Mr. Smith remained incarcerated and was awaiting trial, another individual was arrested on unrelated robbery charges and confessed to having committed the June 17, 1995, robbery of the Red Carpet Inn. Subsequently, Mr. Smith was released, and the charges against him were mile prosequi.

The plaintiff filed suit against fee defendant for $500,009.00 for compensatory damages and $500,000.00 for punitive damages. Count One of Plaintiffs Motion for Judgment is a claim of slander for fee defendant's statements which falsely accused the plaintiff of committing fee robbery. Count Two of Plaintiffs Motion for Judgment is a claim of false arrest and imprimiiment of the plaintiff caused by the defendant’s falsely accusing the plaintiff of committing die robbery.

Defendant filed a Motion for Summary Judgment against the plaintiff for both counts. Defendant argues that die plaintiff’s allegations made in Plaintiffs Motion for Judgment are insufficient as a matter of law to support a claim of defamation. Alternatively, die defendant claims the defendant’s statements made to a court are absolutely privileged and die defendant’s statements made to a Commonwealth’s Attorney and Henrico County Police are qualifiediy privileged. The defendant claims die plaintiff was lawfully arrested, and such lawful arrest bars die plaintiff's claim of false arrest and imprisonment

Issues

(1) Whether die defendant should be granted summary judgment against die plaintiff on the claim of slander based on failure to state sufficient feds upon which relief can be granted.

(2) Whether the defendant’s statements identifying the plaintiff as die robber made to a court, a Commonwealth’s Attorney, and Henrico County Police are absolutely privileged or, alternatively, qualifiediy privileged.

(3) Whether die defendant should be granted summary judgment against the plaintiff On tile claim of falae anest and imprisonment.

Discussion

Issue One

Defendant moves for summary judgment against die plaintiff’s claim of slander arguing that the allegations and the facts pleaded in Count One of Plaintiff’s Motion for Judgment are insufficient as a matter of law to support a claim, hi an action at law, "the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted may be made by demurrer.” Va. Code § 8.01-273(A). The purpose of a demurrer is to test "the sufficiency of factual allegations to determine whether die motion for judgment states a cause of action." Fun v. Virginia Military Institute, 245 Va. 249, 252, 427 S.E.2d 181 (1993). Defendant’s Motion for Summary Judgment claiming the allegations and fects pleaded in Count One of Plaintiffs Motion for Judgment is improper for summary judgment and, thus, is overruled.

Issue Two

Slander per se is a published defamatory statement where words are “falsely spoken of a person which impute to the party toe commission of some criminal offense involving moral turpitude, for which toe party, if toe charge is true, may be indicted and punished.” M. Rosenberg & Sons v. Craft, 182 Va. 512, 518, 29 S.E.2d 375 (1944). See also Food Lion, Inc. v. Melton, 250 Va. 144, 150, 458 S.E.2d 580 (1995); Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 146, 334 S.E.2d 846 (1985). The defense of absolute privilege may bar a claim of slander. It is well established in Virginia that “words spoken or written in a judicial proceeding that are relevant and pertinent to toe matter under inquiry are absolutely privileged.” Darnell v. Davis, 190 Va. 701, 707, 58 S.E.2d 68 (1950) (cites omitted).

A "judicial proceeding” is “not restricted to trials of civil actions or indictments, but it includes every proceeding before a competent court or magistrate in toe due course of law or toe administration of justice which is to result in any determination or action of such court or officer.” Darnell, 190 Va. at 707 (citing 53 C.J.S., Libel and Slander, § 104). The rule of absolute privilege extends to third party statements made during a judicial proceeding, and civil liability may not be imposed upon the originator of such statements. Watt v. McKelvie, 219 Va. 645, 651, 248 S.E.2d 826 (1978). The public's interest is furthered when an individual is allowed to participate in a lawsuit with toe freedom to speak freely and fully on relevant issues in controversy. Id.

Mr. Smith alleges Ms. Button is liable for slander for toe words spoken by Ms. Button when she identified him as toe robber during a preliminary hearing in á courtroom full of people. A situation where a witness is speaking to a judge in toe presence of third parties in toe courtroom cannot be treated toe same as a situation such as Food Lion, Inc., where toe plaintiff was accused of shoplifting in toe presence of customers entering and exiting toe store. Even though third parties may have heard and understood Ms. Button’s statements, such statements made to a judge during a preliminary hearing are made during a judicial proceeding.

The Court holds that toe defendant’s statements during toe judicial proceeding are absolutely privileged. To hold otherwise would have a chilling effect on a citizen's duty to report a crime and would inhibit a full and complete investigation of toe facts. Defendant’s Motion for Summary Judgment is granted in favor of toe defendant against the plaintiff for toe claim of slander regarding toe defendant’s statements made during a judicial proceeding.

The defense of qualified privilege may also bar a claim of slander. It is the Court’s duty to determine whether the qualified privilege exists and to so instruct thejuiy. Watt, 219 Va. at 651. “A communication, made in good faith, on a subject matter in which die person communicating has an interest, or owes a duty, legal, moral, or social, is qualifiedly privileged if made to a person having a corresponding interest or duty.” Taylor v. Grace, 166 Va. 138, 144, 184 S.E. 211 (1936). See also Great Coastal Express, Inc,, 230 Va. at 153.

Ms. Button had both an interest and a duty to communicate die identity of the assailant who she, in good faith, believed robbed her while working at the Red Roof Inn. Likewise, both the Henrico Police and the Commonwealth’s Attorney had a corresponding interest and duty to determine the identity of the robber. The Court holds that the statements identifying Mir. Smith as the robber made by Ms. Button to the Henrico County Police and a Commonwealth’s Attorney are qualifiedly privileged.

A qualified privilege may be lost if the plaintiff proves malice by clear and convincing evidence. Great Coastal Express, Inc., 230 Va. at 154. hi Virginia, proof of either New York Times malice or common law malice will defeat the defendant’s qualified privilege. Id. (citing New York Times v. Sullivan, 376 U.S. 254 (1964)). This is the same burden of proving malice as required for the recovery of punitive damages.

Hie plaintiff and the defendant openly disagree as to whether malice exists in the case at bar. This is a material fact genuinely in dispute between the parties and is to be decided by the juiy. Defendant’s Motion for Summary Judgment is overruled as to the plaintiff's claim of slander for statements made by the defendant to the Henrico County Police and a Commonwealth’s Attorney.

Issue Three

False imprisonment is die “restraint of one’s liberty without any sufficient legal excuse therefor by word or acts, which he fears to disregard, and neither malice, ill will, nor the slightest wrongful intention is necessary to constitute the offense.” Montgomery Ward & Co. v. Wickline, 188 Va. 485, 489, 50 S.E.2d 387 (1948). The tort claim of false imprisonment is also commonly referred to as false arrest. Coughlan v. Jim McKay Chevrolet, Inc., 18 Va. Cir. 265 (1989). The claims of false imprisonment and false arrest are distinguishable in terminology only, the difference being the manner in which they arise. A person may be falsely imprisoned by another without being arrested, but a person falsely arrested is concurrently falsely imprisoned. See 98 A.L.R. 3d, False Imprisonment, § 2. "[A]n unlawful arrest may give rise to a cause of action for either felse arrest or imprisonment or both.” Motley v. Virginia Hardware & Mfg. Co., 287 F. Supp. 700, 792 (W.D. Va. 1968). Thus, fee central element in a felse imprisonment action “is fee illegal detention of fee person, without lawful process or fee unlawful execution of lawful process.” Montgomery Ward & Co., 188 Va. at 489. See also Coughlan, 18 Va. Cir. at 265.

A party who actively instigates, directs, or procures fee unlawful arrest of a person is liable for felse imprisonment. Winters v. Campbell, 148 W. Va. 710, 137 S.E.2d 188 (1964). The issue of what constitutes direction or instigation by a private citizen is case specific. There are no rules established to determine what acts constitute fee instigation of an arrest; each case is to be decided on its particular facts and fee inferences to be drawn therefrom. 35 CJ.S., False Imprisonment, §38. Where fee plaintiff is falsely arrested because of a mistaken identification made by fee defendant, fee defendant’s liability for felse imprisonment is a question for fee jury. 21 A.L.R. 2d, False Arrest, § 27.

The issue of whether fee defendant was fee cause of fee plaintiff's felse arrest and felse imprisonment depends upon whether fee defendant had reasonable ground for procuring fee arrest Id. This is a question of feet as to whether there was “reasonable ground for doing so as would justify a person of average prudence jn doing so.” Id. This standard recognizes that fee defendant has responsibility for the arrest and requires justification for fee arrest as though made by herself. Thus, fee defendant’s liability for felse imprisonment depends on fee common-law issue of whether she had reasonable ground for believing fee plaintiff was guilty of fee felony. Id.

The plaintiff bears fee burden of establishing feat fee defendant made a felse statement which induced fee police to execute fee involuntary commitment of fee plaintiff. 98 A.L.R. 3d, False Imprisonment, §4. If a complaint is simply made before a magistrate wife jurisdiction to issue fee warrant and fee defendant does not participate in fee resulting illegal arrest, fee defendant is not liable for felse imprisonment caused by a subsequent mot of fee magistrate, or fee clerk, or fee officer. 21 A.L.R. 2d, False Arrest, § 23. The mere giving of wrong information which leads to a felse arrest does not necessarily mean a defendant “directed, advised, countenanced, encouraged, or instigated” fee arrest Id. Identifying words such as "This is him” is not in and of itself sufficient “participation* to render a defendant liable for false imprisonment. 21 A.L.R. 2d, False Arrest, § 7 (citing Elliott v. Winkenweder, 51 D.L.R. 716 (1920)). Furthermore, where a defendant merely reports to an officer what was seen and an officer subsequently falsely arrests and imprisons die identified person following an investigation, die false arrest and false imprisonment is the act of the officer and not the direction of die informant 98 A.L.R. 3d, False Imprisonment, §4 (citing Crescent Amusement Co. v. Scott, 40 So. 2d 882 (1949)). See also 21 A.L.R. 2d, False Arrest, § 27. The distinction is made between merely giving information and allowing the officers to take what action they deem proper and giving information accompanied with direction or pressure on the officers to prosecute. Id.

hi die case at bar, die plaintiff alleges that the defendant’s conduct resulted in die plaintiffs wrongful arrest (Pl.’s Mot. for J., ¶ 14). "Wrongful* is defined as "inequitable” and "unlawfid.” Ballentine's Law Dictionary 1382 (3d ed. 1969). Defendant admits in Defendant's Grounds of Defense that her conduct “resulted in the wrongful arrest” of the plaintiff. (Def.’s Grounds of Defense, ¶ 14). The defendant concedes a second time that the plaintiff was unlawfully arrested, for die purpose of the summary judgment motion only, by stating "as true all facts as set forth in the plaintiff’s motion for judgment” (Def.’s Mot. for Summ. J., ¶ 3).

Plaintiff also alleges he was incarcerated as a “direct, proximate, and foreseeable result of the false anest and imprisonment” caused by die defendant (Pl.’s Mot. for J., ¶ 15). Defendant denies this allegation. (Def.’s Grounds of Defense, ¶ 15). This is a material fact genuinely in dispute whether the defendant caused the false arrest which resulted in the false imprisonment of the plaintiff.

The defendant has admitted that the plaintiff was unlawfully arrested. A material fact is genuinely in dispute as to whether the defendant caused the plaintiffs false arrest raid false imprisonment Defendant’s Motion for Summary Judgment is overruled as to die claim of false imprisonment.

Conclusion

Defendant’s Motion for Summary Judgment claiming that the allegations and facts pleaded on Count One of Plaintiffs Motion for Judgment are insufficient to state a claim is improper for summary judgment and, thus, is overruled.

The Court holds that the defendant’s statements made during a judicial proceeding ate absolutely privileged. Defendant’s Motion for Summary Judgment is granted in fever of die defendant against the plaintiff for the claim of slander regarding the statements made by the defendant during a judicial proceeding.

The Court holds that toe defendant’s statements identifying Mr. Smith as the robber made to toe Henrico County Police and a Commonwealth’s Attorney are qualifiedly privileged. However, a qualified privilege may be lost if malice is proven by toe plaintiff The material fact as to whether malice exists is genuinely in dispute between toe parties. Defendant’s Motion for Summary Judgment is overruled as to the plaintiffs claim of slander for toe defendant’s statements made to toe Henrico County Police and a Commonwealth’s Attorney.

The defendant has admitted that toe plaintiff was unlawfully arrested, and the plaintiff and toe defendant genuinely dispute as to whether toe defendant caused toe plaintiffs false arrest and false imprisonment. Defendant's Motion for Summary Judgment is overruled as to the plaintiffs claim of false imprisonment.  