Giant Food, Inc. v. Scherry

⁵⁸⁷ Wilner, J., delivered the opinion of the Court. Appellant employed William Joyner as an armed security guard to protect its store located in the Blair Plaza Shopping Center in Silver Spring. On the evening of November 11, 1978, while on duty, Joyner observed a man brandish a pistol and rob one of appellant’s cashiers. He allowed the robber to leave the store, and began to pursue him across the parking lot.

As the robber reached a car parked at the far end of the lot, Joyner pulled his pistol and twice shouted to the man to stop, identifying himself as a police officer. The robber ignored the warnings, got into the car, and began to drive quickly away. Joyner, standing between fifteen and forty feet from the fleeing vehicle, fired two shots at the car. 1 One, aimed at the driver’s side window, hit the rear quarter panel. The other, aimed at the rear window, sparked this litigation.

Instead of hitting the car, the bullet went through Geraldine Scherry’s fifth floor 2 apartment window across the street. Ms. Scherry was just walking into her living room when the bullet shattered her window, strewing glass all over the apartment. Thinking that someone was trying to kill her, she became hysterical. The episode was so unnerving as to cause nausea, insomnia, headaches, and general mental and emotional distress, leading to the need for some psychotherapy, one hospitalization, and lost time from work.

Ms. Scherry and her husband sued appellant in the Circuit Court for Montgomery County on a variety of theories. Ultimately, the case was submitted to the jury on the theory of Joyner’s negligence in firing the second shot, for which appellant would be vicariously liable, and appellant’s direct negligence in hiring Joyner and entrusting him with a firearm without proper training. The jury returned a gen ⁵⁸⁸ eral verdict of $15,000 compensatory damages, $12,000 attributable to Ms. Scherry’s injuries and $3,000 for loss of consortium. In this appeal, appellant raises three issues: (1) is appellant immune from liability to appellees because Joyner had a right to use deadly force in attempting to capture the fleeing felon, (2) was the damage award based upon inadmissible expert testimony given in response to an impermissible hypothetical question, and (3) did the court err in its instructions to the jury with respect to damages? 3 (1) Liability Appellant’s theory of immunity, or non-liability, proceeds thusly: (1) as a result of his direct observations, Joyner had probable cause to arrest the fleeing felon; (2) he had the right to use reasonable force to effect that arrest, and, in the circumstances presented here, that included the use of deadly force; (3) his actions were therefore "privileged”; and (4) by reason of that "privilege,” no liability would accrue to an unintended third party victim.

Appellant argues this theory in two contexts: the denial of its motion for directed verdict, and the court’s refusal "to instruct the jury on Restatement of Torts section 143(2) relating to the use of force and pursuit of a fleeing felon.” ⁵⁸⁹ We have no difficulty with appellant’s first premise. Under Maryland law, "a private person may make an arrest if he ha[s] reasonable grounds (probable cause) to believe that a felony was committed and that the person whom he arrests committed it.” Stevenson v. State, 287 Md. 504, 520 (1980). Certainly, in light of his own observations, Joyner had probable cause to believe that the person he was pursuing had just committed an armed robbery, and he therefore had the right and authority to arrest him. We agree also that a person authorized to make an arrest may use reasonable or "necessary” force to accomplish that result.

The Baltimore and Ohio Railroad Company v. Strube, 111 Md. 119, 127 (1909); Prosser, Law of Torts, 134 (4th Ed. 1971). We do not necessarily concur, however, with appellant’s argument that the use of deadly force — the firing of shots — was justified, at least not as a matter of law. Given the fact that the robber was in the process of fleeing and, at the time, presented no immediate danger to Joyner or anyone else, and given the alternative option of noting the license tag number of the getaway car (which Joyner neglected to do) and summoning help from the police, a permissible inference could be drawn that Joyner’s actions exceeded the use of reasonable or necessary force under the circumstances and therefore were not privileged. See Restatement of Torts (2d) § 79 (1965).

We need not rest our decision on that doubt alone, for there is a more significant weakness in appellant’s argument. Joyner’s conduct has to be viewed not only in the context of the duty he owed to the robber not to use excessive (.i.e., unreasonable, unnecessary) force in effecting an arrest, but also in terms of a duty he owed to other persons to act in a reasonable manner. A finding of "privilege” with respect to the robber does not, in other words, end the inquiry vis a vis any responsibility to third parties such as Ms. Scherry; it would, at best, merely serve to insulate Joyner and appellant against liability to the robber, had he been shot. Restatement of Torts (2d) § 137 (1965), states that "[ljiability for the invasion of any of another’s interests of ⁵⁹⁰ personalty, by the exercise of the privilege of effecting the arrest or recapture, or of maintaining custody of a third person, is determined by the rules stated in §§ 74 and 75 [of the Restatement].” Section 75, which deals with the situatioh of one acting in self-defense, provides: "An act which is privileged for the purpose of protecting the actor from a harmful or offensive contact or other invasion of his interests of personalty subjects the actor to liability to a third person for any harm unintentionally done to him only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm.” (Emphasis supplied.) See also §§83 and 111, expressing the same principle in the context of acting in defense of property and in the recaption of chattels.

These sections of the Restatement make clear that, in attempting to make a warrantless arrest, a person has, in effect, a double responsibility — one to the prospective arrestee not to use unnecessary force against him, and one to the public at large to use even reasonable force in a reasonable manner. This is illustrated in Comment c to § 137, which states, in relevant part: "Thus, if an actor is privileged to shoot at an escaping felon, he is not liable to a third person harmed by a stray bullet, if when he shot there was little or no probability that any person other than the felon would be hit. But when he shoots into a crowded thoroughfare, and unintentionally hits a passerby, his act is unprivileged if, in view of the surrounding conditions, including the nature of the crime for which he seeks to arrest, recapture, or maintain custody, the harm which may ensue if he does not act, and his skill or lack of skill in the use of the weapon, it is unreasonable for him to take the chance of causing grave harm to bystanders.” (Emphasis supplied.) ⁵⁹¹ In light of the case law that has developed, we think that the reference in the second sentence of Comment c to shooting into a crowded thoroughfare is merely one of example, not one of limitation. The reasonableness standard set forth in §§ 75, 83, and 111, incorporated by reference into § 137, and otherwise explicated in Comment c, would apply whether the shot is fired into a "crowded thoroughfare” or any other place or circumstance in which there is some prospect that an innocent person may be hurt.

These kinds of situations, in which an innocent bystander is injured or killed in the course of an attempt to apprehend a criminal or defend an attack on one’s person or property, arise in a variety of contexts — some more life-threatening to the actor than others, some involving felons and felonies, others involving misdemeanants and misdemeanors. The context is important in determining the reasonableness of the action taken, but the basic standard seems to be the same. Where the evidence shows that the actor, whether a police officer or a private citizen, acted without due regard to the danger caused to innocent third parties, he (and his employer) have been held liable. See, for example, Robledo v. City of Los Angeles, 252 C.A.2d 285 (1967); Goodrich v. Morgan, 291 S.W.2d 610 (Tenn.App. 1956); Heidbreder v. Northampton Township Trustees, 411 N.E.2d 825 (Ohio App. 1979); Meistinsky v. City of New York, 140 N.Y.S.2d 212 (A.D. 1955), aff'd 309 N.Y. 998 (1956); Wilkes v. City of New York, 124 N.E.2d 338 (N.Y. 1954); Harden v. United States, 485 F.Supp. 380 (S.D.Ga. 1980); Davis v. McKey, 167 So.2d 416 (La.App.), writ refused 168 So.2d 822, 823 (La. 1964); Dyson v. Schmidt, 109 N.W.2d 262 (Minn. 1961); Davis v. Hellwig, 122 A.2d 497 (N.J. 1956); Cerri v. United States, 80 F.Supp. 831 (N.D.Cal. 1948); Young v. Kelley, 21 N.E.2d 602 (Ohio App. 1938); Day v. Walton, 281 S.W.2d 685 (Tenn. 1955); Edgin v. Talley, 276 S.W. 591 (Ark. 1925); Greenstone, Liability of Police Officers for Misuse of Their Weapons, 16 Clev.-Mar.

L. Rev. 397, 405 (1967); Note, The Civil Liability of Peace Officers For Wounding or Killing, 28 Cinc. L. Rev. 488, 495 (1959). ⁵⁹² Conversely, where the evidence establishes that the defendant acted reasonably, liability has been denied. See Hatfield v. Gracen, 567 P.2d 546 (Or. 1977); Graham v. Ogden, 157 So.2d365 (La. App. 1963); Gordon v. City of New Orleans, 363 So.2d 235 (La.

App. 1978), aff'd 371 So.2d 768 (La. 1979); and compare Everette v. City of New Kensington, 396 A.2d 467 (Pa.Super. 1978), where the court divided equally. The question, then, is whether, under all of the circumstances in which Mr. Joyner found himself at the moment he took the second shot, it was reasonable for him to have fired that shot. Was there a prospect