Rusnack v. Giant Food, Inc.

Orth, C. J., delivered the opinion of the Court. The only issue on this appeal is the propriety of the grant at the close of all the evidence of a directed verdict in favor of Giant Food, Inc., appellee, the defendant in a tort action brought by Walter J. Rusnack, appellant, in the Circuit Court for Montgomery County. CASE SUMMARY On 5 September 1972 Rusnack filed a declaration in the Circuit Court for Montgomery County against Giant, C. Dale Steinhauer and Leonard Davis. We are concerned with the action only as it affected Giant, the only defendant against whom trial proceeded. 1 Damages were sought from Giant in count two for assault and battery, in count four for false arrest and in count five for malicious prosecution.

The case went to trial before a jury on 22 July 1974. Giant’s motion ²⁵² for a directed verdict was granted at the close of all the evidence and on 29 July 1974 judgment was entered in favor of Giant for costs. Maryland Rule 552. Rusnack noted a timely appeal from the judgment.

THE FACTS The rule of law prevails that where the court directs a verdict in favor of one of the parties, we must assume the truth of all credible evidence in the case tending to sustain the contentions of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Durante v. Braun, 263 Md. 685, 689 , and cases therein cited. Thus, in determining whether a plaintiff has produced sufficient evidence to go to the jury, the evidence produced, as well as all legally permissible inferences drawable therefrom, must be considered in the light most favorable to the plaintiff. Wood v. Abell, 268 Md. 214, 231 .

We narrate the evidence adduced accordingly. Rusnack, 59 years of age, lived with his wife and son in Rockville, Maryland. He was a chemical engineer by profession and had been employed for about 10 years by the Department of Commerce as a branch chief. He had no criminal record, and, in fact, before the incident here considered, had never before been arrested or charged with a crime.

He had shopped many times in the past at the Giant Store on North Washington Street in Rockville, designated by Giant as its Store No. 105. On 9 May 1972, shortly before 7:00 p.m., he was in that store to get some ice cream, crackers and milk. He put those items in a shopping cart and went to the express checkout counter to pay for them. We recount what happened in his words: “I was in this line waiting to get checked out.

I did notice that there wasn’t anyone at the counter next to me. I stepped out of line and went to this counter and found that there were a number of groceries on the counter and I stepped back in line again. The woman who was directly behind me took the ²⁵³ place where I had been and I moved into line directly behind her. We were in that particular position for maybe two minutes or so, and then this man, who is to be identified as Leonard Davis, approached the counter, the checkout counter. . . .

I had never seen him before. . . . Well, this lady in front of me moved up to take her groceries out of her cart, which she did, and she moved her cart out of the road; and just as she did that, I started my cart moving up to take the place where she had been to wait my position in the line. Just as I moved my cart up, Leonard Davis jumped in front of me. He was with his back towards me.

At that particular moment my cart contacted the back of his legs. . . . [The degree of force was] just the ordinary force that you use to actually push a cart into position. . . . Well, then as soon as that occurred, he turned around and said something unintelligible to me. And he charged me. He charged me so viciously that I went down backwards and slammed the back of my head on the floor.

And he came down on top of me. I was dazed and I was endeavoring to get up on my feet when I discovered that he had handcuffs. . . . It went through my mind as to what was the matter with this man, what was he trying to do to me. He started to try to put these handcuffs on me and I started to struggle with him, of course. . . .

Well, I kept struggling, and I got up, partly up on my feet, and I turned around to the crowd to ask them if someone would go and get the police, that I was being manhandled there. Well, in the meantime, another man actually appeared on the scene and while Leonard Davis went and twisted my arm around my back and up. It felt like my arm was being pulled out of the socket. Another man took hold of me on the right side.

In ²⁵⁴ the meantime, the handcuffs were put on my left arm and when I went down the second time, that’s when the other handcuff was put on me. My other arm was pulled behind me and I was struggling, in the meantime to get free. I had no reason to submit to this kind of treatment. . . . When I went down the second time I asked him, ‘Are you a store guard?’ And he said, ‘Yes’, and he pulled this thing out of his pocket; and he pulled something out part way and then he pushed it back in again.

I said, ‘Let me see that again.’ In fact, I asked him this four or five times to let me see that again. He wouldn’t show it to me anymore. I was so exhausted by that time with the struggling that had gone on; and, finally, they lifted me up because I couldn’t get up myself. They lifted me up and I saw Mr. Gill, I didn’t know his name at the time, but who he had been.

I had seen him in the store previously. That I presumed that he was a store manager. I asked him, in particular, ‘Is this man a store guard?’ And he replied in one word, ‘Yes’ .... [Gill was] the manager or assistant manager. He seemed to be in charge that particular night. . . .

I was taken through the counters and I was standing there in front of the store. When the handcuffs were put on me before I got that far, Leonard Davis actually rammed this one handcuff down my left arm so tight that I was in such excruciating pain. . . . First, he went and took my arm, pulled it clear up like this. He was trying — twisting my arm clear over my shoulder. . . .

Yes, on my left arm. As soon as he got m.y arm down behind me, that’s when they put the cuff on. When I went down that second time, that’s when the other arm was pulled behind me. I was struggling to get free in the meantime.

That’s when ²⁵⁵ he put the other handcuff on me behind my back. Before I got up, he give this handcuff a real squeeze on my arm which made it very, very tight and it dug into the skin. It felt like my arm was broken. ... After I was handcuffed, I was taken in the front of the store and I was standing there.

They followed me. I had to wait there until the police came and I was reflecting on the fact that, here, I just had gone in for a few articles and all of a sudden I find myself bleeding and beaten and handcuffed and humiliated in the way I was in waiting to be picked up by the police. . . . I had my face lacerated or cut like — on the side of my face here. I had my forehead very much bruised and my nose bridge was bloody.

The fact is, my face was very bloody while I was standing there. . . . Well, I had my right ankle twisted. I felt like I had a sprained ankle. Later, I noticed I had other black and blue marks on my legs. ...

I was taken outside after I was standing in front of the cash registers. Then, the County Police arrived and took me outside and, actually, placed me in their automobile. . . . I lost my glasses. I lost my wrist watch. ...

In the scuffle my glasses came off and they were badly twisted. My wrist watch was torn from my left arm and both of them I lost. I didn’t realize this until after when I was taken over to the police station. . . . I went back to the Giant Store, after I was processed over at the police station, and I asked for my glasses; and I went to this man that was the manager, a Mr. Gill, I learned his name at that particular time from the name card that he had on his blouse, on his shirt, and he said he would help me find them.

He told me my glasses were on the ²⁵⁶ time clock and we went to search for the wrist watch. The only thing we could find of the wrist watch was the band. The watch was gone. I never did see.it afterwards. . . . [Davis] showed up at the police station a little bit later; and while he was in the police station, I sat there for quite a long period of time.

I guess they got the key from him and what not. That’s when they removed the handcuffs from my arms; and it was at that particular time that I held my arm up and said to the men that t .‘ought me there that they could testify as to the severe damage that was done to my left arm by those handcuffs. The skin had almost broken through and felt like the arm was broken, actually ... It was something of the order of an hour before I finally got out of there. . . .

First, I sat there for some time while they talked to Leonard Davis, or he was contacted — or he contacted somebody, I believe, and then someone asked him if he was going to prefer charges against me and he said, ‘Yes’. Then these handcuffs were taken off me and I was brought into the police commissioner. When I went into the police commissioner’s office, Corporal Schwartzel brought me some wet paper towels and I started to take some of the blood off my face. He told me my face was very, very bloody and that I could clean it up.

This is what I started to do. I then related the incident that had occurred to me to the police commissioner, and it was then that I was finally allowed to go back to the store and hunt for my glasses and for my wrist watch.” A summons was issued in the District Court of Maryland for Montgomery County charging Rusnack with the assault and battery of Davis. He was released on his own recognizance. He was tried on 29 June 1972 and found not guilty.

Davis was described by Rusnack and eyewitnesses to the ²⁵⁷ incident as a man in his early thirties, about 5 feet 10 inches tall, of medium build and “fairly muscular,” and dressed in civilian clothes. Information about him came into evidence primarily through Leonard Abelman, employed by Giant as an Internal Security Employment Investigator 2 in the Department of Watch Prevention, formerly called the Security Department. Abelman was a store detective for Giant when Davis was first employed by Giant as a store detective. 3 They both worked at Store 69 until Abelman was promoted to the position of Investigator. While they were together Abelman worked with him on the floor for about two weeks “showing him the ways that we operate as store detectives and so forth.” Abelman was not familiar with the training Davis may have had before and after that time.

All security personnel were issued an identification card with a photograph of the employee, his name, height, weight, and thumb print and the title of his position. Security officers are not issued handcuffs. Abelman did not know whether Davis was authorized to use them or not. “That is really up to the District Security Superintendent who is there, the District Supervisor, or whatever policy he would decide on for his particular area.” If authorized to carry handcuffs, the employee must himself furnish them. Security officers were not allowed to carry other accessories such as revolvers and blackjacks, “[m]eaning we don’t supply and we don’t allow our people to use that type of equipment.” A security officer was authorized to swear out warrants in the course of his duties. “When he was on duty and in his assigned store, then he was allowed to make apprehensions of people and to swear out warrants against them.” Abelman later explained: “[H]e technically could not make an arrest.

He could detain the person for the police to come and make the arrest.” In the past Davis had “apprehended people and detained them at the store for the police to come so they can arrest people.” ²⁵⁸ A security officer who saw someone shoplifting or disorderly or breaching the peace could on his own initiative — “he would be acting on his own” — detain the offender and have the police make the arrest. 4 Evidence adduced was equivocal with respect to the authority of a security officer to detain suspects and swear out warrants for their arrest while not in a store to which he had been assigned or while off duty. The matter came up during the examination of Abelman. The transcript reads: “Q. Is there any requirement or any restriction or was there any requirement or any restriction on Mr. Davis on May 9, 1972 that he could not make an arrest in any Giant Food, Inc. store if he saw, in fact, if he was on duty and, in fact, saw a violation of law? A. Well, if Mr. Davis had been on duty on that day and had been working in the store that he was assigned to, then he would have been able to act in his capacity as a store detective as he would in any store when he was on duty and is working.

Q. If Mr. Davis had been in a store to which he was not assigned on that day and had his identification and equipment with him and saw what he thought was a violation, would he have been authorized by his employer to make an arrest? A. No, sir, bécause if he is not in the store to which he is assigned, then I would have to say he must be off duty;' and we have never delegated any authority to our security people to make an arrest when they are off duty. Q. But you never told them they couldn’t if they observed a violation of law while in any Giant Store, have you? ²⁵⁹ A. Sir, it has never come up. And as I said, we never delegated the authority to our people to make an arrest and certainly not in a personal situation. . . .

Q. Have they been actually given any authority to what they can or cannot do? I am speaking now of the security personnel including Mr, Davis when in other stores to which assigned or to stores other than those to which they are directly assigned? A. We have, as I have said, the subject has never come up, to my knowledge; and we just have never delegated the authority or told our people that they can make an arrest whenever they are in one of the stores and happen to see something. It has just never come up, and we have never delegated the authority to do something like that.

Q. On the same hand, you never told them they are not to do so, have you? A. Not to my knowledge, no, sir. Q. Have they been told they are to leave their handcuffs, badges, or identification at home when they are not in the store working, specifically, in the store to which they are assigned? A. No, sir.” 5 It was clear that Davis was not on duty on 9 May 1972 in Giant Store No. 105 on North Washington Street.

The payroll records showed that he had worked there for 38 hours about a month before the incident with Rusnack. For the week ending 13 May, which included 9 May, Davis worked only one day and that day he worked at Store No. 69 ²⁶⁰ on the Rockville Pike. 6 It was the practice of the security personnel to identify themselves to the manager when they came on duty. Davis had not done so on 9 May 1972 and Franklin Gill, the manager on duty said flatly that Davis was not on duty at the time of the Rusnack incident. It was apparent that Davis was in the store shopping.

Gill knew that Davis was a security officer because of the incident of the employee and the cream. Davis shopped in the store “twice a week.” Gill had seen him there “numerous times during the week.” Although there were no witnesses who saw what precipitated the incident, there were several who saw Davis assault Rusnack and their version was not in substantial conflict with that given by Rusnack. Gill told one of them, Steinhauer, a customer, that Davis “was making an arrest. He was the store detective.” It was then that Steinhauer grabbed Rusnack