Opinion
No. 53494-7-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-05820-5. Judgment or order under review. Date filed: 11/24/2003. Judge signing: Hon. Nicole K MacInnes.
Counsel for Appellant(s), Eugemi Barbu (Appearing Pro Se), 8830 41st South, Seattle, WA 98118.
Counsel for Respondent(s), Wendy Marie Harper, Attorney at Law, 11508 32nd Ave NE, Seattle, WA 98125-6802.
Mario James Madden, Schwabe Williamson Wyatt PC, 1420 5th Ave Ste 3010, Seattle, WA 98101-2339.
Matthew Turetsky, Schwabe Williamson Wyatt, 1420 5th Ave Ste 3010, Seattle, WA 98101-2339.
After Rite Aid security guards detained him for investigation of shoplifting, appellant Eugen Barbu filed this action for false imprisonment, outrage, assault and battery, negligent supervision, and violation of 42 U.S.C sec. 1983. Because the admissible facts in the record are susceptible of but one reasonable conclusion, we affirm the trial court's dismissal of Barbu's claims on summary judgment.
FACTS
Viewed in the light most favorable to appellant Barbu, the materials before the trial court established the following sequence of events. On February 14, 2000, Barbu went to the Rainier Avenue Rite Aid store to pick up a prescription. A woman at the counter informed Barbu that the pharmacy was unable to fill the entire prescription. When Barbu asked for a refund for the unfilled portion of the prescription, the woman explained that he would have to wait because the store was experiencing computer problems.
Barbu told the woman that he did not want to wait and asked if he could "take something." According to Barbu, the woman replied, "go ahead." After learning that the refund would be about $17, Barbu walked around the store, looking for something that he needed. After "smelling the colognes" for a time, he selected a bottle valued at about $17 and walked out of the store, where two Rite Aid security guards detained him for shoplifting. Before leaving the store, Barbu did not request a credit receipt or show the cologne to anyone.
Clerk's Papers, at 17. Barbu's account of the events is drawn primarily from his deposition testimony.
Barbu filed this action against Rite Aid, raising claims of false imprisonment, outrage, negligent supervision, assault and battery, and violation of rights under 42 U.S.C. sec. 1983. On November 24, 2003, the trial court granted Rite Aid's motion for summary judgment and dismissed all of Barbu's claims.
Decision
We review an order of summary judgment de novo and determine whether the materials, viewed in the light most favorable to the nonmoving party, demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). The moving party can satisfy its initial burden by submitting materials demonstrating an absence of evidence to support elements of the nonmoving party's claims. See White v. Kent Medical Center, Inc., 61 Wn. App. 163, 170, 810 P.2d 4 (1991). The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue for trial. Summary judgment should be entered if the nonmoving party "fails to establish the existence of an element essential to that party's case." Kendall v. Public Hospital Dist. No. 6, 118 Wn.2d 1, 9, 820 P.2d 497 (1991).
Barbu first contends that the trial court erred in dismissing his claim for false imprisonment. He argues that there is a material factual issue as to whether Rite Aid's security officers had reasonable grounds to detain him. In order to establish false imprisonment, Barbu was required to prove that Rite Aid's employees intentionally confined him and that the confinement was without justification under the circumstances. See Kellogg v. State, 94 Wn.2d 851, 856, 621 P.2d 133 (1980). In support of his claim, Barbu points to evidence that the Rite Aid security guards physically restrained him for shoplifting without his consent.
A merchant has civil immunity to detain a person for investigation based on "reasonable grounds" that the person has stolen merchandise from the store. RCW 4.24.220; see State v. Johnston, 85 Wn. App. 549, 554, 933 P.2d 448 (1997). As Barbu correctly notes, whether a merchant has reasonable grounds to detain a person for shoplifting will frequently be a factual issue. But a question of fact may be determined as a matter of law where reasonable minds could reach but one conclusion. Keystone Land Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 178 n. 10, 94 P.3d 945 (2004).
The evidence before the trial court was undisputed that after paying for his medicine at the pharmacy counter, Barbu walked around the store and examined various containers of cologne. He then took a bottle of cologne and walked out of the store without going through a checkstand or telling anyone. These circumstances established reasonable grounds for detaining Barbu. See State v. Johnston, 85 Wn. App. at 554 (reasonable grounds to detain defendant who picked up clothing and ran out of store); State v. Miller, 103 Wn.2d 792, 795, 698 P.2d 554 (1985) (reasonable grounds to detain defendant who put steaks into her shoulder bag and attempted to leave grocery store); State v. Gonzales, 24 Wn. App. 437, 440, 604 P.2d 168 (1979) (reasonable grounds to detain defendant who left store with bulge under his overcoat).
Barbu maintains the receipt that he was carrying created a material factual issue about the reasonableness of his detention. But he fails to explain how the receipt for his medication undermined the reasonableness of his detention for taking the cologne. Under the circumstances, there was no material factual dispute that Rite Aid had reasonable grounds to detain Barbu. Accordingly, the trial court properly entered summary judgment on Barbu's false imprisonment claim.
Barbu next contends that the trial court erred in dismissing his claims of outrage and assault and battery. In order to establish the tort of outrage, the plaintiff must prove (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) severe emotional distress. Kloepfel v. Bokor, 149 Wn.2d 192, 195, 66 P.3d 630 (2003). The alleged outrageous conduct must "go beyond all possible bounds of decency, and . . . be regarded as atrocious, and utterly intolerable in a civilized community." Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (quoting Restatement (Second) of Torts § 46 (1965)). A battery is "[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent"; an assault is any such act that causes apprehension of a battery. McKinney v. Tukwila, 103 Wn. App. 391, 408, 13 P.3d 631 (2000) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 9, at 39 (5th ed. 1984)).
Barbu's claims of outrage and assault and battery rest on allegations that Rite Aid employees physically abused him during the detention. But Barbu submitted no admissible evidence to support these allegations. Contrary to the assertion in his appellate brief, Barbu failed to submit any affidavit or deposition testimony supporting his account of the incident. Once the moving party has met its initial burden on summary judgment, the nonmoving party may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. Additionally, any such affidavits must be based on personal knowledge admissible at trial and not merely on conclusory allegations, speculative statements or argumentative assertions.
(Citations omitted.) Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992). Barbu's allegations, unsupported by any admissible evidence, were insufficient to create a genuine factual issue as to his outrage and assault and battery claims.
Barbu next contends that the trial court erred in dismissing his claim for negligent supervision. In order to establish negligent supervision, Barbu was required to prove, among other things, that Rite Aid knew, or in the exercise of reasonable care should have known, that its employees presented a risk of danger to others. See Niece v. Elmview Group Home, 131 Wn.2d 39, 48-49, 929 P.2d 420 (1997). Because Barbu failed to set forth specific facts tending to establish this element, the trial court properly dismissed the claim on summary judgment.
Finally, Barbu contends that the trial court erred in dismissing his claim of civil rights violations under 42 U.S.C. sec. 1983. To maintain a sec. 1983 claim, a plaintiff must establish two essential elements: (1) that some person deprived him of a federal constitutional or statutory right; and (2) that the person was acting under color of state law. Sintra, Inc. v. Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992). But a purely private party is not subject to liability under sec. 1983. See Miguel v. Guess, 112 Wn. App. 536, 550, 51 P.3d 89 (2002). Before the conduct of a private actor can be considered state action for purposes of sec. 1983, there must be a "sufficiently close nexus between the state and the private actor `so that the action of the latter may be fairly treated as that of the State itself.'" Jensen v. Lane Cy., 222 F.3d 570, 575 (9th Cir. 2000) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S. Ct. 449, 42 L.Ed.2d 477 (1974)).
Barbu suggests that the Rite Aid security guards became state actors when they detained him and then worked with the responding police officers to process the arrest paperwork. But it is well established that private security guards are not transformed into state actors for purposes sec. 1983 merely because they detain and investigate shoplifters before turning them over to the police. See, e.g., Chapman v. Higbee Co., 319 F.3d 825, 834 (6th Cir. 2003); see also State v. Gonzales, 24 Wn. App. at 440-41 (RCW 4.24.220, which provides for immunity from civil liability, does not transform private security officers into state agents). Barbu has not cited any authority or facts suggesting that the actions of the security guards in this case could be attributed to the state.
The trial court's order dismissing Barbu's claims on summary judgment is affirmed.
APPELWICK, J., AGID, J. and ELLINGTON, A.C.J.