Present: All the Justices
GWENDOLYN L. JORDAN
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 971316 April 17, 1998
SAMUEL SHANDS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
I.
Gwendolyn L. Jordan filed her amended motion for judgment
against Samuel Shands, Jerry Oliver, D.L. Wright, Cecil
Richardson, C.V. Townsend, John Doe, and Mary Doe. The
plaintiff alleged the following facts.
On June 21, 1995, the plaintiff was involved in an
automobile accident in Richmond. Wright, a City of Richmond
police officer, investigated the accident. The plaintiff
sustained injuries during the accident, and she was
transported by an ambulance to a hospital.
After the plaintiff arrived at the hospital, a nurse
informed a physician, in the plaintiff’s presence, that the
plaintiff “was wanted and would be picked up by the Richmond
Police Department.” Subsequently, Richardson, a police
officer employed by the City of Richmond, arrived at the
hospital and arrested the plaintiff “on information about an
outstanding capias” issued by the Dinwiddie County Juvenile
and Domestic Relations Court. The plaintiff asked Richardson
why the capias had been issued, and he responded that “he
wasn’t sure.” The plaintiff informed Richardson that “he was
making a mistake.” The plaintiff was escorted from the
hospital and taken to a police station in a “paddy wagon.”
Subsequently, she was transported to the Richmond City Jail.
When Richardson attempted to place the plaintiff in the
custody of the jail, the jail personnel refused to accept
custody because Richardson did not have a warrant.
“Richardson produced a paper described as a ‘hit’ and the jail
personnel contacted the Dinwiddie Sheriff’s office and asked
that [it submit a facsimile of] the warrant to [the Richmond
City Jail].”
When the Richmond police received the warrant, it
contained “information from Jordan’s driver’s license inserted
in a warrant issued for Gwendolyn M. Jordan, [and identified
her address as] 231-B S. Jefferson Street, Petersburg,
Virginia 23803.” The plaintiff’s address is Route 1, Box 128-
C, Blackstone, Virginia 23824. According to the plaintiff’s
allegations, a “simple examination of her driver’s license
should have alerted Richardson to the fact that he had
arrested the wrong person . . . .” The plaintiff was
“searched, fingerprinted and her personal belongings were
taken.” After being detained for about four hours, the
plaintiff was finally released in the custody of her aunt.
2
Upon her release from jail, the plaintiff was told to
report to the Dinwiddie County Juvenile and Domestic Relations
Court on July 11, 1995. She later received a letter
commanding her appearance on that date. When she appeared in
the Dinwiddie County Juvenile and Domestic Relations Court,
the plaintiff was informed that Gwendolyn M. Jordan did not
have a social security number and that the Richmond police
personnel had placed the plaintiff’s social security number on
the warrant. The Juvenile and Domestic Relations Court judge
apologized to the plaintiff and dismissed the charges against
her.
The plaintiff filed her motion for judgment on June 27,
1996. She alleged, among other things, that Townsend placed
the incorrect information on the warrant issued for her arrest
and that he was acting within the course and scope of his
employment with Shands, Sheriff of Dinwiddie County. She also
alleged that Wright and Richardson were acting within the
course and scope of their employment with Jerry Oliver, Chief
of the Richmond Police.
The plaintiff further alleged that Richardson falsely
imprisoned her “without any sufficient legal excuse” and that
he made defamatory statements about her. She alleged that
Townsend intentionally inflicted emotional distress upon her
by entering her personal and confidential data on a warrant
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that he knew, or should have known, was intended for another
person. She alleged that Wright intentionally inflicted
emotional distress upon her by transferring her personal and
confidential data from her driver’s license to Townsend, when
Wright knew or should have known that the plaintiff was not
Gwendolyn M. Jordan and that this information would be affixed
to a warrant that would be the basis of a false arrest and
imprisonment.
The defendants filed responsive pleadings, including
special pleas of the statute of limitations and demurrers.
The defendants asserted in their special pleas that the
plaintiff’s causes of action for false imprisonment and
defamation were barred by Code § 8.01-248 which, at the time
the plaintiff’s cause of action accrued, contained a one-year
statute of limitations. 1 The defendants also filed a demurrer
asserting, among other things, that the plaintiff failed to
sufficiently plead a cause of action for intentional
infliction of emotional distress and that the defendants are
entitled to qualified immunity.
The trial court considered memoranda and argument of
counsel and entered an order dismissing plaintiff’s alleged
1
Code § 8.01-248 was amended, effective July 1, 1995, and
it now provides a two-year statute of limitations for all
personal actions accruing on or after that date, for which no
other limitation period is prescribed.
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causes of action for false imprisonment, intentional
infliction of emotional distress, and defamation because those
claims were barred by the one-year statute of limitations in
Code § 8.01-248. The court also stated in its judgment order
that even though the plaintiff failed to state a cause of
action against Chief Oliver or Sheriff Shands, the court would
not rule on this issue since its rulings on the statute of
limitations were dispositive of this proceeding.
The plaintiff appeals the judgment, and Chief Oliver and
Richardson assign cross-error to the trial court’s failure to
sustain their demurrers. The plaintiff does not, however,
assign error to the trial court’s judgment dismissing John Doe
and Mary Doe.
II.
A.
Code § 8.01-243(A) states in relevant part:
“Unless otherwise provided in this section or
by other statute, every action for personal
injuries, whatever the theory of recovery . . .
shall be brought within two years after the cause of
action accrues.”
Code § 8.01-248, in effect when the plaintiff’s cause of
action arose, stated: “[e]very personal action, for which no
limitation is otherwise prescribed, shall be brought within
one year after the right to bring such action has accrued.”
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Plaintiff argues that her cause of action for false
imprisonment which is asserted against Richardson is an action
for personal injuries and, thus, this claim is governed by the
two-year statute of limitations. Richardson asserts that the
plaintiff’s claim is a “personal action” for which no
limitation was prescribed and, thus, is governed by the one-
year statute of limitations.
We agree with the plaintiff. We have defined false
imprisonment as “the direct restraint by one person of the
physical liberty of another without adequate legal
justification.” W.T. Grant Co. v. Owens, 149 Va. 906, 921,
141 S.E. 860, 865 (1928). We have also observed that “[f]alse
imprisonment is a wrong akin to the wrongs of assault and
battery, and consists in imposing by force or threats an
unlawful restraint upon a man’s freedom of locomotion.” Id.
(quoting Gillingham v. Ohio River Ry. Co., 14 S.E. 243, 245
(W.Va. 1891)).
We are of opinion that the deprivation of an individual’s
freedom by physical restraint or the threat of such restraint
is a tort committed against an individual’s body because that
individual’s body is actually confined to an area and deprived
of physical liberty. Accordingly, we hold that an action for
false imprisonment is an action for personal injuries and,
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thus, subject to the two-year statute of limitations in Code
§ 8.01-243(A).
B.
Plaintiff concedes that her cause of action alleging
defamation is governed by a one-year limitation period, but
argues that the period did not commence to run on June 21,
1995, the date she was arrested. 2 The plaintiff says that
Richardson based his arrest on a confirmation response which
he obtained from Townsend. This document, which allegedly
contained false statements that the plaintiff was wanted in
Dinwiddie County for failure to appear on a non-support
charge, provided the basis for plaintiff’s defamation count.
The plaintiff contends that the one-year statute of
limitations does not bar her defamation action because she
filed her motion for judgment within one year from July 11,
1995, the date the Juvenile and Domestic Relations Court
dismissed the charges.
We disagree with the plaintiff’s contentions. Any cause
of action that the plaintiff may have had for defamation
2
Effective July 1, 1995, a cause of action for defamation
has been governed by a one-year period of limitation
prescribed by Code § 8.01-247.1. Before that date, an action
for defamation was not addressed by a specific limitation
provision in the Code, and hence was governed by the catch-all
provisions of § 8.01-248 which, as noted previously,
prescribed a one-year period for causes of action arising
before July 1, 1995.
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against any of the defendants accrued on June 21, 1995, which
is the date she alleges in her motion for judgment that the
defamatory acts occurred. We have held that when an injury is
sustained in consequence of the wrongful or negligent act of
another and the law affords a remedy, the statute of
limitations immediately attaches. Westminster Investing Corp.
v. Lamps Unlimited, 237 Va. 543, 546, 379 S.E.2d 316, 317-18
(1989); Caudill v. Wise Rambler, 210 Va. 11, 14-15, 168 S.E.2d
257, 260 (1969). According to the plaintiff’s pleadings, the
alleged acts of defamation occurred on June 21, 1995, and she
purportedly sustained damages on that date. Thus, her cause
of action accrued on June 21, 1995, and she was required to
file her motion for judgment within one year of that date.
She failed to do so and, thus, her claim is barred.
C.
The plaintiff argues that the trial court erred by
holding that her claims for intentional infliction of
emotional distress were barred by the statute of limitations.
Responding, Chief Oliver and Richardson state that we need not
consider this contention because, as these defendants assert
in their assignment of cross-error, the plaintiff failed to
allege sufficient facts in her amended motion to support a
cause of action for emotional distress.
8
In Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145,
148 (1974), we stated that
“a cause of action will lie for emotional distress,
unaccompanied by physical injury, provided four
elements are shown: One, the wrongdoer’s conduct
was intentional or reckless. This element is
satisfied where the wrongdoer had the specific
purpose of inflicting emotional distress or where he
intended his specific conduct and knew or should
have known that emotional distress would likely
result. Two, the conduct was outrageous and
intolerable in that it offends against the generally
accepted standards of decency and morality. This
requirement is aimed at limiting frivolous suits and
avoiding litigation in situations where only bad
manners and mere hurt feelings are involved. Three,
there was a causal connection between the
wrongdoer’s conduct and the emotional distress.
Four, the emotional distress was severe.”
In Ely v. Whitlock, 238 Va. 670, 677, 385 S.E.2d 893, 897
(1989), we held that a plaintiff must allege all facts
necessary to establish a cause of action for intentional
infliction of emotional distress.
We hold that the plaintiff failed to plead a cause of
action for intentional infliction of emotional distress with
the requisite degree of specificity against any of the
defendants. Rather, the plaintiff’s allegations are merely
conclusional.
D.
Richardson assigns as cross-error the trial court’s
failure to sustain his demurrer which asserted that the
plaintiff’s allegations in her amended motion established as a
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matter of law that he acted in good faith when he arrested her
and that his actions are protected by a qualified immunity.
We disagree with Richardson’s contentions.
A defendant who asserts the qualified immunity defense,
not the plaintiff, must allege and prove the elements
comprising this defense. See DeChene v. Smallwood, 226 Va.
475, 479, 311 S.E.2d 749, 751 (1984). Richardson may not, by
use of a demurrer, shift his pleading and proof burdens to the
plaintiff.
III.
In summary, the plaintiff’s cause for false imprisonment
is governed by the two-year statute of limitations. The
plaintiff failed to plead a cause of action for intentional
infliction of emotional distress against any of the
defendants. The plaintiff’s purported cause of action for
defamation is barred by the statute of limitations.
Accordingly, we will reverse the trial court’s judgment
in favor of Richardson and will remand this proceeding to
permit the plaintiff to pursue her cause of action for false
imprisonment against him, and we will affirm the trial court’s
judgment in favor of the remaining defendants.
Affirmed in part,
reversed in part,
and remanded.
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