United States Court of Appeals
For the First Circuit
No. 99-1162
No. 99-1355
DEBRA McCANN, Personally, and as Mother and
Next Friend of Jillian McCann and Jonathan McCann,
Plaintiffs, Appellees/Cross-Appellants,
v.
WAL-MART STORES, INC.,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
John W. McCarthy with whom Rudman & Winchell, LLC was on
consolidated brief for defendant.
Samuel W. Lanham, Jr. with whom Cuddy & Lanham was on
consolidated brief for plaintiffs.
April 14, 2000
BOUDIN, Circuit Judge. This case involves a claim for
false imprisonment. On December 11, 1996, Debra McCann and two
of her children--Jillian, then 16, and Jonathan, then 12--were
shopping at the Wal-Mart store in Bangor, Maine. After they
returned a Christmas tree and exchanged a CD player, Jonathan
went to the toy section and Jillian and Debra McCann went to
shop in other areas of the store. After approximately an hour
and a half, the McCanns went to a register and paid for their
purchases. One of their receipts was time stamped at 10:10 p.m.
As the McCanns were leaving the store, two Wal-Mart
employees, Jean Taylor and Karla Hughes, stepped out in front of
the McCanns' shopping cart, blocking their path to the exit.
Taylor may have actually put her hand on the cart. The
employees told Debra McCann that the children were not allowed
in the store because they had been caught stealing on a prior
occasion. In fact, the employees were mistaken; the son of a
different family had been caught shoplifting in the store about
two weeks before, and Taylor and Hughes confused the two
families.
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Despite Debra McCann's protestations, Taylor said that
they had the records, that the police were being called, and
that the McCanns "had to go with her." Debra McCann testified
that she did not resist Taylor's direction because she believed
that she had to go with Taylor and that the police were coming.
Taylor and Hughes then brought the McCanns past the registers in
the store to an area near the store exit. Taylor stood near the
McCanns while Hughes purportedly went to call the police.
During this time, Debra McCann tried to show Taylor her
identification, but Taylor refused to look at it.
After a few minutes, Hughes returned and switched
places with Taylor. Debra McCann told Hughes that she had proof
of her identity and that there must be some proof about the
identity of the children who had been caught stealing. Hughes
then went up to Jonathan, pointed her finger at him, and said
that he had been caught stealing two weeks earlier. Jonathan
began to cry and denied the accusation. At some point around
this time Jonathan said that he needed to use the bathroom and
Hughes told him he could not go. At no time during this initial
hour or so did the Wal-Mart employees tell the McCanns that they
could leave.
Although Wal-Mart's employees had said they were
calling the police, they actually called a store security
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officer who would be able to identify the earlier shoplifter.
Eventually, the security officer, Rhonda Bickmore, arrived at
the store and informed Hughes that the McCanns were not the
family whose son had been caught shoplifting. Hughes then
acknowledged her mistake to the McCanns, and the McCanns left
the store at approximately 11:15 p.m. In due course, the
McCanns brought suit against Wal-Mart for false imprisonment (a
defamation claim was also made but was rejected by the jury).
The jury awarded the McCanns $20,000 in compensatory
damages on their claim that they were falsely imprisoned in the
Wal-Mart store by Wal-Mart employees. Wal-Mart has now appealed
the district court's denial of its post-judgment motions for
judgment as a matter of law and for a new trial pursuant to Fed.
R. Civ. P. 50(b) and 59, respectively, arguing that the McCanns
did not prove false imprisonment under Maine law and that the
court's jury instructions on false imprisonment were in error.
The McCanns have cross-appealed from the district court's pre-
trial dismissal of their claim for punitive damages.
Both of Wal-Mart's claims of error depend on the proper
elements of the tort of false imprisonment. Although nuances
vary from state to state, the gist of the common law tort is
conduct by the actor which is intended to, and does in fact,
"confine" another "within boundaries fixed by the actor" where,
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in addition, the victim is either "conscious of the confinement
or is harmed by it." Restatement (Second), Torts § 35 (1965).
The few Maine cases on point contain no comprehensive
definition, see Knowlton v. Ross, 95 A. 281 (Me. 1915);
Whittaker v. Sanford, 85 A. 399 (Me. 1912), and the district
court's instructions (to which we will return) seem to have been
drawn from the Restatement.
While "confinement" can be imposed by physical barriers
or physical force, much less will do--although how much less
becomes cloudy at the margins. It is generally settled that
mere threats of physical force can suffice, Restatement, supra,
§ 40; and it is also settled--although there is no Maine case on
point--that the threats may be implicit as well as explicit, see
id. cmt. a; 32 Am. Jur. 2d False Imprisonment § 18 (1995)
(collecting cases), and that confinement can also be based on a
false assertion of legal authority to confine. Restatement,
supra, § 41. Indeed, the Restatement provides that confinement
may occur by other unspecified means of "duress." Id. § 40A.
Against this background, we examine Wal-Mart's claim
that the evidence was insufficient, taking the facts in the
light most favorable to the McCanns, drawing reasonable
inferences in their favor, and assuming that the jury resolved
credibility issues consistent with the verdict. See Gibson v.
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City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994); Sanchez v.
Puerto Rico Oil Co., 37 F.3d 712, 716 (1st Cir. 1994). Using
this standard, we think that a reasonable jury could conclude
that Wal-Mart's employees intended to "confine" the McCanns
"within boundaries fixed by" Wal-Mart, that the employees' acts
did result in such a confinement, and that the McCanns were
conscious of the confinement.
The evidence, taken favorably to the McCanns, showed
that Wal-Mart employees stopped the McCanns as they were seeking
to exit the store, said that the children were not allowed in
the store, told the McCanns that they had to come with the Wal-
Mart employees and that Wal-Mart was calling the police, and
then stood guard over the McCanns while waiting for a security
guard to arrive. The direction to the McCanns, the reference to
the police, and the continued presence of the Wal-Mart employees
(who at one point told Jonathan McCann that he could not leave
to go to the bathroom) were enough to induce reasonable people
to believe either that they would be restrained physically if
they sought to leave, or that the store was claiming lawful
authority to confine them until the police arrived, or both.
Wal-Mart asserts that under Maine law, the jury had to
find "actual, physical restraint," a phrase it takes from
Knowlton, 95 A. at 283; see also Whittaker, 85 A. at 402. While
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there is no complete definition of false imprisonment by Maine's
highest court, this is a good example of taking language out of
context. In Knowlton, the wife of a man who owed a hotel for
past bills entered the hotel office and was allegedly told that
she would go to jail if she did not pay the bill; after
discussion, she gave the hotel a diamond ring as security for
the bill. She later won a verdict for false imprisonment
against the hotel, which the Maine Supreme Judicial Court then
overturned on the ground that the evidence was insufficient.
While a police officer was in the room and Mrs.
Knowlton said she thought that the door was locked, the SJC
found that the plaintiff had not been confined by the
defendants. The court noted that the defendants did not ask
Mrs. Knowlton into the room (another guest had sent for her),
did not touch her, and did not tell her she could not leave.
The court also said that any threat of jail to Mrs. Knowlton was
only "evidence of an intention to imprison at some future time."
Knowlton, 95 A. at 283. 1 In context, the reference to the
necessity of "actual, physical restraint" is best understood as
1
Although the distinction may seem a fine one, it is well
settled that a threat to confine at a future time, even if done
to extract payment, is not itself false imprisonment. See
Restatement, supra, § 41 cmt. e.
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a reminder that a plaintiff must be actually confined--which
Mrs. Knowlton was not.
Taking too literally the phrase "actual, physical
restraint" would put Maine law broadly at odds with not only the
Restatement but with a practically uniform body of common law in
other states that accepts the mere threat of physical force, or
a claim of lawful authority to restrain, as enough to satisfy
the confinement requirement for false imprisonment (assuming
always that the victim submits). It is true that in a diversity
case, we are bound by Maine law, as Wal-Mart reminds us; but we
are not required to treat a descriptive phrase as a general rule
or attribute to elderly Maine cases an entirely improbable
breadth.
More interesting is Wal-Mart's claim that the
instructions were inadequate. The district court largely
borrowed the Restatement formulation by telling the jury that it
must find the following:
One, that the defendant acted
intending to confine the plaintiffs within
boundaries fixed by the defendant; two, that
the acts of the defendant directly or
indirectly resulted in such a confinement of
the plaintiffs; and third, the plaintiffs
were conscious of the confinement or were
harmed by it.
The court added that the jury could find for the McCanns if it
found that "the plaintiffs reasonably believed they were not
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permitted to leave the store," and that the plaintiffs did not
have to prove that "such restraint was accomplished through
actual physical force against their bodies."
In assailing the instructions, Wal-Mart repeats its
claim, which we have already rejected, that the district court
should have charged that "actual, physical restraint" is
required to make out confinement. A somewhat different claim by
Wal-Mart, citing Whittaker, 85 A. at 402, is that the district
court's instruction was defective because it did not tell the
jury that the restraint must be a physical and not merely a
moral influence, and that influencing or convincing another to
stay is not actual physical restraint. In substance, Wal-Mart
wanted a description of what was not confinement.
We think it is at least arguable that, if a proper
instruction were tendered, it might be appropriate or even
obligatory (the latter is a nice point that we do not decide) to
make clear to the jury that there are outer boundaries to the
confinement concept and that a personal plea by the defendant to
remain or the defendant's invocation of "moral obligation" alone
would not be sufficient to inflict a "confinement." There might
be special justification for such a clarification in a case in
which the evidence was open to that interpretation.
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However, in this case, Wal-Mart did not offer a proper
instruction: in arguing for a different instruction, it said to
the district court that the restraint "must be physical and not
merely a moral influence," implicating Wal-Mart's incorrect view
that actual physical restraint was required; and its further
statement that "[i]nfluencing or convincing another to remain in
place is not actual physical restraint" has the same fault and
is also open to the criticism that "[i]nfluencing or convincing"
is itself a misleading phrase, at least as presented by Wal-
Mart, because one could influence or convince by threats of
force or assertions of lawful authority, which do or can
constitute false imprisonment. In short, Wal-Mart did not offer
a proper instruction.
It is well-settled that a district court is not
required to rewrite an improper instruction to capture a kernel
that may have some validity; it is counsel's job to present an
unimpeachable instruction. See Parker v. City of Nashua, 76
F.3d 9, 12 (1st Cir. 1996). Wal-Mart was not faced with an all-
or-nothing choice: it could have pressed for its actual
physical restraint instruction and also tendered an alternative
instruction framed so as to make clear that, for example, mere
moral suasion is not sufficient. Since it did not do the
latter, we are freed from the chore of deciding in the abstract
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whether and when such a limiting instruction would be
appropriate.
Finally, the McCanns cross-appeal from the district
court's pre-trial dismissal of their claim for punitive damages.
The precedents say that punitive damages can only be awarded for
tortious conduct where the defendant acts with malice. Tuttle
v. Raymond, 494 A.2d 1353, 1361 (Me. 1985). Under Maine law,
malice can be express, as when the defendant is motivated by ill
will toward the plaintiff, or implied, where the defendant's
actions are "outrageous" and not merely reckless or negligent.
Id.
In this case, the McCanns contend that Hughes's refusal
to permit Jonathan to use the bathroom was sufficiently
outrageous to support a claim for punitive damages. The
McCann's testimony was simply that Jonathan said once that he
needed to use the bathroom and Hughes told him he could not. At
that point, the issue was dropped and neither Jonathan nor his
mother said another word to the Wal-Mart employees about it.
While we think it was foolish for Hughes to tell the 12-year-old
that he could not go to the bathroom, the denial was not
"outrageous" given the failure to press the request. We can
imagine circumstances where a refusal to allow such a bathroom
visit would be outrageous.
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The McCanns insist that the refusal must be considered
in conjunction with other facts, including an asserted violation
by Wal-Mart of its own policy of asking prior shoplifters to
leave the store rather than detaining them, Hughes's action of
pointing her finger at Jonathan while accusing him of stealing,
and her failure to clear up the McCanns' identity at an earlier
stage. Whether taken separately or together, these actions may
be culpable but are short enough of "outrageous" to permit
actual but not punitive damages. To the extent extra harm was
done to Jonathan, the jury had no difficulty drawing this
distinction; it awarded him $10,000 while awarding his mother
and sister only $5,000 each.
Affirmed.
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