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2011-UP-112 - Myles v. Main-Waters Enterprises, LLC

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James L. Myles, III, Appellant,

v.

Main-Waters Enterprises, LLC, Main-Waters Management, Inc. and City of Orangeburg, Defendants,

Of Whom, Main-Waters Enterprises, LLC and Main-Waters Management, Inc. are the, Respondents.


Appeal From Orangeburg County
 Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No.  2011-UP-112
Submitted January 4, 2011 – Filed March 22, 2011


AFFIRMED


John W. Carrigg, Jr., of Columbia; and John E. Parker and Grahame E. Holmes, of Hampton, for Appellant.

Weston Adams, III, Helen F. Hiser, M. McMullen Taylor and Charles O. Williams, III,  all of Columbia, for Respondents.

PER CURIAM: James L. Myles, III, appeals the circuit court's order granting summary judgment to Main-Waters Enterprises, LLC and Main-Waters Management, Inc. (Main-Waters).  Myles argues the circuit court erred in ruling (1) Myles was unable to establish a prima facie case of defamation, (2) Myles failed to establish a claim for false arrest, and (3) Myles failed to establish a claim of negligence.  We affirm[1] on all three points.   

FACTS / PROCEDURAL HISTORY

This appeal arises out of a physical altercation that occurred in a McDonald's restaurant parking lot in Orangeburg, South Carolina.  On the night of the incident, Myles left a local bar with his fiancée, Wendy Summers,[2] and another couple.  All four rode together in a Ford Explorer.  The other couple, Scott Dyches and his wife Julie Jackson, began arguing while riding in the Explorer.  At some point during the argument, Scott exited the Explorer and began walking along the side of the road.  Jackson then called Michael Dyches, Scott's father, to come and pick Scott up.

After Michael picked up his son Scott, a fight ensued between the father and son regarding whether Scott should continue to stay out or go home.  Michael pulled into the McDonald's parking lot where Myles, Jackson, and Summers were waiting in the drive-thru line to pick up their food.  When Scott saw his wife, he stood up in the seat of his father's Ford Mustang convertible and began yelling.  Michael "popped" Scott either on his leg or in his stomach, and the father and son began to physically fight.  Witnesses testified Scott was on top of Michael choking him, while Michael lay pinned between the bucket seats of his convertible.  Myles exited the Explorer and pulled Scott out of the convertible to break up the fight.[3]

Officer Robert Hill was the first to respond to the incident, and he encountered Scott running along Highway 301 near the McDonald's.  Officer Hill noted Scott appeared disheveled and intoxicated.  Scott admitted to being involved in an altercation with his father at McDonald's.  Officer Hill proceeded to the McDonald's and continued to interview Scott and Michael Dyches.[4]  Michael Dyches also appeared disheveled and intoxicated.  Once both father and son admitted to fighting outside of the McDonald's, Officer Hill arrested both men.

When asked if anyone else was involved in the fight, Scott told Officer Hill that he saw Myles "coming towards him" and then "his eyes went closed" before he was beaten about the face and head.  Officer Hill noted Scott did not actually see Myles hit him.  Officer Hill interviewed Myles after arresting the Dyches.  According to Myles, he saw the Dyches fighting and "went and started trying to break them up."  Officer Hill noted Myles's account was consistent with Michael Dyches's account, and Scott was unsure if Myles was actively involved in the fight or not.  Therefore, Officer Hill did not intend to arrest Myles based solely on Scott's account of the incident. 

At some point during the police investigation, an unidentified McDonald's employee[5] called Officer Hill over to the drive-thru window and informed him that Myles was also involved in the altercation.  The employee's account varied significantly from the other witnesses' accounts.  Specifically, the young woman told Officer Hill that Michael and Myles drove up in a red convertible, approached the Explorer where Scott was waiting in the drive-thru line, and pulled him out of the vehicle and began beating him.  Officer Hill testified that on the night of the incident no one other than the unidentified McDonald's employee told him Myles was actively involved in the fight.  However, Officer Hill explained that drive-thru workers are "some of your better witnesses because they see everything, especially at 3 o'clock in the morning on Saturday night they get cussed at more than we do."

Prior to speaking with the unidentified female employee, Officer Hill was prepared to let Myles leave the scene as long as he did not drive.[6]  As a result of the young woman's account, however, the police decided to arrest Myles for fighting, along with Scott and Michael.  Myles was initially calm as the police began to handcuff him.  However, Summers began screaming profanities at the police and became visibly agitated when the arresting officers began to handcuff Myles.  Upon seeing the officers forcibly detain Summers by leaning her over the hood of a patrol car to handcuff her, Myles became enraged.  Myles began yelling at the officers and physically resisting arrest, saying "that's a female."  One of the officers deployed his taser two times on Myles,[7] and the police were able to handcuff Myles and place him in the back of a patrol car. 

Myles subsequently brought a lawsuit against the entities that own and operate the McDonald's restaurant where this incident occurred, namely, Main-Waters Enterprises, LLC, Main-Waters Management, Inc., and Main-Waters Enterprises Partnership, LLP.[8]  Myles also sued the City of Orangeburg and the three Orangeburg Public Safety Department officers who responded to the incident.[9]  Myles alleged slander, false arrest and imprisonment, and negligence against all parties.  Myles claimed damage to his reputation as a result of the false statement by a Main-Waters employee concerning Myles's involvement in the fight between Michael and Scott Dyches, which resulted in Myles's allegedly unfounded arrest by the City of Orangeburg.  Myles also claimed he suffered a serious and permanent injury as a result of being tased, forcing him to retire and incur $1,069,854 as a result of his loss of earning capacity.

During discovery, witness deposition testimony diverged regarding what happened after Myles pulled Scott from the convertible.  Michael Dyches, Scott Dyches, Julie Jackson (Scott's wife), Wendy Summers, and Myles all testified Myles's only involvement in the altercation was pulling Scott out of the convertible and away from Michael.  Letonya Jones, the McDonald's shift manager, testified she saw all three men fighting, and she recalled seeing Myles punch at least one of the other two men.  Asheria Shuler, another McDonald's employee, also testified all three men were fighting and noted either Scott or Michael punched Myles as he tried to break up the fight.

Following the completion of discovery, Main-Waters moved for summary judgment.  After a hearing, the circuit court granted Main-Waters' motion for summary judgment on all three claims.  Myles subsequently filed a timely motion to alter or amend, which the circuit court summarily denied.  This appeal followed. 

STANDARD OF REVIEW

This court reviews the grant of a summary judgment motion under the same standard applied by the circuit court under Rule 56(c), SCRCP.  Jackson v. Bermuda Sands, Inc., 383 S.C. 11, 14 n.2, 677 S.E.2d 612, 614 n.2 (Ct. App. 2009).  Rule 56(c), SCRCP, provides summary judgment shall be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." 

In ascertaining whether any triable issue of fact exists, the evidence and all inferences that can be reasonably drawn from the evidence must be viewed in the light most favorable to the non-moving party.  Belton v. Cincinnati Ins. Co., 360 S.C. 575, 578, 602 S.E.2d 389, 391 (2004).  "[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment."  Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).

ISSUES ON APPEAL

1. Did the circuit court err in ruling Myles failed to establish a prima facie case of defamation?

2. Did the circuit court err in ruling Myles failed to establish a claim of false arrest?

3. Did the circuit court err in ruling Myles failed to establish a claim of negligence?

LAW / ANALYSIS

I. Defamation

Myles argues the circuit court erred in finding the Main-Waters employee's statements were "substantially true."  We disagree.  The truth of the matter published is a complete defense to an action based on defamation.  Ross v. Columbia Newspapers, Inc., 266 S.C. 75, 80, 221 S.E.2d 770, 772 (1976).  A sufficient defense is made out where the evidence establishes that the statement was substantially true.  Id.  "It is not necessary to establish the literal truth of the precise statement made."  Restatement (Second) of Torts § 581A (1977).  "Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance."  Id.

Myles contends the employee's statement was false because he was not actually fighting but merely intervened in a fight between Scott and Michael Dyches to stop the fight.  However, during his deposition testimony, Myles admitted that he "just basically drag – drug [Scott] out the car."  In addition, while riding in the patrol car after his arrest, Myles told one of the arresting officers: "I grabbed [Scott], I grabbed him and threw him out of the car."

The circuit court did not err in finding the employee's comment was substantially true.  Even viewing the facts in the light most favorable to the non-movant, Myles admitted to grabbing and throwing Scott out of a vehicle, which a casual observer could reasonably view as engaging in a fight.  See Restatement (Second) of Torts § 581A (1977) ("It is not necessary to establish the literal truth of the precise statement made.").

Next, Myles argues the circuit court erred in ruling that the Main-Waters employee's statements were qualifiedly privileged as statements made in the investigation of a crime for the purpose of prosecuting criminals.  We disagree. 

"In a defamation action, the defendant may assert the affirmative defense of conditional or qualified privilege."  Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 484, 514 S.E.2d 126, 134 (1999).  "Under this defense, one who publishes defamatory matter concerning another is not liable for the publication if (1) the matter is published upon an occasion that makes it conditionally privileged, and (2) the privilege is not abused."  Id. 

It is the duty of the court to determine if the statement is privileged as a matter of law.  Murray v. Thornton, 344 S.C. 129, 140, 542 S.E.2d 743, 749 (Ct. App. 2001).  Communications made in the investigation of a crime for the purpose of detecting the participants in the crime are privileged.  Bell v. Bank of Abbeville, 208 S.C. 490, 494, 38 S.E.2d 641, 643 (1946); Switzer v. Am. Ry. Express Co., 119 S.C. 237, 241, 112 S.E.110, 111 (1922). 

"Where the occasion gives rise to a qualified privilege, there is a prima facie presumption to rebut the inference of malice, and the burden is on the plaintiff to show actual malice or that the scope of the privilege has been exceeded."  Swinton Creek Nursery, 334 S.C. at 484-85, 514 S.E.2d at 134.  While abuse of the conditional privilege is ordinarily an issue of fact reserved for the jury, in the absence of a controversy as to the facts, it is for the court to say whether or not the privilege has been abused or exceeded.
Woodward v. S.C. Farm Bureau Ins. Co., 277 S.C. 29, 32-33, 282 S.E.2d 599, 601 (1981) (internal citations omitted). 

Abuse of a conditional privilege may be shown by communication that exceeds what the occasion demands.  Davis v. Niederhof, 246 S.C. 192, 199-200, 143 S.E.2d 367, 371 (1965).  In addition, the privilege may also be overcome by a showing of common law malice on the part of the alleged defamer.  Murray v. Holnam, Inc., 344 S.C. 129, 142, 542 S.E.2d 743, 750 (Ct. App. 2001).  "Common law actual malice means the defendant acted with ill will toward the plaintiff or acted recklessly or wantonly, meaning with conscious indifference toward the plaintiff's rights."  Id. 

Here, Main-Waters established the privilege by showing that its employee reported what she saw in the McDonald's parking lot on the night of the incident to an officer of the Orangeburg Department of Public Safety during the course of his investigation of a crime.  Therefore, the burden shifted to Myles to demonstrate the employee lacked good faith, or that the statement was made maliciously.  See Swinton Creek Nursery, 334 S.C. at 484-85, 514 S.E.2d at 134.

We do not believe Myles demonstrated any evidence of lack of good faith or malice on the part of the unidentified Main-Waters employee.  Two other McDonald's workers testified they saw all three men fighting.  In addition, there was no evidence that the employee published her statement to anyone other than Officer Hill.  Myles did not present any evidence to indicate the employee exceeded the scope of the privilege.  Based on these facts, the circuit court did not err in finding the employee's statement was privileged.  Therefore, no genuine issue of material fact was in dispute with respect to the qualified privilege, and summary judgment was appropriate. 

Summary judgment was appropriate because the employee's statement was made subject to a qualified privilege, and the scope of that privilege was not abused.  In addition, the statement was substantially true.  Therefore, no cause of action for defamation can lie and we need not address the remaining arguments Myles raises on appeal with respect to his defamation cause of action.  Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting an appellate court need not address remaining issues when the resolution of a prior issue is dispositive). 

II. False Arrest / Imprisonment

Myles contends he presented sufficient evidence to establish a cause of action for false arrest or false imprisonment.  We disagree. 

To prevail on a claim for false imprisonment, a plaintiff must prove that the defendant intentionally and unlawfully restrained the plaintiff.  Jones v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 175, 456 S.E.2d 429, 432 (Ct. App. 1995).  "The charge of false imprisonment is not confined to the party who unlawfully seizes or restrains another, but it likewise extends to any person who may cause, instigate or procure an unlawful arrest."  Wingate v. Postal Tel. & Cable Co., 204 S.C. 520, 528, 30 S.E.2d 307, 311 (1944).  "[W]here a private person induces an officer by request, direction or command to unlawfully arrest another, he is liable for false imprisonment."  Id. 

However, "[w]here a person merely directs the attention of a police officer to what he supposes to be a [crime] . . . and the officer, without other direction, arrests the offender on his own responsibility, the person who did nothing more than communicate the facts to the officer is not liable for causing the arrest . . . ."  Id. at 527-28, 30 S.E.2d at 310-11.  In addition, when a person is properly arrested by lawful authority, an action for false arrest and imprisonment cannot be maintained.  Prosser v. Parsons, 245 S.C. 493, 501, 141 S.E.2d 342, 346 (1965).

An officer can make an arrest for a misdemeanor not committed in his presence "when the facts and circumstances observed by the officer give him probable cause to believe that a crime has been freshly committed."  State v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980).  Probable cause is a good faith belief that a person is guilty of a crime when the belief rests on such grounds as would induce an ordinary, prudent, and cautious person under the circumstances to believe likewise.  Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 228, 317 S.E.2d 748, 754 (Ct. App. 1984).  While the existence of probable cause is generally a question of fact for a jury, the issue may be decided as a matter of law when the evidence yields but one conclusion.  Parrott v. Plowden Motor Co., 246 S.C. 318, 323, 143 S.E.2d 607, 609 (1965).

Because the arrest was lawful, Myles cannot establish a cause of action for false arrest or imprisonment.  See Prosser, 245 S.C. at 501, 141 S.E.2d at 346.  Specifically, Myles admitted to Officer Hill that when the Dyches started fighting he "went and started trying to break them up."  Scott told Officer Hill he could not be certain whether Myles hit him, but that he saw Myles approaching him before he was hit in the face and his eyes went black.  Scott had red marks on his chest and face when police arrived, and his shirt was torn.  The physical evidence of a fight, in addition to Scott's statement, Myles's own admission, and the unidentified Main-Waters employee's comment that Myles was actively involved in the fight, combined to give Officer Hill probable cause to arrest Myles. 

Because the arresting officer had probable cause to arrest Myles, Main-Waters, as a matter of law, is not liable for false arrest. 

III. Negligence

Myles argues the unidentified Main-Waters employee breached her duty of care by making allegedly false statements to the police, thereby causing Myles to injure his back when he was tased by the police.  Myles further contends the issue of proximate cause is a disputed factual issue to be determined by a jury.  We disagree. 

"To establish a cause of action for negligence a plaintiff must show . . . three essential elements: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by negligent act or omission; and (3) damage proximately resulting from the breach of duty."  Trotter v. State Farm Mut. Auto. Ins. Co., 297 S.C. 465, 474, 377 S.E.2d 343, 348 (Ct. App. 1988).  When an intervening agency interrupts the foreseeable chain of events, the defendant's acts are not the proximate cause.  Mellen v. Lane, 377 S.C. 261, 281, 659 S.E.2d 236, 246-47 (Ct. App. 2008).  Furthermore, when the evidence is susceptible to only one inference, proximate cause may be decided as a matter of law.  Vinson v. Hartley, 324 S.C. 389, 402, 477 S.E.2d 715, 721-22 (Ct. App. 1996). 

The circuit court correctly held that the superseding and intervening acts of Myles, his fiancée, and the police served to break any causal chain connecting the allegedly defamatory statement of the Main-Waters employee and any resulting damages.  See Mellen, 377 S.C. at 281, 659 S.E.2d at 246-47.  Myles initially calmly consented to being arrested and only became enraged after seeing the police detain his fiancée.  Once Myles began to physically resist arrest and verbally abuse the police, the police deployed a taser to incapacitate him.  Therefore, Myles's physical injuries did not proximately result from the employee's comment, but instead from Myles's own actions and those of his fiancée incidental to Myles being arrested.  Furthermore, Myles provided no evidence that any of the Main-Waters employees deviated from their training in reporting the fight to the police.

Accordingly, we affirm the circuit court's grant of summary judgment to Main-Waters on the negligence cause of action.

CONCLUSION

We affirm the grant of summary judgment to Main-Waters on Myles's defamation, false arrest / imprisonment, and negligence causes of action.

THOMAS, PIEPER, and GEATHERS, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Wendy Summers and James Myles were married after these events, and Summers is now Wendy Myles.  We will refer to her as Summers throughout this opinion for clarity and ease of reference.

[3] While riding in the patrol car after his arrest, Myles told one of the arresting officers: "I grabbed [Scott], I grabbed him and threw him out of the car."  Myles also admitted during his deposition testimony that he "just basically drag – drug [Scott] out the car." 

[4] Presumably, Officer Hill transported Scott back to the McDonald's in the backseat of his patrol car.  However, the record is unclear on this point. 

[5] During the summary judgment hearing, Main-Waters' counsel noted a young woman named Constance Sweeper was probably the employee police spoke to on the evening of the incident who indicated Scott was pulled out of the Explorer by Michael and Myles.  However, the police were unable to obtain a statement from Sweeper, and neither party was able to locate her in order to take her deposition. 

[6] Officer Hill testified both Summers and Myles appeared to be intoxicated on the night of the incident.

[7] Myles allegedly said "it feels good" after being tased the first time, thereby inducing the officer to deploy his taser a second time in order to incapacitate Myles. 

[8] The parties agreed to dismiss Main-Waters Enterprises Partnership, LLP, by stipulation of dismissal with prejudice on March 8, 2007, as it was a nonexistent entity.

[9] A May 14, 2007 circuit court order dismissed the individually named officers as parties to this action based on the fact that the officers were acting within the scope of their employment and based on the fact that there was no allegation of fraud, malice, intent to harm, or a crime of moral turpitude.