                       UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


BROOKE WOMACK,                         
                          Plaintiff,
               and
TONYA WOMACK; CARL WOMACK,
             Plaintiffs-Appellees,
                v.
TIERCO MARYLAND, INCORPORATED,            No. 01-1947
d/b/a Adventure World,
               Defendant-Appellant,
               and
PRINCE GEORGE’S COUNTY,
MARYLAND; PRINCE GEORGE’S
COUNTY POLICE DEPARTMENT,
                      Defendants.
                                       
2                 WOMACK v. TIERCO MARYLAND, INC.



BROOKE WOMACK,                           
                            Plaintiff,
                 and
TONYA WOMACK; CARL WOMACK,
            Plaintiffs-Appellants,
                  v.
TIERCO MARYLAND, INCORPORATED,                 No. 01-1984
d/b/a Adventure World,
                Defendant-Appellee,
                 and
PRINCE GEORGE’S COUNTY,
MARYLAND; PRINCE GEORGE’S
COUNTY POLICE DEPARTMENT,
                      Defendants.
                                         
            Appeals from the United States District Court
             for the District of Maryland, at Greenbelt.
               Deborah K. Chasanow, District Judge;
              William G. Connelly, Magistrate Judge.
                        (CA-99-2130-DKC)

                       Argued: April 3, 2002

                       Decided: May 31, 2002

         Before MOTZ and TRAXLER, Circuit Judges, and
    W. Craig BROADWATER, United States District Judge for the
      Northern District of West Virginia, sitting by designation.



Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
                  WOMACK v. TIERCO MARYLAND, INC.                      3
                              COUNSEL

ARGUED: Robert Wayne Pierce, NILES, BARTON & WILMER,
L.L.P., Baltimore, Maryland, for Appellant. Michael Lloyd Smith,
CAPITOL LEGAL GROUP, Washington, D.C., for Appellees. ON
BRIEF: Anthony Graham, Sr., CAPITOL LEGAL GROUP, Wash-
ington, D.C., for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Defendant Tierco Maryland, Inc., operator of the Adventure World
Amusement Park in Prince George’s County, Maryland, appeals the
district court’s denial of its motion for judgment as a matter of law
on plaintiff Tonya Womack’s claim for false imprisonment. Tonya
Womack and her husband, Carl Womack, cross-appeal the district
court’s grant of Tierco’s motion for judgment as a matter of law on
their claims for intentional infliction of emotional distress. We affirm
in part, reverse in part, and remand.

                                   I.

   This lawsuit arises from an incident occurring on July 3, 1998,
when security officers employed at the Adventure World Amusement
Park detained and ejected Tonya Womack from the park. On that day,
plaintiffs Carl and Tonya Womack took their daughter and her friend
to the park. It is undisputed that during the early evening hours of this
particularly hot and crowded day, Ms. Womack approached a conces-
sion stand and, following a conversation with the employee inside,
removed a fruit drink and cup from the stand without paying for the
items. The circumstances immediately preceding and following that
4                WOMACK v. TIERCO MARYLAND, INC.
act by Ms. Womack, and the appropriateness of the actions taken by
park employees in response, are the subjects of this action.

   According to Ms. Womack, after waiting in line for a lengthy
period, she approached the concession stand window and ordered a
fruit drink and a cup of ice. When the female attendant working inside
advised Ms. Womack that they were out of ice, Ms. Womack told her
that she was dehydrated and asked the attendant to please get her
some ice. Without comment, the attendant turned and walked away.
Two minutes later, Ms. Womack asked the attendant if she was still
helping her and received no response. Mr. Womack then asked for a
manager and received no response. Ms. Womack testified that she
then stated, to no one in particular, that she was taking the drink and
cup to a nearby concession stand to pay for them. At that point, Ms.
Womack testified, "one of the guys behind the stand gestured that it
was okay." J.A. 50. She then carried the drink and cup to a nearby
vendor stand, operated by an independent vendor.

   Over Tierco’s objections, Ms. Womack testified that when she
approached the second vendor, he told her that he could not sell her
the fruit drink or cup because he was an independent vendor. How-
ever, he told her that he could sell her a cup of ice and a lemonade
from his stand. Ms. Womack testified that she then purchased these
items from the second vendor, and left the items taken from the first
vendor with the second vendor on his word that he would return them
for her. This second vendor was not identified and was not called to
testify at trial.

   Upon leaving the lemonade stand, Ms. Womack testified that she
was approached by a security officer who said he understood there
was a problem. Ms. Womack advised him that there was not a prob-
lem, thanked him, and walked away. At that point, the security officer
told Ms. Womack that she had been accused of stealing a drink or a
cup from a concession stand. Ms. Womack told the officer that she
had paid the lemonade vendor for the items and again walked away.
At that point, more security officers approached Ms. Womack and
informed her that she had been accused of stealing and that she
needed to go with them. By this time, Mr. Womack had approached
the group and began speaking with the security officers while Ms.
Womack walked to a nearby playground with the children. Ms.
                 WOMACK v. TIERCO MARYLAND, INC.                     5
Womack then returned to where the officers were and attempted to
give them money if they would leave her and her family alone.
According to her testimony, she was instead handcuffed without prov-
ocation or need. She testified that she then saw the attendant in the
first concession stand and begged her to "tell the truth," J.A. 61, but
was taken from the scene through the park in handcuffs. Ms. Womack
testified that the security officers continuously threatened her during
the walk to the security office, lifting her up by the handcuffs and at
one point tightening the handcuffs to hurt her in retaliation for her
request that they be loosened. Mr. Womack offered a similar account
of the incident.

   The female attendant in the first concession stand, Ms. Viola Lee,
and the other park employees involved in the incident offered a much
different account of the events that day. Ms. Lee testified that Ms.
Womack approached her concession stand that evening, demanding
to be served out of turn because she was hot. When Ms. Lee refused
to take Ms. Womack out of turn, Ms. Womack grabbed a bottled fruit
drink on display and a souvenir cup and headed towards a nearby ven-
dor, where she paused briefly before walking away. In accordance
with park policy, Ms. Lee notified a manager to contact security and
followed Ms. Womack so that she could identify her for the officers.

   According to Ms. Lee and the other park employees, Ms. Womack
became aggressive and hostile when security attempted to speak with
her about the removal of the items from the first concession stand,
cursing at the officers in the presence of other patrons and children
in the nearby play area. Ms. Womack claimed to have paid for the
items, which were still in her possession, and accused Ms. Lee of
lying about the incident. This aggressive behavior, the park employ-
ees testified, culminated in Ms. Womack lunging at Ms. Lee as if to
hit her. The security officers then stepped between the women to pro-
tect Ms. Lee and placed Ms. Womack in handcuffs. Ms. Womack was
then immediately removed to the park security office, per park proce-
dure, in order to terminate the disruption as quickly as possible and
minimize any embarrassment. At the security office, Ms. Womack
was asked to sign a "Trespass Letter," notifying her that she was
barred from entering the Adventure World property for life, and then
escorted to the park exit.
6                 WOMACK v. TIERCO MARYLAND, INC.
   The Womacks subsequently filed this lawsuit against Tierco, alleg-
ing claims for assault, battery, false arrest, false imprisonment, and
intentional infliction of emotional distress.* The district court, having
dismissed all claims for assault, false arrest, and intentional infliction
of emotional distress by the conclusion of the trial, submitted the case
to the jury solely on the claims for battery and false imprisonment.
The jury returned a verdict in favor of Ms. Womack on the false
imprisonment claim only and awarded her $2,000 in lost wages and
$73,000 for noneconomic losses. In all other respects, the jury
returned a verdict for Tierco. Tierco’s motions for judgment as a mat-
ter of law and for a new trial on the false imprisonment claim were
subsequently denied by the district court. Tierco now appeals from
the jury’s verdict for Ms. Womack on the false imprisonment claim.
Ms. Womack cross-appeals the district court’s dismissal of her claim
for intentional infliction of emotional distress.

                                    II.

                                    A.

   We begin with Tierco’s challenges to the jury instructions regard-
ing Ms. Womack’s false imprisonment claim. The district court
instructed the jury as follows:

        False imprisonment . . . is the intentional restriction of the
     freedom of movement of a person who is aware of the
     restriction and who does not consent. A person is not
     responsible for false imprisonment if he had a right to
     restrict the plaintiff’s movement. Failure to conduct an ade-
     quate investigation may destroy this defense. A person is not
     responsible for false imprisonment if he had a privilege to
     arrest without a warrant, and a person has such a privilege
     if the person was present or in view when the other commit-

  *The Womacks also brought a civil rights action under 42 U.S.C.A.
§ 1983 (West Supp. 2001), against Prince George’s County and Prince
George’s County Police Department. Prince George’s County removed
the case to federal court, but the County and its Police Department were
subsequently dismissed from the case. The trial against Tierco proceeded
under the court’s supplemental jurisdiction.
                  WOMACK v. TIERCO MARYLAND, INC.                       7
     ted a misdemeanor amounting to a breach of the peace and
     immediately arrested the other for that offense.

     ...

        A merchant or his employee who detained a person for
     investigation is not responsible for false imprisonment if he
     had probable cause to believe that the person committed the
     crime of theft.

J.A. 521-22.

   We review a district court’s jury instructions for abuse of discre-
tion. See United States v. Helem, 186 F.3d 449, 454 (4th Cir. 1999).
This court will reverse a judgment "for error in jury instructions only
if the error is determined to have been prejudicial, based on a review
of the record as a whole." Abraham v. County of Greenville, South
Carolina, 237 F.3d 386, 393 (4th Cir. 2001) (internal quotation marks
omitted).

                                    1.

   Tierco first contends that the trial court erred in failing to instruct
the jury that the defense of another, as charged for the battery count,
is also a defense to a false imprisonment claim. As to the battery
count, the district court instructed the jury as follows:

     A battery is an intentional touching of a person without that
     person’s consent. . . .

     A person is not responsible for battery if he had a right to
     do what he did. A person has a right to defend himself,
     another person and his employer’s property so long as he
     used only such force as was reasonably necessary to protect
     himself, the other person or his employer’s property. A per-
     son has the right to protect himself, the other person or his
     employer’s property from actual attacks or threatened harm
     which he reasonably believes would immediately occur.
8                 WOMACK v. TIERCO MARYLAND, INC.
J.A. 520-21 (emphasis added). With regard to the false imprisonment
claim, however, the district court did not charge the jury that the
defense of persons or property was a defense to the claim.

   Tierco is correct that the defense of another is a defense equally
applicable to false imprisonment and battery. See Restatement (Sec-
ond) of Torts § 67 & cmt. a; § 76 (1965). Accordingly, the district
court erred in not instructing the jury in this defense. However, we
will only reverse the judgment if the error was prejudicial, based on
a review of the whole record. See Abraham, 237 F.3d at 393. Having
reviewed the record closely, we are satisfied that the error was preju-
dicial to Tierco, necessitating a new trial.

   According to the undisputed testimony, Ms. Womack was hand-
cuffed and taken from the park area to the security trailer. It is this
act of restraint by the security officers which serves as the primary
basis for both the false imprisonment claim and the battery claim
brought by Ms. Womack against Tierco. The dispute is over the prov-
ocation for the handcuffing of Ms. Womack by the security officers.
Ms. Womack contends that there was no stated basis, other than per-
haps for the theft accusation, whereas the park personnel testified that
the handcuffing only occurred as a result of Ms. Womack’s lunging
at Ms. Lee in a threatening manner.

   Presented with these conflicting accounts, the jury returned a ver-
dict for Tierco as to the battery claim, but for Ms. Womack as to the
false imprisonment claim. Under the circumstances, we believe the
trial court’s failure to charge the jury that the defense of another, in
this case Ms. Lee, is a defense to both battery and false imprisonment
was prejudicial to Tierco. Accordingly, we reverse the judgment in
favor of Ms. Womack and remand for a new trial solely on her claim
for false imprisonment.

                                   2.

   Tierco also contends that the trial court erred in failing to instruct
the jury that the park security officers could use reasonable force to
restrain Ms. Womack and eject her from the property once they had
instructed her to leave and she refused. See Vancherie v. Siperly, 221
A.2d 356, 358-59 (Md. 1966) (applying privilege to use such reason-
                   WOMACK v. TIERCO MARYLAND, INC.                        9
able force as a defense to assault and battery claim where there was
evidence that plaintiff refused defendant’s request to leave the prem-
ises); Maddran v. Mullendore, 111 A.2d 608, 612 (Md. 1955) (same).
This is a correct statement of the law, but we find no error in the dis-
trict court’s refusal to charge it as a defense.

   Although there was testimony that the park security officers told
Carl Womack that his wife was going to have to leave the park and
that he refused to cooperate, there was no evidence that Tonya
Womack was asked to leave the park before she was handcuffed or
that she ever refused to leave the park after being asked to leave.
Indeed, the testimony consistently revealed that, once Ms. Womack
was taken to the security trailer and the handcuffs were removed, she
signed a document barring her from ever returning to the park and
was escorted without incident to the exit.

   We reject Tierco’s contention that Ms. Womack should be charged
with knowledge of what the security officers said to her husband or
that she could be imprisoned based upon a refusal voiced by him. At
a minimum, there must be evidence that Ms. Womack was personally
asked to leave and refused to do so or was otherwise made personally
aware that her continued presence would be considered a trespass.
Because there was no such showing made below, the district court did
not abuse its discretion in refusing Tierco’s proffered instruction on
trespass.

                                    3.

   Finally, Tierco contends that the trial court improperly instructed
the jury that a defendant’s right to restrict a plaintiff’s movement,
such as that which arises after the defendant observes the commission
of a misdemeanor, could be destroyed by the defendant’s "[f]ailure to
conduct an adequate investigation." J.A. 521. See Montgomery Ward
v. Wilson, 664 A.2d 916, 923-24 (Md. 1995).

   Having reviewed Tierco’s contentions and the record, we conclude
that the district court did not abuse its discretion in giving this instruc-
tion to the jury. We note, however, that in this case the instruction
goes to the issue of Tierco’s right to restrict Ms. Womack based upon
probable cause to believe that she had stolen the drink and cup from
10                WOMACK v. TIERCO MARYLAND, INC.
the first vendor and, more particularly, to the issue of whether an ade-
quate investigation into the circumstances of the alleged theft was
conducted. Therefore, it appears to have little to do with the issue of
the security officers’ right to prevent Ms. Womack from harming
another person.

                                  B.

   We now turn briefly to Tierco’s appeal of the district court’s
admission of hearsay statements allegedly made by the lemonade ven-
dor to Ms. Womack. According to Ms. Womack, this vendor advised
her that the poor service she had received at the park concession stand
was common and that, although he could not accept payment for the
items removed from the park stand, he would return them for her. The
district court allowed Ms. Womack to testify concerning these alleged
statements made by the lemonade vendor on the sole basis that the
vendor had "apparent authority" to act as an agent for Tierco.

   Although the lemonade vendor was located inside the park for the
purpose of offering products for sale to the park patrons, it is undis-
puted that he was an "independent vendor" who simply paid the park
a percentage of his sales. As such, the lemonade stand was necessarily
subject to some park policies due to its presence inside the gates, but
was nonetheless operated as an independent concessionaire. The
attendant in the stand was not employed by Tierco, and there was tes-
timony that employees of the independent concessionaires wore dif-
ferent uniforms than the park employees and name badges that did not
bear the park’s name. The park did not have authority to directly con-
trol the independent concessionaire’s employees or regulate their
schedules. And, Ms. Womack testified that the lemonade vendor told
her he was an independent vendor and, therefore, that she could not
pay him for the items she had removed from the first concession
stand.

                                   1.

   Federal Rule of Evidence 801(d)(2)(C) allows the admission of "a
statement by a person authorized by the party to make a statement
concerning the subject." "[A]uthority in the context of 801(d)(2)(C)
means ‘authority to speak’ on a particular subject on behalf of some-
                  WOMACK v. TIERCO MARYLAND, INC.                     11
one else." See Precision Piping & Instruments, Inc. v. E.I. duPont de
Nemours & Co., 951 F.2d 613, 619 (4th Cir. 1991). Rule
801(d)(2)(D) allows the admission of "a statement by the party’s
agent or servant concerning a matter within the scope of the agency
or employment, made during the existence of the relationship." Under
Rule 801(d)(2)(D), the party offering the evidence must show that the
declarant is an agent of the party-opponent and the scope of that
agency. See United States v. Portsmouth Paving Corp., 694 F.2d 312,
321 (4th Cir. 1982).

   Having reviewed the testimony, we agree that the district court
erred in admitting the lemonade vendor’s statements as admissions by
a party-opponent under Rule 801(d). There is no evidence that the
lemonade vendor was authorized by Tierco to speak on its behalf.
And, plaintiffs’ evidence was insufficient to establish that the lemon-
ade vendor was an agent or employee of Tierco or that the statements
concerned matters within the scope of his agency or employment. See
Precision Piping, 951 F.2d at 618-620. Accordingly, we hold that the
district court abused its discretion in admitting the statements of the
independent lemonade vendor as a Rule 801(d) admission by Tierco.

                                   2.

   As an alternative, the Womacks assert that we should uphold the
admissibility of the hearsay statements made by the lemonade vendor
to Ms. Womack because the trial court could have admitted the state-
ments, not for the truth of the matter asserted, but to show that a con-
versation took place between Ms. Womack and the lemonade vendor
and that Ms. Womack relied upon the conversation when she told
Tierco’s security officers that there was no problem. Tierco asserts
that we cannot sustain the trial court’s decision on this basis for two
reasons. First, to establish that a conversation took place, Ms.
Womack did not need to testify as to the precise statements made by
the lemonade vendor and, second, even if admissible for this limited
purpose, Tierco would have been entitled to an instruction that the
evidence was only admissible for this limited purpose. See Fed. R.
Evid. 105 ("When evidence which is admissible . . . for one purpose
but not admissible . . . for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct the
jury accordingly.").
12                WOMACK v. TIERCO MARYLAND, INC.
   During the trial, the statements of the lemonade vendor do appear
to have come into evidence both for the truth of the matter asserted,
which we have determined to be error, and later to establish what
information the officers had gathered for purposes of determining
whether probable cause existed to believe a theft had occurred. The
district court, however, did not admit the evidence in question with
this limited purpose in mind and, therefore, did not consider the pro-
priety of giving a limiting instruction.

   Because we reverse the verdict on other grounds, we need not
determine whether Tierco was prejudiced by the erroneous admission
of the hearsay testimony as an admission by a party-opponent. On
remand, this case will be tried solely on Ms. Womack’s claim for
false imprisonment. We express no opinion as to whether the hearsay
statements of the lemonade vendor are admissible for purposes other
than their truth, and leave for the district court the determination of
what limiting instructions would be appropriate in the event the state-
ments are admitted for such other purposes.

                                  III.

   By cross-appeal, plaintiffs challenge the district court’s dismissal
of their claims for intentional infliction of emotional distress. To pur-
sue a claim for intentional infliction of emotional distress, plaintiffs
were required to establish (1) that the defendants’ conduct was "inten-
tional or reckless"; (2) that the defendants’ conduct was "extreme and
outrageous"; (3) that there was "a causal connection between the
wrongful conduct and the emotional distress"; and (4) that "the emo-
tional distress [was] severe." Thacker v. City of Hyattsville, 762 A.2d
172, 197 (Md. Ct. Spec. App. 2000); see Harris v. Jones, 380 A.2d
611, 613 (Md. 1977).

   The Maryland courts have made it clear that viable claims for
intentional infliction of emotional distress will be sparingly found.
See Borchers v. Hrychuk, 727 A.2d 388, 392 (Md. Ct. Spec. App.
1999). In determining whether defendants’ alleged conduct was
extreme and outrageous, the court must find that the conduct was "so
outrageous that it goes beyond all possible bounds of decency, and is
regarded as atrocious, and utterly intolerable in a civilized commu-
nity." Id. at 392 (internal quotation marks and alterations omitted).
                  WOMACK v. TIERCO MARYLAND, INC.                     13
Also, "[i]n order for distress to be sufficiently severe to state a claim
for intentional infliction of emotional distress, ‘the plaintiff [must]
show that he suffered a severely disabling emotional response to the
defendant’s conduct,’ and that the distress was so severe that ‘no rea-
sonable man could be expected to endure it.’" Thacker, 762 A.2d at
197 (quoting Harris, 380 A.2d at 611).

   At the close of the case, the district court granted Tierco’s motion
for judgment as a matter of law as to the Womacks’ claims for inten-
tional infliction of emotional distress, concluding that the security
officers’ conduct was not "so outrageous in character and so extreme
in degree as to go beyond all possible bounds of decency and to be
regarded as atrocious and utterly intolerable in a civilized commu-
nity." J.A. 508. Having reviewed the transcript, we find no error in
this determination and affirm the district court’s dismissal of these
claims in their entirety.

                                  IV.

   In sum, we reverse the district court’s denial of the motion for
judgment as a matter of law on the false imprisonment claim because
Tierco was entitled to an instruction that the defense of others is a
defense to false imprisonment. In all other respects, we affirm the dis-
trict court’s denial of the motions for judgment as a matter of law.

                                   AFFIRMED IN PART, REVERSED
                                       IN PART, AND REMANDED
