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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 12-CV-1848

                        MICHAEL DOE, et al., APPELLANTS,

                                         V.

                            SAFEWAY, INC., APPELLEE.
                         Appeal from the Superior Court
                          of the District of Columbia
                                (CAB-8936-11)

                      (Hon. Michael L. Rankin, Trial Judge)

(Submitted November 26, 2013                            Decided January 28, 2014)1

      Michael C. Martin, II, was on the brief for appellants.

      John J. Hathway, and Jerome C. Schaefer were on the brief for appellee.

      Before EASTERLY, Associate Judge, and PRYOR and BELSON, Senior Judges.

      BELSON, Senior Judge:      While placing items in a shopping cart before

Thanksgiving on November 10, 2011, appellants Michael Doe and Terry Garner,

Jr. were detained by police officers in the break room of a Safeway grocery store.

Appellants filed suit against appellee, Safeway, Inc., for false imprisonment. The




      1
        The decision in this case was originally issued January 28, 2014, as an
unpublished Memorandum Opinion and Judgment.
                                          2


trial court granted summary judgment in favor of appellee and dismissed

appellants‟ case with prejudice. For the reasons set forth below, we affirm.


                                          I.


      “Summary judgment is a question of law, which this court reviews de novo.”

Han v. Se. Acad. of Scholastic Excellence Pub. Charter Sch., 32 A.3d 413, 416

(D.C. 2011) (citing Jones v. Thompson, 953 A.2d 1121, 1124 (D.C. 2008)). It is

appropriate only when there are no genuine issues as to any material facts and the

moving party is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56 (c).

The record is reviewed in the light most favorable to the non-moving party, but

“mere conclusory allegations are insufficient to avoid . . . summary judgment.”

Jones, supra, 953 A.2d at 1124. “If a moving defendant has made an initial

showing that the record presents no genuine issue of material fact, then the burden

shifts to the plaintiff to show that such an issue exists.” Bradshaw v. District of

Columbia, 43 A.3d 318, 323 (D.C. 2012) (quoting Beard v. Goodyear Tire &

Rubber Co., 587 A.2d 195, 198 (D.C. 1991) (internal quotation marks omitted).

Rule 12-I (k) provides that the moving party submit a statement of material facts

“as to which [it] contends there is no genuine issue,” followed by a similar

statement from the non-moving party that “contend[s] there exists a genuine issue

necessary to be litigated.” Super. Ct. Civ. R. 12-I (k).
                                         3


      A successful claim of false imprisonment requires a plaintiff to establish (1)

the detention or restraint of one against his will and (2) the unlawfulness of the

detention or restraint. See Enders v. District of Columbia, 4 A.3d 457, 461 (D.C.

2010).2 When an individual or private entity that called the police regarding a

person is sued for false imprisonment, the making of the call is “not enough to

sustain a claim of false arrest so long as the decision whether to make the arrest

remains with the police officer and is without the persuasion or influence of the

accuser.” Smith v. District of Columbia, 399 A.2d 213, 218 (D.C. 1979). Thus,

liability exists when “by acts or words, one directs, requests, invites or encourages

the unlawful detention of another.” Id. Private entities and individuals will not be

immune from liability, however, if they “knowingly and maliciously make false

reports to the police.” Vessels v. District of Columbia, 531 A.2d 1016, 1020 (D.C.

1987).


                                         II.


      Appellants concede that no employee of appellee detained them or arrested

them. Appellants argue that the trial court erred because there are material facts

other than those appellee set forth in its 12-I (k) statement, citing Spellman v.

      2
         We have held that “[t]he gist of any complaint for . . . false imprisonment
is an unlawful detention.” DeWitt v. District of Columbia, 43 A.3d 291, 295 (D.C.
2012) (second alteration in original) (quoting Clarke v. District of Columbia, 311
A.2d 508, 511 (D.C. 1973)).
                                           4


American Security Bank, N.A., 504 A.2d 1119, 1122 (D.C. 1986) for the

proposition that “the court must still review all other material of record in

determining whether there are disputed facts” and describing summary judgment

as an “extreme remedy.”


      Although Spellman indicated that the court must review the remainder of the

record to determine if there are any disputed facts, id., it was decided before the

Supreme Court‟s decision in Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(holding that summary judgment is appropriate “against a party who fails to make

a showing sufficient to establish the existence of an element essential to that

party‟s case, and on which that party will bear the burden of proof at trial”).3


      3
          After Celotex, this court clarified the duties of the trial court with respect
to searching for disputes of material fact. See Vessels, supra, 531 A.2d at 1019 n.7
(responding to appellant‟s citation to Spellman and other cases and stating that,
“[i]n cases such as this one, where all parties participated in bringing what they felt
were the significant factual issues to the court‟s attention, the court may expect
counsel not to completely overlook a genuine issue”); id. at 1019 (“The trial
court‟s independent review of the record mandated by the Kurth-Spellman line of
cases was never intended to require the court to construct a party‟s legal theories
for him or make a tactical judgment as to which factual issues in the record to
assert.”); Woodruff v. McConkey, 524 A.2d 722, 728 (D.C. 1987) (“While a trial
judge considering a motion for summary judgment is under an obligation to
determine whether there are any material issues of fact, material factual disputes
must be pleaded in accordance with Super. Ct. Civ. R. 12-I (k) and R. 56 (e).”
(citing Spellman, supra, 504 A.2d at 1122; Bennett v. Kiggins, 377 A.2d 57, 59
(D.C. 1977))); Cloverleaf Standardbred Owners Ass’n, Inc. v. Nat’l Bank of Wash.,
512 A.2d 299, 300 (D.C. 1986) (“[S]ummary judgment motions (and oppositions)
must be „done by the numbers.‟ It is not the burden of the trial court to search the
record, unaided by counsel, to determine whether summary judgment is proper.”).
                                         5



      Summary judgment may have once been considered an extreme remedy, but

that is no longer the case. Hollins v. Fed. Nat. Morg. Ass’n, 760 A.2d 563, 570

(D.C. 2000) (“[S]ummary judgment is no longer regarded as an „extreme

remedy. . . .‟”). Indeed, this court has recognized that summary judgment is vital.

See Mixon v. Wash. Metro. Area Transit Auth., 959 A.2d 55, 58 (D.C. 2008);

Green v. Gibson, 613 A.2d 361, 364 (D.C. 1992); Vessels, supra, 531 A.2d at

1019; Cloverleaf Standardbred Owners Ass’n, Inc., supra note 2, 512 A.2d at 300.


      Appellants, citing Smith and Vessels, ask this court to find the grant of

summary judgment improper because the trial court ignored the possibility that

appellee‟s employees could be found liable for false imprisonment on a theory of

recklessness. Appellants‟ argument is based on a footnote in Vessels, which stated:


            Before us, appellant asserts that the case law supports
            liability when the defendant knowingly gives false
            information and for this appeal we go no further.
            Specifically, we do not rule on the question whether the
            cause of action will lie when, as in appellant‟s complaint,
            the defendant‟s action is labeled “malicious” but not
            necessarily knowing, nor when a defendant acts
            knowingly but nevertheless without malice nor from
            personal hostility or desire to offend.


Vessels, supra, 531 A.2d at 1020 n.13 (citations omitted). Contrary to appellants‟

claims that Smith established a “clear test” and that Vessels clarified that an

individual can be liable for false imprisonment if they act with conscious
                                          6


indifference or act recklessly, Vessels did not say that. All that the Vessels court

said was it was not “rul[ing] on whether the cause of action will lie when . . . the

defendant‟s action is labeled as „malicious‟ but not necessarily knowing.” Id. This

is hardly an adoption of another alternative method for establishing liability of

private individuals for false imprisonment when they report suspected crime to the

police.


      Even if we were to assume that reckless reporting of criminal activity gives

rise to liability for false imprisonment, appellants have provided no evidence in the

record that suggests appellee‟s employees acted recklessly. 4       As we stated in

Vessels, “[a] plaintiff in a false arrest or false imprisonment suit cannot avoid

summary judgment merely by alleging that the complaining witness acted”


      4
         Appellants listed the following facts in their opposition to appellee‟s
motion for summary judgment: (1) they disagree that they “were not arrested”; (2)
they dispute that they were talking on their phones while shopping and that they
“kept moving back and forth”; (3) they object to the characterization of the facts
that they were suspicious persons and had been suspected of shoplifting
previously; (4) they disagree that one of their shopping bags had things inside of it;
(5) they dispute the claim that they were standing with their cart near the exit and
past all of the checkout counters; and (6) they do not agree that Ms. Musee gave a
description of the “suspicious individuals” when the police arrived. Appellants
refer to these same disputed issues in their brief. Assuming arguendo that all of
these facts are indeed disputed, they do not support a finding of recklessness,
particularly not an extreme form of recklessness on the part of appellee‟s
employees that would establish malice in this context. See, e.g., Rivera v. Double
A Transp., Inc., 727 A.2d 204, 210 (Conn. 1999) (“Nothing less than a rather
extreme brand of recklessness will substitute for the standard requirement of
intention in false imprisonment cases.” (citation omitted)).
                                         7


maliciously.   Id. at 1020.     “[T]he possible lack of „honest belief‟ of the

complainant only becomes a jury issue when this issue is raised „out of the nature

of the evidence.‟” Id. at 1020-21 (quoting Smith v. Tucker, 304 A.2d 303, 307

(D.C. 1973)). Appellants point to no evidence that suggests appellee‟s employees

acted recklessly in contacting the authorities.    The trial court made a similar

observation, noting that “[a]ll facts indicate that the decision whether to arrest or

detain the plaintiffs remained with the police officers on the scene, and plaintiffs

have not shown evidence sufficient to raise an issue for the jury as to the

employee‟s „honest belief‟ in reporting her suspicions.”


                                        III.


      Accordingly, the trial court‟s order, granting summary judgment in favor of

appellee and dismissing appellants‟ case, is affirmed.


                                                    So ordered.
