                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE

             _______________________________________________________

                                    )
PATTY M. RICHARDS,                  )     Davidson County Circuit Court
                                    )     No. 96C-3278
   Plaintiff/Appellant.             )
                                    )
VS.                                 )     C.A. No. 01A01-9708-CV-00379
                                    )
O’CONNOR MANAGEMENT,                )
INCORPORATED and RUSS               )
HACKETT,                            )

   Defendants/Appellees.
                                    )
                                    )
                                    )
                                                            FILED
______________________________________________________________________________
                                                               April 3, 1998
From the Circuit Court of Davidson County at Nashville.
                                                            Cecil W. Crowson
Honorable Barbara N. Haynes, Judge
                                                           Appellate Court Clerk



James R. Tomkins, GLASGOW & VEAZEY, Nashville, Tennessee
Attorney for Plaintiff/Appellant.


M. Bradley Gilmore,
Christina Norris,
PARKER, LAWRENCE, CANTRELL & DEAN, Nashville, Tennessee
Attorneys for Defendants/Appellees.



OPINION FILED:

AFFIRMED IN PART, REVERSED IN PART AND REMANDED


                                           FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
HIGHERS, J.: (Concurs)
                Plaintiff Patty M. Richards appeals the trial court’s order granting the motion for

summary judgment filed by Defendants/Appellees O’Connor Management, Inc., and Russ Hackett.

In entering summary judgment in favor of the Defendants, the trial court dismissed Richards’ claims

for outrageous conduct and false imprisonment. We affirm in part, reverse in part, and remand for

further proceedings.



                For purposes of these summary judgment proceedings, the following facts were

undisputed. In August 1996, Plaintiff Patty Richards visited the Hickory Hollow Mall in Nashville,

where she made several purchases using mall gift certificates. In making her purchases, Richards

incorrectly used the non-negotiable portions of the gift certificates and retained the original gift

certificates. Richards explained that this mistake first occurred when an employee in the Dillard’s

hosiery department informed her that the non-negotiable copy was the portion that she should use.

Richards continued to make purchases with the non-negotiable portions of the gift certificates until

she had used seven of her eight gift certificates.



                The following day, Richards received a telephone call from a clerk at Gloria Jean’s,

a coffee shop in the mall where she had used one of the gift certificates. The Gloria Jean’s clerk told

Richards that she had made her purchase using the wrong copy of the gift certificate and that she

needed to bring the original certificate to the store. Richards stated that she would return to the store

with the gift certificate within the next week.



                On the same day Richards received the telephone call from the Gloria Jean’s clerk,

a Gloria Jean’s employee also caused the following “mall alert” to be issued:



                Mall Alert sent on 8-10-96, because a Gloria Jean’s employee
                inadvertently kept the paper non-negotiable part of the gift certificate
                and the customer left with the gift certificate and merchandise. It is
                the fault of the employee due to inexperience; however, the gift
                certificate must be recovered by Gloria Jean’s. If it is presented in a
                store at [Hickory Hollow Mall], security will be called and an officer
                will take it to Gloria Jean’s after it is verified to be the original gift
                certificate matching the copy above.



The mall alert included Richards’ name and home address.
               Five days after the mall alert was issued, Richards returned to the Hickory Hollow

Mall with the original gift certificates, which she planned to exchange for the non-negotiable

portions. Instead of going immediately to Gloria Jean’s, Richards stopped at Watchworks, another

mall merchant, to pick up her daughter’s watch which was being repaired. When Richards identified

herself to the Watchworks clerk, the clerk recognized Richards’ name from the mall alert and called

security.



               Defendant Russ Hackett was the mall security guard who responded to the call from

Watchworks. Hackett, who also worked as a Metropolitan Police Department officer, was wearing

his police uniform and badge and was armed with a 9-mm Glock. When Hackett arrived at

Watchworks, he did not know why security had been called. The Watchworks clerk identified

Richards to Hackett and explained that Richards was the subject of a mall alert. Although Hackett

did not remember the contents of the mall alert, he then approached Richards because he “wanted

to be sure [she] stayed put.”



               As Hackett approached Richards, he asked her in a loud voice if she was Patty

Richards. According to Richards, Hackett talked so loudly that he was shouting at times. Richards

acknowledged that she was Patty Richards, and she asked if there was a problem. At the same time,

the Watchworks clerk was preparing to hand Richards her daughter’s watch. Hackett took the watch

from the clerk’s hand and demanded to know if Richards had paid for the watch. The Watchworks

clerk assured Hackett that Richards owned the watch. Hackett then ordered Richards to back away

from the Watchworks counter.



               As Richards backed away from the counter, she reached for her purse to take it with

her. At that time, according to Richards, Hackett “started really freaking out.” He yelled and

screamed at Richards, ordering her to take her hands off her purse and to let him look in the purse.

Although Richards’ recollection was vague, she also believed that Hackett put his hand on his gun

when he was yelling and screaming at her. Richards complied with Hackett’s orders and opened her

purse so that Hackett could visually inspect its contents.



               After viewing the contents of Richards’ purse, Hackett ordered Richards to stand
nearby with another security guard who had arrived at about the same time as Hackett. Hackett took

Richards by the arm and led her to where the second security guard was standing. When Richards

asked the second security guard what was “going on,” the guard told Richards that Hackett would

return “in a minute,” and he instructed her to “stay right here.”



                Satisfied that Richards “wasn’t going anywhere,” Hackett returned to the Watchworks

counter to talk to the clerk. At that time, the clerk informed Hackett that the mall alert had been

initiated by Gloria Jean’s and that it “was about some gift certificates.” Hackett then recalled that

a mall alert had been issued involving gift certificates, but he did not remember if it involved “any

kind of theft or inappropriate conduct of any kind.” Hackett called the security officer in charge that

day, Lt. Gorman, and told him that he had responded to the mall alert, that the mall alert was posted

on the security office bulletin board, and that he “had Mrs. Richards at Watchworks.” Lt. Gorman

stated that he would meet Hackett at Watchworks after first going by the security office.



                While waiting for Lt. Gorman, Hackett returned to where Richards was standing.

Hackett handed Richards the watch and explained that there seemed “to be some question with

Gloria Jean’s about a gift certificate.” Hackett asked Richards if she had used the non-negotiable

portion of a gift certificate to make a purchase at Gloria Jean’s. Richards answered “yes” and

explained that she had come to the mall that night to return the original gift certificates to Gloria

Jean’s and the other merchants. Hackett escorted Richards back to the Watchworks counter, where

she showed him the original gift certificates. Hackett tore off and retained the original gift certificate

with the serial number matching the certificate used at Gloria Jean’s. Richards then asked if she

could “go take” the other gift certificates, but Hackett instructed her to stand there “for a minute.”

Specifically, Hackett told Richards to “[j]ust wait here” because another security guard was

“checking [her] out” and would be there in a minute.



                Upon observing the original gift certificates in Richards’ possession, Hackett

developed “some suspicion” that Richards may have stolen something because she apparently had

spent the non-negotiable portions. It was undisputed that Hackett did not develop this suspicion until

Richards showed him the original gift certificates, and Hackett acknowledged that, other than

Richards’ possession of the original gift certificates, he had no reason to suspect Richards of
committing a theft. Hackett observed nothing about Richards’ attitude or demeanor which would

cause him to believe that she had engaged in or was about to engage in any criminal offense.



                When Lt. Gorman arrived a few minutes later, the officers decided that Gorman

would accompany Richards to ensure that she delivered all of the original gift certificates to the

various merchants. Lt. Gorman accompanied Richards to Dillard’s, walking a short distance behind

her “like [she] was under arrest or something.” At Dillard’s, Lt. Gorman agreed to take care of the

remaining gift certificates for Richards, and he permitted her to leave the mall. Richards did not

attempt to leave the mall prior to this time because she was “scared to death” and believed that she

“would have been shot” if she “had tried to leave.”



                Richards subsequently brought this action for outrageous conduct, false

imprisonment, and defamation against Hackett and against O’Connor Management, Inc., the entity

which managed the Hickory Hollow Mall. After the parties conducted discovery, the Defendants

moved for summary judgment, contending that, as a matter of law, the evidence did not support

Richards’ claims. The trial court agreed and granted the Defendants’ motion. On appeal, Richards

challenges only the trial court’s dismissal of her claims for outrageous conduct and false

imprisonment.



                Summary judgment is appropriate only when the parties’ “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.” T.R.C.P. 56.04. In determining whether or not a genuine issue of material fact exists

for purposes of summary judgment, the trial court is required to consider the question in the same

manner as a motion for directed verdict made at the close of the plaintiff’s proof. Byrd v. Hall, 847

S.W.2d 208, 210 (Tenn. 1993). That is, “the trial court must take the strongest legitimate view of

the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party,

and discard all countervailing evidence.” Id. at 210-11.



                Applying this standard to the evidence presented in this case, we first affirm the trial

court’s dismissal of Richards’ claim for outrageous conduct. In order to state a claim for the tort of
outrageous conduct, also known as intentional infliction of emotional distress,1 a plaintiff’s

complaint must allege that the defendant engaged in conduct “so outrageous in character, and so

extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly

untolerable in a civilized community.” Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (Tenn. 1966)

(quoting Restatement (Second) of Torts § 46), abrogated on other grounds by Camper v. Minor,

915 S.W.2d 437, 446 (Tenn. 1996); accord Bain v. Wells, 936 S.W.2d 618, 623 (Tenn. 1997);

Alexander v. Inman, 825 S.W.2d 102, 105 (Tenn. App. 1991). As an initial matter, the courts have

the burden of determining whether the alleged conduct “may reasonably be regarded as so extreme

and outrageous as to permit recovery” under a theory of outrageous conduct. Swallows v. Western

Elec. Co., 543 S.W.2d 581, 583 (Tenn. 1976); accord Bain v. Wells, 936 S.W.2d at 623;

Alexander v. Inman, 825 S.W.2d at 105. After carefully reviewing the evidence presented in this

case, we conclude that, even when viewed in the light most favorable to Richards, this evidence does

not show conduct so extreme in degree as to support a cause of action for outrageous conduct. See,

e.g., Newsom v. Textron Aerostructures, 924 S.W.2d 87, 97-98 (Tenn. App. 1995); Hudson v.

Pickering, 1989 WL 134748, at *2 (Tenn. App. Nov. 8, 1989).



                 The more difficult question presented in this case is whether the evidence, when

viewed in Richards’ favor, supports a cause of action for false imprisonment. False imprisonment

is the intentional restraint or detention of another without just cause. Newsom v. Thalhimer Bros.,

901 S.W.2d 365, 367 (Tenn. App. 1994); Brown v. SCOA Indus., Inc., 741 S.W.2d 916, 919 (Tenn.

App. 1987). In order to establish a claim of false imprisonment, the plaintiff must allege and prove

the following elements:



                 (1)    the detention or restraint of [the plaintiff] against his will and

                 (2)    the unlawfulness of such detention or restraint.



Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990); Newsom, 901 S.W.2d at

367. After reviewing the depositions submitted by the parties in the summary judgment proceedings

below, we conclude that Richards has submitted sufficient evidence to create genuine issues of



       1
           Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997).
material fact as to both of these elements, i.e. whether Richards was detained or restrained against

her will and whether such detention or restraint was unlawful.



               This court has adopted the following rule with regard to the type of evidence required

to support the detention element of false imprisonment:



               [I]t is not enough for plaintiff to feel “mentally restrained” by the
               actions of the defendant. The evidence must establish a restraint
               against the plaintiff’s will, as where she yields to force, to the threat
               of force or to the assertion of authority.



Newsom, 901 S.W.2d at 368 (quoting Faniel v. Chesapeake & Potomac Tel. Co., 404 A.2d 147,

151-52 (D.C. 1979) (omitting citations)). In order to support the element of detention, therefore, the

plaintiff must present evidence that she was restrained or confined through the defendant’s exercise

of force, threats of force, or assertion of authority. Newsom, 901 S.W.2d at 368; see also

Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 621-22 (7th Cir. 1989); Berry v. Loiseau,

614 A.2d 414, 432 (Conn. 1992); West v. King’s Dep’t Store, Inc., 365 S.E.2d 621, 623-24 (N.C.

1988); Safeway Stores, Inc. v. Amburn, 388 S.W.2d 443, 447 (Tex. Civ. App. 1965); Skillern &

Sons v. Stewart, 379 S.W.2d 687, 691 (Tex. Civ. App. 1964). A determination of this issue may

depend upon several factors, including “not only the actual words spoken but the relative size, age,

experience, sex and physical demeanor of the participants.” Black v. Kroger Co., 527 S.W.2d 794,

800 (Tex. Civ. App. 1975).



               We conclude that, when viewed in the light most favorable to Richards, the evidence

reveals that Richards was detained against her will by the Defendants’ use of force, threats of force,

and assertion of authority. Hackett, wearing a Metropolitan Police Department uniform and armed

with a 9-mm Glock, approached Richards and began shouting orders at her, such as to back away

from the counter, to get her hands off her purse, and to allow him to look in the purse. Richards

believed that, at one point during the encounter, Hackett placed his hand on his gun. For the next

several minutes, Hackett proceeded to direct and control Richards’ movements, leading her by the

arm to where another security guard stood, instructing her to wait with the other security guard, and

then, later, requiring Richards to wait with Hackett while he awaited the arrival of his supervising
officer. In their discussion of the gift certificates, Richards informed Hackett that she had come to

the mall to return the originals, and she asked if she could “go take” the gift certificates. Hackett told

Richards “no,” and he instructed her to remain where she was until his supervisor arrived. Richards

wanted to leave the mall, but she did not try to leave because she was afraid that she would be shot.

Hackett contradicted some of Richards’ testimony regarding these events, but he acknowledged that,

when he approached Richards, his intent was to make sure Richards “stayed put.”



                In holding that this evidence was sufficient to create a genuine issue of material fact

as to whether Richards was detained against her will, we distinguish the facts of this case from those

found in Newsom v. Thalhimer Bros., 901 S.W.2d 365 (Tenn. App. 1994). In Newsom, the plaintiff

claimed that she was falsely imprisoned by two members of her employer’s security staff, who

allegedly threatened the plaintiff that, if she left the store manager’s office, they would call the police

and have her arrested. Id. at 366-67. In affirming a directed verdict entered in favor of the

defendants, this court noted that the plaintiff voluntarily accompanied a supervisor to the store

manager’s officer and, further, that at no time during the encounter did the individual defendants

touch the plaintiff, use profanity toward her, or in any way use force or make any threats of force

against the plaintiff. Id. at 366-67. In contrast, the evidence in the present case indicated that the

uniformed and armed Hackett shouted orders at Richards and that he directed some of her

movements by taking her by the arm and leading her. We believe that this evidence creates a

genuine issue of material fact as to whether Richards was detained against her will. See Berry v.

Loiseau, 614 A.2d 414, 432 (Conn. 1992) (holding that trial court erred in directing verdict for

defendants on false imprisonment claim where evidence showed that defendants took plaintiff by

arm, escorted him to defendants’ office and car, used abusive and threatening language toward

plaintiff, and displayed revolver); see also Wal-Mart Stores, Inc. v. Yarbrough, 681 S.W.2d 359,

362 (Ark. 1984) (holding that trial court properly submitted issue of false imprisonment to jury

where defendant’s assistant manager testified that he had plaintiff guarded from time she was

stopped until time police arrived).



                We also conclude that the record contains sufficient evidence to create a genuine issue

of material fact as to the unlawfulness of Richards’ detention. In order to establish this element, a

plaintiff must allege and prove that she was detained without probable cause. Brown v. SCOA
Indus., Inc., 741 S.W.2d 916, 920 (Tenn. App. 1987); Hudson v. Pickering, 1989 WL 134748, at

*1 (Tenn. App. Nov. 8, 1989). In urging this court to affirm the trial court’s dismissal of Richards’

false imprisonment claim, the Defendants contend that, as a matter of law, Hackett had probable

cause to detain Richards because he suspected that she had committed a theft. See, e.g., Brown v.

SCOA Indus., 741 S.W.2d at 920 (holding that store was entitled to directed verdict on false

imprisonment claim because reasonable minds could not conclude other than that store employees

had probable cause to detain plaintiff for shoplifting).



               We respectfully disagree with the Defendants’ contention. The mall alert issued

relative to the gift certificates contained no suggestion that Richards had committed a theft. Instead,

the mall alert indicated that “a Gloria Jean’s employee inadvertently kept the paper non-negotiable

part of the gift certificate” and that this mistake was “the fault of the employee due to inexperience.”

In his deposition, Hackett admitted that he initially did not know why Watchworks had called

security and that, when he first approached Richards, he could not recall the contents of the mall

alert. When told that the mall alert was initiated by Gloria Jean’s and that it involved gift

certificates, Hackett recalled the mall alert being issued but could not remember if it involved “any

kind of theft or inappropriate conduct of any kind.” Hackett did not discover the existence of the

original gift certificates in Richards’ possession until after he already had detained her for a period

of time. Although Hackett testified that he then developed “some suspicion” that Richards may have

committed a theft, Hackett also acknowledged that, other than Richards’ possession of the original

gift certificates, Hackett had no reason to suspect Richards of theft. Based on the foregoing

evidence, we hold that a genuine issue of material fact exists as to whether Hackett’s detention of

Richards was supported by probable cause.



                For the same reason, we reject the Defendants’ contention that they were entitled to

summary judgment based on the statutory defense provided in Tennessee Code Annotated section

40-7-116(c). That section provides that



                        A merchant or a merchant’s employee or agent or a peace
                officer who detains, questions or causes the arrest of any person
                suspected of theft shall not be criminally or civilly liable for any legal
                action relating to such detention, questioning or arrest if the merchant
                or merchant’s employee or agent or peace officer:
                     (1)     Has reasonable grounds to suspect that the person has
               committed or is attempting to commit theft;

                       (2)     Acts in a reasonable manner under the circumstances;
               and

                       (3)     Detains the suspected person for a reasonable period
               of time.



T.C.A. § 40-7-116(c) (1990). Although the statute refers to “reasonable grounds” rather than

“probable cause,” in the context of false imprisonment claims, this court has interpreted the two

terms as having the same meaning. Brown v. SCOA Indus., 741 S.W.2d at 919.



               That portion of the trial court’s judgment dismissing Richards’ claim for false

imprisonment is reversed, and this cause is remanded for further proceedings consistent with this

opinion. In all other respects, the trial court’s judgment is affirmed. Costs on appeal are taxed one-

half to Richards and one-half to the Defendants, for which execution may issue if necessary.



                                                      ____________________________________
                                                      FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
HIGHERS, J. (Concurs)
