MICHAEL A. WOLFF, Chief Justice.
Introduction
If “good fences make good neighbors,”1 what do bad fences make?
[279]*279On the portion of James and Daniel Highfills’ property that is adjacent to Mary Hale’s property in- rural Gasconade County, there is an eight-foot high metal fence spray-painted with pictures and phrases on the side facing Hale’s property and “one-way glass” installed in one portion of the fence. The one-way glass would allow someone • standing on the Highfills’ property to observe Hale’s house and yard without Hale being able to see them. Video cameras are mounted on top of the fence in a position to observe Hale’s property.
To say that there is bad blood between the Highfills and Hale may understate the situation. Over the past several years, the Highfills and Hale have instigated multiple lawsuits and complaints against one another for various reasons. Some of these calls involved complaints by Hale that the Highfills were shooting firearms near her property. The Highfills claim that, around mid-September 2001, the sheriff told them that “if the calls don’t stop, someone’s gonna get arrested.”
While responding to prior complaints, various sheriffs deputies observed the fence, but none of them asked the Highfills to remove it or informed the Highfills that the fence was unlawful.
On September 21, 2001, Hale made three calls to the Gasconade County sheriffs office. The first two calls concerned prior complaints she had made against the Highfills. During the third call, which was made to the non-emergency number, she stated that she believed that she might have been shot. Two deputies, Casey Hat-ton and Matthew Oiler, were dispatched to Hale’s residence. Hale reported that she was mowing her lawn when she heard a loud noise that sounded like a gunshot and felt a burning in her arm, resulting in a red welt-like mark remaining on her arm.
While investigating Hale’s complaint, the deputies observed the fence. Although the fence had been described to them by others, this was the first occasion that either of these deputies personally observed the fence. While he was taking Hale’s statement, Deputy Hatton noticed, through the gap between the fence and the ground, that a person wearing white tennis shoes was looking through the one-way glass. Deputy Hatton later identified this person as James Highfill. Deputy Oiler testified that he felt it was “readily evident” that the purpose of the fence, complete with the one way glass and cameras, “was to be able to watch Ms. Hale, and, of course, Ms. Hale would know that she was being watched.”
Deputy Oiler reviewed the statute for stalking2 and concluded that the “statute fit what was going on with that fence.” He then telephoned the prosecuting attorney, described the fence to her, and asked her if she would consider filing charges if he arrested one or both of the Highfills for stalking. She responded that she would.
Both of the Highfills were arrested for stalking. The prosecutor ultimately decided not to file charges. Although there is some contrary evidence, when viewed in the light most favorable to the Highfills, the record supports their contention that the prior complaints between the parties were considered by the deputies in their decision to arrest the Highfills.
[280]*280After the events of September 21, 2001, Hale was convicted of falsely accusing Daniel Highfíll of assault and of fabricating evidence in an unrelated incident.
The Highfills claim that their civil rights were violated during their confinement and that the deputies used excessive force in making the arrest, resulting in permanent injuries to James Highfíll. The Highfills filed suit against the deputies and Hale for false imprisonment. After the case was transferred to Osage County, the deputies were dismissed from the case based on official immunity.
The trial court found that, “[e]ven if Defendant Mary Hale’s initial report has been totally false, the deputy’s first hand observations of conduct that he thought was criminal, which was unrelated to the original report, created a disconnect such that, as a matter of law, Defendant Mary Hale can have no civil liability for false imprisonment.” The trial court granted summary judgment in favor of Hale. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.
The judgment is affirmed.
DISCUSSION
Summary Judgment Standard
Whether summary judgment should have been granted is a question of law and, therefore, reviewed de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The evidence is viewed in the light most favorable to the party opposing summary judgment — in this case, the Highfills. See id. Summary judgment is proper where the movant establishes that there is no genuine dispute as to the material facts and that she is entitled to judgment as a matter of law. Id. at 380. As a defending party, Hale must demonstrate either: (1) facts negating one or more elements of the Highfills’ claim; (2) that the Highfills cannot and will not be able to prove one or more elements of their claim; or (3) that there is no material dispute about each fact necessary to establish an affirmative defense. See id. at 381.
False Imprisonment
False imprisonment, also called false arrest, is “the confinement, without legal justification, by the wrongdoer of the person wronged.” Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo.1969). A person can be liable for false imprisonment if he encourages, causes, promotes, or instigates the arrest. Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503, 505 (Mo. banc 1986); Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 472 (Mo.App. 2005). Whether a person instigated an arrest is a fact-specific inquiry; there is no fixed test that may be applied. Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 852 (Mo. banc 1975).
Merely reporting facts to a police officer, and leaving it to that officer’s discretion whether to make an arrest, does not subject the reporter to liability for false arrest. Rustid v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984); Blue, 170 S.W.3d at 472. Even reporting incorrect information may not subject the reporter to liability, if the intent was not to direct the police to arrest a specific individual. See Smith, 524 S.W.2d at 852 (incorrect eyewitness identification not sufficient to create liability of witness for false arrest); Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, 242 (1948) (defendant not liable for false arrest where he “did not say that plaintiff was the prowler, but only said he thought plaintiff was the prowler”).
Free access — add to your briefcase to read the full text and ask questions with AI
MICHAEL A. WOLFF, Chief Justice.
Introduction
If “good fences make good neighbors,”1 what do bad fences make?
[279]*279On the portion of James and Daniel Highfills’ property that is adjacent to Mary Hale’s property in- rural Gasconade County, there is an eight-foot high metal fence spray-painted with pictures and phrases on the side facing Hale’s property and “one-way glass” installed in one portion of the fence. The one-way glass would allow someone • standing on the Highfills’ property to observe Hale’s house and yard without Hale being able to see them. Video cameras are mounted on top of the fence in a position to observe Hale’s property.
To say that there is bad blood between the Highfills and Hale may understate the situation. Over the past several years, the Highfills and Hale have instigated multiple lawsuits and complaints against one another for various reasons. Some of these calls involved complaints by Hale that the Highfills were shooting firearms near her property. The Highfills claim that, around mid-September 2001, the sheriff told them that “if the calls don’t stop, someone’s gonna get arrested.”
While responding to prior complaints, various sheriffs deputies observed the fence, but none of them asked the Highfills to remove it or informed the Highfills that the fence was unlawful.
On September 21, 2001, Hale made three calls to the Gasconade County sheriffs office. The first two calls concerned prior complaints she had made against the Highfills. During the third call, which was made to the non-emergency number, she stated that she believed that she might have been shot. Two deputies, Casey Hat-ton and Matthew Oiler, were dispatched to Hale’s residence. Hale reported that she was mowing her lawn when she heard a loud noise that sounded like a gunshot and felt a burning in her arm, resulting in a red welt-like mark remaining on her arm.
While investigating Hale’s complaint, the deputies observed the fence. Although the fence had been described to them by others, this was the first occasion that either of these deputies personally observed the fence. While he was taking Hale’s statement, Deputy Hatton noticed, through the gap between the fence and the ground, that a person wearing white tennis shoes was looking through the one-way glass. Deputy Hatton later identified this person as James Highfill. Deputy Oiler testified that he felt it was “readily evident” that the purpose of the fence, complete with the one way glass and cameras, “was to be able to watch Ms. Hale, and, of course, Ms. Hale would know that she was being watched.”
Deputy Oiler reviewed the statute for stalking2 and concluded that the “statute fit what was going on with that fence.” He then telephoned the prosecuting attorney, described the fence to her, and asked her if she would consider filing charges if he arrested one or both of the Highfills for stalking. She responded that she would.
Both of the Highfills were arrested for stalking. The prosecutor ultimately decided not to file charges. Although there is some contrary evidence, when viewed in the light most favorable to the Highfills, the record supports their contention that the prior complaints between the parties were considered by the deputies in their decision to arrest the Highfills.
[280]*280After the events of September 21, 2001, Hale was convicted of falsely accusing Daniel Highfíll of assault and of fabricating evidence in an unrelated incident.
The Highfills claim that their civil rights were violated during their confinement and that the deputies used excessive force in making the arrest, resulting in permanent injuries to James Highfíll. The Highfills filed suit against the deputies and Hale for false imprisonment. After the case was transferred to Osage County, the deputies were dismissed from the case based on official immunity.
The trial court found that, “[e]ven if Defendant Mary Hale’s initial report has been totally false, the deputy’s first hand observations of conduct that he thought was criminal, which was unrelated to the original report, created a disconnect such that, as a matter of law, Defendant Mary Hale can have no civil liability for false imprisonment.” The trial court granted summary judgment in favor of Hale. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.
The judgment is affirmed.
DISCUSSION
Summary Judgment Standard
Whether summary judgment should have been granted is a question of law and, therefore, reviewed de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The evidence is viewed in the light most favorable to the party opposing summary judgment — in this case, the Highfills. See id. Summary judgment is proper where the movant establishes that there is no genuine dispute as to the material facts and that she is entitled to judgment as a matter of law. Id. at 380. As a defending party, Hale must demonstrate either: (1) facts negating one or more elements of the Highfills’ claim; (2) that the Highfills cannot and will not be able to prove one or more elements of their claim; or (3) that there is no material dispute about each fact necessary to establish an affirmative defense. See id. at 381.
False Imprisonment
False imprisonment, also called false arrest, is “the confinement, without legal justification, by the wrongdoer of the person wronged.” Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo.1969). A person can be liable for false imprisonment if he encourages, causes, promotes, or instigates the arrest. Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503, 505 (Mo. banc 1986); Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 472 (Mo.App. 2005). Whether a person instigated an arrest is a fact-specific inquiry; there is no fixed test that may be applied. Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 852 (Mo. banc 1975).
Merely reporting facts to a police officer, and leaving it to that officer’s discretion whether to make an arrest, does not subject the reporter to liability for false arrest. Rustid v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984); Blue, 170 S.W.3d at 472. Even reporting incorrect information may not subject the reporter to liability, if the intent was not to direct the police to arrest a specific individual. See Smith, 524 S.W.2d at 852 (incorrect eyewitness identification not sufficient to create liability of witness for false arrest); Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, 242 (1948) (defendant not liable for false arrest where he “did not say that plaintiff was the prowler, but only said he thought plaintiff was the prowler”). It “requires something more than only furnishing wrong information” to be liable for [281]*281instigating an arrest. Snider, 209 S.W.2d at 242. For example, evidence that a defendant “knowingly provided false, incomplete, or misleading information” may support a false imprisonment action. Jacobs v. Bonser, 46 S.W.3d 41, 48 (Mo.App.2001).
The fact that the officers in this case were dismissed from the suit based on official immunity does not necessarily absolve Hale of liability. “[A]n officer’s immunity does not extend to an individual who gives the officer information about a crime and encourages and requests the officer to arrest an innocent party.” Blue, 170 S.W.3d at 473.
The Highfills argue that the trial court’s judgment that there was a “disconnect” between the offense arrested for and the original report was incorrect because stalking requires conduct that is repeated and ongoing. Therefore, the Highfills argue, the deputies were required to evaluate the previous reports made by Hale. The problem with this argument is that, even if Hale had previously made false reports, the fence existed. The fence, complete with its graffiti, one-way glass, and surveillance cameras, was not a fabrication created by Hale. The deputies independently observed the fence on September 21, and it was known to have existed prior to September 21. The deputies reviewed the stalking statute and consulted the prosecutor before deciding to arrest the Highfills. If this decision was erroneous, Hale is not responsible for it simply because the deputies were on her property when they observed the fence.
The Highfills also argue that the trial court’s decision was improper because “a defendant’s course of conduct over an extended period of time may provide sufficient evidence to show that the defendant instigated false arrest.” This argument may be disposed of in the same way as the first: even though Hale made multiple pri- or complaints, some of which (but not all) were found to be false, this does not negate the deputies’ independent observations of the fence and their independent decision to arrest the Highfills.
If the Highfills had been arrested for shooting at Hale on September 21, this would be a different case. And, even were the intervening conduct not sufficient, here a fact even further distinguishes prior cases involving false imprisonment — it is the telephone call Deputy Oiler made to the prosecuting attorney. This call was an intervening event, separating Hale’s complaints from the High-fills’ arrest. Even assuming that Hale’s prior complaints were totally false and that the prior complaints were at least partly responsible for the decision to arrest the Highfills, Hale is not responsible for the deputy’s independent evaluation of the fence in relation to the stalking statute, his independent call to the prosecutor, or the prosecutor’s independent determination that she would consider fifing charges. Nor is Hale responsible for the prosecutor’s subsequent decision not to file charges.
The false imprisonment cases cited by the parties are generally not helpful in resolving this issue because they do not involve an independent intervening act like the call to the prosecutor. One case with similar facts, Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814 (Mo.App.2002), weighs in favor of Hale.
The reason the deputies went to Hale’s property on September 21 was to investigate a report of shots being fired. Hale did not identify the Highfills or request that they be arrested for that offense. While there, the deputies observed the fence and independently decided to arrest the Highfills for an offense that was different from that which caused them to go to [282]*282Hale’s property. Hale did not specifically request that the Highfills be arrested that day for stalking — or for any other crime.
Adopting the Highfills’ interpretation would lead to potential liability for almost anyone who complains about possible criminal behavior, dependent only on whether the defendant was ultimately charged and convicted. Since the complaining citizen has no control over whether the police decide to arrest someone or whether the prosecutor decides to bring charges, the Court declines to hold a reporting person responsible for false arrest simply for reporting information to the police.
Conclusion
Hale is entitled to summary judgment because she demonstrated facts that negate the element of causation that is necessary to the Highfills’ claim. Without showing causation, the Highfills cannot prevail against Hale for instigating their false imprisonment.
LAURA DENVIR STITH, PRICE, LIMBAUGH and RUSSELL, JJ„ concur.
WHITE, J., dissents in separate opinion filed; TEITELMAN, J., concurs in opinion of WHITE, J.