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Unpublished Opinion No. 2011-UP-112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.