Shillington v. K-Mart Corp.

402 S.E.2d 155, 102 N.C. App. 187, 1991 WL 35481, 1991 N.C. App. LEXIS 302
CourtCourt of Appeals of North Carolina
DecidedMarch 19, 1991
Docket9010SC600
StatusPublished
Cited by16 cases

This text of 402 S.E.2d 155 (Shillington v. K-Mart Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shillington v. K-Mart Corp., 402 S.E.2d 155, 102 N.C. App. 187, 1991 WL 35481, 1991 N.C. App. LEXIS 302 (N.C. Ct. App. 1991).

Opinions

JOHNSON, Judge.

With regard to an appeal from a directed verdict, this Court has stated:

A motion by a defendant for a directed verdict under N.C. Gen. Stat. § 1A-1, Rule 50(a) of the Rules of Civil Procedure, tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. On such a motion, the plaintiff’s evidence must be taken as true and the evidence must be considered in the light most favorable to the plaintiff, giving the plaintiff the benefit of every reasonable inference to be drawn therefrom. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts that the evidence reasonably tends to establish. (Citations omitted.)

Shreve v. Duke Power Co., 97 N.C. App. 648, 649-50, 389 S.E.2d 444, 444 (1990). With this rule in mind, we determine whether plaintiff’s evidence is sufficient to take the case to the jury on any of his claims.

The Slander Claim

Plaintiff alleges that defendant’s agent falsely accused him of a crime, that he did so maliciously in that he refused to listen to plaintiff’s explanation, that the statements were repeated in the local press, and that as a result, plaintiff was damaged in his personal and professional reputation, incurred attorneys fees in defending himself in court and underwent extreme emotional distress. He contends that this constitutes slander per se. Plaintiff’s evidence showed that defendant’s security guard, while acting within the scope of his employment, informed fellow guard Hayes and [194]*194Officer Stephenson that plaintiff came onto K-Mart property, that he picked up K-Mart property and threw it down when challenged, essentially accusing plaintiff of trespass and looting. He also testified that McLaughlin refused to listen to his explanation as to what he was doing on the ridge. Plaintiff admits that he picked up a K-Mart coat and placed it on a tree and that he was on the ridge beyond the valley. His evidence also shows that K-Mart’s leased property extended close to but did not include the ridge area.

Slander, generally, is the speaking of base or defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood. Beane v. Weiman Co., 5 N.C. App. 276, 168 S.E.2d 236 (1969). “Where the injurious character of the words appear on their face as a matter of general acceptance they are actionable per se.” Williams v. Freight Lines and Willard v. Freight Lines, 10 N.C. App. 384, 388, 179 S.E.2d 319, 322 (1971). Accusations of crime or offenses involving moral turpitude constitute slander per se. Penner v. Elliot, 225 N.C. 33, 33 S.E.2d 124 (1945); Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986). Where the words are actionable per se, the law raises a prima facie presumption of malice and a conclusive presumption of legal injury and damage. Badame v. Lampke, 242 N.C. 755, 89 S.E.2d 466 (1955); Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378 (1987). To establish a claim for slander per se, a plaintiff must prove: (1) that defendant’s statement was slanderous per se, (2) the statement was false, and (3) the statement was published or communicated to and understood by a third person. West v. King’s Dept. Store, Inc., 321 N.C. 698, 703, 365 S.E.2d 621, 624 (1988).

Plaintiff’s evidence was that he did pick up an item of K-Mart merchandise but that he was not, at any relevant time, on K-Mart property. Plaintiff’s evidence is sufficient, viewed in the light most favorable to him, to show that defendant falsely accused him of a crime and that defendant communicated this accusation to third parties, Mr. Hayes and Officer Stephenson.

The question remains whether this communication is protected by a qualified privilege. This Court has stated:

A defamatory statement is qualifiedly privileged when made (1) in good faith, (2) on subject matter (a) in which the declarant has an interest or (b) in reference to which the declarant has a right or duty, (3) to a person having a corresponding interest, right, or duty, (4) on a privileged occasion, and (5) in a manner [195]*195and under circumstances fairly warranted by the occasion and duty, right or interest.

Shreve, 97 N.C. App. at 650-51, 389 S.E.2d at 446. Where the occasion is privileged, as is the case here, see Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962), the presumption of law is that the defendant acted in good faith, and the burden is on the plaintiff to prove that the publication was made with actual malice. Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971). Actual malice may be proven by a showing that the defamatory statement was made with knowledge that it was false, with reckless disregard for the truth or with a high degree of awareness of its probable falsity. Gibby v. Murphy, 73 N.C. App. 128, 325 S.E.2d 673 (1985). “If plaintiff cannot meet his burden of showing actual malice, the qualified privilege operates as an absolute privilege and bars any recovery for the communication, even if the communication is false.” Clark v. Brown, 99 N.C. App. 255, 263, 393 S.E.2d 134, 138, disc. review denied, 327 N.C. 426, 395 S.E.2d 675 (1990).

We hold that defendant’s alleged refusal to listen to plaintiff’s explanation does not rise to the level of a reckless disregard for the truth. Plaintiff’s evidence was that he did pick up a coat belonging to K-Mart, that he was walking in a tangled debris-strewn area close to the K-Mart which had been leveled by the tornado and over which was scattered essentially the entire contents of the K-Mart store. It was only later, by means of a survey, that the precise location of the property line in that area could be established, and that survey put the line close to where plaintiff was challenged.

We find that the statements made by the defendant’s agents accusing plaintiff of looting and trespass during an emergency were protected by the qualified privilege and that plaintiff has failed to present sufficient evidence of malice to rebut the presumption of good faith. This assignment is overruled.

False Imprisonment

By his next assignment of error, plaintiff contends that the trial court erred in directing a verdict for defendant on plaintiff’s false imprisonment claim. Plaintiff alleged two claims of false imprisonment against defendant.

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Shillington v. K-Mart Corp.
402 S.E.2d 155 (Court of Appeals of North Carolina, 1991)

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Bluebook (online)
402 S.E.2d 155, 102 N.C. App. 187, 1991 WL 35481, 1991 N.C. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shillington-v-k-mart-corp-ncctapp-1991.