9 False Imprisonment

Elements

• Action with
• Specific intention to confine someone to a defined or bounded place
• That directly or indirectly causes actual and unlawful confinement and
• Harm, or awareness of the confinement

Noguchi v. Nakamura, Intermediate Court of Appeals of Hawai’i (1982)
(2 Haw. App. 655)

This is an appeal from an order granting a directed verdict on a claim of false imprisonment. We reverse. The complaint herein asserted two claims for relief: one based on negligence and one on false imprisonment. The court below directed a verdict on the false imprisonment claim and the jury found for the appellee on the negligence claim.

Basically, appellant testified that she and appellee had been girlfriend and boyfriend. She had come to the conclusion that she did not wish to go out with him anymore. On the day in question, he came to see her and asked her to go with him on a date that evening. She refused. After some conversation, he asked her to at least go to the store with him and she consented on the condition, which he agreed to, that he would bring her right back. She then entered his car and they proceeded to the store and returned, stopping in front of her house. She was seated in the car with the car door open when he suddenly drove off. At some point thereafter, she fell, was pushed or jumped from the car, sustaining the injuries complained of. [***]

Appellee contends, however, that since appellant originally entered the car voluntarily, some threat against her to prevent her leaving must have been made or she was at least under an obligation when the car was stopped in front of her parents’ home to express a refusal to go further. We do not regard such to be the law. She had refused to go anywhere on the day in question with the appellee but to the store and back. She was back; she was in front of her parents’ house, and she had the car door open when appellee suddenly started off. A jury could well have found from her testimony that her consent to go anywhere with the appellee on the day in question was limited to going to the store and back; that she had previously expressly told him she would not go out with him that evening, so that the limited consent had expired; and that her having the door open in the stopped car in front of her parents’ home reindicated her lack of consent to any further movement.

The case of Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.App.1979), cited by appellee is not on point. There, the claimant had consented to go to her home in the car. In the course of that journey after a stop was made which she had not anticipated, she changed her mind without expressing the same. But as the court pointed out in that case: Of course, if the defendant goes beyond the implied consent, and does a substantially different act, he will be liable. See Prosser, supra, at 104. Whether the assent given was broad enough to cover the invasion inflicted is a question of fact to be determined by the jury in doubtful cases. 404 A.2d at 153. That is our case.

[***] [T]here was sufficient evidence to go to the jury on the claim of false imprisonment. Because of our disposition of the question of the sufficiency of the evidence, we do not reach the other errors alleged.

Reversed and remanded for a new trial.

Note 1. What does it mean for the lower court to have directed the verdict? What is the status of the negligence count?

Note 2. For what purpose is the court drawing on the implied license doctrine?

Note 3. The court relays the facts with a curious range of possibility regarding what actually happened: “At some point thereafter, she fell, was pushed or jumped from the car.” Why do you think this is so? Do you think it is important (from the parties’ perspectives) which occurred? What bearing might it have on the tort of false imprisonment or on a general understanding of the context for the parties’ actions?

Note 4. False imprisonment is a tort in which there is frequently a power asymmetry of some kind. The tort, after all, seeks to prevent people from limiting others’ freedom of movement. That someone is capable of limiting the freedom of another presupposes particular sorts of power, strength, status or opportunity. How do you imagine this power asymmetry might play out in fact patterns that recur in the case law? What patterns would you expect to see regarding who is likely to be bringing false imprisonment actions, against whom and why?

Ali v. Margate, United States District Court, S.D. Florida (2011)
(2011 WL 4625372)

Plaintiff Shanaz Ali (“Ali”) filed this action against Defendant Margate School of Beauty, Inc. (“Margate School”), alleging sex discrimination and sexual harassment in violation of Title IX, 20 U.S.C. § 1681 et seq., which prohibits discrimination on the basis of gender in any education program or activity receiving Federal financial assistance. Ali’s Amended Complaint also contains claims for assault, battery, and false imprisonment against Defendant Stanley Barnett (“Barnett”), the owner of Margate School.^[1] Ali was a student at Margate School, a private trade school, from May of 2010 until late in 2010 or early in 2011. There is no dispute that Title IX applies to Margate School. After the parties engaged in discovery, Defendants moved for summary judgment as to Ali’s claims.^[2]

Ali first registered to attend Margate School’s massage therapy certification class in late May of 2010. She met Defendant Barnett that day after he personally approved her request for discounted tuition. Barnett asked her where she was from, and after she stated she was from Trinidad, he told her he was British and played cricket. After she began day classes in June of 2010, Barnett approached her in the hallway and said, “You are the girl … who was in my office before when we started school. So, you did start?”^[3] Barnett asked her if she played cricket, to which Ali replied, “sometimes.” Barnett then stated that “we could play cricket.” Barnett put his hand on Ali’s right hand or forearm for a few seconds when he made this last statement. A week later, Barnett approached her in the hallway, touched her hand or shoulders and moved close to her and asked how she was doing. This contact made Ali uncomfortable. Between late June and early November, there were three to five instances of Barnett approaching her in the hallway and touching her in a similar manner. While Ali stated that she tried to avoid him, she testified that she changed her class schedule from day classes to night classes because of her babysitting situation.

On Monday evening, November 8, 2010, Ali was in the hallway before class when Barnett approached her, asked how she was doing, tapped her shoulder and hugged her. In her errata sheet, Ali adds that Barnett said she was extremely attractive and wanted to help her with her studies. Barnett then said that “Let’s see if we can help each other out.” Ali Deposition at 36–37. Ali did not know what he was referring to as the two went into his office and he closed the door. Barnett sat behind his desk with Ali across from him. Id. at 37. Barnett said “Let’s see if we can help each other out, you know, I can probably do something for you. You can do something for me.” Ali felt trapped and stuck and thought if she walked out she would not be able to go to school anymore. Id. at 38. Barnett then said that “I’m the owner of the school, you know, I can pay your tuition. I can pay your weekly amount if you, you know, could do something…. I can pay your stuff and you can, you know, give me a favor, do me a favor.” Ali assumed he meant a sexual favor, and stated that “you shouldn’t even be saying that. You’re married, you know, you have a kid. I have kids.” Barnett then said, “Well, you know, everybody does it now.” Id. at 38–39. Ali declined the proposition, saying “I don’t want to do anything like that.” Id. at 39. Barnett said “that he liked Trinidadian women and that he could do anything because he owned the school.” Barnett then asked if Ali had a friend who would do it. Ali deposition at 39. Ali said no and left his office. Id. at 40. In her Errata Sheet, she alleges that Barnett followed her into the hallway, touching her and telling her she was attractive, conduct that frightened Ali because she feared that she might be expelled or have her grades adversely affected.

*2 Teacher and co-Plaintiff Stephanie Groh then saw Ali crying and shaking in the hallway. Deposition of Stephanie Groh at 68 [DE 34–4]; Deposition of Shanaz Ali at 42 [DE 33–4]. Upon reaching her, Ali explained that Defendant Barnett had just propositioned her in his office, and she did not know what to do. Ali deposition at 42. Groh told Ali that she would take care of it. Ali did not go to class and went home. She came back to school the next day to speak with Stephanie Groh. Once Ali learned that Groh had been fired, Ali never went back to the school. Ali never told any other student, teacher, or administrator about the incident.

Barnett denies the November 8 incident ever took place. Deposition of Stanley Barnett at 51. Barnett also denied ever making the comment that he was attracted to Trinidadian women. Id. at 43. He stated that if an instructor or administrator offered a quid pro quo for sexual favors to a student, such conduct would be investigated as a possible violation of Margate School’s sexual harassment policy.

Margate School’s sexual harassment policy directs students to report any such incidents to the “Director of the School or the Office Manager.” Sexual Harassment Policy [page 13–14 of DE 33–2]. While Miriam Tirado was the Director of the School, it is not clear who the “Office Manager” was at the time of the November 8 incident. The policy then states that if a verbal complaint to the Director has proven ineffective, or you are unable to complain to the Director, then students are to file a complaint through Margate School’s grievance procedure. The procedure starts with a student first notifying her instructor either verbally or in writing, and if not resolved, then the student is to notify the Director of Student Affairs. Handbook at p. 9 [DE 33–2]. Other than telling Groh, there is no evidence that Plaintiff Ali followed the procedures spelled out in the policy. [***]

B. Title IX Discrimination—Quid Pro Quo

Both sides argue that Title VII case law should be used as the basis for analysis of a motion for summary judgment on a Title IX claim. Plaintiff’s claim under Title IX can be maintained under two different theories, both of which Plaintiff asserts in this case. A plaintiff can prove a violation by either showing that the harassment culminated in a “tangible employment action” or that she suffered “severe or pervasive” conduct. [c] As applied to the Title IX area, Plaintiff Ali must show that she was deprived of some benefit or suffered some tangible adverse action, such as decreased grades. [c]

Although Ali testified that she was afraid something adverse to her grades would happen to her after she rejected Barnett’s quid pro quo offer, there is no evidence that any denial of any educational benefit or any adverse educational action ever occurred. Ali’s grades did not suffer as a result of her rejection of Barnett’s alleged advances. Ali suggests that she suffered some sort of constructive discharge because she was afraid to return to school. However, the facts remain that Ali did not return to school on her own choosing. There is no evidentiary basis in the record to support the claim that she suffered a tangible educational action or was denied any benefit on account of her sex. Thus, the Court concludes that there are no disputed issues of material fact concerning the quid pro quo harassment claim. Summary judgment in favor of Margate School on this part of Count I is therefore appropriate.

C. Title IX Discrimination—Hostile Work Environment

[***] Under the hostile work environment theory, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” [cc] A plaintiff establishes a prima facie case of hostile work environment by showing: (1) the Plaintiff belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment; and (5) the employer is liable. [cc]. [***]

For purposes of the summary judgment motion, it is clear that Plaintiff testified that the conduct was unwelcome, sexual in nature, and related to her gender. Defendant argues that Plaintiff cannot show that the alleged harassment, under an objective standard, was sufficiently severe or pervasive to alter the conditions of Plaintiff’s education and create an abusive environment. Defendant relies upon the Mendoza opinion, where repeated vulgar conduct was deemed not sufficiently pervasive but merely rude.

In this action, although Ali meets the subjective component that the harassing conduct was sufficiently severe or pervasive to alter an employee’s terms or conditions of employment, Ali has not met the objective component. The Court first notes that the various out of district cases cited by Plaintiff involved alleged victims aged 17 and younger. Plaintiff Ali was 24 years old during the relevant period in this action. Although Barnett was substantially older and was the owner of the trade school in question, his slight touching of Plaintiff’s hand or arm three to five times in open hallways over a five month period, combined with general questions about how Plaintiff was doing, and culminating in one instance in his office where he allegedly asked for sexual favors in return for free tuition, do not rise the level of sufficiently severe or pervasive conduct under Eleventh Circuit case law. [***]

[T]his Court concludes that even taking all disputed facts in Plaintiff Ali’s favor, summary judgment is appropriate in that Plaintiff has failed to show sufficiently severe or pervasive conduct that meets her burden.^[4]

D. State Law Claims

Defendant Barnett also moves for summary judgment on Plaintiff’s state law claims against him. Taking first the claim for false imprisonment, this tort is defined as the unlawful restraint of a person against his will. [c] The gist of false imprisonment is the unlawful detention of the plaintiff and the deprivation of her liberty. “A plaintiff in a false imprisonment action need not show that force was used in the detention or that he or she orally protested to demonstrate the detention was against his or her will…. However, a plaintiff alleging false arrest must show the restraint was unreasonable and unwarranted under the circumstances.” A plaintiff is not restrained when there is a reasonable means of escape, which is apparent or known to the person. [c]

In this action, Plaintiff Ali has failed to show that any restraint was used in that she agreed to go with Barnett into his office and she could have left his office at any time. In fact, Ali did leave Barnett’s office prior to the conversation being over, as Barnett allegedly followed her into the hallway to ask her to reconsider his offer. Although the door to the office was closed while Plaintiff was inside the office with Barnett, and Plaintiff was subjectively afraid of the consequences of her leaving, a reasonable means of escape was apparent. The Court therefore concludes that Plaintiff has failed to prove as a matter of law that the tort of false imprisonment was committed.

Turning next to the assault claim, under Florida law, an assault is any intentional, unlawful threat by word or act to do violence to another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear that such violence is imminent. [cc] Based upon the record as a whole, there is no evidence that any violence was ever imminent or threatened by Barnett during the instances that he touched Ali, nor during the alleged proposition in his office. There is no construction of the facts in the record by which one could conclude that Ali had a well-founded fear that any violence was imminent. Therefore, summary judgment in favor of Barnett on the assault claim is appropriate.

*6 Finally, turning to the battery claim, under Florida law, a battery occurs when a person “actually and intentionally touches or strikes another person against the will of the other.” [cc] In this case, Ali testified that Barnett touched her several times against her will, causing her to be uncomfortable. While Defendant argues that Barnett lacked the intent to cause harm or that Ali never told Barnett that the touching was unwelcome, the Court must conclude at the summary judgment stage that Plaintiff has set forth disputed issues of material fact that preclude the granting of summary judgment on her battery claim.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion for Summary Final Judgment [DE 33] is hereby GRANTED in part as to Counts I [Title IX Violation: Harassment/Discrimination against Ali], IV [False Imprisonment Claim] and the assault claim in Count III, and DENIED as to the battery claim in Count III;

2. Defendants’ Motion for Summary Final Judgment [DE 32] is hereby DENIED as a duplicative motion.

Note 1. Ali v. Margate builds on torts you’ve seen—assault, battery and false imprisonment—to add a federal claim for discrimination in the workplace. While employees cannot sue employers for negligent injuries sustained on the job—since workers’ compensation exists to address those—they may sue for intentional torts as you have learned in Villa v. Derouen. In addition, employees can report employers using various institutional and industry-specific mechanisms. Finally, they can bring lawsuits of various kinds, but these are usually the least good option. Employment discrimination and toxic workplace cases are notoriously difficult to win and often not worth the professional stress and reputational costs, to say nothing of the legal fees that may be involved with lengthy litigation. Why do you think the bar for recovery is so high? How might you frame your answer in terms of tort law’s purposes?

Note 2. In light of the momentum created by the “#metoo” movement, cases such as these could become less frequent if employers respond meaningfully, perhaps by bolstering their training, supervision and reporting protocols or by taking other steps to improve their workplace environment. Cultural factors play a role in this context, as well; if victims fear retaliation or routinely face doubt when raising allegations of harassment or misconduct, reporting will continue to present an option worse than the alternative of putting up with the wrongful conduct or leaving the working environment, where that’s possible. Normatively, to what extent do you think such conduct ought to fall to the tort system to regulate? Also, when should bad behavior be deemed so bad that it’s beyond an acceptable range and becomes something “extreme and outrageous” (along the lines of the tort of outrage or intentional infliction of emotional distress)? Should the prevalence of discriminatory behavior make it harder to recover because of the widespread nature of the bad behavior? Does societally prevalent conduct require more generalized legal measures like legislative or executive action, that is, legal measures besides tort litigation which is particularized to individuals or even classes of individuals?

Note 3. In some instances, civil rights violations do not or should not amount to torts violations. Martha Chamallas, Discrimination and Outrage: The Migration from Civil Rights to Tort Law, 48 Wm. & Mary L. Rev. 2115 (2007) (exploring the interplay between the domains of civil rights laws and torts, critiquing the “gap-filler” approach and advocating for a reconceptualization of the tort of outrage), https://scholarship.law.wm.edu/wmlr/vol48/iss6/2/

What risks and opportunities can you imagine arising from the way the two areas of law either overlap or remain distinct from each other?

Note 4. From the disposition of this case, what would you assume the plaintiff sought? From her complaint, here was the request:

[T]he Plaintiff Ali demands judgment against the Defendants Margate and Barnett, for damages in excess of $15,000.00, costs, interest, and such other and further relief that is available under the law and also seeks exemplary and punitive damages against the Defendants for the intentional wanton and willful acts of Defendant Barnett.

Ali alleges that Barnett’s conduct caused her to drop out of beauty school that she had paid tuition to attend. In light of that allegation, does the nature and amount of the remedy sought seem appropriate? What do you observe about the remedies tort law most commonly awards?

Note 5. Do the plaintiff’s gender and nationality or race seem relevant to the substantive claims, in your view? Whichever way you answered, do you think they might be relevant to the legal disposition of the case? What do you observe about the institutional context (a beauty school) and the fact that one of the school’s teachers, Stephanie Groh, joined the suit?

Talcott v. National Exhibition Co., Supreme Court, Appellate Division, 2d, NY (1911)
(144 A.D. 337)

The defendant appeals from a judgment of a Trial Term of the Supreme Court in Westchester county, entered upon a verdict of a jury in an action for false imprisonment, and from an order denying a motion for a new trial. The facts are as follows:

On the morning of the 8th of October, 1908, the plaintiff went into the inclosure of the defendant in the city of New York to buy some reserved seats for a baseball game which was to be held there in the afternoon of that day. These seats were sold at a number of booths within the inclosure. The *338 plaintiff was unsuccessful in his quest, as all the reserved seats had been sold. He tried to leave the inclosure through some gates used generally for ingress and exit. A considerable number of other persons were trying to leave the inclosure through the same gates at the same time. It appears that the baseball game which was to take place was one of very great importance to those interested in such games, and a vast outpouring of people were attracted to it. Many thousands of these came early in the day to seek admittance to the ball grounds, and the result was that the various gates used generally for entrance or exit were thronged with a dense mass of people coming in.

The plaintiff was prevented by the servants of the defendant from attempting to pass out through this throng, and as a result of this interference he was detained in the inclosure for an hour or more, much to his annoyance and personal inconvenience. The plaintiff and those similarly situated made many attempts to get out through these gates, and in the restraint put upon them to defeat their efforts they were subjected to some hauling and pushing by the defendant’s special policemen. Finally the plaintiff and the others were taken through a club house within the inclosure and allowed to go out through the entrance to the club house to the street.

Concededly the plaintiff had a legal right to leave the inclosure, and the defendant had no legal right to detain him therein against his will. But the right of each had corresponding duties. A temporary interference with the plaintiff’s legal right of egress could be justified as a proper police measure, if the plaintiff sought to exercise such right under circumstances likely to create disorder and danger. Assuming, however, that the defendant was justified in preventing the plaintiff from passing out through the gates in question, it should have directed him to pass out through some other means of exit, if there were any. The plaintiff told the agents of the defendant of his desire to get out, but received no directions or suggestions how to get out. The defendant claims that the plaintiff might have gone out through other gates in another portion of the field used for the entrance of motor cars and other vehicles; but the plaintiff swears that he did not know of the other gates, and there is no proof that his attention was called to *339 them in any way when he and the others sought to go out. He got out in the end, not through the gates for vehicles, but through the club house, on the permission and direction of the defendant. Granting that the restraint placed upon the plaintiff in preventing his going out through the gateways through which he sought exit was justifiable as a police measure, yet the defendant owed him an active duty to point out the other existing methods of egress. It could not stand idly by, and simply detain and imprison the plaintiff against his will.

We see no reason to interfere with the verdict of the jury in its finding that the plaintiff’s detention was unjustifiable under the circumstances. The damages awarded were in the sum of $500. The plaintiff proved no special damage, nor was he obliged to. All damages awarded in cases of false imprisonment partake to some extent of “smart moneys,” and the sum awarded here is not so excessive as to justify interference on our part.

The judgment and order are affirmed, with costs.

Note 1. Courts take different approaches to identifying what constitutes “unlawful confinement.” There is broad consensus that when a reasonable means of exit exists and a person does not take it, there is no confinement. Some courts suggest that a finding of confinement requires that the plaintiff has made reasonable attempts at escape, but even those that apply an inquiry into whether the plaintiff could have escaped do not deem it necessary where the escape attempt would be dangerous. Coercion to remain only sometimes creates the necessary grounds for finding confinement. Threatening to fire an employee wrongly suspected of shoplifting may cause him to remain on site until the error is cleared up. However, his choice to remain defeats any false imprisonment claim, even if he feared losing his job and would face severe economic consequences for leaving it. However, retaining something of value to a person can count as confinement for false imprisonment, whether that is the person’s wallet, keys or children.

Note 2. What do you think the real-world consequences of a ruling like this one will be? Do you think that might have mattered to the court in its interpretation of the facts?

Note 3. Which of tort’s purposes do you think this ruling most serves or disserves, and why? Answering this question may help you identify the ruling’s doctrinal underpinnings and anticipate its likely impact.