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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
KAREN LEE SPEARS,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
CASE NO. 1D02-3008
ALBERTSON'S, INC., a corporation,
Opinion filed May 20, 2003.
An appeal from the Circuit Court for Duval County.
L. Page Haddock, Judge.
Lester Makofka, Makofka and Makofka, Jacksonville, for Appellant.
Michael S. O'Neal, Howell & O'Neal, Jacksonville, for Appellee.
Appellant appeals a final order granting summary judgment on her claims for slander
and false arrest. Because disputed issues of material fact remain as to both claims, we
The standard of review applicable to a grant of summary judgment is de novo. Volusia
County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). "[S]ummary
judgment should not be granted unless the facts are so crystallized that nothing remains but
questions of law." Id. The moving party must show conclusively "the absence of any genuine
issue of material fact and the court must draw every possible inference in favor of the party
against whom a summary judgment is sought." Moore v. Morris, 475 So. 2d 666, 668 (Fla.
1985). If the evidence is conflicting, will permit different reasonable inferences, or tends to
prove the issues, it should be submitted to the jury as a question of fact. See Aberdeen at
Ormond Beach, L.P., 760 So. 2d at 130.
Store manager Craig Sopetto (Sopetto) and investigator Kim Hires (Hires), both
Albertson's employees, accused Appellant, a long-time Albertson's employee, of stealing
$600.00 by failing to make a cash register "drop." It is uncontested that Hires and Sopetto
called Appellant to Sopetto's office, questioned her about the missing $600, and called the
police. However, Hires testified she told Appellant "the door was open" and "she was in no
way" being held, while at the same time testifying Appellant asked to call her husband, but that
Hires told her the police officer would let her make a call after he arrived. Conversely,
Appellant testified she asked to leave but Sopetto prevented her from doing so by blocking the
door and saying "you're not going anywhere, we called the police."
The tort of "false imprisonment" or "false arrest" is the unlawful restraint of a person
against his or her will, and the gist of the action is the unlawful detention of the person and the
deprivation of his or her liberty. See Escambia County Sch. Bd. v. Bragg, 680 So. 2d 571, 572
(Fla. 1st DCA 1996). To be civilly liable for false imprisonment, one must have personally and
actively participated, either directly or by indirect procurement. See Johnson v. Weiner, 19 So.
2d 699 (Fla. 1944). 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. See Harris v. Lewis State Bank, 436 So. 2d 338, 341 (Fla. 1st DCA 1983);
Washington County Kennel Club, Inc. v. Edge, 216 So. 2d 512 (Fla. 1st DCA 1968). However,
a plaintiff alleging false arrest must show the restraint was unreasonable and unwarranted under
the circumstances. Harris, 436 So. 2d at 341. Whether the restraint was unreasonable under
the circumstances is a question of fact, which precludes summary judgment. Id. at 341-342.
Here, disputed issues of material fact remain as to whether Appellant was, in fact, held
against her will, thus precluding summary judgment. Moreover, if it is determined that Appellant
was held against her will, a question of fact remains as to whether the detention was
unreasonable or unwarranted under the circumstances, again precluding summary judgment.
Ultimately, a uniformed police officer escorted Appellant out of Albertson's through
the front of the store, with her hands handcuffed behind her. Appellant testified Sopetto yelled
at her "I want my money," as she was being taken through the store in handcuffs. Conversely,
Sopetto denied, and the police officer could not recall, Sopetto making any comment to
Appellant. The trial court granted summary judgment on this claim based on its holding that
the words "I want my money" could never constitute slander. In so doing, the trial court
erred. A determination of whether these words constitute slander must be made by
considering the context in which the words were spoken.
"Slander may be defined as the speaking of base and defamatory words which tend to
prejudice another in his reputation, office, trade, business, or means of livelihood." Axelrod v.
Califano, 357 So. 2d 1048, 1050 (Fla. 1st DCA 1978). "When the words published concerning
a person tend to degrade him, bring him into ill repute, destroy confidence in his integrity, or
cause other like injury, such language is actionable per se." Id. Similarly, "[p]ublications which
impute to another characteristics or conditions incompatible with the proper exercise of one's
business, trade, profession or office are slanderous per se." Glynn v. City of Kissimmee, 383
So. 2d 774, 775 (Fla. 5th DCA 1980). "[A] publication which falsely and maliciously charges
another with the commission of a crime is actionable per se." Axelrod, 357 So. 2d at 1050
(holding statements made by former employer to a third party that plaintiff was a thief and a
forger were actionable per se, and raised a presumption of malice as a matter of law); Bass v.
Rivera, 826 So. 2d 534, 535 (Fla. 2d DCA 2002) (holding an oral communication that imputes
to another a criminal offense amounting to a felony, is actionable per se); Bobenhausen v.
Cassat Ave. Mobile Homes, Inc., 344 So. 2d 279 (Fla. 1st DCA 1977) (holding statement made
by plaintiff's former employer to another that plaintiff was a "thief and a crook" who "stole him
blind" was slander per se, if false). "`Qualified privilege' is a defense and the burden of proving
it rests with the defendant." Glynn, 383 So. 2d at 776. "The existence of a `qualified' privilege
vanishes if the statement is made with malice, or to too wide an audience." Id. Whether the
privilege exists or has been exceeded creates a mixed question of law and fact which should be
determined by the trier of fact. Id.
If the trier of fact believed Appellant, it could be reasonably inferred from Sopetto's
comments that Sopetto was loudly accusing Appellant of theft as she was being taken from the
store in handcuffs. Thus, a jury could find that the comments, under these circumstances,
constitute slander per se and raise a presumption of malice as a matter of law, because they
impute to Appellant characteristics incompatible with the exercise of her profession or trade, and
charge her with the commission of a crime. See Axelrod, 357 So. 2d at 1050; Glynn, 383 So.
2d at 775. Moreover, if Sopetto had a qualified privilege, a question of fact remains as to
whether the privilege was lost because the statement was made with malice or to too wide an
Because disputed issues of material fact remain, the trial court's order granting summary
judgment is REVERSED.
VAN NORTWICK and LEWIS, JJ., CONCUR
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