Opinion
No. 95-0165.
March 20, 1996. Rehearing and Certification of Conflict Denied May 22, 1996.
Appeal from the Circuit Court of the Seventeenth Judicial Circuit, Broward County; George A. Shahood, Judge. No. 92-33718 (05).
Ephraim Collins, Margate, for appellant.
Esther E. Galicia of George, Hartz, Lundeen, Flagg Fulmer, Coral Gables, for appellees Melville Corporation d/b/a Freddy's Drugs, Rich Yazback, Julie Iac, and Louise Cameron.
In his fourth amended complaint, appellant attempted to state a claim for false imprisonment against a retail establishment and three of its employees. Although unartfully pled, the salient portions of the pleading alleged that the employees falsely accused appellant of stealing merchandise and, acting in concert with the police, caused him to be arrested and incarcerated without any evidence of a criminal violation. A motion to dismiss must be considered in the light most favorable to appellant. E.g. Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1030 (Fla. 4th DCA 1994). The language of the complaint sufficiently states that the employees "instigated" or "directly procured" appellant's arrest as is required to state a cause of action for false imprisonment in this factual setting. See Pokorny v. First Federal Sav. Loan Ass'n, 382 So.2d 678 (Fla. 1980); Hudson v. Dykes, 402 So.2d 491 (Fla. 1st DCA 1981). The trial court's order granting appellee's motion to dismiss should be reversed.
STEVENSON and GROSS, JJ., concur.
GLICKSTEIN, J., dissents with opinion.
Pokorny v. First Federal Savings Loan Ass'n, 382 So.2d 678, 682 (Fla. 1980), makes it clear that false imprisonment is not established by reporting an incident to the police and identifying a suspect, even where such actions cause the suspect to be arrested and detained. Thus, the allegations of appellant's fourth amended complaint that the store employees falsely accused appellant of stealing merchandise, caused the police to be summoned and filed a complaint against appellant for theft are insufficient to state a cause of action for false imprisonment.
Furthermore, it is my opinion that the allegation that the store employees, acting in concert with the police, "caused the Plaintiff to be arrested and incarcerated without any evidence of a violation of law" does not sufficiently allege the ultimate facts necessary to support a cause of action for false imprisonment under the standards enunciated in Pokorny, 382 So.2d at 682.
Accordingly, I would affirm the trial court's dismissal of appellant's fourth amended complaint.