McCoy, Nicholas F.

English

University of Baltimore School of Law

University of Baltimore Law ReviewVolume 12Issue 3 Spring 1983 Article 101983Casenotes: Torts — Private Citizen Attempting toArrest Felon Liable for Negligent Acts towardInnocent Third Parties. Giant Food, Inc. v. Scherry,51 Md. App. 586, 444 A.2d 483 (1982)Nicholas F. McCoyUniversity of Baltimore School of LawFollow this and additional works at: http://scholarworks.law.ubalt.edu/ublrPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationMcCoy, Nicholas F. (1983) "Casenotes: Torts — Private Citizen Attempting to Arrest Felon Liable for Negligent Acts towardInnocent Third Parties. Giant Food, Inc. v. Scherry, 51 Md. App. 586, 444 A.2d 483 (1982)," University of Baltimore Law Review: Vol.12: Iss. 3, Article 10.Available at: http://scholarworks.law.ubalt.edu/ublr/vol12/iss3/10TORTS - PRIVATE CITIZEN ATTEMPTING TO ARRESTFELON LIABLE FOR NEGLIGENT ACTS TOWARD INNO-CENT THIRD PARTIES. Giant Food, Inc. v. Scherry, 51 Md. App.586, 444 A.2d 483 (1982).A security guard employed by Giant Food, Inc. (Giant) witnessedan armed robbery in a supermarket.' The guard pursued the suspect toa parking lot and ordered him to stop. The suspect responded by wav-ing a gun into the air. When the guard repeated his warning to stop,the suspect lowered his weapon and jumped into a car. As the vehiclepulled away, the armed security guard fired two shots. The first bullet,aimed at the driver's window, hit the rear panel of the car. The secondbullet, aimed at the back windshield, hit the living room window of afifth floor apartment across the street. The apartment's occupant, Ge-raldine Scherry, had entered the living room at the precise moment theglass shattered. In a civil suit brought in the Circuit Court for Mont-gomery County, Scherry contended that Giant was vicariously liabledue to the negligence of its guard in firing the second shot. The juryagreed, and awarded the plaintiff compensatory damages for the physi-cal and emotional trauma she suffered as a result of the incident.2On appeal, Giant contested its liability on several grounds. First,Giant claimed that the trial court should have granted a directed ver-dict in its favor because the security guard was privileged to usedeadly force while apprehending the criminal suspect, thereby insulat-ing Giant from claims by third persons.3 Second, Giant argued that,even if the case was properly before the jury, the lower court shouldhave instructed the jury that the guard was privileged to use deadlyforce if the court found the guard was preventing the commission orconsummation of a felony.' The Court of Special Appeals of Mary-land rejected these arguments in Giant Food, Inc. v. Scherry5 and heldthat even if the security guard was privileged to shoot at the fleeingsuspect, he was still liable to the plaintiff because the circumstancessurrounding the firing of the second shot raised inferences of negli-gence from which the jury could rationally conclude that the guardcreated an unreasonable risk of harm to innocent bystanders.6The rule delineating a private citizen's or law enforcement person-1. Giant Food, Inc. v. Scherry, 51 Md. App. 586, 587, 444 A.2d 483, 484 (1982).2. Although Scherry was not actually hit by either the bullet or the glass, she didsuffer nausea, insomnia, headaches, and general mental and emotional distressbecause she feared someone was attempting to kill her. Id at 587, 444 A.2d at485.3. Id at 588, 444 A.2d at 485.4. Id Giant also claimed that the trial court erred when it allowed an expert witnessto answer a hypothetical question without sufficient facts to support it. In addi-tion, Giant contended that the trial court gave a faulty instruction concerningdamages. The appellate court dismissed both of these arguments. Id at 595-96,444 A.2d at 489.5. 51 Md. App. 586, 444 A.2d 483 (1982).6. Id at 594, 444 A.2d at 488.Giant Foo4 Inc. v. Scherrynel's liability when his actions result in unintentional injury to thirdpersons is fairly uniform.7 For example, one early case indicates thatthe right to arrest a suspect "would not necessarily relieve the [arrestor]of liability if he were guilty of failing to exercise due care for the safetyof bystanders."8 Similarly, courts have reasoned that the arrestor'sduty to protect society cannot be ignored merely because of the privi-lege to make an arrest.9 The first Restatement of Torts comports withthese early cases. It states that an actor privileged to make an arrest isonly liable for injuries to third persons if he realizes or should realizethat his act creates an unreasonable risk of causing injury.'0 The Re-statement suggests that in determining the actor's awareness of the un-reasonable risk he has created, the fact-finder should consider all thesurrounding circumstances.IICourts have emphasized several important factors which shouldbe considered in determining the reasonableness of the arrestor's acts,but the underlying theme in every case is that the utility of the arrestmust outweigh the risk of harm to the public.' 2 For instance, somecases have indicated that when the nature of the crime justifying thearrest presents little immediate danger to society, the arrestor shouldexercise great caution.' 3 Similarly, when the attempted arrest occurs ata time or place when injury to the public is likely, the arrestor must7. Many of the cases involve injuries caused by the negligent acts of police officers.See Greenstone, Liability of Police Officers for Misuse of Their Weapons, 16CLEv.-MAR. L. REv. 397 (1967). But see infra note 29 for the minimal effect thisrule has on police officers in Maryland.8. Shaw v. Lord, 41 Okla. 347, 353, 137 P. 885, 887 (1914); see also Edgin v. Talley,169 Ark. 662, 276 S.W. 591 (1925); Askay v. Maloney, 85 Or. 333, 166 P. 29(1917),rev'd on other grounds, 92 Or. 566, 179 P. 899 (1919), rev'd on other groundssub nom Anderson v. Maloney, 111 Or. 84, 225 P. 318 (1924).9. Edgin v. Talley, 169 Ark. 662, 671, 276 S.W. 591, 594 (1925); Shaw v. Lord, 41Okla. 347, 351, 137 P. 885, 887 (1914); Askay v. Maloney, 85 Or. 333, 339, 166 P.29, 31 (1917), rev'd on other grounds, 92 Or. 566, 179 P. 899 (1919), rev'd on othergrounds sub nom Anderson v. Maloney, 111 Or. 84, 225 P. 318 (1924).10. The RESTATEMENT provides:An act which is privileged for the purpose of protecting the actor from aharmful or offensive contact or other invasion of his interests of person-ality does not subject the actor to liability to a third party for any harmunintentionally done to him unless the actor realizes or should realizethat his act creates an unreasonable risk of causing such harm.RESTATEMENT OF TORTS § 75 comment b (1934). This comment is incorporatedby reference into section 137 of the RESTATEMENT.11. RESTATEMENT OF TORTS § 137 comment c (1934).12. Cerri v. United States, 80 F. Supp. 831, 834 (N.D. Cal. 1948); Davis v. Heliwig, 21N.J. 412, 416, 122 A.2d 497, 501 (1956). See generaly Annot., 60 A.L.R.2d 873(1958).13. See, e.g., Cerri v. United States, 80 F. Supp. 831, 834 (N.D. Cal. 1948) (militaryguard negligent in shooting at a civilian trespasser and injuring innocent thirdperson); Heidbreder v. Northampton Township Trustees, 64 Ohio App. 2d 95, 99,411 N.E.2d 825, 828 (1979) (police officer negligent for firing at fleeing felon whendanger not imminent).57519831Baltimore Law Reviewdisplay greater care. 4 A lower standard of care is permitted, however,when the arrestor is confronted with an emergency situation. 5 Actsperformed under stress should not be judged by an inflexible standard;instead, the defendant should be entitled to a jury instruction that willaccount for this stress. However, an actor may not benefit from thisinstruction if, through his negligence, he created the emergency. 6In Giant Food, Inc. v. Scherry, '7 a case of first impression, theMaryland court of special appeals delineated the standard that shouldapply in determining an arrestor's liability when his negligent acts in-jure an innocent party. The court considered the security guard to be aprivate citizen attempting a citizen's arrest.' 8 After noting that theguard enjoyed the right to make the arrest,' 9 the appellate court ex-amined whether excessive force was used. The court suggested that aninference could be raised that the guard was not justified in usingdeadly force since the felony suspect was fleeing, and thereforepresented little immediate danger to either the guard or the surround-ing public.20 However, the court did not rest its decision on this infer-ence alone. The court believed that even if the guard had been justifiedin using deadly force against the suspect, further inquiry into theguard's liability was necessary. 2' The Giant court adopted section 137of the Restatement (Second) of Torts as the proper standard in deter-mining the guard's liability. 2 This section indicates that when makingan arrest, the actor has a dual responsibility of not using excessive forceagainst the prospective arrestee and not endangering the nearby publicthrough negligent conduct.2 3 The court concluded that this standard of14. See, e.g., Sanchez v. Rice, 40 Colo. App. 481, 82 P.2d 1261, 1262 (1978) (discharg-ing firearm into large crowd); Davis v. Hellwig, 21 N.J. 412, 416, 122 A.2d 497,501 (1956) (shooting at thief on busy streetcomer); Shaw v. Lord, 41 Okla. 347,352-53, 137 P. 885, 886 (1914) (attempting arrest in a restaurant during dinnerhour).15. Eg., United States v. Jasper, 222 F.2d 632, 633 (4th Cir. 1955) (military policesurrounded by angry mob); Cleveland v. City of Miami, 263 So. 2d 573, 578 (Fla.1972) (police officers moving through neighborhood after riot); Graham v. Ogden,157 So. 2d 365, 367 (La. App. 1963) (deputy attacked by intoxicated individualduring attempted arrest).16. Dyson v. Schmidt, 206 Minn. 129, 136, 109 N.W.2d 262, 268 (1961) (police officernegligently caused shootout in crowded theatre lobby).17. 51 Md. App. 586, 444 A.2d 483 (1982).18. Id at 589, 444 A.2d at 485.19. The security guard had probable cause to make the arrest since he actually wit-nessed the armed robbery. See Stevenson v. State, 287 Md. 504, 520, 413 A.2d1340, 1349 (1980).20. Giant, 51 Md. App. at 589, 444 A.2d at 486. If the guard was not privileged to usedeadly force against the felon, he would be liable to anyone he might injure. SeeNote, The Civil Liability of Peace Officersfor Wounding or Killing, 28 U. CIN. L.REv. 488, 495 (1959).21. Giant, 51 Md. App. at 589, 444 A.2d at 486.22. Id Section 137 of the RESTATEMENT (SECOND) OF TORTS (1965) is similar tosection 137 of the first RESTATEMENT OF TORTS (1934). See supra note 10.23. Giant, 51 Md. App. at 590, 444 A.2d at 486.[Vol. 12Giant Fooa Inc. v. Scherryreasonableness would apply whenever there was some prospect that aninnocent party may be hurt.24In its application of the Restatement's reasonableness test, thecourt recognized that it was essential to consider all the circumstancessurrounding the incident to determine whether, in the situation "inwhich [the guard] found himself at the moment he took the secondshot, it was reasonable for him to have fired that [second] shot."' 25 Thecourt noted several inferences the jury could have raised to hold theguard liable: (1) the suspect presented no immediate danger to anyone;(2) the security guard could have noted the license number and sum-moned the police; and (3) the guard was shooting in the dark at a rap-idly moving target.26 The court found these inferences to be "clearlyones of negligence" from which the jury could rationally conclude thatthe security guard did not act reasonably.27By adopting section 137 of Restatement (Second) of Torts, thecourt of special appeals has aligned itself with the states that recognizethat the privilege to arrest a suspect does not necessarily protect thearrestor from liability to third persons.28 Indeed, it would be illogicalto offer an arrestor blanket protection. The privilege to make an arrestevolves from the special relationship between the arrestor and the sus-pect. Because the suspect has violated the law, he should not be pro-tected from force that would otherwise constitute a tort. But thisjustification does not apply between the actor and an innocent thirdperson. Any breach by the arrestor of the duty owed to the third partyshould be subject to the same test that is applied in ordinary negligenceactions.While the effect of the rule established by the Giant court will bepractically negligible in arrests made by police officers,29 the impact thedecision will have on citizen arrests should be substantial. Because ofthe need to protect society from criminals, Maryland has granted broad24. Id at 591, 444 A.2d at 486.25. Id at 592, 444 A.2d at 487.26. Id at 594, 444 A.2d at 488.27. Id28. Davis v. Hellwig, 21 N.J. 412, 416, 122 A.2d 497, 501 (1956); Heidbreder v. North-ampton Township Trustees, 64 Ohio App. 2d 95, 99, 411 N.E.2d 825, 828 (1979).See generally Annot., 76 A.L.R.2d 1176 (1977).29. Maryland protects police officers by granting them immunity from suits if theinjury occurred while the officer was acting in a law enforcement capacity in anonmalicious manner. Duncan v. Koustenis, 260 Md. 98, 106, 271 A.2d 547, 551(1970). The State of Maryland and its political subdivisions are also protected bysovereign immunity unless there has been an express waiver. James v. PrinceGeorge's County, 288 Md. 315, 333, 418 A.2d 1173, 1183 (1980). The State ofMaryland has waived its immunity for injuries caused by state employees usingstate property. MD. CTS. & JUD. PROC. CODE ANN. § 5-403(a)(4) (Supp. 1983).Whether this waiver includes a state police officer injuring another with a stateissued weapon is an open question.57719831Baltimore Law Reviewpowers to its citizens3 ° and licensed security guards3' to make arrests.The Giant decision tempers this broad power by granting a remedy tothose who suffer an injury due to the misuse of the right to arrest. Ad-ditionally, the rule may encourage businesses to exercise more care inhiring and training their security personnel.Nicholas F McCoy30. A private citizen may make a valid arrest when he has probable cause to believethat a felony has been committed and that the person whom he arrests committedit. Stevenson v. State, 287 Md. 504, 520, 413 A.2d 1340, 1349 (1980).31. A special policeman has the same powers as a police officer when acting on hisemployer's premises or off the premises in connection with property owned by theemployer. MD. ANN. CODE art. 41, § 64 (1982).[Vol. 12

Casenotes: Torts — Private Citizen Attempting to Arrest Felon Liable for Negligent Acts toward Innocent Third Parties. Giant Food, Inc. v. Scherry, 51 Md. App. 586, 444 A.2d 483 (1982)

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Casenotes: Torts — Private Citizen Attempting to Arrest Felon Liable for Negligent Acts toward Innocent Third Parties. Giant Food, Inc. v. Scherry, 51 Md. App. 586, 444 A.2d 483 (1982)

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