Brice v. Nkaru, 4th Cir. (2000)
Brice v. Nkaru, 4th Cir. (2000)
Brice v. Nkaru, 4th Cir. (2000)
OPINION
KING, Circuit Judge:
Rodney Brice sued Safeway, Inc. ("Safeway") and E. J. Nkaru in
the District of Maryland, alleging that Nkaru, a security guard in a
Safeway grocery store in Falls Church, Virginia, maliciously caused
Brice's prosecution for having forged and uttered a Safeway courtesy
card.1 A jury found Nkaru and Safeway liable and returned a
$500,000 verdict in favor of Brice. Brice thereafter accepted a remittitur to the sum of $100,000 and judgment was entered in his favor.
Nkaru and Safeway2 appeal, asserting that they are entitled to judgment as a matter of law. As explained herein, we agree and reverse
the district court's judgment.
I.
A.
On September 16, 1994, Nkaru reported an incident at the Safeway
market to Officer Marcus Wigglesworth of the Alexandria City Police
Department. Nkaru indicated that, on the previous day, a black male
had presented a false Safeway courtesy card application in the name
of one Kenneth McIntyre, and he had attempted to cash a check.
According to Wigglesworth's incident report, Nkaru recognized the
man from a similar incident occurring approximately one year earlier
in another Safeway market. Nkaru provided Officer Wigglesworth
with the police identification number assigned to the previous case
(the "Weir" case), which Wigglesworth recorded in his incident
_________________________________________________________________
1 Brice was charged and prosecuted for violating Va. Code Ann.
18.2-172 ("If any person forge any writing, other than such as is mentioned in 18.2-168 [forging public records] and 18.2-170 [forging coin
or bank notes], to the prejudice of another's right, or utter, or attempt to
employ as true, such forged writing, knowing it to be forged, he shall be
guilty of a Class 5 felony.").
2 Safeway's liability is premised on the acts of its agent Nkaru, and
they are jointly and severally liable for the jury's award. For simplicity,
we refer to Appellants Nkaru and Safeway as "Nkaru."
2
2.
Brice also argues that events occurring after the Commonwealth
Attorney's nolle prosequi decision permit a reasonable inference that
Nkaru knowingly falsely identified Brice as the perpetrator of the
September 15, 1994 incident. We also reject this contention, in that
those events do not support an inference of Nkaru's bad faith.
Brice seeks support for his contention in that, notwithstanding the
airline records demonstrating otherwise, Nkaru testified in his deposition that he "would be surprised" if Brice was not in the United States
on September 15, 1994, and that he was very sure that Brice is the
same man Nkaru saw on that date. Here, Brice appears to complain
that Nkaru did not recant his identification of Brice when confronted
with the evidence that Brice was not in the country. We do not find
it unreasonable that Nkaru maintained his belief that he witnessed
Brice commit the offense. Indeed, if this was his best recollection of
the facts, Nkaru testified truthfully. See, e.g., Gramenos, 797 F.2d at
438 (citing Elizabeth F. Loftus, Eyewitness Testimony: Psychological
Research and Legal Thought, 3 Crime and Justice: An Annual
Review of Research 105 (1981)) (noting that eyewitness descriptions
are notoriously full of honest inaccuracies).
Brice also points to Nkaru's failure to disclose, during his August
13, 1998 deposition or afterward, the name of the Safeway cashier
_________________________________________________________________
U.S. 325, 335 (1983) (noting common law provided absolute witness
immunity for all persons integral to the judicial process); Williams v.
Hepting, 844 F.2d 138, 141-43 (3d Cir. 1988) (citing cases) (holding that
preliminary hearing testimony is within the scope of witness absolute
immunity); 50 Am. Jur. 2d Libel and Slander (1995) ("Publications made
in the course of actions necessarily preliminary to judicial proceedings
are absolutely privileged."); 60A Am. Jur. 2d Perjury 132 (1988) (false
testimony in a criminal action does not furnish a basis for civil suit by
the criminal defendant). Cf. 81 Am. Jur. 2d Witnesses 79 (1992) (at
common law, a right of action for damages exists against a witness who,
without sufficient excuse, fails or refuses to give oral testimony in obedience to a subpoena). However, our decision today need not rest on a witness immunity determination, because only a portion of Nkaru's conduct
would be within its scope.
9