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March 16, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. William C. Gardner, Trial Judge)

Before Terry and King, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : This is an appeal from a trial court order granting appellee's motion for judgment notwithstanding the verdict. A jury awarded appellant Bauldock $25,000 on a false arrest claim and $25,000 on an assault and battery claim. Several days later appellee Davco Food, Inc., moved for judgment n.o.v., and the trial court granted the motion. Because we conclude that the trial court was correct in holding that no reasonable jury could find for appellant, we affirm.


A. The Evidence *fn1

One evening in October 1985, appellant Bauldock, who was then a law student, received a telephone call from his friend Raymond Brown, a fraternity brother from his college days. Because they had not seen each other for quite a while, Brown persuaded Bauldock to "go out and relax" because he had been "studying too hard." They went to a club shortly after 11:00 p.m. and had "a couple of beers" there. Then they decided to get something to eat and drove to a Wendy's fast-food restaurant *fn2 at Florida and New York Avenues, N.E. After they had picked up their food at the counter and sat down to consume it, Brown walked over to two women seated at another table and tried to strike up a conversation with them. After a couple of minutes, however, Brown returned to his own table and sat down again with Bauldock.

Wayne Hayes, a Metropolitan Police officer, off duty but in uniform, was working part-time as a security guard at the restaurant. A few moments after Brown had gone back to his own table and sat down, Hayes approached Bauldock and Brown and told them to leave. *fn3 Bauldock replied that he had not done anything wrong and that he would leave when he finished eating. Hayes said nothing in reply, so Bauldock continued to eat. When he finished, he left the restaurant and started walking across the parking lot toward Brown's car, in which both of them had come. Almost immediately, however, he realized that Brown was still inside, so he turned and headed back toward the restaurant. Just as he entered the vestibule, he saw Brown on the floor of the restaurant and Officer Hayes putting handcuffs on him. When Bauldock, still standing in the vestibule, asked why Brown was being arrested, Officer Hayes first told him to "get out of here," but then added, "You're next." Bauldock "backed out of the doorway" and stood outside at the entrance to the restaurant. The officer came out and ordered Bauldock to lie on the ground; Bauldock refused, and a struggle ensued. The officer grabbed Bauldock around the neck, and within minutes other Metropolitan Police officers arrived on the scene. After a short conversation between Hayes and one of those officers, Bauldock was struck on the head with a club and handcuffed. *fn4 He was then taken to the police station and charged with disorderly conduct.

Officer Hayes testified that he had been hired by Kenneth Rogers, another Metropolitan Police officer who was "basically the one who runs Wendy's," to work at Wendy's during his off-duty hours and "maintain security" there. Hayes said there were five Wendy's restaurants in that part of town, "and we'd be assigned to different ones different nights. You never worked basically the same one all the time. You were assigned to different ones according to your work schedule." Rogers was in charge of all the work assignments; "he tells you what he wants done, because Wendy's management tells him what they want done, and that's what he goes by." According to Hayes, there was no specific orientation or training given by Wendy's (i.e., by Davco); however, Officer Rogers told Officer Hayes to watch the cash registers, the parking lots, and the loading area, and to make sure there were no disturbances inside or outside the restaurant.

With respect to his work at this particular Wendy's, Hayes said, the manager had told him that he had the authority to direct people to leave the restaurant without first clearing it with the manager. Hayes testified that in all respects his duties and responsibilities were no different from those of any other off-duty police officer:

I had the same arrest powers that [other off-duty officers] had. Even when I am off duty, I come the District, I still have my police powers 24 hours a day. If any crime happens in my presence, I am required to take police action.

See D.C. Code § 4-142 (1988) (prescribing penalty for any officer who neglects to make an arrest for an offense committed in his or her presence); 6A DCMR § 200.4 (1988) ("members of the force shall be held to be always on duty"). At the time of the events at issue in this case, Officer Hayes stated, he was dressed in his police uniform, as police regulations required him to be when working in off-duty status. He was also in possession of "all the police equipment that's required of me," including a badge, a gun, a baton, a slapjack, and a pair of handcuffs.

At the close of all the evidence, Davco moved for a directed verdict on several grounds. After hearing arguments related to the motion, the trial court took it under advisement for resolution after the verdict. *fn5

B. The Post-Verdict Motion

Following the verdict in Bauldock's favor, Davco filed a motion for judgment n.o.v., making three arguments in support of the motion: first, that the "undisputed evidence established that probable cause existed for Wayne Hayes to arrest "; second, that Bauldock "settled all claims which he may have had against Wayne Hayes and, through him, "; and third, that Bauldock "was not subjected to an assault and battery for which is liable in the context of his arrest." The trial court granted the motion. It held initially that "upon the evidence in this case, probable cause existed for Hayes to arrest as a matter of law." The court also ruled that, while it was true that "if Hayes had been acting as the employee-servant of Davco at the time of his act, his release would have also operated to release Davco," it was more accurate to state "that no liability ever attached to Davco by reason of any arrest or assault and battery by Hayes because in making such arrest or committing such assault and battery, if any, Hayes ...

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