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JORDAN v. SHANDS, ET AL.


JORDAN v. SHANDS, ET AL.


April 17, 1998
Record No. 971316

GWENDOLYN L. JORDAN

v.

SAMUEL SHANDS, ET AL.

OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Theodore J. Markow, Judge
Present: All the Justices


I.

Gwendolyn L. Jordan filed her amended motion for judgment
against Samuel Shands, Jerry Oliver, D.L. Wright, Cecil
Richardson, C.V. Townsend, John Doe, and Mary Doe. The plaintiff
alleged the following facts.

On June 21, 1995, the plaintiff was involved in an automobile
accident in Richmond. Wright, a City of Richmond police officer,
investigated the accident. The plaintiff sustained injuries
during the accident, and she was transported by an ambulance to a
hospital.

After the plaintiff arrived at the hospital, a nurse informed
a physician, in the plaintiff’s presence, that the plaintiff
"was wanted and would be picked up by the Richmond Police
Department." Subsequently, Richardson, a police officer
employed by the City of Richmond, arrived at the hospital and
arrested the plaintiff "on information about an outstanding
capias" issued by the Dinwiddie County Juvenile and Domestic
Relations Court. The plaintiff asked Richardson why the capias
had been issued, and he responded that "he wasn’t
sure." The plaintiff informed Richardson that "he was
making a mistake." The plaintiff was escorted from the
hospital and taken to a police station in a "paddy
wagon." Subsequently, she was transported to the Richmond
City Jail.

When Richardson attempted to place the plaintiff in the
custody of the jail, the jail personnel refused to accept custody
because Richardson did not have a warrant. "Richardson
produced a paper described as a ‘hit’ and the jail personnel
contacted the Dinwiddie Sheriff’s office and asked that [it
submit a facsimile of] the warrant to [the Richmond City
Jail]."

When the Richmond police received the warrant, it contained
"information from Jordan’s driver’s license inserted in a
warrant issued for Gwendolyn M. Jordan, [and identified her
address as] 231-B S. Jefferson Street, Petersburg, Virginia
23803." The plaintiff’s address is Route 1, Box 128-C,
Blackstone, Virginia 23824. According to the plaintiff’s
allegations, a "simple examination of her driver’s license
should have alerted Richardson to the fact that he had arrested
the wrong person . . . ." The plaintiff
was "searched, fingerprinted and her personal belongings
were taken." After being detained for about four hours, the
plaintiff was finally released in the custody of her aunt.

Upon her release from jail, the plaintiff was told to report
to the Dinwiddie County Juvenile and Domestic Relations Court on
July 11, 1995. She later received a letter commanding her
appearance on that date. When she appeared in the Dinwiddie
County Juvenile and Domestic Relations Court, the plaintiff was
informed that Gwendolyn M. Jordan did not have a social security
number and that the Richmond police personnel had placed the
plaintiff’s social security number on the warrant. The Juvenile
and Domestic Relations Court judge apologized to the plaintiff
and dismissed the charges against her.

The plaintiff filed her motion for judgment on June 27, 1996.
She alleged, among other things, that Townsend placed the
incorrect information on the warrant issued for her arrest and
that he was acting within the course and scope of his employment
with Shands, Sheriff of Dinwiddie County. She also alleged that
Wright and Richardson were acting within the course and scope of
their employment with Jerry Oliver, Chief of the Richmond Police.

The plaintiff further alleged that Richardson falsely
imprisoned her "without any sufficient legal excuse"
and that he made defamatory statements about her. She alleged
that Townsend intentionally inflicted emotional distress upon her
by entering her personal and confidential data on a warrant that
he knew, or should have known, was intended for another person.
She alleged that Wright intentionally inflicted emotional
distress upon her by transferring her personal and confidential
data from her driver’s license to Townsend, when Wright knew or
should have known that the plaintiff was not Gwendolyn M. Jordan
and that this information would be affixed to a warrant that
would be the basis of a false arrest and imprisonment.

The defendants filed responsive pleadings, including special
pleas of the statute of limitations and demurrers. The defendants
asserted in their special pleas that the plaintiff’s causes of
action for false imprisonment and defamation were barred by Code
? 8.01-248 which, at the time the plaintiff’s cause of
action accrued, contained a one-year statute of limitations.[1] The defendants also filed a
demurrer asserting, among other things, that the plaintiff failed
to sufficiently plead a cause of action for intentional
infliction of emotional distress and that the defendants are
entitled to qualified immunity.

The trial court considered memoranda and argument of counsel
and entered an order dismissing plaintiff’s alleged causes of
action for false imprisonment, intentional infliction of
emotional distress, and defamation because those claims were
barred by the one-year statute of limitations in Code
? 8.01-248. The court also stated in its judgment order
that even though the plaintiff failed to state a cause of action
against Chief Oliver or Sheriff Shands, the court would not rule
on this issue since its rulings on the statute of limitations
were dispositive of this proceeding.

The plaintiff appeals the judgment, and Chief Oliver and
Richardson assign cross-error to the trial court’s failure to
sustain their demurrers. The plaintiff does not, however, assign
error to the trial court’s judgment dismissing John Doe and Mary
Doe.

II.

A.

Code ? 8.01-243(A) states in relevant part:

"Unless otherwise provided in this section or by other
statute, every action for personal injuries, whatever the theory
of recovery . . . shall be brought within two years
after the cause of action accrues."

Code ? 8.01-248, in effect when the plaintiff’s cause of
action arose, stated: "[e]very personal action, for which no
limitation is otherwise prescribed, shall be brought within one
year after the right to bring such action has accrued."

Plaintiff argues that her cause of action for false
imprisonment which is asserted against Richardson is an action
for personal injuries and, thus, this claim is governed by the
two-year statute of limitations. Richardson asserts that the
plaintiff’s claim is a "personal action" for which no
limitation was prescribed and, thus, is governed by the one-year
statute of limitations.

We agree with the plaintiff. We have defined false
imprisonment as "the direct restraint by one person of the
physical liberty of another without adequate legal
justification." W.T. Grant Co. v. Owens, 149
Va. 906, 921, 141 S.E. 860, 865 (1928). We have also observed
that "[f]alse imprisonment is a wrong akin to the wrongs of
assault and battery, and consists in imposing by force or threats
an unlawful restraint upon a man’s freedom of locomotion." Id.
(quoting Gillingham v. Ohio River Ry. Co., 14 S.E.
243, 245 (W.Va. 1891)).

We are of opinion that the deprivation of an individual’s
freedom by physical restraint or the threat of such restraint is
a tort committed against an individual’s body because that
individual’s body is actually confined to an area and deprived of
physical liberty. Accordingly, we hold that an action for false
imprisonment is an action for personal injuries and, thus,
subject to the two-year statute of limitations in Code
? 8.01-243(A).

B.

Plaintiff concedes that her cause of action alleging
defamation is governed by a one-year limitation period, but
argues that the period did not commence to run on June 21, 1995,
the date she was arrested.[2]
The plaintiff says that Richardson based his arrest on a
confirmation response which he obtained from Townsend. This
document, which allegedly contained false statements that the
plaintiff was wanted in Dinwiddie County for failure to appear on
a non-support charge, provided the basis for plaintiff’s
defamation count. The plaintiff contends that the one-year
statute of limitations does not bar her defamation action because
she filed her motion for judgment within one year from July 11,
1995, the date the Juvenile and Domestic Relations Court
dismissed the charges.

We disagree with the plaintiff’s contentions. Any cause of
action that the plaintiff may have had for defamation against any
of the defendants accrued on June 21, 1995, which is the date she
alleges in her motion for judgment that the defamatory acts
occurred. We have held that when an injury is sustained in
consequence of the wrongful or negligent act of another and the
law affords a remedy, the statute of limitations immediately
attaches. Westminster Investing Corp. v. Lamps
Unlimited
, 237 Va. 543, 546, 379 S.E.2d 316, 317-18 (1989); Caudill
v. Wise Rambler, 210 Va. 11, 14-15, 168 S.E.2d 257, 260
(1969). According to the plaintiff’s pleadings, the alleged acts
of defamation occurred on June 21, 1995, and she purportedly
sustained damages on that date. Thus, her cause of action accrued
on June 21, 1995, and she was required to file her motion for
judgment within one year of that date. She failed to do so and,
thus, her claim is barred.

C.

The plaintiff argues that the trial court erred by holding
that her claims for intentional infliction of emotional distress
were barred by the statute of limitations. Responding, Chief
Oliver and Richardson state that we need not consider this
contention because, as these defendants assert in their
assignment of cross-error, the plaintiff failed to allege
sufficient facts in her amended motion to support a cause of
action for emotional distress.

In Womack v. Eldridge, 215 Va. 338, 342, 210
S.E.2d 145, 148 (1974), we stated that

"a cause of action will lie for emotional distress,
unaccompanied by physical injury, provided four elements are
shown: One, the wrongdoer’s conduct was intentional or reckless.
This element is satisfied where the wrongdoer had the specific
purpose of inflicting emotional distress or where he intended his
specific conduct and knew or should have known that emotional
distress would likely result. Two, the conduct was outrageous and
intolerable in that it offends against the generally accepted
standards of decency and morality. This requirement is aimed at
limiting frivolous suits and avoiding litigation in situations
where only bad manners and mere hurt feelings are involved.
Three, there was a causal connection between the wrongdoer’s
conduct and the emotional distress. Four, the emotional distress
was severe."

In Ely v. Whitlock, 238 Va. 670, 677, 385 S.E.2d
893, 897 (1989), we held that a plaintiff must allege all facts
necessary to establish a cause of action for intentional
infliction of emotional distress.

We hold that the plaintiff failed to plead a cause of action
for intentional infliction of emotional distress with the
requisite degree of specificity against any of the defendants.
Rather, the plaintiff’s allegations are merely conclusional.

D.

Richardson assigns as cross-error the trial court’s failure to
sustain his demurrer which asserted that the plaintiff’s
allegations in her amended motion established as a matter of law
that he acted in good faith when he arrested her and that his
actions are protected by a qualified immunity. We disagree with
Richardson’s contentions.

A defendant who asserts the qualified immunity defense, not
the plaintiff, must allege and prove the elements comprising this
defense. See DeChene v. Smallwood, 226 Va.
475, 479, 311 S.E.2d 749, 751 (1984). Richardson may not, by use
of a demurrer, shift his pleading and proof burdens to the
plaintiff.

III.

In summary, the plaintiff’s cause for false imprisonment is
governed by the two-year statute of limitations. The plaintiff
failed to plead a cause of action for intentional infliction of
emotional distress against any of the defendants. The plaintiff’s
purported cause of action for defamation is barred by the statute
of limitations.

Accordingly, we will reverse the trial court’s judgment in
favor of Richardson and will remand this proceeding to permit the
plaintiff to pursue her cause of action for false imprisonment
against him, and we will affirm the trial court’s judgment in
favor of the remaining defendants.

Affirmed in part,

reversed in part,

and remanded.

 

 

FOOTNOTES:

[1] Code ? 8.01-248 was
amended, effective July 1, 1995, and it now provides a two-year
statute of limitations for all personal actions accruing on or
after that date, for which no other limitation period is
prescribed.

[2]
Effective July 1, 1995, a cause of action for defamation has been
governed by a one-year period of limitation prescribed by Code
? 8.01-247.1. Before that date, an action for defamation
was not addressed by a specific limitation provision in the Code,
and hence was governed by the catch-all provisions of
? 8.01-248 which, as noted previously, prescribed a
one-year period for causes of action arising before July 1, 1995.

 

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