Fred COLLINS, Appellee, v. STRAIGHT, INC., A Florida Corp., licensed to do business in the state of Virginia, Appellant, 748 F.2d 916

CHAPMAN, Circuit Judge: In this diversity of citizenship case, Straight, Inc. appeals a jury verdict of $40,-000 in compensatory and $180,000 in punitive damages awarded to plaintiff Fred Collins on a false imprisonment cause of action. Finding that the evidence was sufficient for the jury to conclude that the plaintiff had been falsely imprisoned, that the jury was properly instructed concerning the applicable law and that the district court did not abuse its discretion in its ruling on certain questions of trial procedure, we affirm.

I Collins entered the Straight drug treatment facility in June 1982 when he was nineteen years of age. He originally came to the Straight facility in Florida to visit his brother George who was enrolled there. Straight policy required siblings of participants to have a “sibling interview” before visiting a person enrolled in the program. During the course of this interview, Straight staff members concluded that Fred Collins should also enter the program. (Whether Collins was drug dependent and needed treatment was disputed at trial.

Although this question of fact was a significant one for the jury, it is not an issue on appeal.) At trial plaintiff described the measures used by Straight staff members to induce him to enter the program.

Collins testified that he was subjected to approximately six and one-half hours of intimidation by Straight staff members and former participants who blocked the door to prevent his escape from a small, windowless room; that his requests to leave and to be allowed to see his parents were refused; that staff members told him that he would not be able to see his brother or his parents until he agreed to enter the program; and that if he did enroll he would be able to leave after fourteen days.

He ultimately signed a “voluntary treatment agreement.” Plaintiff, unlike some of the other participants in the Straight program, was not admitted under a court order; nor was a court order obtained during the period he was at Straight. After signing into the program, Collins was strip-searched and during the first seventy days he was either closely watched or restrained by another Straight participant. Evenings were spent in private homes that contained security devices to prevent escape.

Collins testified that when he requested to be allowed to leave Straight after ten days, he was ridiculed and poked in the chest. When he mentioned the fourteen day time period to other participants they expressed their beliefs that such a rule was a sham and that Straight did not intend to release anyone after fourteen days. Plaintiff testified that persons who did try to leave were subjected to verbal and physical abuse and had their privileges curtailed. In October 1982 Collins was transferred to Virginia where he stayed at his parents’ home for three nights.

He testified that new locks and alarms had been installed in the house. According to his testimony he escaped from the house by throwing a table through the kitchen window, climbing through the window and leaving the premises in the car of a friend who had arranged to pick him up. Plaintiff had been in the Straight program for one hundred thirty-four days. In his amended complaint, Collins contended that he was forced into Straight’s drug treatment program and suffered false imprisonment, assault and intentional infliction of emotional distress.

The court bifurcated the trial into separate stages for jury consideration of issues of liability and damages. Returning a verdict for the plaintiff on the false imprisonment claim, the jury found for the defendant on the remaining two issues. II Straight’s primary claim is that the trial judge erred in failing to instruct the jury that an essential element in a false imprisonment case is proof that the restraint was “unreasonable and unwarranted under the circumstances” citing Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); Kanner v.

First National Bank of South Miami, 287 So.2d 715 (Fla.App.1974) and several other Florida decisions. The trial judge refused to give the requested instruction, stating that he did not think reasonableness was a criteria under the circumstances of the present case. The charge given by the court on false imprisonment was as follows: Insofar as false imprisonment is concerned, false imprisonment is restraint of one’s liberty without any sufficient cause and against his will.

It is not essential that the plaintiff has been confined in a jail or placed in custody of an officer or that the word “arrest” be used or that actual force be used. If he was under a reasonable apprehension that force will be used unless he willingly submits and for that reason he did submit to the extent that he is denied freedom of action, this, in legal contemplation, is imprisonment. The restraint in false imprisonment must be complete, that is, it must not be mere obstruction of the right to go where the plaintiff wants to go.

For example, a one-way street restricts a person’s freedom of movement to some extent. A teller’s line at a bank — if you wanted to get by Mr. Jackson when he is standing there, you would have to walk around him. That restricts your freedom of movement, but that is not false imprisonment, because imprisonment is not complete. If submission to the restraint is because of a reasonable apprehension that force will be used unless he willingly submits and if he willingly submits for that reason, then there is no requirement that he protests his detention or physically resist.

In order for the plaintiff to prove his claim then, of false imprisonment, you must show by a preponderance of the evidence the following three essential elements: (1) that he was restrained of his physical liberty; (2) that it was against his will; and (3) that the restraint was caused by the defendant without sufficient cause or legal excuse. It is not necessary insofar as liability for false imprisonment is concerned for the plaintiff to show malice or ill will or wrongful intention on the part of a defendant. However, there must be intent to restrain him, his liberty.

You are instructed that any unlawful intention, as I have outlined it, by a person against that person’s will constitutes false imprisonment, regardless of the length of time or duration of the imprisonment, whether it be an intake room at Straight or later when he alleges that he requested to leave. It is not necessary for him to prove that he was falsely imprisoned during every moment of his stay in the Straight program. Good faith of the defendant in restraining the liberty of another is no defense.

The restraint was, in .fact, against his will complete, as I have outlined it, and without justifiable or legal excuse.

Several times during the charge the court instructs that the restraint on liberty must be without “sufficient cause” “without sufficient cause or legal excuse,” and “without justifiable or legal excuse.” These constant references to “legal excuse,” appear to put a higher burden of proof on the plaintiff than would a simple charge that the restraint was “unreasonable or unwarranted under the circumstances.” The cases relied upon by Straight do indicate that a jury must find the restraint to be “unreasonable and unwarranted under the circumstances,” but these cases do not involve consent of the plaintiff, as was claimed in the present case, and the cases involve the usual stopping and detaining of customers or employees.

Other Florida decisions do not indicate a requirement of the “unreasonable or unwarranted under the circumstances” test. See Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla.App.1977) (holding that an allegation that the hospital exercised “unlawful restraint upon appellant, detaining- him against his will, and did procure the arrest of appellant” were sufficient to state a cause of action for false imprisonment or false arrest) and Johnson v.

City of Pompano Beach, 406 So.2d 1257 (Fla.App.1981) (“as to false arrest and false imprisonment, plaintiff was required to show that the defendants, in procuring her arrest, exercised unlawful restraint and detained her against her will.”) Reasonableness seems to be the test used when judging a stop or a detention when one is suspected of shoplifting or some other crime, and not when he has allegedly consented to the initial restraint.

Straight also contends that the jury should have passed upon whether its withdrawal procedures, including the “cooling off period” of ten to fourteen days were reasonable in programs handling persons involved with illegal drugs. The State of Florida has spoken to this point in its Rules of the Department of Health and Rehabilitative Services, Mental Health Program Officer,

Chapter 10E-7, Drug Abuse Programs. In

Chapter 10E-7.11 it requires “All programs or centers endeavoring to provide drug abuse treatment, rehabilitation, prevention and/or education must be licensed by the Department.” Subparagraph 14(

a) of this

section provides: No person who voluntarily submits to treatment may be retained in an approved center against his/her will. This regulation applies to all persons, whether placed by the Department or admitted to a licensed center by its own outreach and intake procedures. No licensed center may have an acceptance requirement or any plan of treatment that would retain the applicant or client in the program against his/her will. This right may not be waived by the applicant, client, parent, or the guardian of the applicant or client.

Under this rule it would appear that Straight’s “cooling off period” of ten to fourteen days, during which a person is prevented from leaving after requesting to leave, would be unreasonable. Therefore, reasonableness of the “cooling off period” would not be a jury question. We find that the judge’s charge adequately set forth the law of false imprisonment to be applied in the present case.

Ill Defendant contends that the district court “erred in defining the law of consent,” however, its argument is not with the language of the definition but with the sufficiency of the evidence on the voluntariness of any consent. This was a factual issue and at trial the parties presented conflicting testimony on the point. The jury was called upon to “weigh contradictory evidence and inferences, pass on the credibility of witnesses and draw the ultimate conclusion as to the facts.” Jarrell v. Ford Motor Co., 327 F.2d 233, 235 (4th Cir.1964).

Although we may have reached a different conclusion, from the record it appears that there was sufficient evidence for the jury to have found that, if indeed Collins did consent, such consent was either not knowingly and voluntarily given, or, the scope of such consent was exceeded by Straight. IV Straight argues that the district court erred in admitting evidence of “other bad acts” by Straight that involved people other than Collins.

Defendant claims that it was severely prejudiced by this evidence because the testimony diverted the jury’s attention from the plaintiff’s case and resulted in “mini-trials” of Straight’s treatment of other enrollees. We find the district court did not abuse its discretion, but properly restricted the evidence from other program participants concerning the practices of the Straight program. During the liability phase of trial the district court ruled that Collins would be allowed to testify concerning incidents that occurred in his presence.

Collins related his observations that participants were not allowed to leave the program and that persons who escaped were brought back physically. He further testified that these incidents affected his decision not to try to leave the program. This testimony was proper on the issue of whether he consented to remain at Straight. Following Collins’ testimony, two other participants who were at Straight during the time that plaintiff was there were allowed to corroborate his account. The court refused, however, to allow testimony of Straight participants who were not there at the same time as Collins.

During the damages phase of trial the court allowed in testimony of persons who were similarly situated to Collins. These witnesses were over the age- of eighteen and alleged that they too had been held in the program against their will. The court reasoned that it was relevant for the jury to consider whether the Collins case was an isolated incident or whether similar incidents were sufficiently widespread to warrant punishment in the form of punitive damages.

This rationale is supported by the standard jury instruction on punitive damages from Devitt and Blackmar which defines “malicious” as “prompted or accompanied by ill will, or spite, or grudge, either towards the injured person individually, or toward persons in one or more groups or categories of which the injured person is a member” and “wanton” as “reckless or callous disregard of, or indifference to, the rights of one or more persons including the injured person.” Federal Jury Practice and Instructions, § 85.11 (1977). See also Richards Co. v.

Harrison, 262 So.2d 258, 262 (Fla.App.1972) (“[Punitive] damages go beyond the actual damages suffered in the case, and are imposed as a punishment of the defendant and as a deterrent to others.”) V Defendant claims error for failure to instruct that “actual malice” must be shown to support an award of punitive damages. Actual malice, however, need not be proven under Florida law. See Winn & Lovett Grocery Co. v.

Archer, supra at 221 (punitive damages appropriate in cases of “fraud, actual malice, or deliberate violence or oppression or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.”) See also 24 Fla.Jur.2d False Imprisonment § 11 (1981) (“For detention to be considered ‘malicious,’ the defendant need not act with anger, malevolence, or vindictiveness toward the plaintiff; it is sufficient if the act causing the wrongful restraint is without reasonable cause.

However, an award of punitive damages generally is improper in an action for false imprisonment in the absence of a showing of moral turpitude or wanton and outrageous disregard of the plaintiff’s rights.”) The court’s charge stated in part: If you should find from a preponderance of the evidence in this case that the acts of the defendant in falsely imprisoning the plaintiff were malicious or wanton or opressively [sic] done, then you may, if in the exercise of discretion, unanimously choose so to do, add to the award of actual or compensatory damages such amount as you unanimously agree to be proper as punitive or examplary [sic] damages.

We find this to be a proper instruction under Florida law. VI Defendant takes four final exceptions. That the district court erred in not granting a remittitur to reduce the punitive damages verdict, in refusing to grant a motion for change of venue from Virginia to Florida, in permitting the use of certain de bene esse depositions and in not granting a mistrial on grounds of attorney misconduct. We find that there was no abuse of discretion by the district court on these issues.

Although we agree with the trial court’s characterization of the verdict as high, and we are aware that difficult questions arise in treating drug abuse among young people, we must conclude that the verdict is not so excessive that it seems to have been motivated by sympathy and prejudice. Nor is it so high that it cannot be justified by the record. Virginian Railway Co. v. Armentrout, 166 F.2d 400 (4th Cir.1948).

With regard to the question of change of venue, a district court is required to weigh the factors involved and “[u]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1946). In this case the plaintiff and his family, key witnesses in the case, were Virginia residents. Although certain witnesses had to come from Florida to Virginia to testify, had the trial been held in Florida certain witnesses would have had to travel from Virginia.

The district court balanced the hardships involved to all parties and reached a conclusion within its discretionary authority. A review of the record indicates that the remaining two exceptions, which involve primarily issues of trial tactics, were carefully considered by the district court and the rulings on these questions were within the court’s discretion. Accordingly, the decision of the district court is AFFIRMED. . The trial court appears to almost direct a verdict for the plaintiff in this paragraph of the charge.

However, in response to questions from the panel at oral argument, the court was furnished with the trial court reporter’s sworn affidavit stating that this portion of the jury instruction had been incorrectly transcribed and should have been transcribed as follows: "Good faith of the defendant in restraining the liberty of another is no defense where the restraint was in fact against his will, complete as I have outlined it and without justifiable or legal excuse.” We also note that in the sixth paragraph of the charge to the jury the court appears to have said "any unlawful intention” and we think he probably said "any unlawful detention”.