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Carey v. K-Way

March 31, 2000

ERIK L. CAREY, PLAINTIFF-APPELLANT
v.
K-WAY, INC., AND TEDD KAGIANAS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 96 L 05955

The Honorable Kathy M. Flanagan, Judge Presiding.

PRESIDING JUSTICE COUSINS delivered the opinion of the court.

A police officer took the plaintiff into custody after an officer of the corporation that owned the fast-food restaurant where he worked allegedly told the police officer that he suspected the plaintiff of having embezzled funds. The plaintiff was later released without being charged. He then filed suit against the corporation and its officer, alleging battery, false imprisonment and defamation.

The trial court dismissed the battery and defamation counts. The defendants then filed for summary judgment on the remaining false imprisonment count. The plaintiff responded by filing two motions to strike the documents submitted by the defendants in support of their motion for summary judgment. The trial court denied one of the motions to strike and then granted the motion for summary judgment.

We affirm.

FACTS

The plaintiff, Erik Carey, worked at a McDonald's restaurant in Park Forest. His supervisor, Ron Malvin, considered him honest and hard working. He started out as a crew person but was soon made a shift manager. Carey's responsibilities as a manager included counting and handling money taken in during his shift. At the end of their shifts, managers would count the money taken in, fill out deposit slips for the money from each register and put the money in a safe in the office. Copies of the deposit slips remained at the store, while the originals went to the bank with the cash. The night shift manager would lock the safe at the end of the day. All the managers had keys to the office and knew the combination to the safe.

On February 8, 1996, Malvin was informed that there were discrepancies between the amount of money deposited at the bank and the amount taken in by the store on the two previous days. The amount recorded on the deposit slips given to the bank was less than that on the purported copies at the office. Malvin contacted Tedd Kagianas, an officer and part owner of K-Way, Inc. (K-Way), the corporation that operated the Park Forest McDonald's. Kagianas went over to the restaurant to investigate the matter.

Meanwhile, when Carey came in that day, he says, he saw James Purifoy, a fellow shift manager, in a state of great distress. Purifoy told him about the theft and said that he could not afford to lose his job because his girlfriend was pregnant. Carey says he told Purifoy that he should not worry because if the theft happened on his shift he, rather than Purifoy, was the one who would probably be held responsible. The people with authorized access to the deposit slips when the money was taken were Carey, Purifoy, Malvin and one other manager. Carey, however, was only working on one of the two days during which money had disappeared. Purifoy, however, worked both days. According to Carey, the deposit slips clearly were not in his handwriting.

Kagianas arrived at the McDonald's and examined the deposit slips. About $300 had been taken on the sixth, and about $450 on the seventh. Kagianas surmised that whoever had taken the money was probably a manager since the managers were familiar with the money handling system and had access to the safe. Carey asked to talk with Kagianas to find out what was happening, but Kagianas would not talk to him. Malvin talked to Purifoy, who told him that Carey had said that he would "take responsibility" for the theft. After discussing the situation with Kagianas, Malvin called the police.

Officer Canady, a member of the Park Forest police department, came out to the restaurant. Later he was joined by another officer. Officer Canady averred that Kagianas and Malvin both told him that they suspected Carey of the theft and that he took Carey into the station for questioning on this basis. Both Kagianas and Malvin deny having told Canady that they suspected Carey. They add that the officers talked to Purifoy as well as to them.

Carey says that he was roughly handcuffed, taken to the police station and questioned. After two hours of questioning he was locked in a holding cell for an hour and a half. Then he was questioned some more. He was released later after telling the police that he thought Cornelius Davis might be the embezzler. Davis was another manager at the McDonald's, and he roomed with Purifoy. Carey says he knew that Davis was having trouble paying his bills and was in the process of being terminated for improper actions as a manager.

On May 24, 1996, Carey filed an action against Kagianas and K-Way for battery, false imprisonment and defamation. The trial court dismissed the defamation count with prejudice. The battery count was dismissed with leave to replead within 28 days, but Carey did not do so. On June 7, 1999, the trial court granted the defendants' motion for ...


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