The Third District Court of Appeal recently reversed a jury verdict finding a bank negligent for having contacted police to report suspected criminal activity from an individual who, in fact, was innocent and was injured during the confrontation with police.  Fashioning a new rule with respect to simple negligence in this context, the Third District held that calling the police to report a crime rises to the level of a tort only if the reporter acts maliciously, either by knowing the report is false or recklessly disregarding whether the report is false.

In deciding whether to reverse for a new trial or enter judgment for the defendant bank, the Third District explained that “[h]aving elected to go to trial on a legal theory, a party is not entitled to another trial on a different theory merely because the first theory is later rejected on appeal.”  This was particularly true in this case, where the plaintiff “persuaded the trial court to allow the negligence count to go to the jury on a theory of simple negligence, . . . successfully striking the Bank’s proposed jury instructions that would have informed the jury that the Bank could not be liable for a good faith mistake in its report to the police.”  According to the court, “[h]aving elected to go to trial on the theory of simple negligence, [the plaintiff] ran the ‘clear risk’ that simple negligence was not a proper theory for the relief claimed,” and for this reason, “he is not entitled to a new trial based on another theory.”  The case is Bank of America v. Valladares, 3D12-1338, decided July 2, 2014.