(Rick Kopstein)

A $3.3 million judgment against Bank of America has been reversed in the case of a bank teller who suspected a customer was a robber and called police, who injured him during an arrest.

The Third District Court of Appeal ruled Wednesday that the teller would have to have acted with malice for the victim, Rodolfo Valladares, to prevail against the bank on a simple negligence cause of action.

The court refused to allow a new trial, remanding the case to the trial court to enter a judgment for the bank.

Valladares, then 46, entered a Miami branch to cash a $100 check July 3, 2008. The teller mistook him for a bank robber based on a circular about a robber wearing a Miami Heat cap. She triggered an alarm.

The teller had no photo to compare Valladares to the suspect, who bore no resemblance other than the cap, according to trial evidence.

The former mortgage company loan officer gave the teller the check and his driver’s license, engaged in friendly small talk and invited the teller to a Fourth of July barbecue. The teller didn’t cancel the alarm but stalled Valladares with delaying tactics until a police SWAT team arrived.

During the wait, Valladares made no threats or demand for money. Meanwhile, the manager was confirming to police that a robbery was in progress and pointed at Valladares when SWAT arrived, according to trial testimony.

Patrons were ordered to lie on their stomachs, and Valladares was ordered to show a hand he had pinned under his body. When he didn’t respond, an officer kicked him in the head.

At trial, plaintiffs attorney Mark DiCowden of Aventura tried to show deception on the bank’s part because there was a 90-second gap in the bank lobby video recording when Valladares was beaten. He complained of headaches, blurred vision and post-traumatic stress disorder.

“Of course we are very disappointed in the appellate court’s decision. We believe that, respectfully, the decision is erroneous, and we are exploring our options at this point,” DiCowden said Thursday.

Balancing Rights

Writing for the appellate court, Judge Thomas Logue said Circuit Judge Diane Ward erred when she denied the bank’s motion to set aside the verdict on the negligence count.

Logue recognized a need to balance an individual’s right to be protected from abusive accusations with a person’s sense of freedom to call police to report suspected criminal activity. In this regard, he determined the heavier burden was on the accused person.

“The public policy of Florida is to give wide latitude to an individual reporting a suspected crime to ensure a free flow of information between the people and the police,” Logue said.

Because of this, Valladares would have to prove the bank officers acted with malice to overcome their qualified privilege, he said.

Logue then debated whether Valladares should get a chance to retry his case on a malicious prosecution standard. He claimed the Florida Supreme Court rejected that approach in the 1988 case of Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument.

In that case, the plaintiff got a jury verdict, but the defense objected on grounds the plaintiffs theory was not properly pled.

The plaintiff argued the case should be remanded for a new trial in the event of a reversal, Logue said.

“The court rejected this argument, explaining that ‘by relying on the trial court’s ruling, counsel always proceeds at the clear risk of reversal if the trial court was wrong.’ Having 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,” Logue wrote.

Third District Judges Vance Salter and Ivan Fernandez concurred with Logue.

Bank of America was represented by J. Randolph Liebler and Tricia Duthiers of Liebler, Gonzalez & Portuondo in Miami. They had no comment.