In a previous article “When Private Companies Hire Off-Duty Police Officers as Security, Who is liable when things go wrong?” I wrote about tort liability for the tortuous acts of off-duty public police officers who “moonlight” for private employers. I reviewed the case of Melendez v. City of Los Angeles, 63 Cal. App. 4th 1 (1998) which used a rather straightforward Respondeat Superior analysis to conclude that the private employer – not the City of Los Angeles, was civilly liable for the conduct of the officers. For those who did not read my previous article or are not familiar to the doctrine of Respondeat Superior, in very basic terms it is a legal doctrine that holds an employer or principal (i.e., “master”) legally responsible for the wrongful acts of an employee or agent.
Central to the decision In Melendez, was the fact that the City of Los Angeles did not exercise, or even have any ability to exercise, control over their off-duty officers and that the off-duty officers were serving the interests of the private employer – not the interests of the City of Los Angeles, at the time the tortuous acts occurred.
The Law of Agency.
A case from Tennessee dealing with liability for “moonlighting” police officers also concluded that the private employer – not the City of Knoxville, was liable for tortuous acts of an off-duty public police officer who was “moonlighting.” The Tennessee Supreme Court reached this conclusion, not under the Respondeat Superior doctrine, but under traditional Agency Law doctrine.
The law of agency is based on the Lain maxim “Qui facit per alium, facit per se” which literally means “he who acts through another, acts himself.” Stated another way, the law of agency allows one person, known as an agent, to act on behalf of another person, known as the principal, as if the principal were present and acting in person. The law of agency has some similarities with the doctrine of Respondeat Superior but it is a distinct legal doctrine.
In White v. Revco Discount Drug Centers, Inc., 33 SW 3d 713, (Tenn. 2000) the Tennessee Supreme Court addressed the question of whether a private employer may be held vicariously liable for the acts of an off-duty police officer employed by a private employer for security purposes, if the off-duty officer’s actions were outside the purpose of what the private company hired the officer for (i.e., security on store premises).
The Facts of White v. Revco Discount Drug Centers.
Revco Discount Drug Store in Knoxville Tennessee hired an off-duty Knoxville Police officer to provide security at their store. When a shopper created a disturbance the officer issued the shopper a citation for disorderly conduct and ordered him not to come back into the store. About one month later, when the same off-duty officer was again working security at the store, the store manager notified the officer that the excluded shopper had been seen in the store a few days earlier. The officer then checked and discovered that the excluded shopper had failed to appear in court on the original disorderly conduct citation and a bench warrant for his arrest had been issued.
According to the original complaint, Revco’s store manager then directed the off-duty officer to go to the man’s residence and serve the warrant to prevent the man from ever returning to the store and to punish him for coming back into the store. The off-duty officer then contacted several on-duty Knoxville officers and together they went to the excluded shopper’s residence to serve the arrest warrant.
At the residence the officers discovered that the man had locked himself in his apartment and would not allow anyone to enter. At this point the off-duty officer was called back to the store by Revco so he could issue a citation to a shoplifter. After issuing the citation, the off-duty officer returned to the apartment and, using a key obtained from the apartment manager, he and the other officers entered the apartment and found the man locked inside his bathroom. The man claimed that he had a shotgun and threatened to shoot anyone who entered. One of the officers kicked open the door and during the arrest one officer fired his weapon, ultimately causing the man’s death.
Plaintiff’s suit alleged that Revco was liable for the off-duty officer’s actions under the doctrine of respondeat superior because the officer acted within his scope of employment with Revco at the time of the shooting. Revco filed a motion to dismiss arguing that the complaint failed to cite a sufficient cause of action because at the time of the shooting, the officer was performing his public duty (warrant service) as a Knoxville police officer and was not within the scope of his employment with Revco as a security guard. The trial court granted Revco’s motion. Plaintiff appealed to the Tennessee Court of Appeals. The court of appeals affirmed the dismissal. Plaintiff then appealed to the Tennessee Supreme Court which reversed and remanded.
Distinction between Respondeat Superior and the Law of Agency.
The appellate court employed an often used “nature of the act” analysis where it looked at the totality of the circumstances and examined the nature of the officer’s actions to determine if the act was within the scope of employment. But, the Tennessee Supreme Court rejected the “nature of the act” analysis as being too restrictive concluding that private employment of off-duty police officers do not “fit precisely within the typical framework of respondeat superior.” The court went on to say, “This incongruity arises largely because the special status of peace officers in this state permits an off-duty officer to act within the scope of his or her public employment, even while otherwise performing duties for the private employer.”
The court further noted that the nature of the actions test “has resulted in over-insulating private employers” and that “the private employer may take advantage of the benefits of hiring an off-duty officer without assuming any of the normal risks of liability associated with hiring non-officer employees.” Moreover, the court noted that “vicarious liability may properly arise under some situations even outside the scope of private employment” and that the phrase ‘scope of employment’ does not serve as the sole basis for imposing employer liability. The court concluded that “issues of employer liability for the acts of off-duty police officers are best resolved under traditional principles of Tennessee agency law.”
Agency Law Principles.
In summarizing Tennessee agency law principles as they relate to this case, the court noted that an agency relationship will be found if the facts establish the existence of such a relationship, whether or not the parties intended to create one. The court concluded that a private employer may be held vicariously liable for the acts of an off-duty police officer employed as a private security guard under any of the following circumstances:
(1) the action taken by the off-duty officer occurred within the scope of private employment; (2) the action taken by the off-duty officer occurred outside the regular scope of employment but the action giving rise to the tort was taken in obedience to orders or directions of the employer and the harm proximately resulted from the order or direction; or
(3) the action was taken by the officer with the consent or ratification of the private employer and with intent to benefit the private employer.
In analyzing whether plaintiff’s complaint alleged sufficient facts upon which a claim for relief may be granted, the court concluded:
1. There was evidence that the officer’s actions at the man’s residence were within the scope of his employment with Revco because Revco exercised control over the officer by calling the officer back to the store to deal with a shoplifter.
2. Evidence existed to demonstrate that the officer’s actions were taken in obedience to orders or directions of Revco when Revco’s Manager directed the officer to serve the warrant to prevent the man from ever coming into the store again and to “punish” him. There was evidence that shows that as a result, harm [death] proximately resulted.
3. There was evidence that the officer’s actions in serving the warrant were done with the knowledge and consent of Revco and were taken with the primary intent to benefit Revco’s interests.
When a private entity hires an off-duty public police officer for security, depending on the circumstances, the police officer, the police department, the private employer, or a combination of the three may be held liable for the officer’s tortuous acts. As in the California Melendez case, liability may be imposed based upon the doctrine of Respondeat Superior or as in the Tennessee Revco case, upon the Law of Agency.