Torts--White v. Revco Discount Drug Centers: Should private employers be held liable for the negligence of off-duty police officers employed for private security purposes?

University of Memphis Law Review, The, Winter 2002 by Padgett, Shannon H

Before going to Woodfin's apartment, Boone called four or five uniformed KPD officers to accompany him.6 Upon arrival, they "discovered that Woodfin had locked himself inside the apartment and that he would not allow anyone to enter."7 After obtaining a key to the apartment from a maintenance person, Boone and the officers entered the apartment to find that Woodfin had locked himself in the bathroom. Woodfin threatened that "he had a shotgun pointed at the bathroom door and that he would shoot anyone who entered."9 One of the officers kicked open the bathroom door and fired his weapon, wounding Woodfin in the stomach and ultimately causing his death. 10

Revco filed a motion to dismiss the complaint, claiming that the "[P]laintiffs failed to allege sufficient facts setting forth a cause of action" because "`Boone, as a matter of law, was acting solely within the scope of his duty as a police officer."16 Thus, Boone could not be considered an employee or agent of Revco. 17 After the trial court granted Revco's motion to dismiss, the Plaintiffs appealed to the court of appeals.18

Boone's actions "reflected 'a vindication of a public right,' thereby compelling the conclusion that Boone could only have been acting in his official capacity as a Knoxville police officer." Consequently, the court concluded that no cause of action against Revco existed under the doctrine of respondeat superior because Boone was acting within his duties as a police officer at the time of Woodfin's death and not within the scope of his private employment as a security guard with Revco. Thus, the court of appeals affirmed the dismissal. The Supreme Court of Tennessee held, reversed and remanded. The Plaintiffs' complaint did set forth a cause of action upon which relief may be granted based on the traditional principles of Tennessee agency law. White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2000).

Although jurisdictions differ in their methods of determining whether a private employer can be held liable for the actions taken by an off-duty police officer employed as a private security guard, most jurisdictions use the "nature" test to determine the liability of the employer.23 A majority of these jurisdictions conclude that the private employer cannot be held liable if the officer's actions were made in the scope of his official capacity.24

The Lizardo court explained that "[w]hen examining whether an off-duty officer acted in his official capacity, a district court must look to the totality of the circumstances surrounding the officer's acts ... (rather than simply the officer's duty status) and the relationship of that conduct to the officer's official duties."35 As for the Asian-Americans' claim, the court held that the security guards were acting under the color of law.36 When Adams escorted Lizardo out of the restaurant, he also threatened to arrest him for disorderly conduct.37 The court reasoned that "[b]ecause Adams, supported by Paninski, threatened to invoke his official authority to arrest Lizardo, a reasonable jury could find that Adams and Paninski purported to act pursuant to their official duties at the time of the incident."38

Although the guards were armed and wearing duty uniforms at the time, "[flt is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law."41

Although the Lizardo court, as well as the majority of jurisdictions use the "nature" test to determine the liability of a private employer who employs off-duty police officers as private security guards, other jurisdictions use public policy considerations to determine whether to impose vicarious liability on the employer.42 These jurisdictions reason that "because deterrence of crime is furthered by employing police officers, private employers should be encouraged to hire such officers as security guards."43 Thus, practical immunity is given to provate employers to encourage hiring officers in order to substantiate this benefit.44

Despite the fact that hiring police officers can deter crime, the White court refused to follow this line of reasoning because hiring security guards in general deters crime as well.72 The mere presence of a security guard on the premises is enough to deter crime, regardless of whether the security guard is a private citizen or an off-duty officer.73 In addition, employers should not be encouraged to increase their immunity to liability merely by hiring off-duty police officers as opposed to regular citizens. This would allow employers to enjoy all the added benefits of hiring an off-duty officer, such as their special law-enforcement training and ability to conduct activities that regular citizens are not authorized to do, without being held to the same risk of liability that comes with hiring non-officer employees.75

Finally, the White court analysis rejected the minority approach of imposing liability upon private employers for the actions of police officers receiving private payment for their services because the theory "ignores the reality that working for a private employer does not weaken an officer's continuing authority and ability to act as a peace officer."79 For example, it is possible that a police officer can be summoned for official duty while at the same time continuing to be on the payroll of the private employer.80 The White court reasoned that, in such a situation, "[t]o hold that a private employer may be vicariously liable for the acts of a police officer simply because of an overlap of employment schedules does not comport with basic notions of fairness." Thus, the court refused to apply this approach because it "oversimplifies the practical realities of our state lawenforcement practices and could result in unjust determinations in some cases."82