Present: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
CITY OF ALEXANDRIA
OPINION BY SENIOR JUSTICE
v. Record No. 090659 ELIZABETH B. LACY
APRIL 15, 2010
J-W ENTERPRISES, INC.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
This appeal in a contribution action arises from an
incident involving the pursuit of a group of restaurant patrons
who left the restaurant without paying their check. The pursuit
by an off-duty police officer who had been hired by the
restaurant to provide a law enforcement presence resulted in the
tragic shooting death of one of the patrons. The issue we
decide on appeal is whether the trial court erred in holding
that the off-duty police officer was performing a public
function at the time of the shooting, thereby defeating the
City’s action for contribution.
FACTS
We review the facts in the light most favorable to the
prevailing party. See Bitar v. Rahman, 272 Va. 130, 137, 630
S.E.2d 319, 323 (2006).
At the time of the incident, J-W Enterprises, Inc. (JWE)
owned and operated an International House of Pancakes (IHOP)
1
Justice Keenan participated in the hearing and decision of
this case prior to her retirement from the Court on March 12,
restaurant in the City of Alexandria (the City). Carl Frederick
Stowe, Jr. was employed as a police officer with the City of
Alexandria Police Department (the Department) and also worked as
an off-duty police officer for JWE at the IHOP restaurant.
Stowe’s off-duty work was treated by the Department as an
“extra-duty detail” or secondary employment of an officer
organized and approved by the Department, which required that
the officers be in full police uniform. Stowe had been working
as an off-duty officer at the IHOP restaurant for approximately
ten years at the time of the incident at issue in this case.
IHOP paid Stowe and the other officers who worked the
detail an hourly rate, which was, along with the other
conditions of their employment, governed by the Alexandria
Police Extra Duty Employment Agreement (the Agreement) between
the City and JWE. The Agreement provided specifically that
“[a]ll detail officers are to enforce all state and local laws
on [IHOP’s] property. Officers will also provide a law
enforcement presence in the store.” All extra-duty details were
subject to approval by the Chief of Police, along with the
schedules and the officers to be assigned. IHOP was not able to
select the officers that worked the detail, and could not act
directly to reprimand or replace an officer, but could
communicate any concern to the detail coordinator. Department
2010.
2
directives stated that an officer could “engage in extra-duty
employment only when the [officer’s] full police powers are in
effect.”
IHOP management, consistent with the terms of the
agreement, directed the officers to remain inside the restaurant
to provide a “law enforcement presence.” IHOP employees
customarily would notify the officers when they suspected a
problem, but did not instruct the officers about performing law
enforcement functions. IHOP employees did not direct the
officers to collect on any unpaid bills, and left it to the
officers to “determine what the best method of dealing with that
crime would be,” including whether to pursue a party that had
not paid, though IHOP management could request that the officer
not pursue such parties.
The incident at issue in this case began when an IHOP
server informed Officer Stowe that the group he was serving had
previously “walked out” on a bill: that is, when a patron
orders, receives, (usually) consumes a meal, and then leaves the
premises without paying, a class one misdemeanor. Code § 18.2-
188. The server indicated that the group had not paid, though
some members of the party had left. Officer Stowe assured the
server that he would “keep an eye on them.” Shortly thereafter,
a hostess informed Officer Stowe that the remaining two members
of the dining group were leaving without paying the server or
3
stopping at the cash register to pay. Officer Stowe called out
to the individuals as they were leaving. They turned, made eye
contact, and fled, leading Stowe to conclude that the
individuals had committed a misdemeanor “in his presence,”
providing “probable cause” to “make an arrest” or, at the least,
obligated him “to try to obtain the [suspects’] information so
that a warrant could be issued for th[e suspects] at a later
time.”
As the suspects left the restaurant, Officer Stowe “yelled
to them again” and pursued them out of the IHOP into the parking
lot. The suspects hurried to a vehicle whose engine was
running, which, upon their entrance, accelerated through the
parking lot and past Officer Stowe, who was motioning for the
vehicle to stop. Stowe, believing the driver did not see him,
proceeded across the lot and positioned himself in a lit area
between the car and the lot’s exit to interdict the fleeing
party. As the car drove toward the exit, tires “squealing,”
Officer Stowe again motioned for the vehicle to stop. The
driver of the vehicle again ignored the officer’s direction to
stop. The vehicle then veered off its course to the exit and
towards Officer Stowe at a high rate of speed, causing him to
believe “that the driver was trying to . . . run [him] down.”
Officer Stowe, fearing for his safety, moved out of the
roadway “in a semi-circle type fashion [to a place] between the
4
parked cars that [were] immediately to [the officer’s] right-
hand side.” With the vehicle coming toward him at a high rate
of speed, Officer Stowe drew his sidearm, a semi-automatic Glock
Model 23, opened fire, and continued to fire as the vehicle
passed his position. One of the bullets struck Aaron Brown, a
passenger in the vehicle, killing him.
PROCEEDINGS
Aaron Brown’s parents, as the co-administrators of his
Estate, entered into an out-of-court settlement with the City of
Alexandria. Under the terms of the settlement, the City paid
the Estate $1,100,000 and the Estate released all claims against
the City, JWE, the president of JWE, William Trout, and Officer
Stowe. In the settlement agreement, the City also agreed to
pursue a claim for contribution or indemnity against JWE and
Trout and to turn over to the Estate the proceeds of any such
claim.
In accord with the settlement agreement, the City filed
this litigation pursuant to Code §§ 8.01-34 and 8.01-35.1
seeking contribution from JWE and Trout. 2 In its amended
complaint, the City asserted that Officer Stowe was an employee
of JWE and was acting within the scope of that employment at the
time he caused the fatal injury to Aaron Brown. The City
2
The trial court granted Trout’s motion to strike him as a
defendant and that ruling is not before us on appeal.
5
further admitted for purposes of the litigation that it was a
joint tortfeasor, asserted the settlement was reasonable, and
sought recovery of one-half of the settlement amount paid to the
Estate.
During the three-day bench trial, Officer Stowe testified
that he understood his job description as requiring that he “be
visible to deter walk-outs, disorderly customers, turf fights.
And if a patron would leave the IHOP without paying, we would
stop that individual to see if they could pay their bill,” an
understanding that had been communicated to him by other
officers, and reiterated by managers of the IHOP. Officer Stowe
did not personally collect unpaid monies from patrons. Officer
Stowe testified that IHOP provided no equipment or training and
could not override Department directives regarding what apparel
would be worn, or whether the officers would be armed.
Officer Stowe testified that the purpose of his actions
during the event in issue, from calling out to the individuals
who were leaving to pursuing them into the parking lot, was to
“stop them and to have them take care of the tab.” Officer
Stowe testified that he was attempting to obtain that
information when he pursued the individuals, that he was
utilizing his discretion as to the appropriate response, i.e.,
proceeding according to “police training and directives,” and
that from the time he witnessed the group leaving the restaurant
6
without paying until the moment of the shooting he was “acting
as a police officer.”
Following the ore tenus hearing and argument of counsel,
the trial court held that the City was not entitled to
contribution from JWE on a number of alternative grounds: (1)
that at the time of the shooting, Officer Stowe was “performing
a police function, not a private function” for JWE; (2) that
Officer Stowe was an independent contractor and not an employee
of JWE; (3) that the proximate cause of Aaron Brown’s death was
the combined actions of the driver of the car and Officer Stowe;
(4) that Officer Stowe was acting in self-defense when he shot
at the oncoming car 3 and therefore was not negligent; and (5)
that the City was a “volunteer” when it paid the settlement to
the Estate because the City was absolutely immune for actions
taken in a governmental capacity. The trial court entered an
order dismissing the City’s amended complaint and denied its
motion for reconsideration. The City filed a timely appeal to
this Court.
DISCUSSION
On appeal, the City challenges each of the alternative
grounds upon which the trial court dismissed the contribution
3
The City, in response to an interrogatory, admitted that
Officer Stowe was acting in self-defense when he shot and killed
Brown.
7
action. The City first asserts that the trial court erred as a
matter of law in holding that Officer Stowe was “necessarily
acting solely in his public capacity” when he fired the shots
that killed Aaron Brown. 4 The City says this holding was error
because the “uncontradicted evidence was that the officer’s sole
purpose in confronting the vehicle was to collect a bill for
[JWE]” and argues that the trial court erroneously interpreted
Virginia law by holding “that an off-duty police officer could
never be acting as a dual agent at any one time.”
Specifically, the City argues that the trial court
“erroneously concluded that, under Virginia law, it was not
possible for an off-duty police officer simultaneously to serve
a municipality and a private employer.” The City maintains that
because of this erroneous legal conclusion, this Court should
set aside the trial court’s factual decision that, at the time
of the shooting, Officer Stowe was acting in a public capacity
and hold as a matter of law that the officer was acting either
solely on behalf of JWE or was simultaneously performing both
public and private duties. We disagree with the City.
4
Contrary to the City's statement in this assignment of
error, nothing in the record indicates that the trial court
found that the officer was "necessarily" acting in his public
capacity, only that he was acting in his official capacity as a
matter of fact.
8
For many years, private employers have employed special
officers pursuant to special officer statutes, see Code § 56-
353; Norfolk & W. Ry. Co. v. Haun, 167 Va. 157, 160-62, 187 S.E.
481, 482-83 (1936), or, as in this case, cooperative agreements
between police departments and private employers, pursuant to
Code § 15.2-1712. Not surprisingly then, this Court has
considered a number of cases involving the liability of a
private company for the tortious acts of an off-duty police
officer occurring while the officer was in the employ of the
private company. As the City contends, this Court has
acknowledged that a person who is a police officer is not
precluded from also acting in the capacity of an agent or
employee of a private employer. Clinchfield Coal Corp. v. Redd,
123 Va. 420, 431, 96 S.E. 836, 839 (1918). However, this Court
has consistently held that, when considering tort liability, it
is a factual question whether the officer was acting as an
employee of the private employer or as a public officer
enforcing a public duty when the wrongful conduct occurred. Id.
at 431, 435, 96 S.E. at 839-40; accord Glenmar Cinestate, Inc.
v. Farrell, 223 Va. 728, 735, 292 S.E.2d 366, 369-70 (1982);
Norfolk Union Bus Terminal, Inc. v. Sheldon, 188 Va. 288, 294-
95, 49 S.E.2d 338, 340-41 (1948); Haun, 167 Va. at 160-61, 165,
167, 187 S.E. at 482, 484-85. We most recently reaffirmed this
9
principle in Godbolt v. Brawley, 250 Va. 467, 472-73, 463 S.E.2d
657, 660-61 (1995).
In Godbolt, an off-duty deputy sheriff was working as a
security guard for a restaurant when two Godbolt brothers were
ejected from the premises because of an altercation in the
restaurant. Id. at 469, 463 S.E.2d at 658-59. A fight ensued
outside the restaurant while the off-duty deputy was attempting
to detain the brothers until the police arrived. Id. at 469,
463 S.E.2d at 659. In the course of the fight, the deputy shot
both brothers. Id. In a tort action brought by one of the
brothers against the deputy and the restaurant as the deputy’s
employer, the trial court entered summary judgment for the
employer. Id. In reversing that judgment and holding that
whether the deputy was acting as an employee of the restaurant
at the time of the incident was a question to be submitted to
the jury, this Court stated
“[t]he test is: in what capacity was the
officer acting at the time he committed the
acts for which the complaint is made? If he is
engaged in the performance of a public duty
such as the enforcement of the general laws,
his employer incurs no vicarious liability for
his acts, even though the employer directed him
to perform the duty. On the other hand, if he
was engaged in the protection of the employer’s
property, ejecting trespassers or enforcing
rules and regulations promulgated by the
employer, it becomes a jury question as to
whether he was acting as a public officer or as
an agent, servant, or employee.”
10
Id. at 472-73, 463 S.E.2d at 660-61 (quoting Glenmar, 223 Va. at
735, 292 S.E.2d at 369-70). This test, originally set out in
Haun, has not been altered by this Court over the course of many
decades. 5 Applying our jurisprudence has not provided private
employers blanket immunity, Godbolt, 250 Va. at 472-73, 463
S.E.2d at 660-61; Sheldon, 188 Va. at 294-95, 49 S.E.2d at 340-
41; Clinchfield, 123 Va. at 431-34, 96 S.E. at 839-40, but has
made determinations of tort liability dependent upon the
5
As the City points out, some other jurisdictions have
adopted different tests, see, e.g., Dillard Dep’t Stores, Inc.
v. Stuckey, 511 S.W.2d 154, 155 (Ark. 1974); Lovelace v.
Anderson, 785 A.2d 726, 741-43 (Md. 2001); White v. Revco
Discount Drug Centers, 33 S.W.3d 713, 718-23 (Tenn. 2000). It
appears, however, that a majority of jurisdictions join Virginia
in looking to the “nature of the act” that is the proximate
cause of the injury complained of when determining tort
liability. See White, 33 S.W.3d at 719 & nn.3-4; see, e.g.,
Lande v. Menage Ltd. P’ship, 702 A.2d 1259, 1261 (D.C. 1997)
(“[A] private entity which employs a police officer during his
off-duty hours is not liable for actions of the officer in
carrying out his public duty as a police officer.”); Sommerfield
v. Blue Cross & Blue Shield of Ga., Inc., 509 S.E.2d 100, 103
(Ga. Ct. App. 1998) (“If the police officer, while working for
the private employer, ‘was performing public duties, not at the
direction of the private master,’ the employer will not be held
liable.”) (citation omitted); Gentry v. Hockett, 498 N.E.2d 405,
406 (Ind. Ct. App. 1986) (“ ‘It is the nature of the acts
performed and not whether the officer was on or off duty, in or
out of uniform, which determines whether the officer is acting
in his official capacity.’ ”) (citation omitted); State v.
Phillips, 520 S.E.2d 670, 681 (W. Va. 1999) (“[A]n off-duty
municipal police officer employed by a private entity as a
security guard retains his or her official police officer status
even in the private employment, unless it is clear from the
nature of the officer’s activities that he or she is acting in
an exclusively private capacity or engaging in his or her
private business.”).
11
particular circumstances of each case. Accordingly, the trial
court did not err when it applied this well-established test and
determined as a factual matter the capacity in which Officer
Stowe was acting at the time he discharged his weapon.
The City argues further, however, that the uncontradicted
evidence shows that the trial court erred in its factual finding
that Officer Stowe was acting in his official police capacity at
the time of the shooting.
The principles of appellate review we apply to this claim
are well established. We will not disturb a factual finding
unless it is plainly wrong and without evidence to support it.
See Collins v. First Union Nat’l Bank, 272 Va. 744, 749, 636
S.E.2d 442, 445-46 (2006). The City is correct that the
evidence adduced at trial was that Officer Stowe followed the
restaurant patrons into the parking lot to “stop them and to
have them take care of the tab.” However, Officer Stowe also
testified that when the patrons refused to heed his calls, he
believed a misdemeanor had been committed in his presence; that
no one from the restaurant directed his actions or told him to
follow the patrons to the parking lot; that he utilized his
police training once he believed the patrons were “tracking” him
in the car; and that he believed he was at that time acting as a
police officer. This evidence provided the trial court adequate
grounds for finding that, at the time of the conduct in
12
question, Officer Stowe’s actions were performed pursuant to his
duties as a police officer, not as a JWE employee.
Accordingly, for the reasons stated, we will affirm the
judgment of the trial court dismissing the City’s claim for
contribution from JWE. 6
Affirmed.
6
In light of this holding, we need not address the
remaining errors assigned to the trial court’s alternative
grounds for dismissing the contribution action.
13