FILED
October 15, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
JAMENSENA WHITE, ET AL., ) C/A NO. 03A01-9904-CV-00145
)
Plaintiffs-Appellants, ) KNOX CIRCUIT
)
vs. ) HON. DALE C. WORKMAN,
) JUDGE
REVCO DISCOUNT DRUG )
CENTERS, INC., ) AFFIRMED
) AND
Defendant-Appellee. ) REMANDED
A. PHILIP LOMONACO, Knoxville, for Plaintiffs-Appellants.
BARRY K. MAXWELL and RONALD T. HILL, EGERTON, McAFEE, ARMISTEAD &
DAVIS, P.C., Knoxville, for Defendant-Appellee.
OPINION
Franks, J.
Plaintiffs’ complaint named as defendants, the City of Knoxville, the
Chief of Police of Knoxville, six Police Officers, Knoxville Community Development
Corporation, and Revco Discount Drug Centers, Inc., (Revco). The complaint alleged that
the officers acted negligently in their use of deadly force against the deceased, and are
therefore liable for his pain, suffering and death. Defendant Revco filed a Motion to
Dismiss on the grounds that the Complaint failed to state a claim against it. The Trial Judge
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granted judgment, and the action was dismissed as to Revco, and an appeal has been properly
perfected from that dismissal.
Defendant Boone is a police officer for the City of Knoxville, and while off
duty, works as a security guard for the Revco drug store located on University Avenue in
Knoxville. On May 4, 1997, the deceased entered the Revco store and allegedly caused a
disturbance. Boone, while off duty as a police officer and while working as a security guard
for Revco, issued deceased a citation for disorderly conduct, and warned deceased to stay
out of the store.
On June 4, 1997, Boone while working as a security guard at Revco was
informed by the store manager, James Lavin, that the deceased had returned to the store. It
is alleged that while under the direction and control of Revco and within the scope of his
employment there, Boone checked with the Knoxville Police Department and learned that
deceased did not report to jail for booking on May 19, 1997, as ordered under the citation.
As a result of his failure to appear, a bench warrant had been issued for deceased’s arrest.
Boone then went to the deceased’s apartment “with the consent, condonance, and direction
of James Lavin . . . to serve the bench warrant to prevent Woodfin [deceased] from ever
returning to Revco and to punish Woodfin for disregarding Revco’s no trespass order.”
Boone contacted several other police officers, who are named as Defendants, to assist him
in arresting the deceased. At the deceased’s premises, Boone and the other officers
demanded that the deceased come out of his apartment. He refused and told Boone and the
officers that he would shoot them if they entered his apartment, and closed and locked the
door to his apartment.
Boone and the other officers contacted deceased’s landlord, requesting that
they send a maintenance person with a key so that they could gain access to the apartment.
Prior to the arrival of the key, Boone was called by Revco to issue a citation to a shoplifter.
Boone later returned to the apartment where he was given the key, and proceeded to unlock
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and open the back door of deceased’s apartment. Once inside, Boone and the officers
realized that deceased had locked himself in the bathroom. The officers ordered him out of
the bathroom, but he refused and told them that he had a shotgun. Defendant Maxwell
kicked the bathroom door open and fired upon deceased, killing him.
Plaintiffs allege that Boone used “excessive force, unlawful battery, and
assisted in causing the wrongful death of Woodfin [deceased].” They assert that Revco is
liable as the employer of Boone under the doctrine of respondeat superior.
Our review of the granting of a Tennessee Rule of Civil Procedure 12.02(6),
motion to dismiss for failure to state a claim is a question of law. Accordingly, the standard
of review is de novo with no presumption of correctness in favor of the trial court’s action.
T.R.A.P. Rule 13(d); Owens v. Truckstops of America, 915 S.W.2d 420 (Tenn.1996).
When considering a motion to dismiss, we are required to construe the complaint liberally
in favor of the plaintiff, taking all allegations of fact as true, and deny the motion unless it
appears the plaintiff can prove no set of facts in support of her claim that would entitle the
plaintiff to relief. Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997).
Generally, to hold an employer liable under the doctrine of respondeat
superior, the tort victim must prove that the person who caused the injury was an employee,
that the employee was on the employer’s business, and that the employee was acting within
the “scope of employment” when the injury occurred. Tennessee Farmer Mut. Ins. Co. v.
American Mut. Liability Ins. Co., 840 S.W.2d 933 (Tenn.App. 1992). However, an
employer may also be liable for acts of his employee that are outside the scope of
employment if done at the direction of the employer. Kinnard v. Rock City Const. Co., 286
S.W.2d 352 (Tenn.App. 1955).
The complaint alleges that Boone was an “employee” of Revco at all relevant
times and was acting under the direction and control of Revco. Revco argues that Boone
was acting in his official capacity as a police officer at the time of the incident, and not as an
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employee of Revco. It bases this assertion on the theory that a police officer retains the
right to make an arrest at any time, even when off duty. See Knoxville City Code, §19-29.
However, even though a police officer retains his status as a police officer at all times, not
all of his actions are necessarily within the scope of his duty as an officer.
In Nishan v. Godsey, 166 F.Supp. 6 (E.D. Tenn. 1958), the Court held that
although the officer was technically “on-duty” 24 hours a day, the City was not responsible
when the officer accidentally discharged his revolver after he had finished his shift for the
day and was at a gas station filling his personal motor vehicle. The Court reasoned that at
the time of the incident, the officer was not acting within the scope of his duty as a police
officer.
A police officer not acting within his official duties is liable for his private
actions as is any other private citizen. See People in Interest of J.J.C., 835 P.2d 553, 555
(Col.App.1992) (affirmed in People in Interest of J.J.C. 854 P.2d 802 (Col. 1993)). It
follows that if the police officer was acting for a private employer and not in his official
capacity as a police officer, that employer may be held liable if the requirements for
liability under the doctrine of respondeat superior are met. However, there is a significant
split of authority among the states as to the role of off-duty police officers while working as
private security guards.
The majority holds that police officers retain their official status as a
policeman when employed privately during off-duty hours, because a police officer’s duties
are continual. See Hutto v. Alabama, 304 So.2d 29 (Ala.Crim.App. 1974); Carr v. State,
335 S.E.2d 622 (Ga.App. 1985); Monroe v. State, 465 S.W.2d 757 (Tex.Crim.App. 1971).
Public policy considerations, including the notion that authority placed in security guards
furthers the objective of deterring unlawful acts, is also a deciding factor for many courts.
Tapp v. State, 406 N.E.2d 296 (Ill.App. 1980); State v. Wilen, 539 N.W.2d 650 (Neb.App.
1995).
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On the other hand, some courts have refused to accept this principle, and have
held that a police officer’s duties end when the officer accepts private employment and/or is
paid by an entity other than the city or police department. See Cervantez v. J. C. Penny Co.,
595 P.2d 975 (Cal. 1979),, and Stewart v. State, 527 P.2d 22 (Okla.Crim.App. 1974).
The practice of municipalities allowing police officers, while off-duty and in
uniform, to serve as peace-keepers in private establishments open to the general public, is
generally considered to be in the public interest. In State v. Wilen, 539 N.W.2d 650, 660
(Neb.App. 1995); the Court observed:
The presence of uniformed officers in places susceptible to breaches of the
peace deters unlawful acts and conduct by patrons of those places. The public
knows the uniform and the badge stand for the authority of the government.
The public generally knows that law enforcement officers have the duty to
serve and protect them at all times. A holding that law enforcement officers
have no official duty to maintain the peace under these circumstances would
be in contravention of the policy we seek to further.
See also State v. Brown, 672 P.2d 1268 (Wash.App. 1983); Duncan v. State, 294 S.E.2d
365 (Ga.App. 1982).
However, as some courts have acknowledged, not all acts by off-duty police
officers fall within the scope of their public duty. See Brandon v. Allen, 516 F.Supp. 1355
(W.D. Tenn. 1981); State v. Wilen, 539 N.W.2d 650, 659 (Neb.App. 1995). These courts
have adopted a balancing test in which they examine the specific acts and circumstances of
the case to determine whether the officer was acting in his official capacity of serving the
public or was acting in the interest of his private employer.
In the case of State v. Kurtz, 278 P.2d 406 (Ariz. 1954), the Court was faced
with the question of whether off-duty officers engaged in private employment lose their
official status to the extent that their acts necessarily become those of private citizens. The
Court asked whether the officers were “acting in ‘vindication of public right and justice’ or
were they merely performing acts of service to their private employer?” The Court cited
the following language from Neallus v. Hutchinson Amusement Co., 139 A. 671 (Me.
Page 5
1927).
The decisions hold generally that such officers act sometimes as
officers and sometimes as servants of the person employing them; that
they are not, although paid for all their services by the persons at
whose instance they are appointed, servants of such persons in respect
to all the acts they perform by virtue of their offices but only in
respect to services rendered to these persons, such as protecting and
preserving their property or maintaining order on their premises; that
the line of distinction, sometimes hard to recognize under the
circumstances of a given case, marks the point at which the act ceases
to be one of service to the employer and becomes one of vindication
of public right and justice, of apprehension or punishment of a
wrongdoers, not for the injury done to the employer but to the public at
large.
In Kurtz, the Court found that the officers were acting in their official capacity in
controlling a disturbance outside the ballroom where they were working as security guards.
The Court in State v. Wilen, 539 N.W.2d 650 (Neb.App.1995) adopted a similar test. In
determining whether an off-duty officer is engaged in official duties, the Court examined
the nature of the secondary employment and the nature of the acts being performed at the
time of the incident, and noted:
[W]e examine (1) the specific nature, extent, and circumstances of the
secondary employment; (2) the manner in which such secondary
employment is regarded by the employer and employee; and (3) the
nature of the acts the peace officer . . . is performing at the time in
question.
The Court recognized that “certain off-duty activities are unrelated to police officer status
or do not resemble the police officer’s obligation to keep the peace, and such off-duty
conduct is not viewed as engaging in the performance of official duties.” The court decided
that a police officer retains her police officer status even while privately employed, unless
it is clear from the nature of the officer’s activities that she is “acting exclusively in a
private capacity or is engaging in his or her own private business.”
We adopt the balancing test set forth in Kurtz and Wilen. In this case, while
Revco initiated the issuance of the citation, the failure of deceased to appear in court
resulted in a warrant being issued by the Court. Serving the Court’s warrant was a
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vindication of a public right and clearly a policeman’s duty and function as a police officer.
We conclude that the Trial Judge appropriately dismissed this suit as to the police officer’s
private employer.
We affirm the judgment of the Trial Court and remand with cost of the appeal
assessed to the appellants.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Charles D. Susano, Jr., J.
___________________________
D. Michael Swiney, J.
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Jamesena White v. The City of Knoxville
Combined Opinion