concurring in part and dissenting in part.
I fully concur in the portion of the majority opinion affirming the trial court’s grant of summary judgment on Tramaine Miller’s premises liability claim under OCGA § 51-3-1, as well as its statement of the standard of review (Divisions 1 (a) and 2). I respectfully dissent from the majority’s reversal of the trial court’s order granting summary judgment to City Views at Rosa Burney Park, LLC (“City Views”), and Ambling Management Company (“AMC”) on Miller’s vicarious liability claims and on his claim for punitive damages (Divisions 1 (b) and 3). The undisputed evidence shows that Officer Fisher thought Miller was trying to conceal illegal drugs and was armed with a gun, and that he shot Miller while he was trying to stop and arrest him for drug possession.26 Because the evidence shows that Officer Fisher took these actions solely as a police officer performing public duties, not within the scope of his employment at the apartments, the trial court correctly concluded as a matter of law that Miller could not hold City Views, AMC, or property manager Kelly Bunch27 vicariously liable for damages caused by Officer Fisher’s actions.
Miller brought suit for damages (including punitive damages) caused by Officer Fisher’s actions. He sought to impose individual liability on Officer Fisher, and vicarious liability on City Views, AMC, and Bunch, for Officer Fisher’s alleged intentional torts of assault, battery, intentional infliction of emotional distress, false imprisonment, and invasion of privacy. Miller and Officer Fisher gave different accounts of the facts underlying these intentional tort claims. *599Nevertheless, the facts on which there was no disagreement show that, at the time of the alleged torts, Officer Fisher was performing police duties and was not being directed or acting within the scope of his private employment.
Miller testified that he drove to City Views apartments at night to deliver medication to his aunt who lived there, and parked his car in the handicap space in front of the apartments. Miller was not handicapped and did not have a handicap sticker, but said he commonly parked there when visiting his aunt because the handicap restriction had never been enforced. Miller said that, after visiting with his aunt, he exited the apartment building, walked to his car, got in and started the car and placed the car in reverse. At that point, he heard a voice ordering him to put up his hands. Miller put up his hands while holding a cell phone in his left hand. At the same time, Miller saw a hand break the driver’s side window next to him followed closely by a gunshot which struck him in the face.
Officer Fisher testified that, on the night at issue, he was employed off-duty to provide security at City Views apartments, located in an area known for illegal drug sales. He was wearing his City of Atlanta police uniform and was carrying his police-issued baton and firearm. He saw Miller exit the apartment building and walk toward his car which was parked illegally in a handicap space. There was evidence that Bunch had specifically directed Officer Fisher to keep the handicap space open for those who were authorized to use it.
The officer said that he approached Miller with the initial intention to advise him not to park in the handicap space, and that he had no intention at that point to arrest him. Miller did not respond to the officer’s requests to stop, but instead entered his car and locked the doors. At that point, the officer approached the car, tapped on the window, and asked Miller to exit the car. Officer Fisher testified that as Miller started to back the car up, it struck him, and that at the same time he saw Miller reach into his pocket and place an object in his mouth about the size of a rock of crack cocaine. Because the officer thought that Miller was trying to conceal an illegal drug, and because Miller was obstructing him by refusing to exit the car and bumped him with the car, he decided at that point to arrest Miller for those reasons.
After the officer made the decision to arrest Miller, he used his baton to break out the driver’s side window intending to reach in to open the car door to get Miller out of the car. According to the officer, when he broke the window, he saw Miller reach under the seat and his *600hand come up with what appeared to him to be a gun. The officer then drew his service handgun and fired one shot which struck Miller in the face.
Officer Fisher’s undisputed testimony was that he was trying to arrest Miller because he believed he was in possession of illegal drugs, and that he shot Miller while attempting to make the arrest because he thought Miller had a gun. The officer conceded that, after he shot Miller, no drugs were found and no gun was found on Miller or in his car. Officer Fisher also testified that, although Bunch discussed with him that the use and sale of illegal drugs was a security problem at the apartments, he was given no directions about how to deal with the problem. Rather, Officer Fisher testified that he used his training as a police officer when he observed what he thought to be crack cocaine in Miller’s possession, and when he made the decision to arrest Miller.
On these facts, the trial court correctly ruled that when Officer Fisher attempted to stop and arrest Miller, and shot him while doing so, he was acting solely as a City of Atlanta police officer and not within the scope of his off-duty employment at the apartments. Regardless of whether Officer Fisher was hired to provide off-duty security at the apartments as an employee subject to direction and control, or as an independent contractor not subject to direction and control, no vicarious liability can be imposed on City Views and AMC for alleged intentional torts which arose out of Officer Fisher’s actions taken solely as a police officer.
Except as to negligence set forth in OCGA § 51-2-5, an employer is generally not vicariously liable for the negligence of an employee hired as an independent contractor who “is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. “Those statutory provisions, however, pertain to an employer’s liability for the negligence of the independent contractor or employee, and thus are inapplicable to... cases which involve intentional torts.” Peachtree-Cain Co. v. McBee, 170 Ga. App. 38, 39 (316 SE2d 9) (1984), affirmed, 254 Ga. 91 (327 SE2d 188) (1985). As to intentional torts committed by security personnel employed as independent contractors by a property owner or manager, the rule is that vicarious liability may be imposed for those torts, committed within the scope of employment, against invitees on the property. Id.
As applied to an off-duty police officer employed to provide private security, however, the rule is that, if the officer was performing police duties at the time of the alleged tort, and was not being directed by the employer or acting within the scope of the private *601employment, then the employer cannot be held vicariously liable for the tort. Beck v. Paideia School, 191 Ga. App. 183-184 (1) (381 SE2d 132) (1989).
If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable. . . . [The employer of an off-duty police officer] incurs no vicarious liability as a result of acts performed by the policeman in furtherance of his public duties.
(Citations omitted.) Id.; Page v. CFJ Properties, 259 Ga. App. 812, 813-814 (578 SE2d 522) (2003) (off-duty police officer employed for private security by store was performing police duties when he made shoplifting arrest based on his training and experience as a police officer — employer was not vicariously liable for alleged wrongful arrest).
By contrast, when the evidence shows that the off-duty police officer was acting within the scope of his private employment at the time of the alleged tort, the employer may be held vicariously liable. For example, in Seibers v. Dixie Speedway, 220 Ga. App. 811 (470 SE2d 452) (1996), after Seibers was injured in a fight at the Speedway, off-duty officers employed to provide private security refused to let Seibers leave to get obviously needed medical attention, but instead detained him (without making an arrest) for about two hours during which his serious brain injury worsened. Id. at 811-812. Evidence showed that the officers detained Seibers until he “shook hands” with the other combatant to implement a Speedway policy of resolving altercations before those involved left the Speedway. Id. at 811-812. Because there was evidence that, at the time of the alleged tort, the officers were acting within the scope of their private employment to implement a private policy, a jury issue was presented as to whether the Speedway was vicariously liable. Id. at 812-813 (1).
In the present case, undisputed facts show that, at the time of the alleged intentional torts, Officer Fisher was performing police duties, outside the scope of his private employment, which were not directed by City Views, AMC, or Bunch. Even if there was evidence that Officer Fisher’s initial approach to Miller about parking in the handicap space was directed by Bunch or within the scope of his private security employment, there is no evidence that the officer was acting at the direction of City Views, AMC, or Bunch, or within the scope of his private employment, when he took discretionary police action by attempting to arrest Miller for drug possession and shot Miller during the attempted arrest. “[A]ll law enforcement officers *602have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day, on and off duty.” (Citation and punctuation omitted.) Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680) (2009). Thus, Officer Fisher was engaged in the discharge of his official duties when he took action to make a warrantless arrest of Miller — even if the officer operated on the mistaken belief that an arrest was appropriate. There is no evidence that City Views or AMC trained or directed Officer Fisher as to the approach or apprehension of persons on the premises suspected of possessing illegal drugs, or how to respond to persons the officer believed to be armed. Rather, the evidence showed that, at the time of the alleged torts, Officer Fisher was acting based on his police training and his own discretion.
Decided July 16, 2013 Reconsideration denied July 31, 2013 Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Shean D. Williams, Mawuli M. Davis, Robert O. Bozeman, M. Gino Brogdon, for appellant. Hall Booth Smith, John E. Hall, Jr., James W. Standard, Jr., Duane L. Cochenour, Drew, Eckl & Farnham, Chad E. Jacobs, Douglas K. Burrell, Bruce A. Taylor, Jr., for appellees.On this record, City Views and AMC cannot be held vicariously liable for the intentional torts allegedly committed by Officer Fisher against Miller. We should therefore affirm the trial court’s grant of summary judgment in favor of City Views and AMC on these claims. Beck, supra.
I am authorized to state that Judge Branch joins in this opinion.
The majority’s statement that “the officer who shot Miller testified that he never intended to arrest Miller” is not supported by the record. The officer testified only that when he initially approached Miller, he planned to merely “counsel him about not parking in the handicap spot,” but he subsequently decided to arrest Miller for a different reason during the course of their encounter.
I agree with the majority’s conclusion in Division 1 (c) that the trial court properly granted summary judgment in favor of Bunch on the issue of vicarious liability.