White v. Revco Discount Drug Centers, Inc.

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 6, 2000 Session
JAMESENA WHITE, ET AL. v. REVCO DISCOUNT DRUG
CENTERS, INC.
Appeal by Permission from the Court of Appeals, Eastern Section
Circuit Court for Knox County
No. 1-351-98 Hon. Dale C. Workman, Judge
No. E1999-02023-SC-R11-CV - Filed November 22, 2000
We granted permission to appeal in this case to address whether a private employer may be held
liable for the negligent actions of an off-duty police officer who was hired by the employer for
private security purposes. In the circuit court, the defendant employer moved to dismiss the
plaintiffs’ wrongful death action for failure to state a claim, and the motion was granted by the trial
judge. The Court of Appeals affirmed the dismissal, holding that the actions of the off-duty officer
were taken in furtherance of his official duties as a peace officer, and therefore, the defendant
employer could not be held liable for the officer’s negligent actions. After reviewing the complaint
in this case, along with the applicable legal authority, we hold that the complaint does state a claim
against the defendant employer for the negligence of the off-duty officer. The judgment of the Court
of Appeals is reversed, and the case is remanded to the Knox County Circuit Court for further
proceedings consistent with this opinion.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the
Court of Appeals Reversed; Case Remanded
WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and
ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined. FRANK F. DROWOTA , III, J., not
participating.
A. Philip Lomonaco, Knoxville, Tennessee, for the appellants, Jamesena White, Michael L.
Woodfin, James E. Woodfin, Jr., Cheryl W. Bobbit, Jacqueline D. Woodfin, Joyce C. Woodward,
and Roderick Woodfin, as next of kin and heirs of James E. Woodfin, deceased.
Ronald T. Hill, Knoxville, Tennessee, for the appellee, Revco Discount Drug Centers, Inc.
OPINION
This case arises out of the dismissal of the plaintiffs’ wrongful death suit, which originated
from the shooting death of James E. Woodfin by officers of the Knoxville Police Department. As
alleged by the plaintiffs in their original and amended complaint, the events later giving rise to
Woodfin’s alleged wrongful death first began when Woodfin entered a Revco Discount Drug Store
(Revco) in Knoxville, Tennessee, on May 4, 1997. While inside Revco, Woodfin caused a
considerable disruption, and he was issued a misdemeanor citation for disorderly conduct by Revco’s
security guard, Danny Boone. After issuing the citation, Boone, who was also an off-duty police
officer with the Knoxville Police Department (KPD), warned Woodfin never to return to Revco.
One month later on June 4, 1997, the manager of Revco approached Boone and informed him
that Woodfin entered the store a few days earlier, contrary to Boone’s earlier warning. Boone, who
was working that day as Revco’s security guard, then called the KPD “under the complete direction”
of the Revco Manager and inquired as to the status of the May 4 citation. Boone learned that
Woodfin failed to report to the jail for “booking” on May 19 as ordered by the citation and that a
bench warrant had been issued for Woodfin’s arrest. The complaint then alleges that after Boone
told the Revco manager about the bench warrant, the manager directed Boone to go to Woodfin’s
apartment “to serve the bench warrant to prevent Woodfin from ever returning to Revco and to
punish Woodfin for disregarding Revco’s no trespass order.” Before going to Woodfin’s apartment,
however, Boone contacted four or five uniformed KPD officers to accompany him from Revco to
Woodfin’s apartment.
Upon arriving at Woodfin’s apartment, Boone and the uniformed officers discovered that
Woodfin had locked himself inside the apartment and that he would not allow anyone to enter. One
of the officers then called a maintenance person for a key to the apartment. While waiting for the
maintenance person to locate the key, Boone was contacted by the Revco manager, who wanted
Boone to return to the store to issue a citation to a shoplifter. Boone left the apartment, issued the
citation to the shoplifter at Revco, and then returned to Woodfin’s apartment.
After finally obtaining a key, Boone and the officers entered the apartment and discovered
that Woodfin had locked himself in the bathroom. Woodfin warned the officers that he had a
shotgun pointed at the bathroom door and that he would shoot anyone who entered. According to
the complaint, one of the other officers then kicked open the bathroom door and fired his weapon,
mortally wounding Woodfin in the stomach. The officers then left the apartment and, for the first
time, called a police supervisor to tell him what had occurred.
The plaintiffs in this action then filed a wrongful death suit against Boone, Revco, the
Knoxville police officers involved, the City of Knoxville, and the Knoxville Community
Development Corporation, which leased the apartment to Woodfin.1 The complaint alleged in
relevant part that the officers were negligent in the use of deadly force against Woodfin, because
1
As no issues concerning the other de fendants in this case are properly before this Court, we focus only upon
the allegations of the complaint relating to defendant Boone and his employment and association with defendant Revco.
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such force was unreasonable and unnecessary to accomplish an arrest on a misdemeanor warrant.
The complaint also alleged that the actions of the officers “escalated and aggravated the situation”
and that through these actions, the officers became “the aggressors,” making any use of deadly force
unreasonable.
In the original complaint, the plaintiffs alleged that Boone was acting “as an agent” for Revco
during the events giving rise to Woodfin’s death and that Revco was therefore liable for Boone’s
actions under the doctrine of respondeat superior. In their amended complaint, the plaintiffs further
alleged that during all times relevant to the action, Boone was working as a private security guard
for Revco and that he was acting “under the direction, consent, control, and within the scope of his
employment with Revco.” More specifically, the amended complaint alleged that Revco directed
Boone to call the KPD to check on Woodfin and that Revco directed and consented to Boone going
to Woodfin’s house “to prevent Woodfin from ever returning to Revco and to punish Woodfin for
disregarding Revco’s no trespass order.” As proof of Revco’s control over Boone, the plaintiffs
alleged that Revco recalled Boone from Woodfin’s apartment to issue a citation to a shoplifter.
Revco moved to dismiss the complaint against itself under Tennessee Rule of Civil
Procedure 12.02(6), stating that the plaintiffs failed to allege sufficient facts setting forth a cause of
action. The basis for Revco’s motion was that because “Boone, as a matter of law, was acting solely
within the scope of his duty as a police officer” when the officers sought to arrest Woodfin in his
apartment, Boone could not be Revco’s employee or agent. The trial court granted Revco’s motion
to dismiss, and the plaintiffs appealed to the Court of Appeals.2
The Court of Appeals affirmed the dismissal of the complaint by adopting a test that
examines the nature of the activities undertaken by the police officer during the events giving rise
to the cause of action. The intermediate court then found that Boone’s actions in this case 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. Because Boone was not acting within
the scope of his private employment with Revco at the time of Woodfin’s death, the court declined
to find that a cause of action had been stated against Revco under the doctrine of respondeat superior.
We respectfully disagree with the judgment of the Court of Appeals, and for the reasons given
herein, we hold that the original and amended complaints in this case sufficiently set forth a cause
of action upon which relief may be granted. Accordingly, we remand this case to the Knox County
Circuit Court for further proceedings consistent with this opinion.
STANDARD OF APPELLATE REVIEW
2
Revco’s m otion to dismiss was initially based upon the unamended complaint, which only alleged that Revco
“allowed Boone . . . to go after Woodfin . . . .” (emphasis added). The trial court allowe d the plaintiffs to amend their
complaint to allege Revco’s consent, direction, and control of Boone’s actions giving rise to the wrongful death action.
Even after conside ring the allegatio ns contained in the plaintiffs’ amen ded com plaint, however, the trial granted R evco’s
motion to d ismiss for failure to sta te a claim.
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A Rule 12.02(6) motion to dismiss admits the truth of all of the relevant and material
averments contained in the complaint, but it asserts that the averments nevertheless fail to establish
a cause of action. See, e.g., Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).
Therefore, when reviewing a dismissal of a complaint under Rule 12.02(6), this Court must take the
factual allegations contained in the complaint as true and review the trial court’s legal conclusions
de novo without giving any presumption of correctness to those conclusions. See, e.g., Doe v.
Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999). Because a motion to dismiss a complaint under
Tennessee Rule of Civil Procedure 12.02(6) challenges only the legal sufficiency of the complaint,
courts should not dismiss a complaint for failure to state a claim based upon the perceived strength
of a plaintiff’s proof. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999). As Rule of Civil Procedure 8.01 only requires
that a complaint set forth “a short and plain statement of the claim showing that the pleader is
entitled to relief,” courts should liberally construe the complaint in favor of the plaintiff when
considering a motion to dismiss for failure to state a claim. See, e.g., Pursell v. First Am. Nat. Bank,
937 S.W.2d 838, 840 (Tenn. 1996). Although allegations of pure legal conclusions will not sustain
a complaint, see Ruth v. Ruth, 372 S.W.2d 285, 287 (Tenn. 1963), courts should grant a motion to
dismiss only when it appears that the plaintiff can prove no set of facts in support of the claim that
would entitle the plaintiff to relief, see, e.g., Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934,
938 (Tenn. 1994).
PRIVATE EMPLOYER LIABILITY FOR ACTIONS OF
OFF-DUTY POLICE OFFICERS
The issue of whether private employers may be held vicariously liable for the torts committed
by an off-duty police officer employed as a private security guard appears to be one of first
impression in this state. In the typical case involving the doctrine of respondeat superior, an
employer may be held liable for the torts committed by his or her employees while performing duties
within the scope of employment. See, e.g., Howard v. Haven, 198 Tenn. 572, 582, 281 S.W.2d 480,
484-85 (1955); Tennessee Farmers Mut. v. American Mut., 840 S.W.2d 933, 937 (Tenn. Ct. App.
1992). Although a private employer is certainly “not immune from liability for the negligent or
wanton acts of an employee . . . for the reason that the employee has official status as a police
officer,” see Carmelo v. Miller, 569 S.W.2d 365, 367 (Mo. Ct. App. 1978), we recognize that issues
stemming from the private employment of off-duty officers do not fit precisely within the typical
framework of respondeat superior. 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.
Other jurisdictions that have examined this issue are divided as to whether, and under what
circumstances, a private employer may be held liable for the actions of an off-duty officer employed
as a security guard. Irrespective of the ultimate conclusion reached, though, most jurisdictions, if
not all, resolve this type of issue by looking to the “nature” of the act committed by the off-duty
officer. A majority of jurisdictions, including the Court of Appeals in this case, find that because
the officer’s actions giving rise to the tort were taken in the officer’s official capacity, the private
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employer cannot be held vicariously liable. While various rationales are used to reach this
conclusion, most jurisdictions reason that the officer’s actions were “official” because (1) police
officers have an ever-present public duty to preserve the peace and enforce the law,3 or (2) the
officer’s action was taken to vindicate a public right or to benefit the public in general.4 In addition
to these considerations, some courts have even declined to impose vicarious liability on employers
based, in part, on public policy grounds, holding that employment of police officers as security
guards furthers deterrence of crimes.5
While some jurisdictions impose liability on private employers for the actions of off-duty
officers, these minority jurisdictions merely conclude that the officer was acting in a private capacity
when the tort was committed. The rationales advanced to support this conclusion include (1) that
the officer’s actions were within the scope of his or her private employment;6 and (2) that the
officer’s actions were taken in return for private compensation, contrary to a statute prohibiting
private compensation for public duties.7 Consequently, even though jurisdictions may disagree as
to the proper resolution of any given case, virtually all jurisdictions ultimately follow a nature-of-the-
act approach in determining private employer liability for the actions of an off-duty officer employed
as a security guard.
1. Analysis Focusing Upon the Nature of the Officer’s Actions
Upon due consideration, we decline to strictly analyze this issue according to the nature of
the officer’s actions, as this approach does not closely comport with existing Tennessee law. When
analyzed in terms of current Tennessee law and practice, the nature-of-the-act analysis has three
primary shortcomings. First, this type of analysis fails to take into account the fact that many of the
actions taken by officers in Tennessee to “vindicate public rights” may also be lawfully taken by
private citizens to serve other interests. For example, police officers in Tennessee do not possess
the exclusive authority to make arrests, as private citizens possess this power in many of the same
circumstances as officers on official duty. See Tenn. Code Ann. § 40-7-109 (1997) (listing grounds
3
See, e.g., Lande v. Menag e Ltd. Partn ership, 702 A.2d 12 59, 126 1 (D.C. 1 997); Tapp v. State, 406 N.E.2d
296, 30 1 (Ind. Ct. App. 19 80); Lovelace v. Anderson, 730 A.2 d 774, 7 81 (M d. Ct. Spec . App. 19 99); State v. Glover,
367 N .E.2d 12 02, 120 4 (Ohio C t. App. 19 76).
4
See, e.g., Whitley v. Food Giant, Inc., 721 So . 2d 207 , 209 (Ala . Civ. App . 1998); State v. Kur tz, 278 P.2d
406, 408 (A riz. 1952 ); State v. Wilen, 539 N .W.2d 650, 65 8 (Neb . Ct. App. 1 995); Glenma r Cinestate, Inc . v. Farrell,
292 S.E.2d 366, 369 -70 (Va. 1982).
5
See, e.g., Duncan v. State, 294 S.E.2d 365, 366 (Ga. Ct. App. 1 982); State v. Brown, 672 P.2d 1268, 1269-70
(Wash. Ct. App. 1983).
6
See, e.g., McW ain v. Greyhound, 357 So . 2d 780 , 781 (Fla . Dist. Ct. App . 1978).
7
See, e.g., Cervantez v. J.C. Penny Co., 595 P.2 d 975, 9 80 (Cal. 1 975), superseded by statute on other grounds
as recognized by Melendez v. City of Los Angeles, 73 Cal. R ptr. 2d 46 9, 472-7 3 (Cal. Ct. A pp.199 8); Stewart v. State ,
527 P.2d 22, 24 (O kla. Crim. App. 1974).
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permitting arrest by private citizens). In addition, private citizens employed as security guards in
Tennessee are authorized by statute to undertake many actions for private interests that also appear
to be consistent with a general vindication of public rights. For example, private security guards in
this state are authorized to protect
persons and/or property from criminal activities, including, but not limited to:
(A) Prevention and/or detection of intrusion, unauthorized entry, larceny,
vandalism, abuse, fire or trespass on private property;
(B) Prevention, observation or detection of any unauthorized activity on
private property;
(C) Enforce rules, regulations or local or state laws on private property;
(D) Control, regulation or direction of the flow or movements of the
public, whether by vehicle or otherwise on private property; or
(E) Street patrol service;
See Tenn. Code Ann. § 62-35-102(16) (1997) (emphasis added). As this statute makes clear, private
security guards are authorized to enforce local and state laws and to protect persons and property
against general criminal activities, irrespective of whether the guard is a private citizen or an off-duty
officer. Because many of these statutorily authorized activities could legitimately be viewed either
as serving the interests of the private employer or as vindicating public rights, analysis focusing on
the “nature” of the act may not provide a meaningful basis upon which to impose vicarious liability
on the private employer.
Second, just as the majority approach that looks to the official nature of the officer’s actions
ignores that private citizens in Tennessee can perform many of the same actions as police officers,
an approach that looks to the private nature of the officer’s actions ignores that police officers in
Tennessee still possess the full panoply of “official” police power, even when they are off duty.8
Indeed, this benefit is one of the considerable advantages of employing off-duty officers as private
security guards, and we are unwilling to restrict the powers of an off-duty officer solely to
accommodate a test that examines the nature of the acts committed. For the same reasons that we
reject a test denying vicarious liability when the off-duty officer performs “official actions,” we must
8
For similar rea sons, we are reluctant to ground liability for private emp loyers solely on the fact of private
payment as do some minority jurisdictions. See, e.g., Cervantez v. J.C. Penny Co., 595 P.2d 975, 980 (C al. 1975),
superseded by statute on other grounds as recognized by Melendez v. City of Los Angeles, 73 Cal. Rptr. 2d 469, 472-73
(Cal. Ct. App.19 98); Stewart v. State , 527 P.2d 22, 24 (Okla. Crim. App. 1974). This approach 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.
Moreover, while the polic e officers in this case are not continuously on official duty, they are frequently subject to being
summoned for official duty at an y time. See, e.g., Knoxville C ity Code § 19-29. As such, situations can arise where a
police officer is summ oned for o fficial duty or othe rwise acts in an o fficial capacity as a peace officer, even though the
officer is still technically on the payroll of the private employer. To hold that a private employer may be vicariou sly
liable for the acts of a p olice officer sim ply because of an overla p of emp loyment sche dules doe s not comp ort with basic
notions of fairness. Therefore, while this rationale may be attractive for some jurisdictions, we believe that this approach
over- simplifies the practical realities of our state law-enforcement practices and could result in unjust determinations
in some cases.
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necessarily reject a rule that holds private employers liable in situations solely because the acts
committed by the off-duty officer were “private” in nature.
Third, while most states decline to impose vicarious liability on private employers because
police officers have a continuous duty to keep the peace and enforce the law, we can find no
corresponding statute or rule of law in this state that places a mandatory duty upon police officers
to keep the peace when “off duty.” To the contrary, when officers are “off duty,” our statutes
generally treat the officer as an ordinary private citizen and not as an agent or employee of the
municipal police department under a general duty to keep the peace. See, e.g., Tenn. Code Ann. §
38-8-351 (1997) (allowing officers to participate in political activities when “off-duty and acting as
a private citizen,” but not when the officer is “on duty or acting in such officer’s official capacity”);
Tenn. Code Ann. § 38-8-303 (1997) (making distinction between “the performance of the officer’s
official duties” and the officer’s “off-duty [private] employment” for purposes of disclosure in
official investigations). Consequently, to the extent that a nature-of-the-act analysis focuses upon
some continuous duty of police officers to keep the peace, that analysis is impractical in this state.
Of course, to say that officers do not continuously function in an official capacity is not to
say that off-duty officers are prevented from assuming a duty to remedy a breach of the peace, or that
officers are incapable of being summoned to official duty by the municipality. Cf. Knoxville City
Code § 19-29. Nevertheless, it is clear that officers are not under a general duty to enforce the law
while “off duty,” cf. Ezell v. Cockrell, 902 S.W.2d 394, 403 (Tenn. 1995) (stating that an officer’s
ability to arrest at any time does not give rise to a duty to do so, but “only delineate[s] the general
authority and responsibility of police officers”), and a blanket rule declaring that police officers are
under a never-ending duty to keep the peace is contrary to existing Tennessee law. We therefore
decline to use this rationale in determining the scope of private employer liability.
For these reasons, we conclude that a test examining the nature of the officer’s actions to
resolve the question of employer liability is probably unworkable within the current framework of
Tennessee law. No doubt because of the practical difficulty in determining the proper nature of the
actions committed by a security guard, this test has resulted in over-insulating private employers who
would otherwise be subject to liability if the security guard were not also employed by a municipal
police department. While a few states in minority jurisdictions have held employers liable under this
approach, the vast majority of jurisdictions using this approach have held that private employers are
not liable. We are unwilling to provide such practical immunity for private employers based only
upon negligible distinctions concerning the “nature” of the officer’s conduct.
2. Public Policy Grounds for Denying or Imposing Private Employer Liability
Several jurisdictions have also used public policy considerations to hold that private
employers are not liable for the actions of off-duty officers employed as security guards. These
jurisdictions generally reason that because deterrence of crime is furthered by employing police
officers, private employers should be encouraged to hire such officers as security guards. See, e.g.,
Duncan, 294 S.E.2d at 366; Brown, 672 P.2d at 1269. In its most basic sense, therefore, these
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jurisdictions have decided to grant practical immunity to private employers in exchange for the
perceived benefit derived from private employers hiring off-duty officers as security guards.
Although we agree that deterrence of crime may be rationally furthered by the hiring of off-
duty officers, we also recognize that some level of deterrence is provided simply by hiring private
security guards, irrespective of whether the guards are off-duty officers or private citizens.9
Moreover, eliminating vicarious liability for private employers who hire off-duty police officers
encourages such employers to shift their risk of liability to the municipality solely because their
employees are also employees of the local police department. As jurisdictions following a nature-of-
the-act approach recognize, at least implicitly, the private employer would have been vicariously
liable for the torts of its security guard except for the fact that the security guard is also a municipal
police officer. As such, allowing liability based only upon the official status of the employee
undermines the modern rationale of vicarious liability, which according to Professor Keeton, is the
result of “deliberate allocation of risk.” W. Page Keeton, et al., Prosser and Keeton on Torts § 69,
at 500 (5th ed. 1984). This allocation of risk is
placed on the employer because, having engaged in an enterprise, which will on the
basis of all past experience involve harm to others through the torts of employees,
and sought to profit by it, it is just that [the employer], rather than the innocent
injured plaintiff, should bear [the risk]; and [liability is placed on the employer]
because [the employer] is better able to absorb [the risks], and to distribute them,
through prices, rates or liability insurance, to the public, and so to shift them to
society, to the community at large.
Id. § 69, at 500-01.
Under the majority rule, 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. We simply do not believe that in many cases, the risk of loss is properly shifted
from the private employer to the municipality or to an innocent plaintiff, and we therefore disagree
with the public policy rationales advanced by many of our sister jurisdictions that have adopted the
majority rule on this issue.
3. Advantages of Agency Law
After due consideration, we conclude that issues of employer liability for the acts of off-duty
police officers are best resolved under traditional principles of Tennessee agency law. Use of agency
9
With the rule we announce today, we d oubt that priv ate emplo yers will suddenly forgo hiring off-duty officers
merely for fear of liability, because the advantages of hiring off-duty officers include their training in law-enforcement
practices and their ability to perform some duties that ordinary citizens cannot. So long as employers continue to hire
security guards, either private citizens or off-duty officers, we find that deterrence will be served irresp ective of liability
issues. Accord ingly, we give little add itional consid eration to this issue in deciding w hether priva te employe rs should
be held liable for the actions of off-duty officers emplo yed as security guards.
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principles in Tennessee to resolve this complex issue has several advantages. First, because
traditional agency principles have been used in this state for two centuries, they possess the
advantages of experience and straightforward application. In addition, these principles do not
depend upon the splitting of legal hairs into meaningless distinctions, which is a hallmark of many
of the other approaches.10
Second, and most importantly, use of traditional agency law to resolve these types of issues
corresponds most closely with prior case law from this Court. Although the issue of private
employer liability for the acts of a municipal police officer employed in a private capacity is an issue
of first impression in this state, this Court has previously addressed this same question in terms of
private employer liability for the torts committed by a special police officer commissioned by a
municipality for a particular assignment. In Terry v. Burford, 131 Tenn. 451, 175 S.W. 538 (1915),
this Court applied traditional agency principles to hold the private employer vicariously liable for
the torts committed by the officer, notwithstanding the officer’s special commission from the
municipality. See also Union Ry. Co. v. Carter, 129 Tenn. 459, 166 S.W. 592 (1914).
Although these cases do not directly control the decision in this case because of the important
distinction between special officers and regular police officers—special officers usually only have
the complete authority and powers of regular officers to the extent allowed by the special
commission, cf. Tenn. Code Ann. § 8-8-212(b) (1997)—these cases are certainly persuasive
authority for applying traditional agency principles to the issues involving regular officers as well.11
For these reasons, we conclude that issues concerning employer liability for torts committed by off-
duty police officers employed as security guards are to be resolved according to traditional Tennessee
agency principles.
GENERAL PRINCIPLES OF TENNESSEE LAW OF AGENCY
Having decided that this case should be resolved with reference to Tennessee agency law,
it may be necessary to review the relevant principles of agency. In its broadest sense, the concept
of agency “includes every relation in which one person acts for or represents another.” Kerney v.
Aetna Cas. & Sur. Co., 648 S.W.2d 247, 253 (Tenn. Ct. App. 1982). An agency relationship does
not require an explicit agreement, contract, or understanding between the parties, Warren v. Estate
of Kirk, 954 S.W.2d 722, 725 (Tenn. 1997), and when “the facts establish the existence of an agency
10
Moreover, the minority approach that looks to whether the act of the officer was committed within the scope
of private employment is too restrictive in its approach to assigning liability. Agency theory, b y way of contra st,
recognizes that vicarious liability may properly arise under som e situations even outside the scope of private
employm ent. See Parker v. Warren County U til. Dist., 2 S.W.3d 1 70, 177 (T enn. 1999) (reco gnizing that the phrase
“scope o f employm ent” does n ot serve “as the sole basis for im posing em ployer liability”).
11
We believe these cases to be persuasive b ecause spe cial officers and off-duty officers em ployed as p rivate
security guards share several impo rtant characteristics. To pro vide a brief e xample, b oth special p olice officers a nd off-
duty officers are employed only for a special purpose , usually to provide security for a private entity. In addition, the
private employer of a special police officer, like that of an off-duty officer serv ing as a private security guard , is
responsib le for comp ensating the o fficers and for m aintaining emp loyee insuran ce. Cf. Tenn. C ode Ann . § 8-8-212 .
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relationship, it will be found to exist whether the parties intended to create one or not.” Harben v.
Hutton, 739 S.W.2d 602, 606 (Tenn. Ct. App. 1987); see also Smith v. Tennessee Coach Co., 183
Tenn. 676, 680-81, 194 S.W.2d 867, 869 (1946). Whether an agency exists “is a question of fact
under the circumstances of the particular case; and whether an agency has been created is to be
determined by the relation of the parties as they in fact exist under their agreement or acts.” McCay
v. Mitchell, 62 Tenn. App. 424, 434, 463 S.W.2d 710, 715 (1970).
Important in the concept of agency, of course, is that a principal is generally “bound by its
agent’s acts done in its behalf and within the actual or apparent scope of the agency.” V.L.
Nicholson Co. v. Transcon Inv. & Financial Ltd., 595 S.W.2d 474, 483 (Tenn. 1980). The focus of
this inquiry, however, is placed upon the actions and consent of the principal, rather than upon the
agent’s actions or the willingness of the agent to perform those actions. Haury & Smith Realty Co.
v. Piccadilly Partners I, 802 S.W.2d 612, 615 (Tenn. Ct. App. 1990). Although the principal’s right
to control the actions of the agent is an important factor in finding the existence of an agency
relationship, Jack Daniel Distillery, et al. v. Jackson, 740 S.W.2d 413, 416 (Tenn. 1987), the right
of control is not necessarily as important as the principal’s exercise of actual control over the agent,
see Parker v. Vanderbilt Univ., 767 S.W.2d 412, 416 (Tenn. Ct. App. 1988).
Indeed, a principal may be held liable for an agent’s tortious act, even if that act occurs
outside of the scope of the agency, if the act was commanded or directed by the principal. See
Kinnard v. Rock City Const. Co., 39 Tenn. App. 547, 551, 286 S.W.2d 352, 354 (1955). As the
Kinnard Court stated the rule:
A master is liable for the tort of his servant where the tortious act is done in
obedience to his express orders or directions, even though the service is not within
the line of the servant’s usual duties, and provided the injury to the third person
occurs as the natural, direct, and proximate result of the directed or authorized act.
Id. at 551-52, 286 S.W.2d at 354-55. The court also noted that the law did not strictly require that
“the principal or master should expressly direct or have knowledge of the act done; it is enough that
the servant or agent was acting in the business of his superior.” Id. at 551, 286 S.W.2d at 354 (citing
Luttrell v. Hazen, 35 Tenn. (3 Sneed) 20, 25 (1855)).
It is also well settled that an agent may serve two masters simultaneously, so long as the
objectives of one master are not contrary to the objectives of the other. See Monroe County Motor
Co. v. Tennessee Odin Ins. Co., 33 Tenn. App. 223, 241, 231 S.W.2d 386, 394 (1950). As section
226 of the Restatement (Second) of Agency states the rule, “A person may be the servant of two
masters, not joint employers, at one time as to one act, if the service does not involve abandonment
of the service to the other.” In so doing, the person serving two masters “may cause both employers
to be responsible for an act . . . . if the act is within the scope of employment for both.” Id. § 226
cmt. a.
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To summarize these agency principles in terms of application to the issue in this case, we
conclude that private employers 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;12 (2) the action taken
by the off-duty officer occurred outside of the regular scope of employment, if 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 an intent to benefit the private employer.13
Consistent with agency law, the private employer of an off-duty officer cannot generally be
held vicariously liable for actions taken by the off-duty officer outside of the officer’s regular scope
of employment as a security guard. As such, when the officer is summoned to official duty by the
municipality, or otherwise performs traditional police actions outside of the scope of his or her
private employment, the private employer will not be generally liable. The private employer would
be liable, however, for acts taken outside of the regular scope of private employment under the
following two scenarios: (1) the employer ordered or directed the action; or (2) the employer gave
consent to the action, which was taken by the officer with a primary intent to benefit the employer.
As is the case with agency law in general, issues such as whether the officer acted within the scope
of employment, or whether the officer acted at the direction or with the consent of his or her private
employer, are questions of fact to be resolved by the jury.
We also recognize that under the dual master doctrine, the municipality may also be
vicariously liable—along with the private employer—for the actions taken by one of its off-duty
police officers. Under Tennessee agency law, liability may also be imputed to the municipality when
all of the following four circumstances are present: (1) the action taken by the off-duty officer
involves exercise of a traditional police power, such as the power to arrest, the power to issue
citations, or the power to command aid; (2) the municipality had knowledge, either actual or
constructive, of the action taken by the off-duty officer;14 (3) the action taken by the off-duty officer
12
We differ from many of the minority jurisdictions which find the actio ns of the officer to be “private” in
nature, because we recognize that the private employer may be subjec t to vicarious liability even if the off-duty officer
performs “official” acts within the regular scope of his or her em ployment a s a security guard . As we stated p reviously,
the nature-of-the-act analysis does not work well with existing Tennessee law, and private employers are not immune
from liability for the acts co mmitted by th eir employees merely because the employee also happens to be a municipal
police officer. Employe rs who assum e the benefits o f employing o ff-duty officers must also assume the corresponding
risk of harm fo r acts comm itted by such se curity guards w ithin the scope of their emplo yment.
13
Because the primary focus of agency law is upon the consent of the princip al to have action s taken on his
or her behalf by the agent, this last scenario envisions that a private employer may be liable for actions taken by the
officer to benefit the emplo yer and of wh ich the emp loyer had ac tual knowled ge and gav e consent. T o that extent,
therefore, it is irrelevant to the analysis of this factor whether the actions were taken by the officer in the regular scope
of officer’s off-duty e mployme nt.
14
This requ irement is nece ssary to establish the aspect o f control necessary for the im position of liab ility.
Without any knowledge by the municipality of the actions taken by the off-duty officer, no opportu nity or duty to control
(continued ...)
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simultaneously serves the objectives of the private employer and the municipality; and (4) the
objectives of the private employer and the municipality, which are both served by the officer’s
action, are not inconsistent with each other.
DISMISSAL OF THE COMPLAINT PURSUANT TO RULE OF
CIVIL PROCEDURE 12.02(6)
Because this case comes before us on a motion to dismiss for failure to state a claim, we
confine our inquiry solely to the allegations of the complaint to determine whether the plaintiffs have
alleged a cause of action against Revco upon which relief may be granted. After carefully examining
the material allegations of the original and amended complaints, we conclude that the plaintiffs have
in fact made sufficient allegations under all three agency theories, which, if proven, would give rise
to vicarious liability on the part of Revco.
First, we find that the plaintiffs have made sufficient allegations to assert a cause of action
against Revco based on a tort committed by Boone while acting within the course and scope of his
employment with Revco. The amended complaint alleges in several paragraphs that Boone’s actions
were taken “within the scope of his employment with Revco,” and that Boone was acting at all
relevant times “under the direction, consent, and control” of Revco. The amended complaint also
alleges that Revco employed Boone especially to take advantage of Boone’s ability to make arrests
and issue citations. Finally, as evidence of Revco’s control over Boone during the relevant period
of time, the complaint sets forth the fact that Boone was summoned back to Revco to issue a citation
to a shoplifter even while he was attempting to enforce the city’s bench warrant. Accordingly, when
viewed in a light most favorable to the plaintiffs, we find that the plaintiffs have adequately stated
a cause of action against Revco based on the torts of its security guard committed within the scope
of his private employment.
In response, Revco asserts that because the original and amended complaints allege mere
legal conclusions, the complaints cannot be sustained on a Rule 12.02(6) motion to dismiss. We
disagree. A complaint “need not contain in minute detail the facts that give rise to the claim,” so
long as the complaint does “contain allegations from which an inference may fairly be drawn that
evidence on these material points will be introduced at trial” Donaldson v. Donaldson, 557 S.W.2d
60, 61 (Tenn. 1977). In this case, Revco may reasonably infer from the allegations contained in the
complaints that the plaintiffs plan to introduce (1) evidence concerning the course and scope of
Boone’s employment with Revco, and (2) evidence that Boone’s actions giving rise to Woodfin’s
wrongful death were within the course and scope of that employment with Revco. As such, we
decline to dismiss the complaint for any perceived deficiency in its factual allegations, and we
conclude that the plaintiffs have stated a cause of action under this agency theory.
14
(...continued)
those action s can arise, and consequ ently, no liability can b e fairly imputed to the municip ality.
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Second, we also conclude that the plaintiffs have made sufficient allegations to assert a cause
of action based on a tort committed by Boone while in obedience to the orders or directions of
Revco. First, the complaint alleges that following a conversation about Woodfin’s second
appearance at Revco a few days prior to June 4, the Revco manager directed Boone to check with
the KPD about Woodfin’s previous citation for disorderly conduct. The complaint further alleges
that upon learning that a bench warrant had been issued for Woodfin’s arrest, the Revco Manager
directed Boone “to serve the bench warrant to prevent Woodfin from ever returning to Revco and
to punish Woodfin for disregarding Revco’s no trespass order.” If these facts are taken as true, an
agency relationship is established, and Revco would then be liable for the harm proximately resulting
from Boone’s actions taken in obedience to its directions, irrespective of whether Boone’s actions
were within the scope of his employment.15 Accordingly, we hold that the plaintiffs’ complaint has
stated a cause of action against Revco for Boone’s actions taken in obedience to directions issued
by Revco.
Finally, we conclude that the amended complaint alleges a cause of action based upon the
actions taken by Boone with the actual knowledge and consent of Revco and taken primarily for
Revco’s benefit. For example, the original complaint alleges that Boone attempted to arrest Woodfin
after Revco “allowed” Boone to leave, which taken in a light most favorable to the plaintiffs, shows
that Revco had knowledge of Boone’s actions and consented to those actions.16 The amended
complaint also alleges that the purpose of Boone’s actions was “to prevent Woodfin from ever
returning to Revco and to punish Woodfin for disregarding Revco’s no trespass order.” This fact,
taken in a light most favorable to the plaintiffs, shows that Boone’s primary intent in undertaking
the attempted arrest of Woodfin was to benefit Revco, his private employer. Consequently, because
the complaint alleges that Revco knew of, and consented to, actions taken by Boone with the primary
intent to benefit Revco, an agency relationship is established, and Revco is vicariously liable for the
harm proximately resulting from Boone’s actions. We hold, therefore, that the plaintiffs have
alleged sufficient facts in support of a claim of vicarious liability based upon knowledge and consent
of the principal to actions by an agent that were primarily intended to benefit the principal.17
CONCLUSION
In summary, we conclude that issues concerning private employer liability for acts taken by
an off-duty police officer employed as a private security guard are to be resolved according to
15
The plaintiffs point out that Revco asserted actual control over Boone by ordering him to return to Revco
to issue a shoplifting citation. W e agree that this fact goes to show that Boone was acting according to his directions or
orders issued by the Revco manager, and as such, we conclude that the complaint alleges sufficient facts to state a claim
for relief unde r this theory.
16
The amend ed complaint also specifically alleges that the Revco manager consented to Boone undertaking
a mission to arrest Woodfin with the primary intent to benefit Revco.
17
As the issue is not properly before this Court on this appeal, we express no opinion as to whether the City
of Knoxville is also vicariously liable under the d ual master doctrine for Bo one’s actions.
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Tennessee agency law. Accordingly, we hold that the complaint in this case alleges sufficient facts
to state a cause of action against defendant Revco based on three separate theories: (1) that Revco
is vicariously liable for the harm proximately resulting from the acts of its agent taken within the
course and scope of the agent’s employment with Revco; (2) that Revco is vicariously liable for the
harm proximately resulting from the acts of its agent taken in obedience to directions or orders issued
by Revco; and (3) that Revco is vicariously liable for the harm proximately resulting from the actions
of its agent that were taken with the primary intent to benefit Revco and of which Revco knew and
gave consent. Any analysis of whether the plaintiffs have established a prima facie case of liability
is premature at this time, and the facts, if any, supporting Revco’s liability for Boone’s actions have
not been developed in this Rule 12.02(6) motion. We therefore reverse the judgment of the Court
of Appeals and remand this case to the Knox County Circuit Court for further proceedings consistent
with this opinion.
Costs of this appeal are taxed to the appellee, Revco Discount Drug Centers, Inc., for which
execution shall issue if necessary.
___________________________________
WILLIAM M. BARKER, JUSTICE
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