                  IN THE COURT OF APPEALS OF TENNESSEE

                                                                              FILED
                                     AT KNOXVILLE                            October 15, 1999

                                                                            Cecil Crowson, Jr.
                                                                           Appellate Court Clerk


JAM ENS ENA WH ITE, E T AL .,                ) C/A NO. 03A01-9904-CV-00145
                                             )
       Plaintiffs-Appellants,                ) KNOX CIRCU IT
                                             )
vs.                                          ) HON. DALE C. WORKMAN,
                                             ) JUDGE
REVCO DISCOUNT DRUG                          )
CEN TER S, INC .,                            ) AFFIRMED
                                             ) AND
       Defendant-Appellee.                   ) REMANDED




A. PHILIP LO MONA CO, Knoxville, for Plaintiffs-Appellants.

BARRY K. MAXWELL and RONALD T. HILL, EGERTON, McAFEE,
ARMISTEA D & DAV IS, P.C., Knoxville, for Defendant-Appellee.




                                       O P I N IO N


                                                             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

Motio n to Dis miss on the gro unds th at the C ompla int failed to state a claim a gainst it.

The Trial Judge granted judgment, and the action was dismissed as to Revco, and an

appeal ha s been pro perly perfected from that d ismissal.

               Defend ant Boon e is a police o fficer for th e City of Kn oxville, and w hile

off duty, wo rks as a secu rity guard for the Revco d rug store loc ated on U niversity
Avenue in Knoxville. On May 4, 1997, the deceased entered the Revco store and

allegedly cause d a disturba nce. Boo ne, while o ff duty as a po lice officer a nd while

working as a security gua rd for Re vco, issued deceased a citation for d isorderly

condu ct, and w arned d ecease d to stay ou t of the s tore.

                On June 4, 1997, Boone while working as a security guard at Revco

was info rmed by the s tore mana ger, James Lavin, that th e decease d had return ed to

the store. It is allege d that while under the d irection and control of R evco 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 bee n issued for decease d’s arrest. Boone then w ent 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 a partment.

                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 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 off icers ordered him out of the bathroo m, but he re fused an d told


                                                2
them that he had a shotgun. Defendant Maxwell kicked the bathroom door open and

fired up on dec eased, k illing him .

               Plaintiff s alle ge th at Bo one used “exc essiv e for ce, u nlaw ful b atter y,

and assisted in causing the wrongful death of Woodfin [deceased].” They assert that

Revc o is liable as the em ployer of Boon e unde r the do ctrine of respon deat su perior.

               Our review o f the granting of a T ennessee Rule o f Civil Procedure

12.02( 6), motio n to dism iss for f ailure to state a cla im is a qu estion o f law.

Accordingly, the standard of review is de novo with no p resumptio n of correc tness in

favor of th e trial court’s ac tion. 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 comp laint liberally in favo r of the plain tiff, taking all

allegations of fact as true, and deny the motion unless it appears the plaintiff can

prove n o set of facts in suppo rt of her claim th at wou ld entitle t he plain tiff to rel ief.

Stein v. Davidson Hotel Co., 945 S .W.2d 714 (T enn. 19 97).

                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 ac ting wi thin the “ scope o f emp loyment” when the injur y occurre d. 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 o utside th e scope of em ploymen t if done at the dir ection o f the em ployer.

Kinnard v. Rock City Const. Co., 286 S .W.2d 352 (T enn.A pp. 195 5).

                The com plaint alleges th at Boone was an “ employee” o f 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 em ployee of Revco. It bases this asse rtion on the theory


                                                3
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 o fficer at all time s, not all of his a ctions are ne cessarily

within the scope of h is duty as an officer.

               In Nishan v. Godsey, 166 F.Su pp. 6 (E.D . Tenn. 19 58), the Co urt 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 w ithin the scope o f his du ty as a polic e offic er.

               A police o fficer not ac ting within h is official du ties is liable for h is

private a ctions a s is any oth er priva te 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 h is official cap acity as a police o fficer, that em ployer may be h eld liable if

the requ iremen ts for liab ility under th e doctrin e of res ponde at supe rior are m et.

However, there is a significant split of authority among the states as to the role of off-

duty polic e offic ers wh ile wor king as private s ecurity gu ards.

               The majority holds that police officers retain their official status as a

policeman wh en employed privately during off -duty hours, because a police o fficer’s

duties a re contin ual. See Hutto v. Alabama, 304 So.2d 29 (A la.Crim.App. 1974 );

Carr v. Sta te, 335 S.E.2 d 622 (G a.App. 19 85); Monro e v. State, 465 S.W.2d 757

(Tex.Crim.App. 1971). Public policy considerations, including the notion that

authority placed in security guard s furthers the objective o f deterring u nlawful a cts, is

also a d eciding factor f or man y courts. Tapp v. S tate, 406 N.E.2d 296 (Ill.App.

1980); State v. Wilen, 539 N .W.2d 650 (N eb.Ap p. 1995 ).


                                                4
               On the other hand, some courts have refused to accept this principle,

and have held that a p olice office r’s duties end when th e officer ac cepts private

emplo yment an d/or is pa id by an e ntity other th an the c ity or police departm ent. See

Cervantez v. J. C. Penny Co., 595 P.2d 975 (Cal. 1979),, and Stewart v. S tate, 527

P.2d 22 (Okla.C rim.App. 1974).

               The prac tice of mu nicipalities allow ing police o fficers, wh ile 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 (N eb.App. 1995 ); the Court observed:

               The presence of uniformed officers in places susceptible to breaches of
               the pea ce dete rs unlaw ful acts and co nduct b y patrons of thos e place s.
               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); Dunca n v. State, 294

S.E.2d 365 (G a.App. 1982).

               Howe ver, as som e courts hav e acknow ledged, no t all acts by off-du ty

police o fficers fall with in the sc ope of their pu blic duty. See Brandon v. Allen, 516

F.Supp. 1 355 (W .D. Tenn . 1981); State v. Wilen, 539 N.W.2d 650, 659 (Neb.App.

1995). Th ese courts h ave adop ted a balanc ing test in wh ich they exam ine the spec ific

acts and circ umstance s of the cas e to determ ine wheth er the office r was acting in his

official cap acity of serving the public o r was acting in the interest o f his private

emplo yer.

               In the case of State v. Ku rtz, 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

                                              5
public right a nd justice’ or w ere they merely pe rforming acts of serv ice to their

private employer?” The Court cited the following language from Neallus v.

Hutchinson Amusement Co., 139 A. 671 (M e. 1927).

                      The decisions hold generally that such officers act
               sometimes as officers and sometimes as servants of the person
               employing th em; that they are not, althoug h paid for a ll their
               services by the persons at whose instance they are appointed,
               servants of such perso ns in respect to all the acts they perform
               by virtue of their offices but only in respect to services rendered
               to these pers ons, such a s protecting a nd preserv ing their prop erty
               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 f ound that th e officers w ere acting in th eir official ca pacity in

controlling a disturbanc e outside the ballroom w here they we re workin g 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 p erformed at the time of the inciden t, and noted :

                      [W]e examine (1) the specific nature, extent, and
               circumstan ces of the s econdary em ployment; (2) th e manne r in
               which such secondary employment is regarded by the employer
               and em ployee; an d (3) the nature o f the ac ts the pe ace of ficer . . .
               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 cou rt decided th at a police of ficer retains h er police of ficer status ev en 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 b usiness .”

                                               6
               We adopt the balancing test set forth in Kurtz and Wilen. In this case,

while Re vco initiated th e issuance o f the citation, the failure of d eceased to appear in

court resulted in a warrant being issued by the Court. Serving the Court’s warrant

was a 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 em ployer.

               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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