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White v. Revco Discount Drug Centers11/22/2000
STANDARD OF APPELLATE REVIEW
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 employer cannot
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