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White v. Revco Discount Drug Centers11/22/2000
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, or (2) the officer's action was taken to vindicate a public right or to benefit the public in general. 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.
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; and (2) that the officer's actions were taken in return for private compensation, contrary to a statute prohibiting private compensation for public duties. 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 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, an
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