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White v. Revco Discount Drug Centers11/22/2000
alysis 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. 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 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 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 emplo
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