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White v. Revco Discount Drug Centers11/22/2000
yers 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 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. 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 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
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