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White v. Revco Discount Drug Centers11/22/2000
fact to be resolved by the jury.
We also recognize that under the dual master doctrine, the municipality may also be vicariously liable-along with the private employer-for the actions taken by one of its off-duty police officers. Under Tennessee agency law, liability may also be imputed to the municipality when all of the following four circumstances are present: (1) the action taken by the off-duty officer involves exercise of a traditional police power, such as the power to arrest, the power to issue citations, or the power to command aid; (2) the municipality had knowledge, either actual or constructive, of the action taken by the off-duty officer; (3) the action taken by the off-duty officer simultaneously serves the objectives of the private employer and the municipality; and (4) the objectives of the private employer and the municipality, which are both served by the officer's action, are not inconsistent with each other.
DISMISSAL OF THE COMPLAINT PURSUANT TO RULE OF CIVIL PROCEDURE 12.02(6)
Because this case comes before us on a motion to dismiss for failure to state a claim, we confine our inquiry solely to the allegations of the complaint to determine whether the plaintiffs have alleged a cause of action against Revco upon which relief may be granted. After carefully examining the material allegations of the original and amended complaints, we conclude that the plaintiffs have in fact made sufficient allegations under all three agency theories, which, if proven, would give rise to vicarious liability on the part of Revco.
First, we find that the plaintiffs have made sufficient allegations to assert a cause of action against Revco based on a tort committed by Boone while acting within the course and scope of his employment with Revco. The amended complaint alleges in several paragraphs that Boone's actions were taken "within the scope of his employment with Revco," and that Boone was acting at all relevant times "under the direction, consent, and control" of Revco. The amended complaint also alleges that Revco employed Boone especially to take advantage of Boone's ability to make arrests and issue citations. Finally, as evidence of Revco's control over Boone during the relevant period of time, the complaint sets forth the fact that Boone was summoned back to Revco to issue a citation to a shoplifter even while he was attempting to enforce the city's bench warrant. Accordingly, when viewed in a light most favorable to the plaintiffs, we find that the plaintiffs have adequately stated a cause of action against Revco based on the torts of its security guard committed within the scope of his private employment.
In response, Revco asserts that because the original and amended complaints allege mere legal conclusions, the complaints cannot be sustained on a Rule 12.02(6) motion to dismiss. We disagree. A complaint "need not contain in minute detail the facts that give rise to the claim," so long as the complaint does "contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial" Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977). In this case, Revco may reasonably infer from the allegations contained in the complaints that the plaintiffs plan to introduce (1) evidence concerning the course and scope of Boone's employment with Revco, and (2) evidence that Boone's actions giving rise to Woodfin's wrongful death were within the course and scope of that employment with Revco. As such, we decline to dismiss the complaint for any perceived deficiency in its factual allegations, and we conclude that the plaintiffs have stated a cause of action under this agency theory.
Se
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