In a 2013 case, a plaintiff appealed after summary judgment was awarded to a property management company and others based on his lawsuit after being shot by an off-duty cop performing security at an apartment complex. The plaintiff argued that summary judgment was inappropriate because there were multiple factual questions, including whether the defendants were vicariously liable for an off-duty officer’s actions. The other two issues were whether the defendants had offered negligent security and whether punitive damages were available.
The defendants owned and managed an apartment complex. The owner of one of the stakeholders for the apartment complex knew about the criminal activity at the complex. He contacted a police department supervisor to find an off-duty officer to offer security services at the apartments.
The supervisor put the stakeholder in contact with an active police officer. He asked the officer to offer 12 hours of patrol time every week to address the adverse security condition at the complex. The police officer worked there by himself alongside a private unarmed security company. An unrelated shooting occurred and patrol hours were increased. The officer (French) was able to choose other officers to hire and could also fire them if they didn’t perform adequately.
French invited Reginald Fisher, another police officer, to patrol. Fisher came to the complex to discuss the crime problems. He was asked to provide a visual access card check. French paid him with funds provided by the apartment.
On the first day Fisher patrolled, he was eating dinner while watching the apartment buildings. He saw the plaintiff park in a handicap spot and come into the apartment building. He checked the plaintiff’s car, which didn’t have a handicapped parking permit. After he went back to his car, the plaintiff returned. The officer approached him to talk, but the plaintiff went into his car and got something from the center console and put it in his mouth. The officer believed it was crack cocaine. The plaintiff tried to drive away with the officer trying to stop him. When the plaintiff didn’t listen, the officer broke his window with a baton and shot him. Later on it was discovered that the man was unarmed and had only been at the apartments to help his disabled aunt.
The plaintiff sued the defendants alleging numerous causes of action, including premises liability, wrongful retention, supervision and more. He asked for punitive damages. The defendants asked for summary judgment. The trial court granted the motion as to certain claims, including premises liability and punitive damages.
The plaintiff argued that summary judgment was not appropriate with regard to the vicarious liability claim. The appellate court agreed, explaining that if an employer controls the time, manner and method of executing work, there is an employer-employee relationship and liability attaches even if the employee is known as an independent contractor. There is an exception for hired off-duty officers. If the officer commits a tort as a police officer, the company is not liable. However, if the officer occupies a dual position, exercising functions for both the public and the company, the company is liable.
In this case, the court found that the officer had a blended purpose. He was asking about a handicapped parking violation (a police function), but also approaching those who weren’t engaged in criminal activity to verify their access to the apartments. Because the latter was not a police function, there was evidence to support the argument that he was there for security. Summary judgment was not appropriate on this issue. The court also reversed as to punitive damages. Actions that show conscious indifference to consequences can authorize a punitive damages finding by the jury.
If you are hurt due to an employer’s failure to employ a trustworthy individual, it is important to retain an attorney that understands vicarious liability. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at (470) 709-0666 or via our online form.
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