Carnegay v. Walmart Stores, Inc.

• Decision Date: 14 February 2020
• Docket Number: A19A2204
• Citation: 839 S.E.2d 176,353 Ga.App. 656
• Parties: CARNEGAY v. WALMART STORES, INC. et al.
• Court: Georgia Court of Appeals

353 Ga.App. 656

839 S.E.2d 176

CARNEGAY

v.WALMART STORES, INC. et al.

A19A2204

Court of Appeals of Georgia.

February 14, 2020

Craig T. Jones, for Appellant.

Leslie Paige Becknell, Hall F. McKinley III, Atlanta, for Appellee.

Markle, Judge.

While shopping at Walmart in October 2014, Tyrone Carnegay was arrested and beaten by off-duty police officer Trevor King after the store’s loss prevention officer, Ariana Boyd, believed she observed Carnegay shoplifting a tomato. The charges against Carnegay were ultimately dropped, and he filed a civil suit against King, Boyd, and Walmart, alleging battery and false imprisonment.¹ The trial court granted Walmart and Boyd’s motion for summary judgment and denied Carnegay’s cross-motion, and this appeal followed. For the reasons that follow, we affirm in part, reverse in part, and remand the case for further proceedings.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Grizzle v. Norsworthy , 292 Ga. App. 303, 303-304, 664 S.E.2d 296 (2008).

So viewed, the record shows that, in October 2014, Carnegay was shopping for various groceries at Walmart. After he paid for his items, he thought he had been overcharged for a tomato. He returned to the produce department to weigh the tomato and then planned to go to back to the cashier for a refund. However, the cashier’s line was long, and Carnegay decided not to pursue the overpayment. Instead, he walked through the store toward the exit.

Boyd was watching from the loss prevention office and noticed Carnegay put the tomato in the bag and then walk toward the exit. She had not seen him pick the item up and did not know whether he had paid for it. Boyd informed King that she thought Carnegay might be shoplifting, and the two headed to the exit to intercept Carnegay.

As he approached the door, Carnegay observed Boyd, but she did not speak to him or identify herself as a Walmart employee. Carnegay then encountered King, who was waiting in the vestibule with his baton at his side.² As he approached King, Carnegay said, "What’s going on chief." King asked Carnegay where he was going, and Carnegay responded that he was going home. As Carnegay tried to push past King, King ordered him to get on the ground and placed Carnegay under arrest for obstruction for failing to comply with King’s instructions. King then grabbed his baton and began striking Carnegay. King struck Carnegay a total of seven times, breaking his leg. After the beating, King grabbed Carnegay’s arms and handcuffed him before searching his pockets and finding the receipt. King was later indicted by a federal grand jury, convicted of using excessive force and making false statements in connection with this case, and sentenced to five years’ imprisonment.

Carnegay filed suit against Walmart, Boyd, and King, alleging false imprisonment and battery and arguing that Walmart was liable for Boyd and King’s conduct under a theory of respondeat superior. The trial court granted summary judgment to Walmart and Boyd, finding that (1) Boyd did not falsely imprison Carnegay because her words and actions had not detained him, and even if he was detained, it was not Boyd who caused the detention; (2) Walmart could not be vicariously liable for King’s battery because it did not dictate the time, manner, and method of his security work; (3) Carnegay was not a third-party beneficiary of the security services agreement between Walmart and the company that provided the off-duty security officers; and (4) in light of these rulings, the claim for punitive damages and attorney fees failed.

Carnegay now appeals, arguing that King was an agent of Walmart and therefore Walmart can be liable for his battery and false imprisonment; even if King was an independent contractor rather than an agent of Walmart, Walmart is liable for King’s conduct because there is a nondelegable duty to keep property safe; Walmart is liable for Boyd’s conduct because she caused the false imprisonment; and, because there were questions of fact as to Walmart’s liability, it was error to grant summary judgment on the claims for punitive damages and attorney fees.

We begin with the applicable law. An employer may be vicariously liable for torts committed by its employees, but such liability does not extend to torts committed by an independent contractor. Whether a person is an agent or employee will depend on whether the employer had the ability to control the time, manner, and method of executing the work. McKee Foods Corp. v. Lawrence , 310 Ga. App. 122, 124, 712 S.E.2d 79 (2011).

Under Georgia law, two elements must be present to render a master liable for his servant’s actions under respondeat superior: first, the servant must be in furtherance of the master’s business; and, second, he must be acting within the scope of his master’s business. ... [T]he question of whether the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.

(Citations omitted.) Broadnax v. Daniel Custom Constr., LLC , 315 Ga. App. 291, 296 (2), 726 S.E.2d 770 (2012).

In contrast, with respect to independent contractors, employers will not be held liable for the acts of independent contractors unless the employer controlled the "time, manner, and method of executing the work." (Citation omitted.) Page v. CFJ Properties , 259 Ga. App. 812, 813, 578 S.E.2d 522 (2003). Importantly, however, "[i]n cases involving off-duty police officers working for private employers, ... the employer escapes liability if the officer was performing police duties which the employer did not direct when the cause of action arose." (Citation omitted.) Id. ; see also Miller v. City Views at Rosa Burney Park GP , 323 Ga. App. 590, 593 (1) (b), 746 S.E.2d 710 (2013) ; Touchton v. Bramble , 284 Ga. App. 164, 165-166 (1) (a), 643 S.E.2d 541 (2007).

We consider the police officer’s capacity at the time the tort arose, recognizing that the capacity can change during the events, and that this is generally a factual question for the jury. Ambling Mgmt. Co. v. Miller , 295 Ga. 758, 763-765 (2), (3), 764 S.E.2d 127 (2014) ; see also Agnes Scott College, Inc. v. Hartley , 346 Ga. App. 841, 844-845 (3) (a), 816 S.E.2d 689 (2018). And it is well-settled that there are three potential capacities in which an off-duty police officer may be acting: (1) as an agent of the private employer; (2) as a public officer; or (3) in a dual capacity. Agnes Scott College, Inc. , 346 Ga. App. at 844 (3) (a), 816 S.E.2d 689. The first and the third categories implicate questions of vicarious liability.

We have explained:

If a man is a policeman, and he has no duties to discharge except police duties proper for the public,—if he is acting as a public policeman and nothing else,—the mere fact that the company pays for his services does not make him the agent of the company. The company may become liable for his torts by directing them, even though he be a public officer. He may occupy a dual position of exercising functions for the public and the company; in which case, where he is in the discharge of duties for the company, and the tort is committed under such circumstances as not to justify it, the company is liable. But, if he commits a tort merely as a police officer, the company would not be liable, unless it was done at the direction of the company. The mere fact that a company pays for the services of a certain police officer, who does nothing but perform the duties of a police officer proper, does not make the company liable.

(Citation and punctuation omitted.) Hyatt Corp. v. Cook , 242 Ga. App. 542, 544, 529 S.E.2d 633 (2000).

With this framework in mind, we turn to Carnegay’s arguments on appeal.

(1) Walmart’s liability for King’s conduct

Carnegay first argues that a jury could find that Walmart is vicariously liable for King’s conduct because he was Walmart’s agent, and even if he was an independent contractor instead of an agent, Walmart would be liable because it controlled the manner in which King performed his work. Because the evidence shows that King acted solely in his capacity as a police officer at the time he committed the battery, we conclude that summary judgment was proper as to that claim. We find, however, that there are questions of fact as to King’s role in the false imprisonment and therefore summary judgment was not warranted on that claim.

(a) Battery³

Pretermitting whether King was an agent of Walmart or an independent contractor, the record clearly shows that, at the time of the battery, King was acting only in his capacity as a police officer. Although Carnegay argues that the jury could find that Boyd and Walmart caused the battery, there is no evidence in the record from which a jury could determine that King was acting in any capacity other than that of a police officer at the time of the battery. In his deposition, King stated that he placed Carnegay under arrest for obstruction before he started striking him. Because he was acting solely in his capacity as an Atlanta police officer, and there is no evidence from which a jury could conclude that Boyd or Walmart directed the conduct, Walmart cannot be liable for the battery. See Page , 259 Ga. App. at 813, 578 S.E.2d 522. Accordingly, the trial court properly granted summary judgment to Walmart on the battery claim.

(b) False imprisonment

"False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty." OCGA § 51-7-20. As we have explained, "[t]he only...