Miller v. City Views At Rosa Burney Park GP, LLC

• Decision Date: 16 July 2013
• Docket Number: No. A12A2331.,A12A2331.
• Citation: Miller v. City Views At Rosa Burney Park GP, LLC, 323 Ga.App. 590, 746 S.E.2d 710 (Ga. App. 2013)
• Parties: MILLER v. CITY VIEWS AT ROSA BURNEY PARK GP, LLC, et al.
• Court: Georgia Court of Appeals

323 Ga.App. 590

746 S.E.2d 710

MILLER

v.CITY VIEWS AT ROSA BURNEY PARK GP, LLC, et al.

No. A12A2331.

Court of Appeals of Georgia.

July 16, 2013.

Shean Decarlos Williams, M. Gino Brogdon, Atlanta, Hezekiah Sistrunk Jr., Robert O. Bozeman, Mawuli M. Malcolm Davis, for Miller.

John E. Hall Jr., James Willis Standard Jr., Duane Lewis Cochenour, Bruce A. Taylor Jr., Douglas Kevin Burrell, Chad Eric Jacobs, Atlanta, for City Views at Rosa Burney Park GP, LLC, et al.

DOYLE, Presiding Judge.

Tramaine Miller appeals from the grant of summary judgment to City Views at Rosa Burney Park GP, LLC (“City Views”), Ambling Management Company (“AMC”), and Kelly Bunch (collectively “Defendants”) in his suit against them based on an incident in which he was shot by an off-duty police officer performing security at City Views apartments. Miller contends that the trial court erred because fact questions remain as to (1) whether the Defendants were vicariously liable for the actions of the off-duty officer, (2) whether the Defendants negligently provided security at the apartments, and (3) whether punitive damages are available. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.¹

So viewed, the record shows that City Views owned an apartment complex and contracted with AMC to manage the property. Kelly Bunch, an AMC employee, worked as the on-site property manager for City Views apartments. Paul Kennon, an owner of Kennon Properties, which in turn held a stake in City Views, was aware of criminal activity on the property, so he contacted a supervisor at the local city police department for recommendations about hiring off-duty officers to provide security services at the City Views apartments. The supervisor put Kennon in contact with Bryan French, an active city police officer, and Kennon requested French to provide 12 hours a week of patrol time. Kennon was aware of potential gang activity on the property, and he wanted to increase patrols to address poor security conditions at the apartments. For a period of time, French worked at the apartments by himself along with employees of a private, unarmed security firm. After an unrelated shooting, Kennon requested French to arrange additional officers to increase the patrol hours on the property, and French agreed to find additional officers to work at the apartments. French had authority to select the officers for hire and to terminate them if they did not perform adequately.

One of the additional officers French invited to patrol the City View apartments was Reginald Fisher, who served with French at the city police department. Fisher first came to the apartments and met with Bunch, who showed Fisher the property and discussed the crime problems occurring at the apartments. Bunch also discussed items he wanted Fisher to pay attention to, such as doing a visual access card check on people entering the apartments. Fisher was paid by French with funds provided by City Views.

On Fisher's first day working security at the apartments, he arrived, in his police uniform and armed with his service weapon, around 6:00 p.m. and patrolled the apartments until approximately 9:00 p.m., at which time he sat in his personal vehicle and ate dinner as he watched the apartment buildings. He saw Miller drive up, park in a handicap spot, and enter an apartment building. Fisher got out of his car to check Miller's vehicle, which did not have a handicapped parking permit, and then returned to his car. Shortly thereafter, Miller returned, and Fisher exited his car to speak to Miller about keeping the handicap parking spots clear and to inquire about his reason for entering the building. Fisher deposed that Miller did not respond but entered his vehicle, locked the doors, and retrieved something from the center console and put it in his mouth. Fisher, believing it to be crack cocaine, knocked on the window and unsuccessfully ordered Miller to stop as Miller backed out. Miller had to reposition the car to exit the parking space, and Fisher attempted to block Miller with his body, continuing his orders to stop. Ultimately, when Miller did not heed Fisher's warnings, Fisher broke Miller's window with his baton, and as Miller reached for what Fisher believed to be a weapon, Fisher fired his service weapon, hitting Miller in the face. It was later determined that Miller, who was actually unarmed, had been at the apartments to assist his disabled aunt with her medications.

Based on these events, Miller sued City Views, AMC, Bunch, and Fisher, alleging claims for assault; battery; intentional infliction of emotional distress; false imprisonment; invasion of privacy; wrongful retention, supervision, hiring, entrustment, and training; premises liability; failure to warn; and punitive damages. Following discovery, City Views, AMC, and Bunch moved for summary judgment, and after a hearing, the trial court granted the motion as to Miller's claims for vicarious liability; negligent hiring, retention, entrustment, and supervision; premises liability; and punitive damages. Miller now appeals.²

1. Miller contends that the trial court erred by ruling that summary judgment was proper as to Miller's vicarious liability theory of recovery. We agree.

(a) At the outset, we note the procedural posture of the case. “It has been generally held to be a question of fact for determination by a jury, whether, when a [police] officer performed the acts for which the master is sought to be held liable, he was acting in his capacity as servant, or in his capacity as a public officer.” ³ “It is not the role of this Court, but is the role of a jury to sort through the evidence, resolve conflicts, and make findings of fact based on the evidence it finds credible.” ⁴ Therefore, “[w]hen [a court rules] on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.” ⁵

(b) We now turn to the substantive legal principles applicable here.

Although as a general rule, employers are not responsible under the theory of respondeat superior for the torts of independent contractors [such as Fisher], ⁶ if an employer controls the time, manner, and method of executing the work, an employer-employee relationship exists[,] and liability will attach. In cases involving off-duty police officers working for private employers, however, the employer escapes liability if the officer was performing police duties which the employer did not direct when the cause of action arose.⁷

Therefore, liability for the torts of a hired off-duty officer does not extend to his private employer simply because it occurred at the private employer's premises during the officer's employment with the private employer. ⁸ “[I]f [the officer] 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 [private] 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.” ⁹ But an officer “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.” ¹⁰

In light of this rule, we must determine whether there is any evidence to support a finding that Fisher was discharging any duties directed by City Views rather than merely performing police duties during his off-duty employment. Miller points to portions of the record showing that City Views had a security policy of engaging individuals who parked in handicapped parking spots without a permit to keep the spots clear for authorized users, enforcing evictions, and checking identification and limiting access of people entering or exiting the high rise apartment tower. The off-duty officers working at City Views pursued these policies, and Fisher deposed that at the specific time he approached Miller, he had a blended purpose of “let[ting] him know that there is security here. We can't allow anybody to park in the handicap parking spots anymore. And then also [I] was going to raise a question [as] to what made him [enter and leave] the apartment building.” Thus, while Fisher was inquiring about a potential handicapped parking violation, arguably a police function, he also had the purpose of enforcing City Views's policy of approaching people who were not necessarily engaged in any suspected criminal activity to verify their proper access to the apartments. This latter purpose was not strictly a police function; rather, it was performed in furtherance of City Views's policy to regulate access to the apartments. Therefore, viewing the record in the light most favorable to Miller, we conclude that there is some evidence to support a finding that Fisher was performing a security function directed by City View, instead of merely performing police duties that City Views did not direct.¹¹ Accordingly, summary judgment is not appropriate on the vicarious liability issue at this time.

In so holding, we find distinct the cases city by the Appellees in which employers were not vicariously liable for torts allegedly committed by off-duty police they hired. For example, in Page v. CFJ Properties,¹² the off-duty officer acted on his own TO ARREST A SHOPLIFTER HE witnessed taking merchandise from the employer's store.¹³ We...