Page v. CFJ PROPERTIES

• Decision Date: 24 February 2003
• Docket Number: No. A03A0100.,A03A0100.
• Citation: Page v. CFJ PROPERTIES, 259 Ga. App. 812, 578 S.E.2d 522 (Ga. App. 2003)
• Parties: PAGE v. CFJ PROPERTIES et al.
• Court: Georgia Court of Appeals

578 S.E.2d 522

259 Ga. App. 812

PAGE v. CFJ PROPERTIES et al.

No. A03A0100.

Court of Appeals of Georgia.

February 24, 2003.

White, Choate & Watkins, Thomas N. Brunt, Cartersville, for appellant.

Butler, Burnette & Pappas, Max G. Factor, Tallahassee, FL, for appellees.

BLACKBURN, Presiding Judge.

Jersey Joe Page appeals the trial court's grant of summary judgment to appellees, CFJ Properties d/b/a Flying J Travel Plaza and Flying J, Inc., in his suit alleging malicious arrest and prosecution arising from his arrest by Officer Mark Waycaster for shoplifting. For the reasons set forth below, we affirm.

When ruling 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. Further, this court conducts a de novo review of the law and the evidence.

(Citation omitted.) Hyatt Corp. v. Cook.¹

Appellees (hereinafter "Flying J") hired Waycaster, a police officer with the Gordon County Sheriff's Department, to provide security at their travel plaza. On February 11, 1999, Waycaster was standing behind a one-way mirror in a room overlooking the store when he noticed Page in an aisle below. Page looked back and forth at the cashiers and acted as if he were nervous. As Waycaster watched, Page took a bottle of shampoo from a shelf and, after looking around, placed it under his arm beneath his flannel shirt.

At this point, Officer Waycaster went downstairs, confronted Page, and asked him to hand over the shampoo. When Page denied having anything, Waycaster told him the shampoo was under his arm. Page handed over the shampoo, and Waycaster informed him that he was going to arrest him. Leading Page to the exit, Waycaster told an employee that he had placed Page under arrest and would be calling a patrol car to pick them up. He also told the employee that he needed to speak with the manager.

When the manager came out to speak with him, Officer Waycaster told him that he had arrested Page and would be accompanying him to the sheriff's department for booking. After a period of time, a patrol unit picked up Waycaster and Page and took them to the jail. While Page was being booked, Waycaster wrote out a warrant and then went to a magistrate judge for his signature.

Following a jury trial, Page was found not guilty of the shoplifting charge. He sued Flying J for malicious arrest and prosecution. Flying J moved for summary judgment on the ground that Waycaster was a police officer and an independent contractor, and that Flying J did not exercise enough control over him to be liable. The trial court agreed and granted summary judgment.

Page maintains that the trial court erred in granting appellees' motion for summary judgment, because there is a genuine issue of material fact concerning whether Officer Waycaster was acting as an independent contractor or an employee of appellees at the time Waycaster arrested Page. We disagree.

Although as a general rule, employers are not responsible under the theory of respondeat superior for the torts of independent contractors, 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.

(Citation and punctuation omitted.) Wilson v. Waffle House.²

In this case, the testimony shows that Officer Waycaster learned of the security work at Flying J from the sergeant at the sheriff's department. A calendar was kept in the sergeant's office, and officers could sign up on the schedule for days they wished to work at...