Case Law Update: Georgia Supreme Court Finds Jury Question Regarding The Vicarious Liability Of Apartment Complex For Actions Of Off-Duty Police Officer

In Ambling Management Co. v. Miller, 2014 WL 4958165 (Oct. 6, 2014, Ga.) the Georgia Supreme Court examined whether an apartment complex that employed an off-duty police officer to patrol the premises was vicariously liable for the actions of that officer. The City Views Apartments were located in a high crime area. The management company engaged Police Officer Reginald Fisher to patrol the apartment complex during his off duty time, as well as other off duty officers. The incident at issue occurred when Plaintiff Tremaine Miller went to visit his aunt at the apartment complex. Officer Fisher observed Plaintiff park in a handicap spot and exit his vehicle, Officer Fisher believed he observed Miller engaging in a drug deal. With Miller inside the apartments, Fisher approached the car. He found no handicap sticker or tag and no contraband inside the car. Officer Fisher then returned to his personal vehicle.

Miller ultimately returned to his vehicle and Officer Fisher again approached, intending to tell Miller of the policy of keeping handicap spaces clear. As he did so, Officer Fisher testified that he saw Miller take what appeared to be crack cocaine and put it in his mouth. At this point, he decided to arrest Miller for possession of drugs. He testified that Miller also began “bumping” him with his car and did not heed his instruction to put his hands up. Instead, Miller began to reach underneath his seat. As a result, Officer Fisher fired his gun and struck Miller in the face.

Miller survived the shooting and brought suit against the apartment complex through a theory of vicarious liability. The trial court found that there was no vicarious liability because there was no evidence that the apartment or management company had directed the officer’s actions at the time the cause of action arose. The Georgia Court of Appeals reversed, finding that there was some evidence that Officer Fisher was performing duties directed by the Apartment owner and/or manager. While the Georgia Supreme Court affirmed the Court of Appeals decision as being right for any reason, the Supreme Court pointed out a subtle distinction that was not considered by the lower court. In particular, the Court of Appeals erred by focusing on the question of whether Officer Fisher was performing police duties at the time when he approached Miller, rather than at the time the cause of action arose.

The Supreme Court noted that upon engaging the officers, the owners of the apartments directed that they wanted to increase arrests onsite in order to deter crime and to increase evictions made of those tenants engaged in criminal activity. While the employer would escape liability if the officer was performing police duties at the time the cause of action arose, here it was arguable that the officer was discharging duties directed by his employer. Thus, a jury question was presented on the issue of vicarious liability.

In summary, the proper inquiry for determining whether an employer is vicariously liable is whether the employee was performing duties directed by the employer at the time the cause of action arose. In Miller, the cause of action arose when the officer broke a window of the car and discharged his weapon, not when he initially approached the car to enforce the handicap parking prohibition or any time prior. The duty that the employee is performing can change in a matter of seconds, and it is only the role he or she is serving at the time when the tort is committed that is dispositive.

Douglas R. Kendrick