Background
Portia Reeves, individually and on behalf of her minor daughter, sued Higbee KYG, LP after a suspected shoplifter fleeing Dillard’s collided with and injured the child in a mall common area. The suit asserted premises-liability, negligence, negligent-infliction-of-emotional-distress, respondeat-superior, loss-of-consortium, and attorney-fee claims.
A Dillard’s employee watching surveillance footage radioed two off-duty police officers working security with the suspect’s description, location, and apparent concealment of merchandise. The employee did not tell the officers what action to take. The officers approached the suspect in the store; he fled, and the officers pursued him into the common area, where he struck Reeves’s daughter.
The Court’s Holding
The Court of Appeals affirmed summary judgment for Higbee. Although an off-duty officer’s capacity can generally present a jury question, the undisputed evidence showed that Higbee did not direct the officers’ actions. Reporting the suspected shoplifting and providing identifying information did not constitute direction to confront, pursue, or arrest the suspect.
At the time of the collision, the officers’ pursuit and eventual arrest of the fleeing suspect were police duties undertaken as public officers, not at Higbee’s direction. Higbee therefore could not be held vicariously liable for the officers’ conduct. Because Reeves’s remaining theories were all based on that same alleged vicarious liability, they also failed; the attorney-fee claim was derivative. The court treated the loss-of-consortium claim as abandoned because Reeves did not raise it on appeal.
Key Takeaways
- A private entity that hires off-duty officers is not automatically liable for their police conduct.
- Liability depends on the capacity in which an officer was acting when the alleged tort occurred and whether the private employer directed that conduct.
- Claims framed as premises liability or emotional distress fail when they rest solely on an unavailable respondeat-superior theory.
Why It Matters
The decision reinforces that a private employer’s receipt of information about suspected criminal activity, without instructions to officers about how to respond, does not establish direction sufficient for vicarious liability. Plaintiffs pursuing claims arising from off-duty officers’ conduct must identify evidence that the employer directed the conduct that caused the injury or an independent basis for liability.