X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellant, Martina Ogg, returned a wallet to Dillard’s, a department store, asking for a Dillard’s gift card instead of crediting the credit card used to purchase the wallet. Paul Dille, a sales manager, suspected fraud. He discovered that the wallet had been purchased earlier that day in a transaction involving hand-keying the credit card number (such transactions present a higher risk of fraud, because the credit card is not presented to the sales person). Dille requested the assistance of the sales clerk and Dillard’s security, who were off-duty uniformed Dallas police officers, to locate the appellant and her companion. Edmundo Lujan, a Dallas police officer with seven years of experience, was one of the officers working that night at the Dillard’s store. He was wearing his Dallas police uniform and badge. Dille notified Lujan that appellant and a companion were acting suspiciously and possibly engaging in credit card abuse. Based on this information, Lujan and the accompanying officers decided there was sufficient reason to detain appellant. The appellant alleges that Lujan told her to get identification from her car, and then seized her and twisted her arm. Lujan asserts that as he glanced over to the officers who were questioning appellant’s companion, appellant pushed him with both hands and attempted to flee on foot through the exit doors. He performed a standard takedown maneuver, handcuffed her and picked her up with both arms. The appellant brought an action against Dillard’s for assault, false imprisonment, intentional infliction of emotional distress, invasion of privacy, negligence and malicious prosecution. Appellant contends the trial court erred in granting summary judgment in favor of Dillard’s and dismissing her claims. HOLDING:Affirmed. Appellant advances four arguments: 1. a fact question exists whether Dille and Lujan detained her for the purpose of protecting Dillard’s merchandise and financial interests; 2. a fact question exists as to whether Lujan was acting within the scope of his employment with Dillard’s when he detained and arrested appellant; 3. in support of her argument for direct liability against Dillard’s, appellant asserts Lujan was acting as a private employee for Dillard’s, rather than a public official, when he committed the acts forming the bases for the claims of assault, negligence and malicious prosecution and, furthermore, there is a fact question as to each element of these causes of action; and 4. the statute of limitations did not bar the suit. If the officer was acting as an on-duty officer at the time the acts were committed, then respondeat superior will not extend liability to the employer. If an off-duty officer observes a crime, as a matter of law, he becomes an on-duty officer for purposes of determining whether or not a private employer is vicariously liable for the officer’s actions. The evidence shows that the appellant was detained for investigation of possible credit card abuse, which constitutes enforcement of a general law. Even if the investigation was conducted at the direction of Dillard’s, because it also involved Dillard’s financial interest, the fact remains that appellant was being investigated for a crime and the officer was performing his public duty. Regardless of the reason for the initial detention, once Lujan decided independently to arrest appellant for evading arrest, he was not protecting a financial interest of Dillard’s. All of Lujan’s acts during the initial detention for the credit card investigation until appellant was taken into police custody by the patrol officers for her arrest were performed in his official capacity as a police officer, not as a Dillard’s employee. Therefore, Dillard’s is not vicariously liable for Lujan’s acts. The appellant argues that Dillard’s should be held directly liable for assault. However, appellant offers no authority to demonstrate a legal basis for direct liability. An employer is responsible for the tortious acts of its employee through the theory of vicarious liability. Dillard’s has demonstrated that it is not vicariously liable for the acts of Lujan. Once Lujan began investigating the crime of credit card abuse, he was acting within the scope of his employment as a police officer and was not acting as an employee of Dillard’s. Dillard’s cannot be directly liable for negligent hiring or retention based on alleged acts Lujan performed as an on-duty police officer. The record reflects appellant was charged by Lujan with evading arrest and detention and cited by another officer for disorderly conduct. In order to make out a prima facie case of malicious prosecution, the prosecution must end in appellant’s favor. However, as to the disorderly conduct charge, she has not made a prima facie case, because she pleaded no contest to disorderly conduct and was found guilty. In addition, there is no evidence that Dillard’s initiated or procured the prosecution, that it made a formal complaint to law enforcement on either of these charges, or had any discretion in determining whether to prosecute appellant for evading arrest or disorderly conduct. Both charges were made by the state, not by Dillard’s. OPINION:Lang, J.; Moseley, Lang and Mazzant, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.