See Touchton v. Bramble, 284 Ga. App. 164, 165 (1) (a) (643 SE2d 541) (2007); American Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 315 (605 SE2d 850) (2004) ("'...the employer escapes liability if the officer was performing police duties which the employer did not direct when the cause ofaction arose.'") (emphasis supplied); Page v. CFJ Properties, 259 Ga. App. 812, 813 (578 SE2d 522) (2003); Wilson v. Waffle House, Inc., 235 Ga. App. 539 (510 SE2d 105) (1998); Smith v. Holeman, 212 Ga. App. 158 (4) (441 SE2d 487) (1994); Rembert v. Arthur Schneider Sales, Inc., 208 Ga. App. 903, 904 (432 SE2d 809) (1993); Beck v. Paideia School, Inc., 191 Ga. App. 183 (381 SE2d 132) (1989) ("If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable.") (emphasis supplied); Welton v. Georgia Power Company, 189 Ga. App. 17, 19 (1) (375 SE2d 108) (1988); Colonial Stores, Inc. v. Holt, 118 Ga. App. 826 (2) (166 SE2d 30) (1968). As indicated in Hawkins, however, a jury may consider all evidence presented to decide the issue of capacity.
See Popham v. Landmark American Ins. Co. , 340 Ga. App. 603, 607 (1) (a), 798 S.E.2d 257 (2017) ("[T]he label or characterization of the relationship by the purported agent is not sufficient to show what actual authority the agent had been given by the purported principal."); ProcessPosters, Inc. v. Winn-Dixie Stores, Inc. , 263 Ga. App. 246, 251 (1), 587 S.E.2d 211 (2003) ("One who is a party to the relationship (principal or agent) may testify as a fact as to the existence or non-existence of the relationship. A statement of ‘fact,’ of course, must have some supporting basis.") (citation and punctuation omitted; emphasis in original); Beck v. Paideia School, Inc. , 191 Ga. App. 183, 184-185 (1), 381 S.E.2d 132 (1989) (dismissing agency claim where although the witness testified in his deposition that he was the agent for the principal, the evidence failed to prove the existence of an agency relationship). See also Southern Tax Consultants, Inc. v. Scott , 267 Ga. 347, 478 S.E.2d 126 (1996) (stating that an agent’s oath, "standing alone, would not constitute proof of agency against the property owner.").
As applied to an off-duty police officer employed to provide private security, however,the rule is that, if the officer was performing police duties at the time of the alleged tort, and was not being directed by the employer or acting within the scope of the private employment, then the employer cannot be held vicariously liable for the tort. Beck v. Paideia School, Inc., 191 Ga.App. 183–184(1), 381 S.E.2d 132 (1989). “If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable ... [The employer of an off-duty police officer] incurs no vicarious liability as a result of acts performed by the policeman in furtherance of his public duties.”
Id. The evidence in the record demands a finding that irrespective of whether Frazier was working as an employee of Thompson, his relationship to Dentsply and/or DEMS could at the most be construed as that of an independent contractor, as neither directed or controlled the method, manner, or means of his work. See Beck v. Paideia School, 191 Ga. App. 183 (1) ( 381 SE2d 132) (1989) ("Whether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract.") (citation and punctuation omitted). See also Dennis v. Malt, 196 Ga. App. 263, 265 (1) ( 395 SE2d 894) (1990) ("[W]here there is a specific [agreement] to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation[ship] existed.") (citations and punctuation omitted); Luther v. Wayne Frier Home Center of Tifton, 264 Ga. App. 827, 828 (1) ( 592 SE2d 470) (2003).
The defendants did not control the time, manner, or method of the officer's performance of her official duties; therefore, the officer's conduct could not be imputed to them. Beck v. Paideia School, Inc., 191 Ga. App. 183, 184 (1) ( 381 S.E.2d 132) (1989). Further, Officer Locke did not work off-duty for the defendants. Welton v. Ga. Power Co., supra at 19-20.
]" Seibers v. Dixie Speedway, 220 Ga. App. 811, 812 (1) ( 470 S.E.2d 452) (1996). See Beck v. Paideia School, 191 Ga. App. 183,-185 (1) ( 381 S.E.2d 132) (1989). In the instant case, Officer Simms was performing police duties which Waffle House did not direct. Officer Simms had a verbal agreement with Waffle House to provide security and enforce the law at the restaurant, which was approved of by the DeKalb County Police Chief. There is no document describing Officer Simms' position or duties at the restaurant.
This case presents the issue of whether an off-duty police officer and his part-time private employer can be liable to a motorist injured as the result of a traffic accident that occurs while the officer is directing traffic in a public roadway at the behest of the private employer. This issue was previously addressed by this court in Beck v. Paideia School, 191 Ga. App. 183 ( 381 S.E.2d 132) (1989). We conclude that this case is controlled by Beck, and we therefore affirm the trial court's grant of summary judgment in favor of the defendants.
" (Citations and punctuation omitted.) Beck v. Paideia School, 191 Ga. App. 183 (1) ( 381 S.E.2d 132), cert. den., 191 Ga. App. 921 (1989). In the case sub judice, Mrs. Schneider brought the situation to the attention of Officer Whitaker and requested that he "finesse" Rembert out of the building.
In contrast, the courts in the cases cited by the casino relied upon their own state law as a basis for their conclusions. See, e.g., Beck v. Paideia Sch., Inc., 381 S.E. 2d 132, 133-34 (Ga.Ct.App. 1989) (finding employer had no vicarious liability for moonlighting policeman, reasoning that Georgia "has long had the policy that an employer of a special policeman incurs no vicarious liability as a result of acts performed by the policeman in furtherance of his public duties."); Whitely v. Food Giant, Inc., 721 So.2d 207, 209 (Ala.Ct.App. 1998) (concluding that grocery store had no vicarious liability for off-duty police officer working as security guard because "the Alabama Supreme Court has held that when an off-duty police officer witnesses an offense for which the perpetrator is arrested, the officer's status changes, and he is then acting in his capacity as a police officer and not his capacity as a security guard."); Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 794-96 (Tex. 2006) (addressing Texas jurisprudence finding no vicarious liability for employers of independent contractors, and declining to adopt "personal character exception" for police officers because the rationales u
See Touchton v. Bramble, 284 Ga.App. 164, 165(1)(a), 643 S.E.2d 541 (2007); American Multi–Cinema, Inc. v. Walker, 270 Ga.App. 314, 315, 605 S.E.2d 850 (2004) (“ ‘... the employer escapes liability if the officer was performing police duties which the employer did not direct when the cause of action arose.’ ”) (emphasis supplied); Page v. CFJ Properties, 259 Ga.App. 812, 813, 578 S.E.2d 522 (2003); Wilson v. Waffle House, Inc., 235 Ga.App. 539, 510 S.E.2d 105 (1998); Smith v. Holeman, 212 Ga.App. 158(4), 441 S.E.2d 487 (1994); Rembert v. Arthur Schneider Sales, Inc., 208 Ga.App. 903, 904, 432 S.E.2d 809 (1993); Beck v. Paideia School, Inc., 191 Ga.App. 183, 381 S.E.2d 132 (1989) (“If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable.”) (emphasis supplied); Welton v. Georgia Power Co., 189 Ga.App. 17, 19(1), 375 S.E.2d 108 (1988); Colonial Stores, Inc. v. Holt, 118 Ga.App. 826(2), 166 S.E.2d 30 (1968). As indicated in Hawkins, however, a jury may consider all evidence presented to decide the issue of capacity.