FIFTH DIVISION
BROWN, C. J.,
MERCIER, P. J., and EPPS, J.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 2, 2026
In the Court of Appeals of Georgia
A26A1174. REEVES et al. v. HIGBEE KYG, LP.
EPPS, Judge.
Portia Reeves, acting individually and on behalf of her minor child, appeals from
the trial court’s grant of summary judgment in favor of Higbee KYG, LP, on all
claims. Reeves contends a jury must decide whether Higbee is vicariously liable for the
actions of two off-duty police officers working security for Higbee who chased a
fleeing shoplifting suspect that collided with and injured Higbee’s daughter. For the
reasons that follow, we affirm.
We review de novo a grant or denial of summary judgment,
viewing the evidence and all reasonable conclusions and inferences
drawn from it in the light most favorable to the nonmovants. Summary
judgment is proper when there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law. The burden on the
moving party may be discharged by pointing out by reference to the
affidavits, depositions and other documents in the record that there is an
absence of evidence to support the nonmoving party’s case. If the
movant meets this burden, the nonmovants cannot rest on their
pleadings, but rather must point to specific evidence giving rise to a
triable issue.
Paradise Ent. Group v. Favors, 363 Ga. App. 636, 638 (871 SE2d 916) (2022) (citations
and punctuation omitted). See also OCGA § 9-11-56(c).
Acting individually and on behalf of her daughter, Reeves filed the underlying
suit, asserting claims against Higbee for premises liability, negligence, negligent
infliction of emotional distress as to both the child and Reeves, respondeat superior
for the alleged negligence of the police officers, and loss of consortium as to Reeves.
Higbee moved for summary judgment on all claims, arguing an employer of an offduty police officer cannot be held vicariously liable for police work unless performed
at the direction of the employer.
In support of its motion, Higbee filed the affidavit of a store employee who
observed the shoplifting suspect on Dillards’s security surveillance camera. The
employee radioed the off-duty officers to report his observation that the suspect was
concealing clothing items in a large shopping bag, to report the location of the suspect,
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and to give a physical description of the suspect. The employee did not direct,
instruct, or ask the officers to take any action. Based on this tip, the two police officers
identified the suspect and approached him while still inside the Dillards store. The
suspect fled the store and collided with Reeves’s daughter in the common area of the
mall, injuring her.
Higbee also filed Reeves’s deposition, wherein she testified that she and her
daughter were just outside of Dillards in the mall’s common area when the suspect
knocked her daughter down; that she did not know whether a Higbee employee
instructed the officers to pursue the suspect; and that when she saw them in uniform
she assumed the officers were acting as police officers.
In her response to the summary judgment motion, Reeves argued that the
question of vicarious liability turned on the jury question of whether the officers were
acting as public police officers or private employees of Higbee. Reeves, however,
presented no evidence. Furthermore, while Reeves mentioned her claims for premises
liability and negligent infliction of emotional distress, she clearly based these claims
solely on the acts of the police officers and asserted no independent basis for liability
against Higbee.
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Following oral argument, the trial court granted summary judgment to Higbee
on all claims, finding that once the officers decided to pursue the suspect to arrest
him, they were acting in their capacity as police officers, and not at the direction of
Higbee, and thus Higbee could not be vicariously liable for their actions. It further
found that because there was no evidence to support a respondeat superior claim
against Higbee, Reeves’s claims for negligent infliction of emotional distress and loss
of consortium could not stand. While recognizing the existence of the premises
liability claim and including it within its grant of complete summary judgment, the
trial court did not provide an independent rationale for granting summary judgment
as to this claim. This appeal followed.
1. Reeves contends the trial court erred by granting summary judgment on the
issue of vicarious liability because a jury must determine in what capacity the officers
were acting at the time of the police chase that resulted in the collision with Reeves’s
child. We disagree.
Georgia law is clear that in determining the vicarious liability of a private
employer, such as Higbee, for the allegedly tortious acts of off-duty police officers, we
consider that
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[a] law enforcement officer may occupy a dual position of exercising
functions for the public and the company; in which case, where he is in
the discharge of duties for the company, and the tort is committed under
such circumstances as not to justify it, the company is liable. But if he
commits a tort merely as a police officer, the company would not be
liable, unless it was done at the direction of the company. The mere fact
that a ... company pays for the services of a certain police officer, who
does nothing but perform the duties of a police officer proper, does not
make the company liable.
Paradise Ent. Group, 363 Ga. App. at 643 (2) (citation and punctuation omitted). See
also Carnegay v. WalMart Stores, Inc., 353 Ga. App. 656, 659 (839 SE2d 176) (2020)
(“in cases involving off-duty police officers working for private employers, ... 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). “[T]he proper focus of analysis is to determine in what capacity [the
officers] [were] acting at the time the tort arose.” See Agnes Scott College v. Hartley, 346
Ga. App. 841, 844(3)(a) (816 SE2d 689) (2018) (citation modified; emphasis added).
See also Ambling Mgmt. Co. v. Miller, 295 Ga. 758, 761-62(2) (764 SE2d 127) (2014).
The question of the officers’ capacity at the time of the tort is “generally a
question for the jury based on all evidence provided.” Id. 295 Ga. at 762-63(2)
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(citation omitted). But when the evidence, even when viewed in the light most
favorable to the plaintiff, shows without dispute that an officer was performing police
duties which the employer did not direct, the trial court does not err by granting
summary judgment to the employer. See Wilson v. Waffle House, 235 Ga. App. 539,
539-40 (510 SE2d 105) (1998).
Here, the Dillards’s employee reported the suspect’s description, location, and
apparent concealment of merchandise to the officers without providing any directions
or instructions. Nor is there any evidence in the record of Higbee providing the
officers with any relevant policies, practices, training, goals, objectives, or
expectations. Accordingly, there is no evidence to suggest the officers were acting at
Higbee’s direction. See Wilson, 235 Ga. App. at 539-40. See also Page v. CFG
Properties, 259 Ga. App. 812, 813 (578 SE2d 522) (2003) (employer not liable where
evidence was undisputed employer did not direct officer to confront or arrest suspect,
and officer determined there was probable cause and decided to arrest suspect based
on his training and experience as a police officer).
Furthermore, as the trial court properly determined, once the suspect fled the
store, the officers’ decision to pursue him into the common area, where the tort was
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committed, and ultimately arrest him, was also a decision they made as public police
officers with no direction from Higbee. American Multi–Cinema, Inc. v. Walker, 270
Ga. App. 314, 315(1)(a) (605 SE2d 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 added). See also Beck v. Paideia School, Inc., 191 Ga.
App. 183(1) (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 added). Compare Ambling Mgmt. Co., 295 Ga. at
765(3) (finding a jury question regarding whether the officer was acting in his capacity
as a police officer or private employee because there was evidence the employer
directed patrol officers to make arrests in order to curb illegal activity on the premises)
with Wilson, 235 Ga. App. at 539-40 (affirming summary judgment to company
because off-duty officer made arrest pursuant to authority as a police officer rather
than company directions, procedures, or policies). Given these facts, even when
viewed in the light most favorable to Reeves, Higbee could not be vicariously liable for
the actions of the officers at the time of the incident, and thus the trial court properly
granted summary judgment in Higbee’s favor on this issue.
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2. Reeves also argues that Higbee is liable under the theory of premises liability
and negligent infliction of emotional distress, and that she was entitled to bad-faith
attorney fees under OCGA § 13-6-11.1 Our ruling in Division 1 necessarily defeats all
of the claims asserted against Higbee, including the premises liability and negligent
infliction of emotional distress claims. As Reeves’s appellate briefing makes clear, all
such claims seek to hold Higbee vicariously liable for the officers’ pursuit of the
suspect. The claim for attorney fees must also fail because it is derivative. See Helton
v. United Svcs. Automobile Assn., 354 Ga. App. 208, 213-14(2) (840 SE2d 692). See also
City of Gainesville v. Dodd, 275 Ga. 834, 838-39 (573 SE2d 369) (2002) (appellate
courts retain discretion to determine whether to apply the right-for-any-reason rule
and consider alternative legal theories not addressed by the trial court, or to vacate and
remand for the trial court to consider alternative legal theories in the first instance).
Judgment affirmed. Brown, C. J., and Mercier, P. J., concur.
1
Although Reeves raised a claim for loss of consortium in her complaint, the trial court did not rule on this issue, and Reeves did not raise it in her argument on appeal. Thus, she has abandoned it. Grogan v. City of Dawsonville, 305 Ga. 79, 89(4) n.7 (823 SE2d 763) (2019) (explaining that the Court will not address an issue or argument that appellant did not raise on appeal).
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