### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON August 1, 2000 Session DERRICK D. WEBB v. MARVELL COLLIER, ET AL 

### . An Appeal from the Circuit Court for Shelby County No. 91425 T.D. Robert A. Lanier, Judge

No. W1999-01682-COA-R3-CV - Filed May 30, 2001

This is a false arres

tcase. The plaintiff was arrested by one of the def endants, a security guard, in
a Kroger grocery st ore. The plaintiff sued the security guard, Krog er, and others. The uncontroverted

evidence showed that the security guard was an employ ee of a private security firm and not an employee of Kroger. The trial court g ranted Kroger’s motion for summary judg ment. We reverse, finding that Kroger may be held liable under some circumstance s for the actions of a security guard who is an independent contractor. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Reversed and Remanded

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in w

hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. Derrick D. Webb, Memphis, Tennessee, Pro Se. Betty Ann Milligan, Thomas F. Preston, for the appellee, Krog er Grocery Stores, Inc.
OPINION

This is a false arrest case. On November 4, 1995, Plaintiff/Appellant Derrick D. Webb was approached

by Marvell Collier, a security guard, at a Kroger grocery store in Memphis, Tennessee. Collier accused Webb of attempting to shoplift a bottle of Tylenol. Webb says he had opened the bottle to take some tablets but

planned to pay for it. Webb alleges that Collier screamed at him and started to throw him out of the store, using a nightstick against Webb’s throat to restrai n him. Webb broke free of Collier and ran into the parking lot. In the parking lot, Webb was tackled by a Kroger employee reporting to wor

k. Collier handcuf

fed Webb and waite

d for police offi

cers to arriv e. Webb was later arrested by Memphis police and was charged with theft and assault. The criminal charges were dismissed on January 21, 1997, for lack of prosec ution.1 Webb filed a motion to amend his complaint to add police officers C. Fowler, M. Giannini, K. Paul, and the City of Memphis as def

endants. The record does not include the tr ial cour t’s ru ling on t his moti on. Webb later

filed a motion for default judgment against t he officers . The officers responded, assert

ing they had

never been served and t hat the statute of li

mitations had run. The record does not include the trial court ’s ruling on this motion.

2 The parties agree that the applicable statut e of limitations i s one year under Tennessee Code An

notated § 28- 3- 104 (2000).

3 The trial court did not address whether Webb’s claims were barred by t he applic able sta

tute of limitations, and we do no t address this issu e on app eal.
-2- Webb, proceeding pro se , filed a complaint on November 19, 1997, against Collier, Kroger Grocery Stores, Inc., and three separate “John Doe” individuals for m alicious prosecu tion, false imprisonment,

and for violating his “State and Federal Constitutional Rights.” Webb alleg ed t he Defendants were liable for violating his rights under 42 U.S.C. § 1983. 1
Kroger filed an ans wer denying Webb ’s allega tions and alleging several affirmative def

enses. Among the defenses all

eged by K

roger were th

at Webb had failed

to file his act ion within the applicable

statute of limitations 2 and that his complaint failedto state a claim upon which relief can be gra nted. Webb responded that his complaint was timely because his cause of action did not accrue until January 21, 1997, the day the c harges against him were dismissed.

On November 9, 1998,

Kroger filed a

motion for summary

judgment, a statem ent of undisputed facts, and the affidavit of Mike Rossi, Kroger’s head of security for the Memphis area. Rossi’s affidavit asser

ted that Collier wa

s an employe

e of Graham Assoc

ia tes, Inc., t

he private security firm that contracted with Kroger to provide security g uards in its stores, and that Collier was not an employee of Kroger. Since Collier was not a Kroger employee, Kroge r argued that it was not responsible for his actions toward Webb.

On June 25, 1999, the trial court held a hearing on Kroger’s motion for

summary judg

ment. On September 20, the trial court entered an order granting Kroge r’s motion, finding that there was
no genuine issue as to any material fact and that Kroger was entitled to a judgment as a matter of law
on the basis that Collier wa s no t a Kroger employee. 3 The order was ma de final pursuant

to Rule 54.02 of the Tenne

ssee Rules of Civil Pr

ocedure. From t

his order, Webb now

appeals.

On ap peal, Webb argues that there is a genuine issue of material fact to warra nt a tria l because Collier was listed as the “Arresting Officer ” in the original police report of

his arrest in Novemb er

1995, and because Rossi stated in his affidavit that it was customary for Kroger to f il e charges against persons accused of shoplifting. Thus, Webb argues, Kroger was the “arresting and pros ecuting party” in the criminal proceeding against him, and his suit for malicious pros ecution , false imprisonment, and f

or violation of his c

ivil rights sh

ould be a llowed to go forw ard against Kroger.-3-

A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that

no genuine issue of material fact exists. See Byrd v. Hall , 847 S.W.2d 208, 211 (Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in f

avor of the nonmo

ving party, allow all reasonable inferences in favor of that party, and discard all countervailing eviden ce. See id. at 210-11. Summary judgment is only appropriate

when the facts a

nd the legal conc

lusions drawn fro

m the facts reaso

nably permit only
one conclusion. See Carvell v. Bottoms , 900 S.W.2d 23, 26 (T enn. 1995). Since

only questions of law are involved, the

re is no presumptio

n of correctnes s regarding a trial court's grant of summary judgment. See id. Ordinarily, a defendant

cannot be held liable under respondeat superior for the negligent or intentional acts of an independent contractor. See Zimm erman v. Elm Hill Marina , 839 S.W.2d 760, 762 (Tenn. Ct. App. 1992). However, this Court held that, under some circumstances, a business owner may be held liable for personal injuries caused by a security guard, even if the security guard is an independent contractor. See Pryor v. Southb rook Mall

Assocs. , No. 02A01- 9709-CV-00217, 1998 WL 802005, at *4 (Tenn. Ct. App. Nov. 18, 1998). The Court reasoned that
a business owner has a duty to keep the business premises in a safe condition, and a security guard who acts unlawfully violates that duty, even if he is an independent contractor. See id.

In this case, it is undi sputed that Collier is an employee of the private security firm, an independent

contractor. Webb alleges that Collier unlawfully held a nightstick to

his throat, threw him out of the grocery store,

and held him against his will until the police officers arrived. Taking the strongest legitimate view of the evidence in We

bb’s favor, as we

must in considering a motion for summary judgment, we cannot conclude that Kroger cannot be held liable for

Collier’s actions under Pryor . Consequently, we must reverse the trial court’s grant of summary

judgment to Kroger.

The trial court’s decision is reversed and the case is remanded to the trial court for further proceedings consistent with this O pinion. Costs in this ap

peal are taxed to the appellee, Kroger Grocery Stores, Inc., and its surety, for which execution may issue if necessary.

___________________________________ HOLLY KIRBY L

ILLARD, JUDGE