# Smith v. Norton Hospitals, Inc.

> Court of Appeals of Kentucky · March 4, 2016 · 488 S.W.3d 23

URL: https://www.frixlaw.com/law-library/cases/5285267

## Case

- **Full name:** Linda SMITH v. NORTON HOSPITALS, INC., d/b/a Norton Suburban Hospital Tony Rednour Securitas Security Services USA, Inc. Brooks Security, LLC Kelvin Brooks and David Rednour
- **Court:** Court of Appeals of Kentucky
- **Decided:** March 4, 2016
- **Citations:** 488 S.W.3d 23; 2016 Ky. App. LEXIS 30; 2016 WL 834337
- **Precedential status:** Published
- **Opinion:** Dissent by Jones
- **Judges:** Dixon, Jones, Kramer
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5285267

## How later opinions describe it (automated extraction)

- finding that “the determination of the amount of force required to effect the investigatory stop or arrest is . . . a discretionary act”

## Opinion text

JONES, JUDGE,
DISSENTING:
Respectfully, I dissent. I do not believe the fact that peace' officers are permitted by statute to “moonlight,” the fact that their 'conduct is regulated while off duty, or the fact that their arrest powers endure while they are off duty are dispositive of the immunity question. In this case, I believe that there are serious issues of fact regarding the capacity in which Officer Phillips was acting at the time of the events in question which preclude summary judgment. While some facts suggest that Officer Phillips may have been acting in his role as a peace officer, others equally suggest that he was wholly acting as a *36 private security guard, including the fact that Phillips did not arrest Smith or cite her for her conduct that-evening.
While the record here contains , ample evidence that Phillips, a certified peace officer, was working as a private off-duty security guard when the events underlying this appeal occurred, if and when Phillips’s role changed to that of a public peace officer is unclear. “The question of whether an off-duty peace officer is acting within the scope of his authority and therefore entitled to official immunity requires an examination of the officer’s conduct and a differentiation of those actions taken in a private capacity from those actions performed as a public servant. The determination of this question presents embedded fact issues that are best left to the trier of fact.” Dillard’s, Inc. v. Newman, 299 S.W.3d 144, 148 (Tex.App.2008); see also Lovelace v. Anderson, 366 Md. 690 , 785 A.2d 726, 739 (2001). Likewise, I do not believe that a wholly private institution should be able to immunize itself' from liability by hiring peace officers to perform its security functions. White v. Revco Disc. Drug Centers, Inc. , 33 S.W.3d 713, 726 (Tenn.2000).,
For these reasons, I would reverse the Jefferson Circuit Court and remand this matter for additional proceedings, including a factual determination regarding the nature of Officer Phillips’s actions (peaqe officer or private security guard) at the time of the events in question.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5285267. Public record. Not legal advice.