IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0550

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Fifth Club, Inc. = and David A.=20 West,

Petitioners,

Roberto = Ramirez,

Respondent

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On Petition for Review from = the

Court of Appeals for the Third = District of=20 Texas

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Argued October 18,=20 2005

&n= bsp;=20 Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, = Justice O=92Neill, Justice Brister, and Justice Medina joined, and in = which=20 Justice Hecht, Justice Wainwright, Justice Johnson, and Justice Willett joined as to = Parts I,=20 II, and III.

Justice Brister filed a = concurring=20 opinion, in which Chief = Justice=20 Jefferson joined.

Justice Willett filed a = dissenting=20 opinion, in which Justice = Hecht,=20 Justice Wainwright, and = Justice Johnson joined.

In = this case=20 we revisit the rule that an employer is generally not liable for the = acts of an=20 independent contractor unless the employer exercises sufficient control = over the=20 details of the independent contractor=92s work. See Lee Lewis = Constr., Inc. v.=20 Harrison, 70 S.W.3d 778, 783 (Tex. 2001). We do so to consider = whether a=20 =93personal character exception=94 makes a business owner=92s duties to = the public=20 nondelegable when contracting for private security services to protect = its=20 property. Because we do not recognize a personal character exception to = the rule=20 that an owner is not liable for the tortious acts of independent = contractors,=20 and because the evidence in this case is legally insufficient to support = the=20 jury=92s negligence, malice, and exemplary damages findings against the = owner, we=20 reverse and render judgment in the owner=92s favor.

We = do find=20 legally sufficient evidence to support the future mental anguish damages = award=20 against the independent contractor and affirm the judgment as to the = contractor.=20

I. Facts and Procedural History

Fifth Club,=20 Inc. operates an Austin nightclub known as Club Rod=E9o. David West, a = certified=20 peace officer, was hired as an independent contractor by Fifth Club to = provide=20 security at the nightclub.[1] Late one night, Roberto = Ramirez=20 arrived at Club Rod=E9o after several hours of drinking. Ramirez and his = brother=20 tried to enter the club but were denied admission by the doorman, = allegedly=20 because they were intoxicated. The doorman, an employee of Fifth Club, = signaled=20 to West and another parking lot security officer to escort Ramirez and = his=20 brother out of the club=92s entrance. West allegedly grabbed Ramirez, = slammed=20 Ramirez=92s head against a concrete wall, knocking him unconscious, and = then=20 struck him several times. The altercation resulted in multiple injuries = to=20 Ramirez, including a fractured skull. West moved Ramirez to the parking = lot and=20 placed him in handcuffs. The police arrived and arrested Ramirez, but a = grand=20 jury later declined to indict Ramirez on the charge of assaulting a = police=20 officer. Ramirez sued West and the club for damages.

Ramirez=20 claims Fifth Club is vicariously liable for West=92s conduct in spite of = his=20 independent contractor status because it controlled West=92s security = activities.=20 Ramirez further claims that Fifth Club assumed a personal and = nondelegable duty=20 by contracting for security services to protect its property. Under = Ramirez=92s=20 theory, the personal character of this duty, of hiring security = personnel to=20 protect business invitees and the premises, allows an employer to be = liable for=20 intentional acts of its independent contractor.

A = jury found=20 Fifth Club vicariously liable for West=92s conduct and for negligence = and malice=20 in its hiring of West. The jury awarded Ramirez actual damages that = included=20 future mental anguish damages and exemplary damages. The court of = appeals=20 affirmed.[2] 144 S.W.3d 574, 592 (Tex. = App.=96Austin=20 2004, pet. granted).

Fifth Club=20 contends there is legally insufficient evidence it retained sufficient = control=20 over West=92s security activities to make it vicariously liable for his = conduct.=20 It also argues there is no personal character exception to the rule that = insulates employers from the tortious acts of independent contractors. = Fifth=20 Club further asserts there is legally insufficient evidence to support = the=20 finding of malice in its hiring of West. And finally, both Fifth Club = and West=20 claim there is legally insufficient evidence to support the award of = future=20 mental anguish damages. We address each argument in turn.

II. Fifth Club=92s Liability for West=92s = Conduct

A. Control

Generally,=20 an employer has no duty to ensure that an independent contractor = performs its=20 work in a safe manner. See Lee Lewis Constr., Inc., 70 S.W.3d at = 783.=20 However, an employer can be held vicariously liable for the actions of = an=20 independent contractor if the employer retains some control over the = manner in=20 which the contractor performs the work that causes the damage. See = id. In=20 Redinger v. Living, Inc., we explained that

[o]ne who=20 entrusts work to an independent contractor, but who retains the control = of any=20 part of the work, is subject to liability for physical harm to others = for whose=20 safety the employer owes a duty to exercise reasonable care, which is = caused by=20 his failure to exercise his control with reasonable care.

689 S.W.2d=20 415, 418 (Tex. 1985) (quoting Restatement (Second) of Torts = =A7 414=20 (1977)). We held the general contractor liable for the actions of the=20 independent contractor in Redinger because the general contractor = retained =93the power to direct the order in which the work was to be = done and to=20 forbid the work being done in a dangerous manner.=94 Id.; see = Coastal=20 Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. = 1999)=20 (=93The supervisory control must relate to the activity that actually = caused the=20 injury, and grant the owner at least the power to direct the order in = which work=20 is to be done or the power to forbid it being done in an unsafe = manner.=94). We=20 further explained in Koch Refining Co. v. Chapa that a right of = control=20 requires more than

a general=20 right to order the work stopped or resumed, to inspect its progress or = to=20 receive reports, to make suggestions or recommendations which need not=20 necessarily be followed, or to prescribe alterations and deviations. = Such a=20 general right is usually reserved to employers, but it does not mean = that the=20 contractor is controlled as to his methods of work, or as to operative = detail.=20 There must be such a retention of a right of supervision that the = contractor is=20 not entirely free to do the work in his own way.

11 = S.W.3d 153,=20 155 (Tex. 1999) (quoting Restatement=20 (Second) of Torts =A7 414 cmt. c (1965)). Employers can = direct when=20 and where an independent contractor does the work and can request = information=20 and reports about the work, but an employer may become liable for the=20 independent contractor=92s tortious acts only if the employer controls = the details=20 or methods of the independent contractor=92s work to such an extent that = the=20 contractor cannot perform the work as it chooses. Id. at = 155-56.

In = this=20 case, there was no evidence that Fifth Club gave more than general = directions to=20 West or that it retained the right to control the manner in which West = performed=20 his job. Fifth Club=92s action in directing West to remove Ramirez from = the=20 premises did not rise to the level of directing how the work was to be = performed=20 or directing the safety of the performance because West retained the = right to=20 remove Ramirez by whatever method he chose. Fifth Club, therefore, = cannot be=20 held vicariously liable for West=92s conduct.

B. Personal Character Exception

Ramirez=20 argues that even if Fifth Club did not retain control over West=92s = actions, it=20 can still be held vicariously liable because of a personal character = exception=20 to the general rule against liability of employers for the acts of = independent=20 contractors. According to Ramirez, the duty arising from an employer=92s = hiring of=20 security personnel is personal in character, special only because of the = nature=20 of security work, and therefore an employer should be held liable for = the=20 tortious acts of the independent-contractor security personnel.

We = have=20 never addressed this =93personal character exception,=94 which first = appeared in=20 Texas in 1976. See Dupree v. Piggly Wiggly Shop Rite Foods, Inc., = 542=20 S.W.2d 882, 888-90 (Tex. Civ. App.=96Corpus Christi 1976, writ ref=92d = n.r.e.).=20 Since then, the exception has been mentioned in only three other = opinions from=20 Texas courts of appeals. See Duran v. Furr=92s Supermarkets, = Inc., 921=20 S.W.2d 778, 787-88 (Tex. App.=96El Paso 1996, writ denied); Ross v. = Tex. One=20 P=92ship, 796 S.W.2d 206, 213 (Tex. App.=96Dallas 1990), writ = denied, 806=20 S.W.2d 222 (Tex. 1991); Westhill Mgmt., Inc. v. Hefner, No.=20 01‑87‑000617‑CV, 1988 WL 46399, at *3 (Tex. = App.=96Houston [1st Dist.] May 12,=20 1988, writ denied)(not designated for publication). Under the exception, = a=20 premises owner can be held liable when an independent contractor=92s = work involves=20 duties that are personal in character. See Duran, 921 S.W.2d at = 789;=20 Ross, 796 S.W.2d at 212-13. Texas courts have discussed the = exception only=20 in regards to security work performed by an independent contractor. = See=20 Duran, 921 S.W.2d at 787-88; Ross, 796 S.W.2d at 213; = Westhill=20 Mgmt., Inc., 1988 WL 46399, at *3.

In = Dupree, the Thirteenth Court of Appeals held that a supermarket = could be=20 vicariously liable for the work of its independent-contractor security=20 guards:

[B]ecause=20 of the =93personal character=94 of duties owed to the public by one = adopting=20 measures to protect his property, owners and operators of enterprises = cannot, by=20 securing special personnel through an independent contractor for the = purposes of=20 protecting property, obtain immunity from liability for at least the = intentional=20 torts of the protecting agency or its employees.

542 S.W.2d at=20 888. The court cited opinions from other states in support of its = holding.=20 Id. (citing Adams v. F. W. Woolworth Co., 257 N.Y.S. 776, = 781=20 (N.Y. Sup. Ct. 1932); Hendricks v. Leslie Fay, Inc., 159 S.E.2d = 362,=20 366-68 (N.C. 1968); Szymanski v. Great Atl. & Pac. Tea Co., = 74 N.E.2d=20 205, 206-07 (Ohio Ct. App. 1947)). The court further held that when a = store=20 takes on security functions, the store cannot assign its duty to protect = the=20 public to the independent-contractor security personnel. Id. at = 890.

The Eighth=20 Court of Appeals cited Dupree when it reversed a summary judgment = on the=20 basis that a fact issue existed concerning application of the personal = character=20 exception to a similar situation involving the alleged intentional torts = of a=20 security guard at a supermarket. Duran, 921 S.W.2d at 788. In = Westhill=20 Management, Inc., the First Court of Appeals did not specifically = mention=20 the personal character exception, but it cited Dupree in holding = a=20 management company liable for the torts of its independent-contractor = security=20 guard. Westhill Mgmt., Inc., 1988 WL 46399, at *3. The Fifth = Court of=20 Appeals, however, refused to apply the personal character exception to = the acts=20 of a security guard because it found that the tortious conduct in that = case was=20 not intentional. Ross, 796 S.W.2d at 213-14. It therefore appears = that=20 the Texas courts that have considered the personal character exception = have=20 limited its application to the intentional acts of = independent-contractor=20 security guards. And before Fifth Club, only two Texas courts = have=20 actually applied the personal character exception to hold businesses = vicariously=20 liable for the actions of their independent-contractor security guards. = See=20 Dupree, 542 S.W.2d at 890; Duran, 921 S.W.2d at 788. Those = cases have=20 generally not provided an in-depth analysis of the personal character = exception,=20 so we look to other states for guidance in examining the exception=92s = origin and=20 purpose.

A = number of=20 states have adopted a personal character exception, or a rule that = allows=20 employers or premises owners to be held liable for the acts of = independent=20 contractors in the security context. See Robert A. Brazener, = Annotation,=20 Liability of One Contracting for Private Police or Security Service = for Acts=20 of Personnel Supplied, 38 A.L.R.3d 1332 (1971).[3] There appear to be at least = two=20 reasons why some states have adopted this exception: a nondelegable duty = to keep=20 premises safe, and public policy reasons relating to security work in = general.=20 Because these reasons are not applicable under Texas law, and have not = been=20 otherwise addressed by the Legislature, we are not persuaded that Texas = should=20 adopt such a rule.

Several=20 states have relied on the nature of premises liability and the = protection of=20 premises to find liability for employers or business owners for the acts = of=20 their independent contractors.[4] Some states that have = recognized the=20 personal character exception have done so because the state law imposed = a=20 nondelegable or personal duty on the business owner to keep the premises = safe,=20 therefore making the business owner responsible for the acts of = independent=20 contractors hired to keep the premises safe. See FPI Atlanta, L.P. v. = Seaton, 524 S.E.2d 524, 530-31 (Ga. Ct. App. 1999) (holding that = landowners=20 who were under a Georgia statute imposing a duty to keep their land safe = for=20 invitees could be held liable for the acts of security personnel hired = to keep=20 the land safe); see also Ga. Code=20 Ann. =A7 51-3-1 (2000) (=93Where an owner or occupier of = land, by=20 express or implied invitation, induces or leads others to come upon his = premises=20 for any lawful purpose, he is liable in damages to such persons for = injuries=20 caused by his failure to exercise ordinary care in keeping the premises = and=20 approaches safe.=94); Webbier v. Thoroughbred Racing Protective = Bureau,=20 Inc., 254 A.2d 105, 289 (R.I. 1969) (holding that when owners were = subject=20 to a statutory duty to keep their patrons safe they could not escape = liability=20 for injuries to their racetrack patrons by hiring third parties to = protect=20 them). However, this case is not based on premises liability, but = involves=20 alleged vicarious liability for the acts of an independent = contractor.

Several=20 states addressing a personal character exception have done so based on a = public=20 policy that business owners should not have the benefit of surveillance = or=20 protection of their property without the penalties for unlawful = activities by=20 their independent contractors performing protective or security = functions.[5] Those cases emphasize the = possibility=20 of abuse when a business owner is allowed to hire a detective agency or = security=20 guard to help protect its premises and its invitees, but cannot be held = liable=20 for the actions of the guards. See, e.g., Peachtree-Cain Co. = v.=20 McBee, 316 S.E.2d 9, 11 (Ga. Ct. App. 1984), aff=92d, 327 = S.E.2d 188,=20 191 (Ga. 1985); Adams, 257 N.Y.S. at 781-82. Those cases also = appear to=20 identify security work as an exclusive category where vicarious = liability can be=20 present, regardless of the worker=92s status as an independent = contractor. See,=20 e.g., Peachtree-Cain Co., 316 S.E.2d at 11; Adams, 257 = N.Y.S.=20 at 781-82.

In = Texas,=20 business owners and employers alike are generally held liable for an = independent=20 contractor=92s tortious acts only if the employer maintains detailed = control over=20 the independent contractor=92s acts or if the work itself involves a = nondelegable=20 duty, whether inherently dangerous or statutorily prescribed. See = Shell Oil=20 Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004); Lee Lewis Constr.,=20 Inc., 70 S.W.3d at 794 n.36 (inherently dangerous activities); = MBank El=20 Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex. 1992) (statutory=20 imposition). A duty is nondelegable when it =93is imposed by law on the = basis of=20 concerns for public safety, the party bearing the duty cannot escape it = by=20 delegating it to an independent contractor.=94 MBank El Paso, = N.A., 836=20 S.W.2d at 153.

We = have=20 recognized a policy in favor of allowing employer liability when the = independent=20 contractor=92s work is inherently dangerous:

One who=20 employs an independent contractor to do work involving a special danger = to=20 others which the employer knows or has reason to know to be inherent in = or=20 normal to the work, or which he contemplates or has reason to = contemplate when=20 making the contract, is subject to liability for physical harm caused to = such=20 others by the contractor=92s failure to take reasonable precautions = against such=20 danger.

Lee Lewis=20 Constr., Inc., 70 S.W.3d at 794 n.36 (quoting Restatement (Second) of Torts=20 =A7 427 (1965)).[6] Inherently dangerous = activity stems=20 from the activity itself rather than the manner of performance, so the=20 responsibility for creating the danger cannot be shifted completely to = the=20 contractor performing the work, while ignoring the employer. See Restatement (Second) of Torts=20 =A7=A7 427, 427A. But Ramirez is basing his claim in this = Court on what=20 he views as the personal nature or character of security work; he has = not argued=20 that security work is inherently dangerous.

=20 Some statutes impose certain nondelegable duties on businesses, making = the=20 business liable for acts violating the duty, even if the duty is being = performed=20 by an independent contractor. See MBank El Paso, N.A., 836 S.W.2d = at 153=20 (discussing section 9-503 of the Uniform Commercial Code); see also = Konar v.=20 PFL Life Ins. Co., 840 A.2d 1115, 1117-19 (R.I. 2004) (refusing to = extend an=20 exception for security work beyond statutorily-created duties mandating = security=20 or protection of the premises); Restatement (Second) of Torts=20 =A7 424 (=93One who by statute or by administrative = regulation is under=20 a duty to provide specified safeguards or precautions for the safety of = others=20 is subject to liability to the others for whose protection the duty is = imposed=20 for harm caused by the failure of a contractor employed by him to = provide such=20 safeguards or precautions.=94). However, the Legislature has not = identified=20 security work as carrying such nondelegable duties or carved out a = special=20 exception allowing business owners or employers to be held liable for = the=20 conduct of their independent-contractor security personnel.

We = decline=20 to recognize a personal character exception to the rule that an employer = is=20 generally insulated from liability for the tortious acts of its = independent=20 contractors. Instead, whether an employer can be liable for security = work=20 performed by an independent contractor is determined by the facts of the = case=20 analyzed under the control exception and the nondelegable duty = exception, which=20 includes inherently dangerous activities and statutorily-imposed duties. = In this=20 case the plaintiff could, and did, sue the nightclub alleging direct = liability=20 for negligent hiring. Therefore, we see no reason to expand an = employer=92s=20 liability for the acts of its independent contractor solely because the=20 contractor is hired to perform security work, and we hold that there is = no=20 personal character exception to the general rule shielding an employer = from=20 liability for tortious acts of its independent contractors.

We = disapprove Dupree v. Piggly Wiggly Shop Rite Foods, Inc. and = Duran v.=20 Furr=92s Supermarkets, Inc. to the extent they hold that the = personal=20 character of security work can cause an employer to be liable for the = actions of=20 their independent contractors absent control over the details of their = work.=20 See Dupree, 542 S.W.2d at 888-90; Duran, 921 S.W.2d at = 787-88.

Because the=20 character of West=92s work for Fifth Club alone does not impose employer = liability, we conclude Fifth Club is not vicariously liable to = Ramirez.

III. Negligence and Malice in Hiring

Fifth Club=20 further contends there is legally insufficient evidence to support the = jury=92s=20 finding that it was negligent or malicious in hiring and retaining West. = We=20 agree. Ramirez argues that because Fifth Club did not perform a = background check=20 on West, did not require a job application, and allowed a third party to = hire=20 West, it was negligent in hiring him. Negligence in hiring requires that = the=20 employer=92s =93failure to investigate, screen, or supervise its = [hirees]=20 proximately caused the injuries the plaintiffs allege.=94 Doe v. Boys = Club of=20 Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).

There is no=20 evidence to support the jury=92s finding that Fifth Club=92s lack of a = background=20 check of West caused the altercation or the injuries. As to negligence = in=20 hiring, the evidence indicates that even if Fifth Club had investigated = West=20 before hiring him, nothing would have been found that would cause a = reasonable=20 employer to not hire West. Cf. Doe, 907 S.W.2d at 477 (holding = that the=20 Boys Club did not breach any duty to screen or investigate its = volunteers=20 because the club would not have found anything in a volunteer=92s = background that=20 would cause the club not to allow him to volunteer even if it had = screened or=20 investigated the volunteer). The evidence showed that West violated a=20 requirement in the applicable peace officer manual by accepting = employment at=20 the club, and that his primary employer had reprimanded West for the use = of a=20 profanity to a member of the public. This evidence is not sufficient to = have put=20 Fifth Club on notice that hiring West would create a risk of harm to the = public,=20 even if Fifth Club had done a background check. Ramirez argues that if = Fifth=20 Club had known that West was violating his primary employer=92s = policies, it would=20 not have hired him. But this statement, even if true, only shows that = Fifth Club=20 provided a condition=97the hiring of West=97that allowed for the = altercation. It=20 does not show foreseeability of harm to the public by West. Cf. = id. at=20 477-78. Therefore, there is no evidence to support the jury=92s finding = that Fifth=20 Club was negligent, or malicious, in hiring West.

Also,=20 no evidence was presented that West was an incompetent or unfit security = guard=20 such that Fifth Club was negligent in retaining him after he was hired. = Fifth=20 Club hired West as a security guard to assist in protecting its property = and=20 patrons, a job specially suited to a trained peace officer. Cf. = Hoechst=20 Celanese Corp. v. Compton, 899 S.W.2d 215, 227-28 (Tex. = App.=96Houston [14th=20 Dist.] 1994, writ denied) (holding that because peace officers are = specifically=20 trained to direct traffic, the employer was not negligent in hiring = officers for=20 that function because it failed to investigate the officers=92 = backgrounds). While=20 Ramirez presented evidence that Fifth Club did not perform a background = check or=20 train West, West=92s status as a certified peace officer made him fit = for this=20 type of work, and there was no conflicting evidence that he was unfit = for the=20 security position prior to the incident in question.

Because=20 there is no evidence to show that Fifth Club=92s alleged negligence in = hiring West=20 could have caused Ramirez=92s injury, we reverse the court of appeals=92 = judgment=20 against Fifth Club on the negligence and malice issues, and we render a=20 take-nothing judgment in favor of Fifth Club.

IV. Future Mental Anguish Damages

West argues=20 there is legally insufficient evidence to support the jury=92s award of = $20,000 in=20 future mental anguish damages.[7] We disagree. In Parkway = Co. v.=20 Woodruff, this Court held that mental anguish awards will pass a = legal=20 sufficiency review if evidence is presented describing =93the nature, = duration,=20 and severity of their mental anguish, thus establishing a substantial = disruption=20 in the plaintiffs=92 daily routine.=94 901 S.W.2d 434, 444 (Tex. 1995). = Furthermore,=20 =93some types of disturbing or shocking injuries have been found = sufficient to=20 support an inference that the injury was accompanied by mental = anguish.=94=20 Id. at 445; see also Brown v. Sullivan, 10 S.W. 288, 290 = (Tex.=20 1888) (=93Where serious bodily injury is inflicted involving fractures,=20 dislocations, etc., and results in protracted disability and confinement = to bed,=20 we know that some degree of physical and mental suffering is the = necessary=20 result.=94).

In = this=20 case, Ramirez and his wife testified that Ramirez continued to be = depressed,=20 humiliated, non-communicative, unable to sleep, and angry, continued to = have=20 headaches and nightmares, and that his daily activities and his = relationships=20 with his wife and daughter continued to be detrimentally affected almost = two=20 years after the incident. Ramirez also presented evidence of the = severity of the=20 intentional beating by West, including significant injuries to his head = and=20 body, his loss of consciousness, and his visits to the hospital. The = evidence=20 shows the nature of Ramirez=92s mental anguish, its lasting duration, = and the=20 severity of his injuries, and is therefore legally sufficient to support = future=20 mental anguish damages.

The dissent=20 points to this Court=92s opinions in Saenz and Parkway as = support=20 for its conclusion that the evidence in this case, as it was in those = cases, is=20 insufficient to support the jury=92s award of future mental anguish = damages. __=20 S.W.3d __ (citing Saenz v. Fid. & Guar. Ins. Underwriters, = 925 S.W.2d=20 607 (Tex. 1996); Parkway, 901 S.W.2d 434). But what distinguishes = those=20 cases is that neither of them, Saenz (wrongful inducement to = settle a=20 workers compensation claim) or Parkway (flooded home), involved a = claim=20 for personal injuries. See Saenz, 925 S.W.2d at 608-10; = Parkway,=20 901 S.W.2d at 436-37. We believe the severe beating received by Ramirez = provided=20 an adequate basis for the jury to reasonably conclude that he would = continue to=20 suffer substantial disruptions in his daily routine of the kind = described in his=20 and his wife=92s testimony that he had already suffered in the past. The = evidence=20 in this case amounts to far more than worry that medical bills might not = get=20 paid, as in Saenz, or that someone is disturbed and upset, as in=20 Parkway. See Saenz, 925 S.W.2d at 614; Parkway, 901 = S.W.2d=20 at 445.

*=20 * *

In = summary,=20 we reverse the court of appeals=92 judgment against Fifth Club based on = jury=20 findings of vicarious liability negligence and malice in hiring, and we = enter a=20 take-nothing judgment in Fifth Club=92s favor. We affirm the court of = appeals=92=20 judgment against West as to future mental anguish damages.

______________________________

PAUL W.=20 GREEN

JUSTICE

OPINION DELIVERED: = June 30,=20 2006

^[1] West was a campus peace officer for = Huston‑Tillotson=20 College at the time of the incident. He was sworn in as a commissioned = peace=20 officer at the college the month before the incident. West had attended = a law=20 enforcement academy before becoming a commissioned peace=20 officer.

^[2] Other members of Ramirez=92s family were = parties to the=20 trial court and court of appeals proceedings regarding Fifth Club=92s = and another=20 officer=92s actions at the time of the incident, but those plaintiffs = have not=20 appealed to this Court. Also, although raised below, we do not address = the issue=20 of West=92s official immunity as West and Fifth Club did not raise the = issue in=20 this Court.

^[3] See also Malvo v. J.C. Penney Co., 512 = P.2d 575,=20 583 n.13 (Alaska 1973) (=93[T]he duty owed to the public by a store = owner seeking=20 to protect his property may be nondelegable in certain = circumstances.=94);=20 Tarzia v. Great Atl. & Pac. Tea Co., 727 A.2d 219, 225 (Conn. = App.=20 Ct. 1999) (=93The possessor of premises who has invited persons to those = premises=20 for a business purpose cannot escape liability for a claimed breach of = its duty=20 to exercise reasonable care to keep the premises in a safe condition by = hiring=20 another to maintain the premises in a safe condition.=94); = Peachtree-Cain Co.=20 v. McBee, 316 S.E.2d 9, 10-11 (Ga. Ct. App. 1984), aff=92d, = 327 S.E.2d=20 188, 191 (Ga. 1985) (holding that it was proper to impose liability on = property=20 owners for the intentional torts of security personnel hired to protect = their=20 property because of the =93opportunities for gross injustice=94); = Rockwell v. Sun=20 Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996) (=93However, = in the=20 situation where a property owner hires security personnel to protect his = or her=20 premises and patrons, that property owner has a personal and = nondelegable duty=20 to provide responsible security personnel.=94); Adams, 257 N.Y.S. = at 781-82=20 (holding that if a store owner receives the benefit of having a security = guard=20 do surveillance for criminal activity then he should also be subject to=20 liability for false arrest of the persons the security guard tries to = detain);=20 Hendricks, 159 S.E.2d at 367-68 (holding that hiring security = personnel=20 to protect one=92s property is a nondelegable and personal duty that = subjects the=20 employer to liability for the torts of its security personnel);=20 Szymanski, 74 N.E.2d at 206-07 (same); Halliburton-Abbott Co. = v.=20 Hodge, 44 P.2d 122, 125-26 (Okla. 1935) (=93The weight of authority = seems to=20 be that one may not employ or contract with a special agent or detective = to=20 ferret out the irregularities of his employees and then escape liability = for=20 malicious prosecution or false arrest on the ground that the agent is an = independent contractor.=94); Pryor v. Southbrook Mall Assocs., = No.=20 02A01-9709-CV-00217, 1998 WL 802005, at *4-5 (Tenn. Ct. App. Nov. 18, = 1998)=20 (=93Thus, a business that contracts with an independent contractor to = supply=20 security guards will be liable for the guards=92 intentional torts = against=20 customers and invitees of the place of business.=94); W.T. Grant Co. = v.=20 Owens, 141 S.E. 860, 866 (Va. 1928) (=93The owner of an operation or = enterprise cannot, by securing through other special agents . . . obtain = any=20 immunity from liability for malicious prosecutions which such owner = would not be=20 equally entitled to if he himself directly selected and paid the agents = and=20 expressly retained the power of control and removal. When he undertakes = these=20 functions, his duties are personal and non‑assignable, and where = he arranges for=20 and accepts the service, he will not be permitted to say that the = relationship=20 of master and servant does not exist.=94) (quoting Clinchfield Coal = Corp. v.=20 Redd, 96 S.E. 836, 840 (Va. 1918)). But see Mahon v. City of=20 Bethlehem, 898 F. Supp. 310, 313-15 (E.D. Pa. 1995) (declining to = adopt the=20 exception because the Restatement does not adopt it and =93Pennsylvania = is=20 reluctant to add new exceptions to the independent contractor = shield.=94).=20

^[4] See Malvo, 512 P.2d at 583 n.13; = Tarzia,=20 727 A.2d at 225; FPI Atlanta, L.P. v. Seaton, 524 S.E.2d 524, = 530‑31 (Ga.=20 Ct. App. 1999); Peachtree-Cain Co., 316 S.E.2d at 10-11; = Rockwell,=20 925 P.2d at 1179-80; Hendricks, 159 S.E.2d at 366; Webbier v.=20 Thoroughbred Racing Protective Bureau, Inc., 254 A.2d 285, 289 (R.I. = 1969);=20 Pryor, 1998 WL 802005, at *4-5; W.T. Grant Co., 141 S.E. = at=20 866.

^[5] See Peachtree-Cain Co., 316 = S.E.2d at=20 10-11; Rockwell, 925 P.2d at 1179-80; Adams, 257 N.Y.S. at = 781-82; Hendricks, 159 S.E.2d at 367-68; Szymanski, 74 = N.E.2d at=20 206-07; Halliburton-Abbott Co., 44 P.2d at 126; W.T. Grant = Co.,=20 141 S.E. at 866; Clinchfield Coal Corp., 96 S.E. at 840.=20

^[6] The court of appeals in Dupree = concluded, based=20 on the specific facts of the case, that security work was not inherently = dangerous. 542 S.W.2d at 888.

^[7] Because we hold that Fifth Club is not = vicariously or=20 directly liable for damages, we do not address its argument on the = damages=20 issue.