Andrews v. Peters

330 S.E.2d 638, 75 N.C. App. 252, 1985 N.C. App. LEXIS 3640
CourtCourt of Appeals of North Carolina
DecidedJune 18, 1985
Docket843SC747
StatusPublished
Cited by15 cases

This text of 330 S.E.2d 638 (Andrews v. Peters) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrews v. Peters, 330 S.E.2d 638, 75 N.C. App. 252, 1985 N.C. App. LEXIS 3640 (N.C. Ct. App. 1985).

Opinions

BECTON, Judge.

This case is before our Court for the second time. On the initial appeal our Court, in Andrews v. Peters, 55 N.C. App. 124, 284 S.E. 2d 748 (1981), disc. rev. denied, 305 N.C. 395, 290 S.E. 2d 364 (1982), reversed the trial court’s granting of the defendant’s Rule 12(b)(1) motion and remanded the case for trial. Our Court held that the North Carolina Workers’ Compensation Act is not the exclusive remedy for an employee “intentionally injured” by a co-employee. An employee is thus free to assert an intentional tort action against a co-employee. Id. The co-employee immunity read into the Act by the North Carolina case law does not extend to in[254]*254tentional acts. Id. We refer to the earlier opinion for a complete analysis.

The facts, briefly stated, are as follows. The plaintiff, Margaret H. Andrews, was injured on 27 September 1979 when her co-employee at Burroughs Wellcome Corporation, the defendant, August Richard Peters, III, walked up behind her at work and tapped the back of her right knee with the front of his right knee, causing her knee to buckle. Andrews lost her balance, fell to the floor, and dislocated her right kneecap. Andrews instituted this action against Peters for intentional assault and battery. She sought compensation for medical expenses, loss of income, pain and suffering, permanent disability, and punitive damages.

The trial judge submitted the case to the jury on the theory of battery. The jury entered a verdict in favor of Andrews on liability and awarded her $7,500 in damages. Andrews filed a Rule 59(a)(6) and (7) motion for a new trial on the issue of damages, alleging that the inadequate verdict was the product of passion or prejudice and that the evidence was insufficient to support the verdict. Peters responded with a Rule 52(a)(2) motion, asking the trial court to “set forth fully and in detail the findings of fact and conclusions of law upon which its ruling on the plaintiffs motion (Rule 59) is based. . . .” The trial court granted Andrews’ Rule 59 motion in its 21 December 1983 order. Peters then filed a combined Rule 52(b) and Rule 60(b)(6) motion, asking the trial court to state in its 21 December 1983 order the amount of damages it deemed sufficient to prevent a new trial and further, to vacate its 21 December 1983 order and instead, increase Andrews’ award to a maximum of $25,000. In its 29 December 1983 order the trial court denied Peters’ combined motion. From the trial court’s 21 and 29 December orders, Peters appeals.

I

Peters contends that the trial court erred in denying his motions for a directed verdict at the close of Andrews’ evidence and at the close of all the evidence. According to Peters, this Court’s holding in the earlier opinion permits an employee to seek recovery from a co-employee only in “those instances where the injury was intentionally inflicted as opposed to those instances where the injury resulted from an intentional act, the result of which was neither intended nor reasonably foreseeable.” Peters alleges [255]*255that there is no evidence that he intended to injure Andrews. As summarized in Peters’ brief:

[Peters] testified that he did not intend to be rude or offensive in tapping [Andrews] behind her knees. He stated that the same thing had only moments before been done to him by a co-worker and that it struck him as fun. He stated that he tried to catch [Andrews] to prevent her from striking the floor, that he was shocked by what had happened, and that he immediately apologized to [Andrews] and attempted to help her.

Peters cites language in the earlier Andrews v. Peters opinion (“an employee intentionally injured by a fellow employee”); in Daniels v. Swofford, 55 N.C. App. 555, 286 S.E. 2d 582 (1982) (“actual intent on the part of the corporate employer to injure [plaintiff]”); in Wesley v. Lea, 252 N.C. 540, 114 S.E. 2d 350 (1960) (“no evidence of any intention on the part of defendant to injure plaintiff’); and in Warner v. Leder, 234 N.C. 727, 69 S.E. 2d 6 (1952) (“the defendant did not intentionally injure the plaintiff’) to support his contentions. However, the Supreme Court has recently clarified the Andrews v. Peters holding:

In a recent opinion by Judge (now Justice) Vaughn, our Court of Appeals expressly held that the Workers’ Compensation Act does not preclude a suit against a co-employee for intentional torts. Andrews v. Peters, 55 N.C. App. 124, 284 S.E. 2d 748 (1981), disc. rev. denied, 305 N.C. 395, 290 S.E. 2d 364 (1982). This holding rested upon the common-sense conclusion that the legislature did not intend to insulate a co-employee from liability for intentional torts inflicted upon a fellow worker. Id., 55 N.C. App. at 127, 284 S.E. 2d at 750. The Court of Appeals also noted that in many of the jurisdictions granting co-employee immunity, an exception for intentional acts causing injury had been either expressly set out in the statute or judicially grafted upon them. Id.

Pleasant v. Johnson, 312 N.C. 710, 713, 325 S.E. 2d 244, 247 (1985).

Furthermore, Peters’ construction of the broad language in the Andrews v. Peters holding and in the earlier case law ignores the nature of the intent required for an intentional tort action.

[256]*256The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiffs own good.

W. Prosser & W. Keeton, The Law of Torts Sec. 8, at 36-7 (5th ed. 1984). See also Restatement (Second) of Torts Sec. 13 comment c (1965). For example, liability for the intentional tort of battery hinges on the defendant’s intent to cause a harmful or offensive contact. Restatement, supra, Sec. 13 (1965). Significantly,

[t]he defendant’s liability extends, as in most other cases of intentional torts, to consequences which the defendant did not intend, and could not reasonably have foreseen, upon the obvious basis that it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim.

Prosser & Keeton, supra, Sec. 9, at 40.

Peters does not deny that he intended to tap Andrews behind the knee. Although tapping Andrews’ knee was arguably not in and of itself a harmful contact, it easily qualifies as an offensive contact. “A bodily contact is offensive if it offends a reasonable sense of personal dignity.” Restatement, supra, Sec. 19 and comments. There is no evidence of consent to the touching. See Restatement, supra, Sec. 13 comment c.

The trial judge phrased the issue of liability succinctly: “Did the defendant commit a battery upon the plaintiff on September 27, 1979?” We note that the jury instructions are neither included in the record nor are they the subject of an assignment of error. We are therefore left to presume that the trial court instructed the jury correctly on the theory of battery. From the jury’s verdict, we conclude that the jury found that Peters intended to cause a harmful or offensive contact, ie.,

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Andrews v. Peters
330 S.E.2d 638 (Court of Appeals of North Carolina, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
330 S.E.2d 638, 75 N.C. App. 252, 1985 N.C. App. LEXIS 3640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-peters-ncctapp-1985.