Keith v. Health-Pro Home Care Servs.

• Court: Court of Appeals of North Carolina
• Decided: December 15, 2020
• Docket: 19-118
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-118

Filed: 15 December 2020

Pitt County, No. 16 CVS 2868

THOMAS KEITH AND TERESA KEITH, Plaintiffs-Appellees/Cross-Appellants,

v.

HEALTH-PRO HOME CARE SERVICES, INC., Defendant-Appellant/Cross- Appellee.

Appeal by Defendant from order entered 26 March 2018 by Judge Marvin K.

Blount in Superior Court, Pitt County. Heard in the Court of Appeals 4 June 2019.

Ward and Smith, P.A., by Jeremy M. Wilson, Alexander C. Dale, and Christopher S. Edwards, for Plaintiffs-Appellees and Plaintiffs-Cross- Appellants.

Hedrick Gardner Kincheloe & Garafalo LLP, by M. Duane Jones, Michael S. Rothrock, and Linda Stephens, for Defendant-Appellant and Defendant-Cross- Appellee.

McGEE, Chief Judge.

Defendant-Employer Health-Pro Home Care Services, Inc. (“Defendant” or

“Health-Pro”) appeals from the denial of its motions for directed verdict and its

motion for a judgment notwithstanding the verdict (“JNOV”) on the negligence claim

of Plaintiffs Thomas Keith (“Mr. Keith”) and Teresa Keith (“Mrs. Keith,” together

with Mr. Keith, “Plaintiffs”). Because this Court holds that Plaintiffs’ claim was one

pursuant to the doctrine of negligent hiring, retention, or supervision, not, as argued KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

by Plaintiffs, one in ordinary negligence, we agree with Defendant, reverse, and

remand for entry of a JNOV in Defendant’s favor. We further dismiss Plaintiffs’

conditional cross-appeal as moot.

I. Facts

In relevant part, the substantial evidence introduced at trial supporting

Plaintiffs’ negligence complaint included the following facts: Defendant “provides in-

home health care for disabled and elderly individuals.” Plaintiffs “are an elderly

couple who live alone at their home in Pitt County[.]” Plaintiffs “hired [Defendant]

approximately three years [prior to filing this action] to provide in-home care.”

“Originally, Health-Pro aides were scheduled to come to [Plaintiffs’] home from 8:00

a.m. to 2:00 p.m. and then again from 6:00 p.m. to 11:00 p.m.” However, Plaintiffs

“eventually” requested that “Health-Pro aides” provide services “for the entire day.”

“Health-Pro aides” such as Deitra Clark (“Ms. Clark”) would “provide the following

services to [Plaintiffs], among others: laundry; retrieving the mail and newspaper;

preparing meals; washing, bathing, and dressing Mrs. Keith; cleaning the house;

and running various errands for [Plaintiffs], including driving Mrs. Keith to the store

and to doctor appointments.” Aides such as Ms. Clark were employees of Defendant.

Naturally, due to the nature of the job, “[Ms.] Clark was able to gain extensive

information about [Plaintiffs] and their home including, but not limited to, how to

enter and exit the home, details of [Plaintiffs’] personal property and other assets,

and the location of valuables within the home.”

2 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

“In the fall of 2015, [Plaintiffs] discovered that approximately $90.00 in rolled

coins had been stolen from a box inside their home.” “In July or August 2016,

approximately . . . $1,200.00 was stolen from [Mrs. Keith’s] dresser drawer, and

$90.00 was stolen from Mr. Keith’s wallet.” At the time Plaintiffs noticed the missing

money in August, they informed “Sylvester Bailey [(“Mr. Bailey”)], one of the officers

and owners of Health-Pro, of the” money missing from Mr. Keith’s wallet, the money

missing from Mrs. Keith’s dresser drawer, as well as the “missing rolled coins”

allegedly stolen in “the fall of 2015.” In response, “[Mr.] Bailey stated that he would

take appropriate action, including determining which employee might be responsible

and responding accordingly.” “[Mr.] Bailey identified two employees who may have

been working for Plaintiffs “in the fall of 2015” as well as “[i]n July or August 2016,”

one of whom was Ms. Clark, the other Clementine Little (“Ms. Little”) and “assured

[Plaintiffs] that neither [employee would] again [ ] be assigned to [Plaintiffs’] home.

[Plaintiffs and their son, Frederick Keith (“Frederick”),] specifically told [Mr.] Bailey

that they did not want [Ms.] Clark assigned as an aide [ ] in their home.” However,

two or three weeks later, Defendant “again assigned [Ms.] Clark to [work as an aide

in Plaintiffs’] home.” Plaintiffs allege that because they “relied on Health-Pro aides

to take care of them, including to assist with various activities of daily living and to

transport Mrs. Keith to the medical appointments,” Plaintiffs “essentially were forced

to accept aide assignments made by [Defendant].”

3 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Sometime “between 12:00 midnight and 1:00 a.m. on September 29, 2016,”

Plaintiffs were the victims of “a home invasion [ ] robbery” perpetrated by Ms. Clark

and two male accomplices. “[Ms.] Clark [knew the location of] a key to [Plaintiffs’]

home which, upon information and belief, was used to enter the home[.]” “The male

accomplices forced their way inside [Plaintiffs’] home[ and one of the men] held a gun

to Mr. Keith’s head. One male accomplice then forced Mr. Keith at gunpoint to drive

him to an ATM, where he forced Mr. Keith to withdraw $1,000.00 in cash.” “The

other male accomplice held Mrs. Keith at the home as a hostage during the time.” “In

addition to the $1,000.00 in cash, [Ms.] Clark and the two male accomplices stole over

$500.00 in coins as well as a gun from [Plaintiffs’] home.” Ms. Clark did not enter

Plaintiffs’ home and, at the time of the robbery and kidnapping, Plaintiffs did not

know Ms. Clark was involved.

“Following the robbery, [Ms.] Clark and one of her accomplices went to Wal-

Mart, spent some of the money they had stolen from [Plaintiffs], and then tried to

‘cash in’ the rolled coins. [Ms.] Clark and her two male accomplices were all

subsequently arrested.” Mr. Bailey’s wife Doris Bailey (“Ms. Bailey”), “the director of

Health-Pro, came to [Plaintiffs’] home the morning following the robbery. [Ms.]

Bailey admitted that [Ms.] Clark was involved in the robbery and as a result was

being terminated by [Defendant]. [Ms.] Bailey also revealed that [Defendant] had

some prior knowledge of a criminal record concerning [Ms.] Clark.”

4 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Plaintiffs included two claims in their complaint—a claim of “negligence,” and

a claim for “punitive damages.” Defendant moved for summary judgment on 7

September 2017, which motion was denied on 12 December 2017. Defendant

stipulated before trial that Ms. Clark “was an employee of Defendant . . . on

September 29, 2016”—the date of the criminal acts perpetrated against Plaintiffs—

and that Ms. Clark “was involved with, and had responsibility for, the . . home

invasion and robbery of Plaintiffs[.]” “Plaintiffs’ contested issue[ ] to be tried by the

jury” was set forth by Plaintiffs as: “Were [ ] Plaintiffs . . . injured by the negligence

of Defendant[.]” This matter went to trial on 19 March 2018.

At trial, Defendant objected to the introduction of certain screenshots from Ms.

Clark’s Facebook page, stating that it was Defendant’s “understanding Plaintiffs

intend to introduce [the] screenshots . . . [and] argue that [Ms. Clark’s Facebook

account] was one of the things [ ] Defendant should have checked when hiring her and

also having her as an employee.” (Emphasis added). Defendant’s attorney argued

that Ms. Clark posted the contested Facebook posts while she was employed by

Defendant, not before, and that “there is no legal authority which I am aware of that

requires perspective employers to utilize social media as a screening tool for job

applicants and there’s no legal authority which I am aware of that requires a current

employer to continually screen an employee’s social media account.” Plaintiffs argued

the Facebook posts were relevant because “Defendants themselves create a duty two

separate ways. One, they had a background check policy that said if there were any

5 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

sort of charges or even misdemeanors but before someone is hired there needed to be

an investigation of exactly what happened” and, two, “these posts are the one threat

. . . during the time [Ms. Clark] was in [Plaintiffs’] home when money started going

missing[.]” (Emphasis added).

After the close of Plaintiffs’ evidence, Defendant moved for a directed verdict,

arguing that Plaintiffs had failed to introduce sufficient evidence to support a claim

for negligent hiring, supervision, or retention,1 or for punitive damages. Plaintiffs

countered that their claim was one based upon “ordinary” negligence, not negligent

hiring. The trial court denied Defendant’s motion. At the close of all the evidence,

Defendant renewed its motion which was again denied. However, the trial court

granted Defendant’s motion for a directed verdict on Plaintiff’s claim for punitive

damages.

The trial court instructed the jury, in relevant part, as follows: “W[ere] [ ]

Plaintiff[s] . . . injured by the negligence of [ ] Defendant[.]” “This means that [ ]

Plaintiff[s’] must prove by the greater weight of the evidence that [ ] Defendant was

negligent and that such negligence was a proximate cause of [ ] Plaintiff[s’] injury.”

“[N]egligence refers to a person’s or company’s failure to follow a duty of conduct

imposed by law. Every person or company is under a duty to use ordinary care to

protect himself and others from injury.” The trial court instructed that “ordinary

1 For the sake of simplicity, we will sometimes use “negligent hiring” as shorthand for the legal

doctrine that includes negligent hiring as well as negligent supervision and negligent retention.

6 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

care” meant “that degree of care which a reasonable and prudent person would use

under the same or similar circumstances[.]” The trial court defined proximate cause

as “a cause which in natural and continuous sequence produces a person’s injury and

is a cause which a reasonable and prudent person could have foreseen would probably

produce such injury or some similar injurious result.” The jury found in favor of

Plaintiffs, awarded Mr. Keith $500,000.00 in damages, and Mrs. Keith $250,000.00.

Defendant moved for a JNOV, which the trial court denied. Defendant appeals, and

Plaintiffs include a conditional cross-appeal from the trial court’s grant of a directed

verdict in favor of Defendant on Plaintiffs’ claim for punitive damages.

II. Analysis

Defendant argues on appeal that the trial court erred in allowing Plaintiffs’

action to go to the jury as one in “ordinary” negligence, and in instructing the jury

accordingly. Defendant contends Plaintiffs’ action should have been submitted to the

jury as one based on the doctrine of negligent hiring, supervision, or retention.

Defendant further argues that “the trial court erred in denying Defendant’s motions

for directed verdict” and Defendant’s motion for a JNOV, because the evidence was

insufficient to support a verdict against Defendant for either ordinary negligence or

negligent hiring.

A. Standard of Review

It is well established:

7 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

A motion for directed verdict . . . tests the legal sufficiency of the evidence to take the case to the jury. In ruling on a defendant’s motion for directed verdict, the trial court must take plaintiff’s evidence as true, considering plaintiff’s evidence in the light most favorable to him and giving him the benefit of every reasonable inference. Defendant’s motion for a directed verdict should be denied “unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish.” Given these principles it is clear that a defendant in a negligence action is not entitled to a directed verdict unless the plaintiff has failed, as a matter of law, to establish the elements of actionable negligence.

Little v. Omega Meats I, Inc., 171 N.C. App. 583, 586, 615 S.E.2d 45, 47-48, aff’d per

curium, 360 N.C. 164, 622 S.E.2d 494 (2005).

A JNOV motion seeks entry of judgment in accordance with the movant’s earlier motion for directed verdict, notwithstanding the contrary verdict returned by the jury. See G.S. § 1A–1, Rule 50(b). A ruling on such motion is a question of law, and presents for appellate review the identical issue raised by a directed verdict motion, i.e., whether the evidence considered in the light most favorable to the non-movant was sufficient to take the case to the jury and to support a verdict for the non-movant.

Bahl v. Talford, 138 N.C. App. 119, 122, 530 S.E.2d 347, 350 (2000) (citations

omitted). Therefore, our decision on the trial court’s denial of Defendant’s motion for

a JNOV will also decide Defendant’s motions for a directed verdict. However, in order

to decide whether the trial court properly denied Defendant’s motion for a JNOV, we

must first decide whether Plaintiffs’ case was appropriately presented to the jury as

an “ordinary” negligence claim instead of an action for negligent hiring. We therefore

8 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

review the law of this state, and consider the law from other jurisdictions, regarding

an employer’s liability for torts committed by one of its employees.

B. Law of Employer Liability for Tortious Acts of Employees

As noted, Defendant argues in part: “Plaintiffs contend their claims against

[Defendant] arise in [ordinary] common law negligence, yet their arguments and the

evidence they rely on demonstrate that Plaintiffs’ claims are for the negligent hiring,

supervision, and retention of an employee.” (Emphasis added). We first want to

clarify that an action for negligent hiring is a “common law” remedy based in

negligence. Before the common law development of negligent hiring expanded

employer liability for the injuries sustained by third parties due to the negligent acts

of employees, the sole common law remedy was to bring an action based upon the

well-established doctrine of respondeat superior. Respondeat superior is not a direct

action against the employer based on the employer’s negligence, instead, the

employer’s liability is predicated on establishing (1) agency—the tortfeasor was

employed by the employer, and was acting in the course of that employment—and (2)

negligence—the employee’s negligent actions were the proximate cause of the third

party’s injury and damages.

North Carolina courts have been reticent to impose liability on employers for

the acts of their employees. The early cases from our Supreme Court mainly

concerned situations where one employee injured another employee, or where an

employee injured a customer while acting as the employer’s agent in the furtherance

9 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

of the employer’s business interests. The doctrine of negligent hiring was developed

and became universally recognized in this country as a common law remedy,

developed from common law negligence principles in order to provide relief where the

relevant facts of a case precluded recovery pursuant to respondeat superior. The

doctrine of negligent hiring is a proper cause of action in limited circumstances—

when the negligence of the employer is the legal proximate cause of its employee’s

wrongful actions, and the employee’s wrongful acts result in damages to a third party.

The common law development of a “new” cause of action for negligent hiring

allowed plaintiffs, in certain circumstances, to hold an employer liable for the

negligent or intentional acts of its employee, even when the employee was not acting

within the scope of employment. Because both negligent hiring and respondeat

superior are “common law” actions requiring the plaintiff to establish negligence, they

are actions in “common law” negligence.2 Therefore, what is sometimes referred to

as “common law” negligence we will refer to as “ordinary” negligence.

As noted by our Supreme Court: “To state a claim for [all theories of] common

law negligence, a plaintiff must allege: (1) a legal duty; (2) a breach thereof; and (3)

injury proximately caused by the breach.” Stein v. Asheville City Bd. Of Educ., 360

N.C. 321, 328, 626 S.E.2d 263, 267 (2006) (citations omitted.) Judge Cardozo stated

in Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (1928), the seminal opinion

2 Respondeat superior is based upon both agency and the negligence of the employee, which is

an element that must be proven by the plaintiff.

10 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

concerning an employer’s liability for the acts of its employees: “Negligence is not

actionable unless it involves the invasion of a legally protected interest, the violation

of a right. ‘Proof of negligence in the air, so to speak, will not do.’ ‘Negligence is the

absence of care, according to the circumstances.’” Palsgraf, 162 N.E. at 99 (citations

omitted). In Palsgraf, the court recognized that the existence of the legal duty itself

requires that a reasonable person in the defendant’s position would reasonably foresee

the likelihood that the defendant’s act or omission would result in the kind of injury

suffered by the plaintiff. “‘In every instance, before negligence can be predicated of a

given act, back of the act must be sought and found a duty to the individual

complaining, the observance of which would have averted or avoided the injury.’” Id.

at 99-100. Citing Palsgraf, our Supreme Court noted: “[T]he threshold question is

whether plaintiffs successfully allege [the employer] had a legal duty to avert the attack

on [the injured plaintiff]. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 342-44, 162

N.E. 99, 99-100 (1928).” Stein, 360 N.C. at 328, 626 S.E.2d at 267-68 (emphasis

added).

Our Supreme Court has adopted the theory of duty as set forth in Palsgraf in

Stein, 360 N.C. at 328, 626 S.E.2d at 267-68, and has recognized the requirement that

the plaintiff prove the injury complained of was the foreseeable result of the

employer’s alleged acts or omissions in order to prove the employer owed the plaintiff

a legal duty of care: “No legal duty exists unless the injury to the plaintiff was

foreseeable and avoidable through due care.” Stein, 360 N.C. at 328, 626 S.E.2d at

11 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

267 (emphasis added) (citations omitted). The Court also noted: “Whether a plaintiff’s

injuries were foreseeable depends on the facts of the particular case.” Id. at 328, 626

S.E.2d at 267-68 (citation omitted).

Plaintiffs in this case contend that respondeat superior and negligent hiring

are simply alternative theories, in addition to ordinary negligence, by which a

plaintiff may sue an employer for the negligent or intentional acts of its employees.

Defendant argues on appeal that Plaintiffs’ action was in reality an action pursuant

to the doctrine of negligent hiring, that the trial court erred in instructing the jury

under ordinary negligence instead of negligent hiring, and that Plaintiffs’ evidence

was insufficient to survive Defendant’s motions for directed verdicts and a JNOV

under any theory of Defendant’s alleged liability for the criminal acts of its employee,

Ms. Clark. Plaintiffs contend they only pled “ordinary” negligence, they tried the case

as an ordinary negligence claim and, therefore, the trial court properly denied

Defendant’s negligent hiring instruction and instructed the jury on ordinary

negligence. We therefore consider the relevant theories of negligence in the context

of the facts of this case—looking to Plaintiffs’ complaint and the evidence presented

at trial within the context of precedent governing both ordinary negligence and

1. Plaintiffs’ Complaint

Although Plaintiffs contend they only pled ordinary negligence, the nature of

Plaintiffs’ cause of action is not controlled by how Plaintiffs labeled it in their

12 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

complaint—“it is not the titular designation that controls; the nature of the cause of

action is determined by the facts alleged.” Burton v. Dixon, 259 N.C. 473, 477, 131

S.E.2d 27, 30 (1963); see also, CommScope Credit Union v. Butler & Burke, LLP, 369

N.C. 48, 52, 790 S.E.2d 657, 660 (2016). Plaintiffs’ complaint properly alleged an

employer/employee relationship between Defendant and Ms. Clark, that Ms. Clark

was assigned to work at Plaintiffs’ home by Defendant, and that Ms. Clark was

responsible for the events of 29 September 2016. Plaintiffs further alleged that they

“relied on Health-Pro to assign quality aides to their home who would . . . treat

[Plaintiffs] properly, and who would not steal or otherwise engage in inappropriate

or harmful behavior.” Ms. Clark “was able to gain extensive information about

[Plaintiffs] and their home including, but not limited to, how to enter and exit the

home, details of [Plaintiffs’] personal property and other assets, and the location of

valuables within the home[,]” therefore it “was reasonably foreseeable, including to

Health-Pro, that [Ms.] Clark would have access to this information as a result of her

being assigned to” work in Plaintiffs’ home. “In the fall of 2015, [Plaintiffs] discovered

that approximately $90.00 in rolled coins had been stolen from a box inside their

home.” “In July or August 2016, . . . [a]pproximately $1,200.00 was stolen from [Mrs.

Keith’s] dresser drawer, and $90.00 was stolen from Mr. Keith’s wallet.” “Mr. Keith

[ ] told [Mr.] Bailey of the missing funds. [Mr.] Bailey identified two potential

employees whom he suspected, one of whom was [Ms.] Clark[.]” Mr. Bailey “assured

[Plaintiffs] that neither [of the two employees] would be assigned to [Plaintiffs’]

13 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

home” in the future. “Unfortunately, Health-Pro again assigned [Ms.] Clark to

[Plaintiffs’] home.” Plaintiffs contended that because “they relied on Health-Pro aides

to take care of them,” they “essentially were forced to accept aide assignments made

by Health-Pro.” “[Ms.] Clark orchestrated [the 29 September 2016] home invasion

and robbery of [Plaintiffs] along with two male accomplices.” “[Ms.] Clark and the

two male accomplices stole” the $1,000.00 from the ATM, and “over $500.00 in coins

as well as a gun[.]”

“[T]he morning following the robbery[,] [Ms.] Bailey admitted that [Ms.] Clark

was involved . . . and . . . was being terminated[.] [Ms.] Bailey also revealed that

Health-Pro had some prior knowledge of a criminal record concerning [Ms.] Clark.”

Plaintiffs alleged Ms. Bailey made a public statement “that Health-Pro . . . had

conducted an ‘extensive background check’ on [Ms.] Clark and that the background

check was clean.” “Upon information and belief, Health-Pro did not perform a

criminal background check on [Ms.] Clark before assigning her to [Plaintiffs’] home”

but, if it did, “Health-Pro ignored the results in assigning [Ms.] Clark to perform work

on behalf of [Plaintiffs].” Plaintiffs alleged Ms. Clark’s criminal history prior to 29

September 2016 consisted of the following convictions: “2008: found guilty of driving

while license revoked;” “2009: found guilty of possession of drug paraphernalia;” and

“2010: found guilty of criminal contempt[.]” Plaintiffs also included charges for which

Ms. Clark was not convicted: “2010: charge for possession of drug paraphernalia;”

“2010: charge for communicating threats (dismissed because of non-cooperating

14 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

witness);” and “2011: charge for communicating threats (dismissed because of non-

cooperating witness).”

Plaintiffs stated “upon information and belief, Health-Pro did not perform a

driver’s license check on [Ms.] Clark before assigning her to work . . . in [Plaintiffs’]

home, including to drive [Mrs. Keith.]” “If Health-Pro did perform a driver’s license

check on [Ms.] Clark, Health-Pro ignored the results in assigning her to work as an

aide in [Plaintiffs’] home,” even though Ms. Clark “did not have a valid driver’s

license.” Plaintiffs further alleged that “[Ms.] Clark also maintained a public

Facebook page, which Health-Pro easily could have accessed. The Facebook page

contains several posts further suggesting that [Ms.] Clark should not have been

assigned to work as an in-home aide[,]” though “[i]t may have been acceptable for

Health-Pro to hire [Ms.] Clark and assign her to another position besides providing

in-home care services, such as an ‘office only’ position.” Plaintiffs concluded that

“Health-Pro knew or should have known of [Ms.] Clark’s criminal background and

lack of a valid driver’s license, as well as related facts establishing that [Ms.] Clark

should not have been assigned to provide in-home care to [Plaintiffs,]” and “Health-

Pro continued to assign [Ms.] Clark to provide in-home care to [Plaintiffs]” despite

these facts.

Plaintiffs alleged that Defendant “had a duty to assign employees as aides to

[Plaintiffs’] home with reasonable care, including properly screening its employees in

order to decide which employees could be assigned to such positions[.]” Further,

15 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Health-Pro had a duty to not assign [Ms.] Clark to work as an aide providing in-home care on behalf of Health-Pro when it became aware of, or in the exercise of reasonable care should have become aware of, [Ms.] Clark’s criminal record and driving record, as well as any other pertinent facts associated with her background or her actions on behalf of Health-Pro, including any inappropriate behavior, theft, or other concerns.

Plaintiffs then alleged that Defendant “carelessly and heedlessly was negligent

in that it:” “failed to adopt and/or properly implement and enforce appropriate

company policies regarding criminal background and driving record checks for

employees . . . that would be assigned to work as in-home aides;” knew of Ms. Clark’s

unfitness to work as an in-home aide, or “failed to investigate and become aware of

[Ms.] Clark’s criminal background and driving record, including her lack of a driver’s

license, as well as other pertinent facts regarding her background before assigning

her to work as an in-home aide;” “continued to assign [Ms.] Clark to provide in-home

care to [Plaintiffs] after becoming aware of” these facts which made Ms. Clark unfit

to work in Plaintiffs’ home; and “knew of prior thefts at [Plaintiffs’] home, and that

[Ms.] Clark was a primary suspect who consequently should have no longer been

assigned to work at [Plaintiffs’] home,” but “continued to assign [Ms.] Clark to provide

in-home care to [Plaintiffs] despite . . . assurances it would no longer do so[.]”

Plaintiffs allege that Defendant’s actions and inaction “recklessly created a

dangerous situation for [Plaintiffs] . . . by continuing to assign to provide in-home

care services an unsafe individual with a criminal history who lacked a valid driver’s

16 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

license[,]” the Defendant “had the ability to assign [Ms.] Clark to a different position

other than providing in-home care services to . . . [Plaintiffs], but it recklessly

continued to assign [Ms.] Clark to work as an in-home aide[,]” and that Defendant

“knew or should have known that its actions and inactions described herein were

reasonably likely to result in injury, damage, or other harm to [Plaintiffs.]” Plaintiffs

concluded: “The September 29, 2016 home invasion and robbery was a direct result

of Health-Pro assigning [Ms.] Clark to provide in-home care services and thereby

allowing her continuing access to [Plaintiffs] and their home[,]” and that Defendant’s

“conduct, undertaken with a reckless disregard for the safety of others . . ., was

undertaken by Health-Pro’s owners, officers, directors, or members of its

management and, at the very least, was condoned by Health-Pro’s owners and

management.”

2. Evidence at Trial

Defendant argued at trial that Plaintiffs’ complaint alleged a cause of action

for negligent hiring, not ordinary negligence, based in part on the testimonial

evidence. For example, the following exchange occurred during the direct

examination of Mr. Keith:

Q. When you [Mr. Keith] hired Health-Pro did you ever speak to anybody from the company?

A. Oh, yes, Mr. Bailey and all the girls that worked for us.

Q. Do you remember anyone saying anything about background checks?

17 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

A. No, not offhand, no.

....

Q. [D]id you have an understanding about background checks, about whether or not they would be run?

A. I thought [background checks] had been [conducted], yes.

Q. Did anyone from Health-Pro ever tell you if she didn’t have a driver’s license?

A. No.

Q. Did anyone tell you anything about her Facebook posts?

Q. When she was assigned to your home did you assume that she had been fully screened by Health-Pro?

A. Yes, I did.

Q. Did you trust Health-Pro to assign her only if she was going to be . . . safe to have in the home?

A. I never really discussed that with them.

Q. Not pose a danger?

18 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

A. Yes.

Q. At some point, Mr. Keith, did y’all start having money missing from your home?

Q. Did anyone tell Health-Pro about this?

A. I did, yes.

Q. And what happened?

A. I didn’t see anything happen. We were told that they would look into it. And after that nothing happened.

Q. Was [Ms.] Clark pulled from the home for a period of time?

A. Yes, at one time she was.

Q. Was that when the money was missing?

Q. Was that when Health-Pro said they would look into it?

Q. Do you know why she was put back in the home?

A. I assume they needed her for the work.

19 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Q. Did you assume that before she had been put back in the house that Health-Pro had done an investigation?

A. I didn’t know anything about an investigation. I didn’t know that there was any need for one.

Q. Well, when they pulled her from the home when the money was missing did you understand that they were looking into what happened?

A. Yes, they pulled two of the girls at the same time, [Ms. Clark] and one other [Ms. Little].

Q. That period in 2016 when money was missing, was [Ms. Clark] working in your home during that period?

A. She was working there, yes. I don’t know if she was in the house when it went missing or not.

(Emphasis added). Plaintiffs also introduced two letters from the Pitt County Child

Support Agency requesting Ms. Clark’s employment information because the agency

was “required by law to investigate the possibilities of obtaining child support for

child(ren) entitled to parental support. [The law] requires employers to provide

certain . . . information so that child support may be collected or enforced.” During

cross-examination, Mr. Keith testified as follows:

Q. . . . . You were the one that had most of the business dealings with [Defendant] during the time that Health-Pro came in. And during the time that you used their services from 2012 through the first half of 2016 you didn’t have any concerns with the aides they were sending into your home, correct?

A. Yeah.

20 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Q. Okay. And, in fact, you had no problems with any of the aides in your home until later in 2016, correct?

A. We had problems with one or two of them, but they were personality problems.

Q. One of the aides you had a problem with was [Ms.] Little?

A. [Ms. Little] had problems with my family not me.

Q. I want to turn your attention to the money that went missing from your home around August 2016, sir.

Q. Is it fair to say that you don’t know which aide, if any, took money from the home?

A. No, I didn’t.

Q. At any given time there were usually three or four aides circulating through the home throughout the day?

A. Three or four aides during the day, there was only one at a time.

21 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Q. And you testified in your deposition you were satisfied with how Mr. Bailey handled your complaints about the missing money, correct?

Q. And, sir, talking about Ms. Clark herself. Prior to September 29th you had never had any concerns or problems with Ms. Clark in your home, correct?

Q. [Ms. Clark] was never verbally abusive to you or M[r]s. Keith, correct?

Q. She was never physically abusive to you or M[r]s. Keith?

Q. Do you recall testifying that in your deposition that your daughter had an issue with Ms. Little?

Q. Okay. And Ms. Little was removed from the home at the same time Ms. Clark was, correct?

A. I assume so, within days.

Q. And Ms. Little did not return to your home, correct?

22 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Q. You testified in your deposition that you could have refused to have Ms. Clark come back into the home, correct?

Q. Okay. And you testified in your deposition that you never felt forced to have Ms. Clark back into your home at any point, correct?

A. That’s correct.

(Emphasis added). Mrs. Keith’s testimony was generally in line with Mr. Keith’s

testimony above, including the questions about whether Defendant had informed her

about any background checks on Ms. Clark, told her Ms. Clark did not have a valid

driver’s license, informed her of any concerning Facebook posts, and asked her about

the facts surrounding the missing money. She also testified:

Q. Did [Ms. Clark] ever drive you places?

A. I can’t remember. At that time we were changing so many employees that I lost track who drove me where.

Q. Do you think if she was there during the day and you needed to go somewhere she might have been one of the ones to drive you somewhere?

A. It’s possible, but I never had a problem with any of the drivers.

Q. Do you remember money going missing?

23 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

A. I think it’s my fault because I let someone see me take some money out of my dresser drawer and I didn’t think much of it, but I was dumb enough to keep it where it was, same location and told Mr. Bailey about it and he asked permission to check my dresser drawer out, drawers. . . . . And after that there was nothing said about it, but [Ms. Clark] was absent for two days.3 Then all of a sudden she was back and I was quite surprised.

A. I didn’t ask for her. They couldn’t find someone and apparently she was there again. . . . I didn’t think she had any problems because she’s back working for me again.

[A.] I had thought that she had been checked out because – I just thought she had been that’s why she – wound up coming back.

(Emphasis added). Mrs. Keith testified on cross-examination:

Q. [Y]ou don’t know if that person [that Mrs. Keith believed she saw when she was removing some money from her dresser drawer] was [Ms.] Clark, right?

A. It’s possible, but I – all I saw was an arm and at that time [when she believed she saw one of the aides nearby as she was removing money], as I said previously, we were having a changeover of personnel. Frankly, I don’t remember who was on what nights.

Q. [W]hat it says [in your deposition is], Did you suspect any particular aide of taking that money, correct?

3 The evidence shows that Ms. Clark was working at a different household for Defendant for

at least two to three weeks before being returned to Plaintiffs’ home.

24 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Q. Okay. And then your response up at the top was no, correct?

Q. I want to talk about [Ms.] Clark, herself, with you. You have characterized her in your deposition testimony as nice and pleasant, correct?

Q. And prior to the night of September 29th you never had any concerns about Ms. Clark being an aide in your home, correct?

A. No, I – because they always mentioned we check our people out.

Q. And you also testified previously that when she returned to your home in early September of 2016, that you kept a closer eye on her but there wasn’t anything going on, correct?

A. No, but there had to be something going on.

Q. But you didn’t have any uneasy feeling or suspicion about Ms. Clark being in your home during that time frame, correct?

A. No, . . . she never talked much. Very quiet.

Q. And do you recall . . . testifying in your deposition that . . . there was nothing that Ms. Clark did that alerted you to her being involved in September 29th’s events prior to those events, correct?

25 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

A. I wouldn’t know, I never saw her do anything or take anything, so –

(Emphasis added).

Plaintiffs’ children, Frederick, Sarah Keith (“Sarah”), and Margret Keith

(“Margret”), were also questioned thoroughly by Plaintiffs’ attorney concerning

whether they were informed by Defendant about Ms. Clark’s criminal record, invalid

driver’s license, and Facebook posts.

During the charge conference, Defendant’s attorney argued that the trial court

should give an instruction on negligent hiring, supervision, or retention. Plaintiffs’

attorney argued against giving that instruction, contending that Plaintiffs’ action was

one of ordinary negligence. The trial court ruled in favor of Plaintiffs and only

charged the jury on ordinary negligence.

3. “Ordinary” Negligence

Plaintiffs contend that they properly pled ordinary negligence, and only

ordinary negligence; in part because their complaint only included a claim titled

“negligence,” nowhere mentioned “negligent hiring”; and that “ordinary” negligence

was the only claim they pursued at trial. They therefore argue that the trial court

was correct to deny Defendant’s motions for directed verdicts and a JNOV, that the

trial court did not err in refusing Defendant’s request to instruct on negligent hiring,

and that the jury was properly instructed on “ordinary” negligence as the sole theory

of Defendant’s liability.

26 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Defendant argues that Plaintiffs’ allegations and the facts of this case

constituted a claim for negligent hiring and, therefore, Plaintiffs were obligated under

law to prosecute their claim as one for negligent hiring. We agree with Defendant.

In arguing that the general requirements of an action in ordinary negligence

were appropriately applied in this case, Plaintiffs argue that “a contractual

relationship can give rise to the duty of ordinary care.” However:

The law imposes upon every person who enters upon an active course of conduct the positive duty to use ordinary care to protect others from harm and a violation of that duty is negligence. It is immaterial whether the person acts in his own behalf or under contract with another. An act is negligent if the actor intentionally creates a situation which he knows, or should realize, is likely to cause a third person to act in such a manner as to create an unreasonable risk of harm to another. Restatement, Torts [§] 302, 303.

Toone v. Adams, 262 N.C. 403, 409, 137 S.E.2d 132, 136 (1964) (emphasis added)

(citation omitted). Our Supreme Court in Toone further discussed the limited

relevance of contractual obligations when the plaintiff decides to bring the action in

tort instead of contract:

It is well settled in North Carolina that where a contract between two parties is intended for the benefit of a third party, the latter may maintain an action in contract for its breach or in tort if he has been injured as a result of its negligent performance. The parties to a contract impose upon themselves the obligation to perform it; the law imposes upon each of them the obligation to perform it with ordinary care and they may not substitute a contractual standard for this obligation. A failure to perform a contractual obligation is never a tort unless such

27 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

nonperformance is also the omission of a legal duty. The contract merely furnishes the occasion, or creates the relationship which furnishes the occasion, for the tort.

Id. at 407, 137 S.E.2d at 135 (emphasis added). Plaintiffs do not cite any authority

that tends to show Defendant’s duty to Plaintiffs was somehow more comprehensive

due to the contract between them. We agree with Plaintiffs that, due to their contract

with Defendant, Defendant had the duty of reasonable care in selecting applicants,

including Ms. Clark, that were fit persons to work as in-home aides. However, that

duty would exist even if there was no express contract between Plaintiffs and

Defendant. Id. at 409, 137 S.E.2d at 136. Defendant’s general duty to Plaintiffs in

relation to the acts of Ms. Clark is no different because of the contractual relationship

between Plaintiffs and Defendant—Defendant had a duty to exercise due care in

hiring Ms. Clark, and that duty of due care continued throughout Ms. Clark’s

employment. Id. We note that the Rhode Island case cited by Plaintiffs, Welsh Mfg.

v. Pinkerton’s, Inc., 474 A.2d 436 (R.I. 1984), was a negligent hiring or supervision

case. Id., at 442-44; see also id. at 441 (citation omitted) (“An employer’s duty does

not terminate once an applicant is selected for hire. Other courts have stated that an

employer has a duty to retain in its service only those employees who are fit and

competent.”). That is not to say the terms of the contract cannot be considered as

part of the factors establishing the context from which the trial court or jury

determines the “reasonably prudent person” baseline.

28 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Plaintiffs contend: “The duty of ordinary care applies to a broad range of

conduct. Indeed, this Court has found an ordinary negligence instruction proper in a

host of circumstances, including those implicating other areas of the law.” However,

Plaintiffs cite no case stating an employer can be held liable for the criminal actions

of its employee in an ordinary negligence action. Plaintiffs provide the following legal

precedent for their argument: “For example, in Klinger v. SCI North Carolina Funeral

Services., Inc., [189 N.C. App. 404, 659 S.E.2d 99 (2008)] (unpublished), this Court

affirmed a trial court’s use of an ordinary negligence instruction in a case about

mishandling of a corpse. Id[.]” Klinger is an unpublished case, has no precedential

value, involves statutory law regulating the disposition of human remains that is no

longer in effect, and the issue of “duty” was decided pursuant to the relevant statutes.

Id.

Plaintiffs’ additional cite in support of its position, Peal ex rel. Peal v. Smith,

115 N.C. App. 225, 444 S.E.2d 673 (1994), aff’d by equally divided court, 340 N.C.

352, 457 S.E.2d 599 (1995) (underlining added), is also an opinion without

precedential value. Peal By Peal v. Smith, 340 N.C. 352, 457 S.E.2d 599 (1995) (when

the votes in an opinion by our Supreme Court are equally divided, “the decision of the

Court of Appeals is left undisturbed and stands without precedential value”).

Plaintiffs contend: “Similarly, in Peal, this Court used an ordinary negligence

analysis in what the parties had concluded was a dram shop case. This case is no

different.” (citations omitted). We disagree. In Peal: “The plaintiff . . . instituted a

29 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

claim based in [ordinary] negligence against Defendant Smith and against his

employer, Cianbro.” Peal, 115 N.C. App. at 229, 444 S.E.2d at 676–77. This Court in

Peal relied in part on Restatement (Second) of Torts § 317, which states:

[An employer] is under a duty to exercise reasonable care so to control his [employee] while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the [employee]

(i) is upon the premises in possession of the [employer] or upon which the [employee] is privileged to enter only as his [employee], or

(ii) is using a chattel of the [employer], and

(b) the [employer]

(i) knows or has reason to know that he has the ability to control his [employee], and

(ii) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts § 317 (1965). Concerning section 317(a)(ii), our

Supreme Court has noted in a negligent hiring case: “A review of our pertinent case

law reveals no support for the application of this particular section of the

Restatement. We find no case in which liability has been imputed to an employer

solely on the basis of an employee ‘using a chattel of the [employer].’ We decline to

recognize this theory of liability in the situation presented in this case.” Braswell v.

Braswell, 330 N.C. 363, 375, 410 S.E.2d 897, 904 (1991). Our review uncovers five

30 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

North Carolina opinions citing Restatement (Second) of Torts § 317, including Peal

and Braswell. In none of these opinions has “liability [ ] been imputed to an employer

solely on the basis of” section 317. Id. In Peal, this Court held: “the common law duty

of [an employer] to control his [employee] under certain circumstances as outlined in

Restatement § 317, taken together with the [employer’s] own written policies

established a standard of conduct that if breached could result in actionable

negligence.” Peal, 115 N.C. App. at 233, 444 S.E.2d at 679. In light of the equally

divided decision of our Supreme Court in Peal, rendering it without precedential

value, we decline to adopt the analysis in Peal. We need not decide whether

Restatement § 317 states a separate common law theory of negligence recognized in

North Carolina, as Ms. Clark, on 29 September 2016, was neither on Defendant’s

premises or in a place she was “privileged to enter” at that time, nor did Defendant

have any ability or opportunity to control Ms. Clark on 29 September 2016, or know

of any necessity to do so and, therefore, the facts in this case do not meet the

requirements as set forth in section 317. Restatement (Second) of Torts § 317.

We hold that, on the facts before us, the only action pled in Plaintiffs’ complaint

was one for negligent hiring. As made clear by the allegations in the complaint itself,

as well as the testimony and other evidence presented at trial, Plaintiffs’ allegations

break down as follows: (1) Defendant’s investigation into Ms. Clark’s background was

insufficient; (2) facts from Ms. Clark’s background and application for employment

that Defendant either knew, or should have known, made Ms. Clark unfit to be an

31 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

in-home aide in Plaintiffs’ home; (3) once Defendant learned about the two incidents

when money was taken from Plaintiffs’ home, and identified Ms. Clark as one of two

aides who were working in Plaintiffs’ home during the relevant time periods, which

initially led to both aides being removed from Plaintiff’s home, Defendant should not

have returned Ms. Clark to service in Plaintiffs’ home; (4) additionally, Defendant’s

investigation of Ms. Clark following the money incidents was insufficient; and (5)

Defendant should have considered the two child support notices as a motive

indicating Ms. Clark’s responsibility for the thefts from Plaintiffs’ home.

All of Plaintiffs’ relevant allegations and evidence directly challenge whether

Defendant should have hired Ms. Clark as an in-home aide; whether Defendant acted

appropriately in response to hearing from Plaintiffs that money had been taken from

their home on two occasions—which would have involved either greater supervision

of—such as moving Ms. Clark to a no-client-contact position, as suggested by

Plaintiffs—or a decision regarding whether to retain her in Defendant’s employ at

all. Plaintiffs have cited no binding authority for the proposition that an action

brought on allegations, and tried on facts, that clearly fall within the scope of a

negligent hiring claim may avoid the heightened burden of proving all the elements

of negligent hiring by simply designating the action as one in ordinary negligence,

and we find none. Were we to accept Plaintiffs’ arguments, it is unclear what

relevance the firmly-established doctrine of negligent hiring would retain in North

Carolina—it is difficult to foresee a circumstance where a plaintiff would choose to

32 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

bring a negligent hiring action instead of an action in ordinary negligence. The

evolution of employer liability jurisprudence, which includes the common law

development of the negligent hiring doctrine for the purpose of expanding the limits

of employer liability to third parties injured by the acts or omissions of employees,

strongly suggests the doctrine of negligent hiring was intended as the sole means of

imposing liability on employers who, as in this case, are alleged to have created

circumstances by which their own negligent acts or omissions—their failure to

exercise due care in protecting third parties from dangerous employees—were the

proximate cause of injury to a third party. Noting that resolution of all negligence

claims, including negligent hiring claims, is always a highly fact specific undertaking,

we hold, on the facts of this case, that the sole claim alleged in Plaintiffs’ complaint

was one for negligent hiring, retention, or supervision. In this case, it was error for

this action to proceed as a claim in ordinary negligence, and the trial court erred in

denying Defendant’s request for the jury to be instructed accordingly. This error was

clearly prejudicial and would normally require a new trial. However, Defendant’s

motions for a directed verdict and a JNOV were argued pursuant to negligent hiring,

as Defendant correctly contended that the facts as alleged and presented at trial only

supported a negligent hiring claim.

In addition, in light of Plaintiffs’ intention to proceed under an ordinary

negligence theory, Defendant also moved for a directed verdict based on insufficiency

of the evidence to support that alleged claim, beginning its argument as follows:

33 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

In order to succeed on [negligent hiring]—and even in an ordinary negligence case [ ] Plaintiffs have to show that the events of September 29th, 2016, and [Ms.] Clark’s unfitness and participation in those events were foreseeable to my clients. Those are the events that have caused [ ] Plaintiffs the only injury they complain of. And there is nothing in the record that suggests that it was foreseeable.

Defendant’s motion for a directed verdict at the close of all the evidence, as well as its

motion for a JNOV after the verdict, were renewals of these arguments.

We hold that the trial court erred in denying Defendant’s motions with respect

to ordinary negligence, as that claim was not properly before the trial court, and no

evidence could support it. We therefore reverse and remand with instruction to the

trial court to enter an order granting Defendant a JNOV on Plaintiffs’ claim in

ordinary negligence. Plaintiffs argued to the trial court that their claim was solely

based in ordinary negligence, and that it did not include any claim pursuant to

negligent hiring. They maintain that argument on appeal. Therefore, our holding

would normally end the matter.

However, because there is a possibility that Plaintiffs will try and file an action

against Defendant for negligent hiring, we believe it is appropriate to consider

Defendant’s motion for a JNOV based upon negligent hiring. As Plaintiffs implicitly

acknowledge by several statements such as “the jury could have—and would have—

reached the same conclusion, regardless of the instruction it was given[,]” the facts

Plaintiffs presented to the jury would not have been different had they proceeded

under a negligent hiring theory. We therefore consider Defendant’s argument that

34 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Plaintiffs’ evidence was insufficient to survive Defendant’s motion for a JNOV based

upon the theory of negligent hiring. We note that neither party has suggested

Plaintiffs’ evidence could support an action based upon respondeat superior, and we

hold that, even if such a claim had been made, Plaintiffs’ evidence could not support

it.

4. Negligent Hiring, Retention, and Supervision

We therefore continue our analysis by conducting a review based upon a claim

for negligent hiring, which Defendant contends is the only basis upon which

Plaintiffs’ negligence claim should have been submitted to the jury. After review of

Plaintiffs’ complaint and the facts developed at trial, we have determined that a claim

for negligent hiring was properly pled, and evidence tending to support at least

certain elements of such a claim was introduced at trial. Therefore, we review the

evidence to determine whether the evidence was sufficient to survive Defendant’s

motion for a JNOV.

In an action based upon negligent hiring, “there must be a duty owed by the

employer to the plaintiff in order to support an action for negligent hiring.” Little v.

Omega Meats I, Inc., 171 N.C. App. 583, 587, 615 S.E.2d 45, 48 (2005), aff’d per

curiam, 360 N.C. 164, 622 S.E.2d 494 (2005). “It is only after a plaintiff has

established that the defendant owed a duty of care that the trial court considers the

35 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

other elements necessary to establish a claim for negligent hiring or retention[.]” Id.

at 588, 615 S.E.2d at 49 (citation omitted).

Once that duty is established then the plaintiff must prove four additional elements to prevail in a negligent hiring and retention case: “(1) the independent contractor acted negligently; (2) he was incompetent at the time of the hiring, as manifested either by inherent unfitness or previous specific acts of negligence; (3) the employer had notice, either actual or constructive, of this incompetence; and (4) the plaintiff's injury was the proximate result of this incompetence.”

Id. at 587, 615 S.E.2d at 48 (2005).

Along with the general requirements a plaintiff must prove in order to

establish an employer’s duty of care, this Court has identified three specific elements

that must be proven in order to show that an employer had a duty to protect a third

party from its employee’s negligent or intentional acts committed outside of the scope

of the employment:

One commentator, in analyzing the requisite connection between plaintiffs and employment situations in negligent hiring cases, noted three common factors underlying most case law upholding a duty to third parties: (1) the employee and the plaintiff must have been in places where each had a right to be when the wrongful act occurred; (2) the plaintiff must have met the employee[, “when the wrongful act occurred,”] as a direct result of the employment; and (3) the employer must have received some benefit, even if only potential or indirect, from the meeting of the employee and the plaintiff [that resulted in the plaintiff’s injury].

Id. at 587-88, 615 S.E.2d at 49. This Court “decline[s] to hold employers liable for the

acts of their . . . employees under the doctrine of negligent hiring or retention when

36 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

any one of these three factors was not proven.” Id. at 588, 615 S.E.2d at 49 (citations

omitted).

b. Defendant’s Duty of Care Under Little

Plaintiff argues that the requirements as set forth in Little do not control in

this case. We disagree. In Little, this Court held:

In the instant case [the employee] was not in a place where he had a legal right to be since he broke in to plaintiffs’ home; [the employee] and plaintiffs did not meet as a direct result of [the employee’s] relationship with defendants, since [the employee] did not enter plaintiffs’ home as a salesman; finally, defendant[-employers] received no benefit, direct, indirect or potential, from the tragic “meeting” between [the employee] and plaintiffs. We have found no authority in North Carolina suggesting that defendant[-employers] owed plaintiffs a duty of care on these facts, and we hold that in fact none existed.

Id.4

We find the facts in this case analogous; Ms. Clark had no legal right to be at

Plaintiffs’ home, as a co-conspirator in the breaking and entering of Plaintiffs’ home,

that resulted in the robbery and kidnapping; Ms. Clark’s presence at Plaintiffs’ home

on 29 September 2016 was not “as a direct result of [her] relationship with

[Defendant], since [Ms. Clark] did not [constructively] enter plaintiffs’ home as a[n

in-home aide]”; and “[D]efendant[ ] received no benefit, direct, indirect or potential,

from the tragic ‘meeting’ between [Ms. Clark] and [P]laintiffs.” Id. Although, unlike

4 Little involved an independent contractor of the employer, not an employee, but this distinction does not affect our analysis.

37 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

the employee in Little who did not know his victim, Ms. Clark had worked for

Plaintiffs for nearly a year, we hold, on the facts of this case, that these elements are

necessary to establish Defendant’s duty to protect Plaintiffs, and there is no evidence

that supports any of these three elements. We examine the facts of this case in detail

below. For these reasons, we hold that Plaintiffs’ evidence was insufficient to survive

Defendant’s motion for a JNOV, and reverse and remand for entry of a JNOV in favor

of Defendant on any negligent hiring, supervision, or retention claim based on the

events of 29 September 2016. We recognize that the jury was not instructed on

negligent hiring, but Defendant’s motion for a JNOV was a renewal of his motions for

directed verdicts, the denial of which also constituted prejudicial error to Defendant

demanding this result.

We note that the Little requirements are associated with proving an employer’s

duty of care, not proximate cause. These elements go to the foreseeability that an

employee will commit a wrongful act against a specific plaintiff, as well as

differentiating between acts committed under color of the employee’s employment

with the employer—for which the employer may have had a duty to act to prevent,

and acts committed by the employee acting wholly independent of her status as the

employer’s employee—for which the employer normally would not have had a duty to

act to prevent. Nonetheless: “It is not possible to state definite rules as to when the

actor is required to take precautions against intentional or criminal misconduct.”

Restatement (Second) of Torts § 302B(f.) (1965). Therefore, we do not dismiss the

38 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

possibility that under an extraordinary set of facts an employer may have a duty to

protect a third party from a negligently hired employee even though one or more of

the factors set forth in Little are not met. “What is meant by legal duty . . . varies

according to subject matter and relationships.” O’Connor v. Corbett Lumber Corp., 84

N.C. App. 178, 181, 352 S.E.2d 267, 270 (1987) (emphasis added) (citation omitted).

c. Defendant’s Liability Notwithstanding the Little Requirements

Assuming, arguendo, the requirements set forth in Little, 171 N.C. App. at 587-

88, 615 S.E.2d at 49, are not applicable in this case, we still find that the trial court

erred in denying Defendant’s motion for a JNOV based on a theory of negligent hiring.

“[T]he concept of negligence is composed of two elements: legal duty and a

failure to exercise due care in the performance of that legal duty[.]” O’Connor, 84

N.C. App. at 181, 352 S.E.2d at 270 (citation omitted). Therefore, absent the Little

requirements, Plaintiffs still had the burden of proving Defendant owed them a duty

to protect them from Ms. Clark’s criminal acts of 29 September 2016. “Negligence

‘“presupposes the existence of a legal relationship between the parties by which the

injured party is owed a duty which either arises out of a contract or by operation of

law.”’ ‘If there is no duty, there can be no liability.’” Prince v. Wright, 141 N.C. App.

262, 266, 541 S.E.2d 191, 195 (2000). Further,

the presumption is that the [employer] has properly performed his duty in selecting his [employees], and before responsibility for negligence of [an employee] proximately causing injury to plaintiff . . . can be fixed on the [employer], it must be established by the greater weight of

39 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

the evidence, the burden being on the plaintiff, that [the plaintiff] has been injured by reason of carelessness or negligence . . . and that the [employer] has been negligent in employing or retaining such incompetent [employee], after knowledge of the fact [of the employee’s unfitness], either actual or constructive.

Pleasants v. Barnes, 221 N.C. at 177, 19 S.E.2d at 629 (emphasis added) (citations

omitted). As stated in the Second Restatement:

It is not possible to state definite rules as to when the actor is required to take precautions against intentional or criminal misconduct. As in other cases of negligence (see §§ 291- 293), it is a matter of balancing the magnitude of the risk against the utility of the actor’s conduct. Factors to be considered are the known character, past conduct, and tendencies of the person whose intentional conduct causes the harm, the temptation or opportunity which the situation may afford him for such misconduct, the gravity of the harm which may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take. Where the risk is relatively slight in comparison with the utility of the actor’s conduct, he may be under no obligation to protect the other against it.

Restatement (Second) of Torts § 302B(f.) (1965). Further,

Normally the actor has much less reason to anticipate intentional misconduct than he has to anticipate negligence. In the ordinary case he may reasonably proceed upon the assumption that others will not interfere in a manner intended to cause harm to anyone. This is true particularly where the intentional conduct is a crime, since under ordinary circumstances it may reasonably be assumed that no one will violate the criminal law. Even where there is a recognizable possibility of the intentional interference, the possibility may be so slight, or there may be so slight a risk of foreseeable harm to another as a result

40 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

of the interference, that a reasonable man in the position of the actor would disregard it.

Restatement (Second) of Torts § 302B(d.) (1965). This Court has recognized the rule

that normally an employer will not be expected to anticipate criminal acts of its

employee:

As a general rule “[n]o person owes a duty to anyone to anticipate that a crime will be committed by another, and to act upon that belief.” 57 Am. Jur. 2d Negligence Section 63 (1971). However, a duty to afford protection of another from a criminal assault or willful act of violence of a third person may arise, at least under some circumstances, if that duty is voluntarily assumed. Id.

O'Connor, 84 N.C. App. at 182, 352 S.E.2d at 270. This Court has recognized that

when “‘the particular assault was not committed within the scope of the

employment’”:

[E]mployers of certain establishments can [only] be held liable to an invitee therein assaulted by an employee of the place of business whom the employer “knew, or in the exercise of reasonable care in the selection and supervision of his employees should have known, to be likely, by reason of past conduct, bad temper or otherwise, to commit an assault, even though the particular assault was not committed within the scope of the employment.”

Stanley v. Brooks, 112 N.C. App. 609, 611, 436 S.E.2d 272, 273 (1993) (citation

omitted). Actions for negligent hiring require two distinct “foreseeability”

requirements. First, was the injury allegedly sustained by the third party due to the

acts of the employee of a kind reasonably foreseeable by the employer, thereby

creating a duty to protect the third party. Second, if the employer’s duty to protect is

41 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

proven, there is a foreseeability requirement for proving the employer’s negligence

was the proximate cause of the third party’s injury and damages. Stein v. Asheville

City Bd. Of Educ., 360 N.C. 321, 328 n.5, 626 S.E.2d 263, 268 n.5 (2006) (citation

omitted) (just as with the element of duty, “[f]oreseeability is also an element of

proximate cause[,]” but when the reviewing court “hold[s] no duty existed, [it is] not

[required to] reach the question of proximate cause”). These foreseeability analyses

may overlap considerably since both require application of the same set of facts to the

law. Employers in certain kinds of businesses—and we find Defendant’s business to

fall into this category—have an enhanced general duty to insure their employees are

fit to undertake the employment for which they are hired—these are generally

businesses that involve dangerous equipment or activities, and businesses where the

employee will come in frequent contact with the general public or particular

individuals. More care is required when hiring someone for jobs involving the use of

explosives, flying aircraft, or providing medical care, for example, than for working

at a typical desk job. However, even when there is a general duty of care, the plaintiff

must still demonstrate that the employer had a specific duty to protect the plaintiff

from injury of a kind similar to the actual injury resulting from the employee’s acts.

The initial question in a negligent hiring action is did the employer use

reasonable care before hiring an employee, taking into account the particular skills

or character traits required to safely perform in the position. If the employer used

reasonable care before hiring an employee in light of the particularities of the job,

42 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

and the employer continued to use reasonable care in supervising and retaining the

employee, then the employer cannot be held liable for acts of the employee, not

occurring in the course the employment, that cause injury to a third party.

Importantly, even when the employer fails to act with due care in the hiring,

supervision, or retention of an employee, the employer is only liable to third parties

for the employee’s acts outside of employment if the employee’s acts are of a kind that

were reasonably foreseeable based solely on the characteristics of the employee that

made the employee unfit for the position, and only those disqualifying characteristics

of which the employer actually knew, or would have discovered had the employer acted

with due care. Stanley v. Brooks, 112 N.C. App. 609, 611, 436 S.E.2d 272, 273 (1993)

(the plaintiff must prove “that the injury complained of resulted from the

incompetency” rendering the employee unfit, and the employer’s actual or

constructive knowledge of the employee’s particular unfitness).

In this case, in order to prove that Defendant had a duty to protect Plaintiffs

from Ms. Clark’s criminal acts, Plaintiffs had to prove that, based upon all the

information Defendant knew, or, exercising due care should have known, a

reasonable person would have foreseen that Ms. Clark was likely to conspire with

dangerous individuals to perpetrate a home invasion robbery against Plaintiffs, by

breaking into the house, controlling Plaintiffs by the use of firearms, and forcing Mr.

Keith to drive to an ATM to obtain more cash—or some other criminal act against

Plaintiffs of a similar nature and severity. Murphey v. Georgia Pac. Corp., 331 N.C.

43 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

702, 706, 417 S.E.2d 460, 463 (1992) (the plaintiff must prove that “a person of

ordinary prudence could have reasonably foreseen that such a result or some similar

injurious result was probable”) (citation omitted).

We first review the evidence to decide whether it was sufficient, pursuant to

the doctrine of negligent hiring, to demonstrate Defendant had a duty to protect

Plaintiffs from Ms. Clark’s criminal acts on 29 September 2016. Adapting the

standard as set forth by our Supreme Court to align with the facts of this case:

With regard to the first element, [Defendant] ha[d] a duty to exercise due care in [hiring and supervising Ms. Clark]. The standard of due care is always the conduct of a reasonably prudent person under the circumstances. Although the standard remains constant, the proper degree of care varies with the circumstances.

Bolkhir v. N. Carolina State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988)

(citations omitted). Further, “the presumption is that the [employer] has properly

performed his duty in selecting his [employees.]” Pleasants, 221 N.C. at 177, 19

S.E.2d at 629 (citation omitted). Plaintiffs were required to rebut this presumption

with evidence from which the jury could have reasonably found in favor of Plaintiffs

on every element of negligent hiring. Id. The first issue is whether Defendant used

due or reasonable care in hiring Ms. Clark, and in supervising her during her

employment, with the presumption being that it did.

Defendant began providing in-home aide services in 2010, and began providing

these services to Plaintiffs on 13 February 2012. The uncontested evidence shows

44 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

that none of Defendant’s clients had reported any thefts or violent crimes—nor any

other crimes, and that none of Defendant’s clients had complained about any serious

issues involving Defendant’s in-home aides.5 Ms. Clark began working for Defendant

in September of 2015, and began working in Plaintiffs’ home in late 2015, after having

worked with another of Defendant’s clients. There is no evidence that Ms. Clark’s

work or character was found wanting by the client in Ms. Clark’s first in-home care

aide position working for Defendant. Plaintiffs’ testimonies in the depositions and at

trial demonstrated, repeatedly, that they only had positive things to say about Ms.

Clark’s work, care, personality, and character prior to 29 September 2016. Mr. Keith

testified that, “[p]rior to September 29th [he] had never had any concerns or problems

with Ms. Clark[.]” Ms. Clark testified that “prior to the night of September 29th [2016

she] never had any concerns about Ms. Clark being an aide in [her] home,” and “didn’t

have any uneasy feeling or suspicion about Ms. Clark being in [her] home during that

time frame[.]” None of the members of the Keith family who testified expressed any

concerns, suspicions, or red flags related to Ms. Clark’s regular in-home work

providing care for Plaintiffs. None of them testified to any suspicions that Ms. Clark

was the person responsible for the missing coins, the missing money from Mrs.

Keith’s dresser, or missing cash from Mr. Keith’s wallet—until after 29 September

5 Mr. Bailey testified that one prior client had reported money in her house had been taken,

and Defendant removed the aide who the client suspected from the home. According to Mr. Bailey, the client later called back to inform Defendant that she had found the money she thought had been stolen, and requesting the return of the removed aide. The aide refused.

45 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

2016. By all accounts, Ms. Clark was an able, quiet, polite, and professional employee

and, other than Margret’s testimony that she complained that the aides working in

Plaintiffs’ home were not performing some of the duties that Defendant’s

informational materials indicated were to be provided, there were no complaints

lodged against Ms. Clark, nor any disciplinary action taken, while she worked for

Defendant—until the events of 29 September 2016.

Plaintiffs never contacted Defendant with any negative reports concerning Ms.

Clark, nor expressed any fears or suspicions that Ms. Clark might be stealing from

them, or otherwise represented any kind of threat to them or anyone else. Both Mr.

Keith and Mr. Bailey considered the other to be a “friend,” and Mr. Bailey went to

Plaintiffs’ home at least every two weeks. Mr. Bailey was collecting payment from

Plaintiffs on these bi-weekly visits, but he also checked in with Plaintiffs about how

they were doing, if the aides were working out, and generally socialized to the degree

that Mr. Keith thought of Mr. Bailey as a friend. Mr. Bailey also called Plaintiffs

fairly regularly, to discuss any topics relevant to Defendant’s provision of care for

Plaintiffs, and to generally “check in.” Mr. Bailey’s testimony was uncontested that

Defendant’s aides were supervised by “the R.N.s [registered nurses] and . . . the HR

director,” and that the R.N.s would supervise the aides in the client’s homes on a

regular schedule. Ms. Bailey testified: “The nurse is the supervisor for the aides.

Also, the nurse goes out to the home of each client because they do a ninety-day

supervised revisit. They also do an evaluation of how things are going in the home.

46 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

They talk with the aide that’s there in the home.” A “validation of skills” form

completed by one of Defendant’s supervising R.N.s, Wanda Patrick (“Ms. Patrick”),

was entered into evidence. This form was one of the in-home evaluations of Ms. Clark

conducted in July 2016. Ms. Patrick’s evaluation of Ms. Clark did not include any

“unsatisfactory” responses to Ms. Clark’s performance as an in-home aide.

Frederick testified that Margret “had a unique role in the sense that when she

would come to town she would have the opportunity to spend multiple days in the

home.” “She would actually stay at the home so she would see the whole process for

twenty-four, forty-eight, seventy-two hours at a time, which my other sister and I

would not have that opportunity because we didn’t overnight at the home[.]” Margret

testified: “Well, [Ms. Clark] came in at night some, but she was there on the weekends

and she was there on some days, too.” Although Margret had the most opportunity

of Plaintiffs’ children to observe Ms. Clark and the other aides at work, and to get to

know them personally, in her testimony Margret expressed no concerns about Ms.

Clark prior to 29 September 2016.

Evidence shows that Ms. Clark’s three references were called, one could not be

contacted, one assessed Ms. Clark as having an “excellent” work ethic, stating she “is

a very hard worker she does [and] completes the task at hand[,]” and indicated that

she was punctual. He also assessed her “professionalism and attitude” as “excellent,”

and stated: “I would hire [Ms. Clark] to work for me. Very good worker.” A second

reference assessed Ms. Clark’s work ethic, punctuality, professionalism, and attitude

47 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

as “Good.” After one of Defendant’s nurse-employee’s interviewed Ms. Clark for

approximately two hours, Ms. Bailey interviewed Ms. Clark, and had only positive

responses to Ms. Clark’s performance and demeanor in the interview, referring to Ms.

Clark as “very soft-spoken. She was very mild and easygoing.” “She was pleasant[,]”

and “[v]ery polite. She always answered with yes, ma’am and no, ma’am. Just

easygoing.” When asked if her interview with Ms. Clark raised any concerns about

the fitness of Ms. Clark, Ms. Bailey stated: “No, I didn’t have any concerns.” Ms.

Bailey testified Ms. Clark regularly came into Defendant’s office, and was always

“pleasant,” and that Ms. Clark’s nurse supervisor would accompany Ms. Clark to the

home of the client(s) Defendant was servicing to evaluate Ms. Clark’s performance

and the clients’ satisfaction every ninety days. Ms. Bailey stated that Ms. Clark never

received an evaluation of “unsatisfactory” for any category on any of her evaluations.

Ms. Bailey testified concerning Plaintiffs’ regard for Ms. Clark’s work: “I received

calls of how awesome [Ms. Clark] was and how pleased [Plaintiffs] were with her

work and how she was always prompt and pleasant and respectful so I—you know, I

didn’t have any concerns about her.”

When Ms. Clark was hired in 2015, she had three misdemeanor convictions for

non-violent crimes: 2008: Conviction for driving while license revoked; 2009:

Conviction for possession of drug paraphernalia; and 2010: Conviction for criminal

contempt. Plaintiffs also note that Ms. Clark was twice charged “for communicating

threats”; however, these charges were dismissed because the complainant refused to

48 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

cooperate with prosecutors. Ms. Clark had no felony convictions and was therefore

hirable pursuant to Defendant’s written standards for employment. Mr. Bailey

testified that Ms. Clark checked the box on her application indicating that she had

never been convicted of a crime, which was not true, but she also filled out a criminal

background check authorization form, which permitted Defendant to run a

background check at any time during her employment. Defendant testified that it

conducted a thorough criminal background check on Ms. Clark, and knew about all

convictions and charges listed above, but could only produce two criminal search

documents, one undated that simply indicated that Ms. Clark had some criminal

charge against her in 2007, and that it was “DISPOSED[,]” and a second that was

requested after the events of 29 September 2016. Ms. Bailey testified that criminal

background checks were run for every employee, and it was her understanding that

one had been run on Ms. Clark.

Defendant’s “CRIMINAL BACKGROUND INVESTIGATION POLICY” states:

“The applicant shall be allowed to work if no reported felony convictions exist,

pending receipt of the Criminal History Record information.” Defendant’s policy

allowed employment of certain applicants who had been convicted of felonies,

depending on the crimes committed and a favorable interview with the applicant

concerning the felony convictions. Because Ms. Clark had never been convicted of a

felony, Defendant did not break any contractual obligation to Plaintiffs by hiring an

employee with misdemeanor convictions.

49 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Defendant’s criminal background check authorization form included a space

asking for Ms. Clark’s “Drivers License Number,” and she filled in the space with the

number for her N.C. Identification Card, which is the same as the number for her

expired driver’s license. Ms. Clark gave Defendant her N.C. Identification Card—

along with her Social Security Card—to photocopy for its records. Defendant stated

in its answers to Plaintiffs’ interrogatories: “Driving clients was not a part of [Ms.]

Clark’s job duties[,]” and Plaintiff produced no evidence that Ms. Clark’s duties

included driving Plaintiffs nor, if Ms. Clark in fact drove Mrs. Keith on errands, that

Defendant was aware of this fact. Defendant testified through Mr. Bailey that it had

no knowledge of Ms. Clark driving Plaintiffs. Mrs. Keith testified that she could not

recall if Ms. Clark ever drove her anywhere.

Plaintiff also produced two letters from the Pitt County Child Support Agency

requesting Ms. Clark’s employment information because the agency was “required by

law to investigate the possibilities of obtaining child support for child(ren) entitled to

parental support. [The law] requires employers to provide certain . . . information so

that child support may be collected or enforced.” These letters were dated 25 May

2016 and 9 September 2016. Plaintiffs contend this was evidence that Ms. Clark was

in dire financial straits. Mr. Bailey testified that many of Defendant’s workers have

child-support obligations, and it was not unusual to get letters like these, concerning

their aides, from county child support agencies.

50 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Plaintiffs argue on appeal that Defendant should have conducted a Facebook

investigation of Ms. Clark, and contend that several of Ms. Clark’s Facebook posts

were evidence of her violent or criminal disposition. Initially, these posts were not

originated by Ms. Clark, they were “memes” created by someone else that she

“reposted” on her Facebook page. More importantly, the trial court instructed the

jury “that the Facebook posts may not be used by you in the determination of any fact

in this case.” We presume that the jury followed the trial court’s instructions, and

that the trial court did not consider these posts as substantive evidence when it

denied Defendant’s motion for a JNOV.

As Plaintiffs state in their brief: “[Defendant] assigned [Ms.] Clark to

[Plaintiffs’] home shortly after it hired her in [late] 2015.” Plaintiffs then contend,

however: “Soon thereafter, things around the house started to go missing.” Plaintiffs’

evidence only allows speculation concerning whether Plaintiff was working for them

when they noticed some of Mr. Keith’s rolls of coins were missing, as Plaintiffs

contend the coins were noticed to be missing in “the fall of 2015,” there is no evidence

suggesting the actual theft was conducted during that time period, and Ms. Clark

only began working at Plaintiff’s house at the end of the “fall 2015” time period.

Further, even if Ms. Clark was working at Plaintiffs’ home when the coins

disappeared, the next “thing around the house” did not “go missing” until over a year

later. Meaning Ms. Clark worked at Plaintiff’s house for over a year with no evidence

that anything was taken from Plaintiffs during that time period.

51 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Plaintiffs’ daughter Sarah testified that she was the person who noticed the

missing coins: “I found some money missing myself.” Sarah’s memory of when she

noticed coins missing was uncertain, stating that it was: “Last year, maybe the year

before. It was recent – in my head it was recent.” “Last year” would have been 2017,

which was after the events of 29 September 2016 and the termination of Ms. Clark’s

employment. “The year before” would have been 2016.6 However, Plaintiffs allege:

“In the fall of 2015, [Plaintiffs] discovered that approximately $90.00 in rolled coins

had been stolen from a box inside their home.” Sarah testified that she immediately

alerted Plaintiffs: “I immediately . . . took the box to my father and said, Daddy,

someone has taken money from here. Someone has taken some rolls of quarters.”

Sarah stated that Mr. Keith “said, let’s put it underneath the cabinet . . . so I’ll know

where it’s at. And that was the last I saw of it.” Mr. Keith testified: “My

granddaughter found it missing to begin with and as I recall it was somewhere

around – I think it was around $900.00 in the first group of coins that were taken in

the rolls – coin wrappers.”

Mr. Bailey testified that he had not been contacted about any money missing

from Plaintiffs’ house until August of 2016, when he was informed by Mr. Keith that

6 If Sarah meant her statement to mean “a year ago, maybe two years ago,” then she would be placing the event approximately between late March of 2016 and late March of 2017, as her testimony occurred on 20 March 2018. While Ms. Clark was working for Plaintiffs in March of 2018—and until the events of 29 September 2016, less the several weeks she was removed in August 2016—these time periods and her recollection that the theft was “recent” differ significantly from the alleged time period of “the fall of 2015.”

52 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

$90.00 had been removed from his wallet. Mr. Bailey also testified that Mrs. Keith

came to him at that point and informed him of the $1,200.00 missing from her dresser

drawer:

[Mrs. Keith said] I’m missing some money as well. And I says, well, how much are you missing and when did you realize that you was missing money? And she says, well, I’m missing a little over $1,200.00 and me and Mr. Keith was both flabbergasted about that and says, you are missing how much? . . . . She told me it was in her drawer. And I says, in your bedroom? . . . . I asked her, could we go and look at that, inspect the drawers? And so we went to the bedroom together and inspected the drawers. . . . . I says, can you remember the last time it was here? She says, it was about two or three weeks ago is the last time I remember actually seeing it. And so I says, you’re sure? She says, yes. I says, have you recognized any aides that was here at the time that the money was missing? Do you suspect anyone? . . . . She says, I don’t know. And then she says, well, there was one particular day when I felt like somebody was near me, but I didn’t know who that was. And I asked her if she could really try to think hard about that. And she said that she would, but she came back and said I just cannot remember. I don’t know, you know, who that was or, you know, if that even happened.

This testimony is corroborated in large part by the testimonies of Plaintiffs’

witnesses. Mr. Bailey testified that they talked more in the living room about the

missing money:

And so that’s when Mr. Keith came out and said to me, Sylvester, I didn’t really want to tell you this. . . . . And he says, well, about six or seven months ago, he says, I was missing some coins. . . . . And he says, I believe it was – had to be at least $500.00. And so I says, Mr. Keith, I says, you are missing coins about six or seven or eight months ago, I says, can you pinpoint exactly when that was? And

53 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

he says, I know, I cannot pinpoint when or what happened there. And I says, why didn’t you report this to me? I says, you know, we can’t do anything about it if you don’t report this to me. And he says, I did not want to get any of the aides in any trouble. I did not want to make this out of a big deal or anything like that. And I told him, but you have to report things like this. So everything in the same day was reported to [Defendant] Health-Pro, the very same day.

The jury was played the video deposition testimony of Defendant, through Mr.

Bailey, and in it Defendant gave the same testimony concerning when it was first

informed about the missing money. Plaintiffs’ evidence either corroborates Mr.

Bailey’s testimony, or fails to contradict it. Plaintiffs acknowledge in their appellate

brief that they “told [Defendant] Health-Pro about the missing money—from both

2015 and 2016—on the same day, in August 2016.” None of Plaintiffs’ witnesses could

give more than extremely general and broad estimates concerning when the coins

were discovered missing, and Mrs. Keith could only state that she believed she had

last seen the $1,200.00 two to three weeks prior to discovering it was missing. It is

not clear from the evidence when Mrs. Keith actually discovered the money was

missing. Plaintiffs’ complaint alleges the $1,200.00 “was stolen” in “July or August

2016[.]” Mrs. Keith testified that she believed she saw an aide just outside her room

one day as she was removing some cash from her dresser drawer, but she did not

know who it was, stating: “all I saw was an arm and at that time, as I said previously,

we were having a changeover of personnel. Frankly, I don’t remember who was on

54 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

what nights.” Mrs. Keith testified that Mr. Bailey “seemed very concerned that

money went missing from [Plaintiffs’] home[.]”

The only evidence that created a relatively short time period for a possible theft

was for the money missing from Mr. Keith’s wallet, and that came from Mr. Bailey.

According to Mr. Bailey’s testimony, Mr. Keith told him he had last seen the money

in his wallet on Thursday or Friday, and discovered it missing on Sunday when he

was trying to pay for food he had ordered. Defendant wrote “Unknown 2016” in the

“Incident Date:” section of its “Incident Report” concerning Plaintiffs’ allegations of

missing money. The report indicates that Defendant was informed of the missing

money on 15 August 2016, which was a Monday. Therefore, if Mr. Bailey was correct

about Mr. Keith’s statements, and if Mr. Keith was correct in his recollection, the

$90.00 would have to have been taken between Thursday, 11 August 2016 and

sometime on Sunday, 14 August 2016. Plaintiffs testified they had no reason to

suspect Ms. Clark had taken the money from the wallet or from the dresser drawer,

and did not produce evidence establishing that Ms. Clark was working on any of these

days.

Plaintiffs testified that they had no idea when any of the money was taken,

who might have been working when it was taken, and did not identify any of

Defendant’s aides as suspects. Mr. Bailey testified that Plaintiffs did not want the

current aides replaced, but that they were going to cut down on the hours of care

provided, so Defendant removed Ms. Clark and Ms. Little, apparently based on the

55 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

fact that they had been working for Plaintiffs for a long time, the other two aides

working for Plaintiffs were relatively new, so only Ms. Clark and Ms. Little would

have been working for Plaintiffs “about six or seven or eight months” prior to 15

August 2016.

Plaintiffs also contend that Defendant’s decision to return Ms. Clark to work

at their house two to three weeks after she and Ms. Little had been removed from the

house is evidence of Defendant’s negligence. Mr. Keith testified that the decision to

return Ms. Clark to work at Plaintiffs’ home was made by Defendant, but he “never

felt forced to have Ms. Clark [come] back into [the] home.” Mr. Keith testified that

he “didn’t know that there was any need for” an investigation by Defendant before

returning Ms. Clark to work at Plaintiffs’ home. Mr. Keith testified concerning the

time period that money was taken: “[Ms. Clark] was working there, yes. I don’t know

if she was in the house when it went missing or not.” He was asked: “Is it fair to say

that you don’t know which aide, if any, took money from the home?” Mr. Keith’s

answer was: “No, I didn’t.” He further testified that he was satisfied with the manner

in which Defendant handled the issue of the missing money. Plaintiffs both testified

that they never had any concerns about Ms. Clark working in their home prior to the

events of 29 September 2016, including the period after money disappeared in “July

or August.” The evidence concerning the missing money at most raised a possibility

that Ms. Clark, as well as other people, could have had the opportunity to take it. It

is not at all clear that she was working for Plaintiffs at the time of the alleged 2015

56 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

coins incident, which meant any of the four aides working at Plaintiffs’ home in the

July to August time period could be equally suspect, as could anyone else who may

have spent time in Plaintiffs’ home during that time period. The evidence available

to Defendant prior to 29 September 2016 implicating Ms. Clark in the alleged

disappearance of coins or cash was at best speculative.

This Court has stated that there is no general duty to conduct criminal

background checks prior to hiring an employee. Stanley, 112 N.C. App. at 612, 436

S.E.2d at 274 (“Although [the employer] admits that it did not do a criminal record

check on [the employee], we believe that it did not have a duty to do so. See, e.g.,

Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978) (stating that the majority of courts

do not recognize a duty to inquire about an employee’s criminal record).”). Therefore,

our analysis is limited to—considering the context and known facts—did Defendant

have a duty to conduct an inquiry before hiring Ms. Clark and, if so, did Defendant

exercise due care in conducting the inquiry. Stanley, 112 N.C. App. at 612–13, 436

S.E.2d at 274. Further, even if Defendant was “negligent” in its duty to properly vet

Ms. Clark for a position that required her to work in clients’ homes, no duty would

attach to Defendant to protect the injured client unless Ms. Clark’s injurious acts

were of a kind reasonably foreseeable in light of her particular unfitness for the

employment, and the facts demonstrating her unfitness would have been uncovered

had Defendant conducted an investigation with reasonable care. This is because an

employer’s “negligence” in hiring an employee does not create a blanket “duty to

57 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

protect” that covers all third parties, irrespective of the surrounding circumstances.7

That is, Plaintiffs had to prove the necessary duty element of Plaintiff’s negligent

hiring claim by demonstrating with substantial evidence that either Defendant failed

to use reasonable care before hiring Ms. Clark, and thereby failed to uncover

reasonably knowable facts that made Ms. Clark unfit for that position, or Defendant

hired Ms. Clark in spite of knowledge of Ms. Clark’s unfitness. Further, it was

Plaintiffs’ duty to prove that, as a result of the particular unfitness of Ms. Clark that

Defendant “knew,” either in fact or constructively, Ms. Clark injured Plaintiffs, and

the nature or type of that injury was, in the view of a reasonably prudent person in

Defendant’s position, the probable result of Defendant’s lack of due care in hiring and

supervising Ms. Clark, in light of Defendant’s knowledge of her particular unfitness.

In this case, Ms. Clark’s criminal record included convictions for a few

misdemeanors that involved neither theft nor violence. Ms. Clark’s application was

satisfactory, including two good references. The fact that she checked the box

indicating no convictions, even taken as intentionally deceptive, does not seem

particularly noteworthy in the context of this case—particularly since Ms. Clark filled

out the criminal record check form with her correct information, including social

7 “We refuse to make employers insurers to the public at large by imposing a legal duty on

employers for victims of their independent contractors’ [“Smith’s”] intentional torts that bear no relationship to the employment. We note that . . . the result would be the same if Smith had been an employee of defendants[.] Smith could have perpetrated the exact same crimes against these plaintiffs, in the exact same manner, and with identical chances of success, on a day that he was not selling Omega’s meats and driving Omega’s vehicle.” Little, 171 N.C. App. at 588–89, 615 S.E.2d at 49.

58 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

security number and N.C. Identification Card number. Owing child support is not

disqualifying, in fact, retaining Ms. Clark in employment, better enabling her to meet

her obligations, is acting in accordance with good public policy. Further, there does

not appear to be any record evidence that Child Social Services ever actually needed

to garnish Ms. Clark’s wages. The Facebook posts were not evidence the jury could

consider to decide any material fact, including Defendant’s duty of care—and we find

no significant relevance in these posts. Importantly, prior to 29 September 2016 Ms.

Clark had worked for Defendant for over a year, had by all accounts done a fine job,

was known as quiet and polite—Ms. Clark had established herself as a dependable

employee that her clients appeared to like. This record of actual employment with

Defendant serves as a substantial counterweight to the relatively minor potential

“red flag” evidence Plaintiffs presented at trial.

In light of the events of 29 September 2016, it is easy to assume Ms. Clark did

take money from Plaintiffs. However, we are limited to what was or reasonably

should have been known to Defendant prior to that date. There was nothing solid

from which Defendant would have been able to fairly accuse Ms. Clark of theft.

Plaintiffs’ testimony shows they did not have any reason to suspect Ms. Clark other

than Defendant’s attempt to narrow the number of aides that could have been

working at Plaintiffs’ home during the coin incident alleged to have happened in the

fall of 2015 and the events in July or August of 2016. Plaintiffs testify that they

assumed Defendant had cleared Ms. Clark prior to returning her to their house.

59 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

Defendant states that it did clear her, as much as it reasonably could on the evidence

it could procure. Plaintiffs did not feel threatened by Ms. Clark’s presence, and

everybody who testified concerning their reactions to the news that Ms. Clark had

been involved in the 29 September 2016 crime testified that they were completely

surprised.

We hold, on these facts, that a reasonably prudent person in Defendant’s

position, knowing all the facts that Plaintiffs introduced about Ms. Clark at trial,

available to Defendant prior to 29 September 2016, would not have recognized the

“possibility of the intentional” criminal acts of Ms. Clark—that the “risk of

foreseeable harm” to Plaintiffs was of the kind that occurred on 29 September 2016,

and the risk of [this kind of] harm was so “slight,” “that a reasonable [person] in the

position of [Defendant] would disregard it.” Restatement (Second) of Torts § 302B(d.).

Therefore, Defendant had no duty to protect Plaintiffs from Ms. Clark’s criminal acts

of 29 September 2016.

For the same reasons outlined above, we also agree with Defendant that there

was insufficient evidence to take to the jury on the issue of proximate cause because

the crime of 29 September 2016 was not a reasonably foreseeable result of any

presumed negligence on the part of Defendant. Further, there are specific elements

a plaintiff must prove to prevail in a negligent hiring case:

(1) the specific negligent act on which the action is founded . . . (2) incompetency, by inherent unfitness or previous specific acts of negligence, from which incompetency may

60 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

be inferred; and (3) either actual notice to the master of such unfitness or bad habits, or constructive notice, by showing that the master could have known the facts had he used ordinary care in ‘oversight and supervision,’ . . . and (4) that the injury complained of resulted from the incompetency proved.

Stanley, 112 N.C. App. at 611, 436 S.E.2d at 273 (underlining added) (citation

omitted). Based on the facts of this case, Defendant could only

be held liable [for Plaintiffs’] assault[ ] by . . . [Ms. Clark if Defendant] “knew, or in the exercise of reasonable care in the selection . . . of [Ms. Clark] should have known, [Ms. Clark was] likely, by reason of past conduct, bad temper or otherwise, to commit [the] assault, even though the particular assault was not committed within the scope of [Ms. Clark’s] employment.”

Id. (citation omitted). Plaintiffs’ evidence was insufficient to demonstrate proximate

cause; that, based upon Ms. Clark’s past conduct, the events of 29 September 2016,

or some similarly serious and violent crime, were likely to occur.

III. Conclusion

We hold that Plaintiffs’ complaint did not include a claim against Defendant

based upon the doctrine of respondeat superior, and the facts could not support such

a claim. We further hold that Plaintiffs’ claim was one pursuant to the doctrine of

negligent hiring, retention, or supervision, not, as argued by Plaintiffs, one in

ordinary negligence. Therefore, the trial court should have granted Defendant’s

motion for a directed verdict, failing that, should have granted Defendant’s request

that the jury be instructed in accordance with negligent hiring and, finally, should

61 KEITH V. HEALTH-PRO HOME CARE SERVS., INC. Opinion of the Court

have granted Defendant’s motion for a JNOV on Plaintiffs’ claim for ordinary

negligence, because it was not the proper action to prosecute on these facts.

Assuming, arguendo, Plaintiffs’ claim pursuant to ordinary negligence was proper,

we hold that Defendant’s motion for a JNOV should have been granted based upon

insufficient evidence of Defendant’s duty to protect Plaintiffs from Ms. Clark’s

criminal acts and, as the crime was not reasonably foreseeable, Plaintiffs failed to

produce sufficient evidence of proximate cause as well. We further hold that there

was insufficient evidence of the elements of duty and proximate cause pursuant to a

claim for negligent hiring, supervision, or retention, and Defendant’s motion for a

JNOV should have been granted for that claim as well. As a result, judgment

notwithstanding the verdict should have been granted in favor of Defendant on

Plaintiffs’ negligence claim, under any theory, and we reverse the judgment of the

trial court and remand for entry of such an order. Finally, Plaintiffs’ cross-appeal

was conditioned on this Court remanding for a new trial. Because we have directed

the trial court to enter judgment in favor of Defendant, Plaintiffs’ cross-appeal

concerning the issue of punitive damages is moot and, therefore, dismissed.

REVERSED AND REMANDED; CROSS-APPEAL DISMISSED.

Judge ZACHARY concurs.

Judge DILLON dissents with separate opinion.

62 No. COA19-118 – Keith v. Health-Pro Home Care Servs., Inc.

DILLON, Judge, dissenting.

The majority concludes that the verdicts/judgments in favor of Plaintiffs must

be reversed and that Defendant was entitled to judgment as a matter of law. I

disagree.

It was not reversible error for the trial court to allow the case to be presented

as one in “ordinary negligence,” where Defendant argues that the case should have

been characterized more specifically as one in “negligent retention.” Though

Plaintiffs allege that Defendant was negligent in retaining Ms. Clark, evidence of

negligent retention is merely a means by which a plaintiff proves ordinary negligence.

As such, negligent retention (like any other ordinary negligence claim) requires a

plaintiff to show that the defendant owed a duty, that the defendant breached that

duty, and that the plaintiff suffered an injury proximately caused by the breach.

And the evidence, when viewed in the light most favorable to Plaintiffs, was

sufficient to make out an ordinary negligence claim based on their evidence of

Defendant’s negligent retention of a dishonest employee. The crux of the majority’s

analysis is based on its conclusion that Plaintiffs were required to show that the

robbery occurred while the dishonest employee was on duty. I do not believe this to

be a hard and fast rule. Rather, I conclude that an employer may still be held liable

for negligent retention when its dishonest employee uses “intel” learned while on duty

to facilitate a theft, though waits until off-duty to commit the theft. Here, it should

not matter here that Defendant’s dishonest employee did not rob Plaintiffs while on KEITH V. HEALTH-PRO HOME CARE SERVS., INC.

DILLON, J., dissenting

duty, but rather waited to be off-duty to use her knowledge gained based on her

employment of the location of a key to Plaintiffs’ home hidden outside, the location of

Plaintiffs’ valuables within the home, and the times when the vulnerable Plaintiffs

would be alone to facilitate the commission of the robbery.

Accordingly, my vote is “no error.” The jury’s verdict should be sustained.

Discussion

The facts of the case are relatively straight-forward.

Plaintiffs Mr. and Mrs. Keith are an elderly couple living in their own home.

In 2012, they contracted with Defendant Health-Pro to employ qualified people to

provide care to them in their home.

In 2015, Deitra Clark was employed by Defendant to serve as a caregiver and

was assigned to Plaintiffs’ home. She performed her caregiving services well.

However, shortly after she was assigned to Plaintiffs’ home, money belonging to Mr.

Keith went missing. Months later, on two other occasions, while she remained

assigned to Plaintiffs’ home, more of Plaintiffs’ money went missing. After working

for about a year, Ms. Clark used her knowledge of Plaintiffs and their home to

facilitate a break-in of the home and subsequent robbery.

Plaintiffs commenced this action against Defendant seeking damages suffered

from the break-in/robbery, alleging that Defendant was negligent in continuing to

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assign Ms. Clark to their home and that this negligence was a proximate cause of

their damages.

I. Ordinary Negligence vs. Negligent Retention

The majority concludes that it was error to allow Plaintiffs to characterize their

claim as an ordinary/common law negligence claim, rather than as a negligent

retention claim. See Adams v. Mills, 312 N.C. 181, 187, 322 S.E.2d 164, 169 (1984)

(describing the tort as “ordinary common law negligence”).) I disagree.

To make out a claim for ordinary negligence, “a plaintiff must [show]: (1) a

legal duty; (2) a breach thereof; and (3) injury proximately caused by the breach.”

Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267 (2006).

Our Supreme Court has long characterized a claim alleging negligent retention

as an ordinary negligence claim. For instance, nearly a century ago, our Supreme

Court held that a claim based on evidence of negligent retention of an incompetent

employee “was sufficient to [reach] the jury as to [the] right of plaintiff to recover at

common law for negligence.” Johnson v. R.R., 191 N.C. 75, 80, 131 S.E. 390, 393

(1926). The Court characterized “[t]he action brought by [the] plaintiff [in that case]

was a common-law action for negligence[,]” id. at 79, 131 S.E. at 392, recognizing that

the employer had a duty “to see that those admitted to and retained in his service are

fitted for the duties imposed upon them, the measure of responsibility being the

exercise of ordinary or reasonable care.” Id. at 80, 131 S.E. at 393.

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More recently, our Supreme Court again characterized a claim for negligent

retention as a “common law negligence” claim. See Craig v. New Hanover Cty. Bd. of

Educ., 363 N.C. 334, 335-36, 678 S.E.2d 351, 353 (2009).

Common law negligence differs from other distinct forms of negligence by the

proof that may be required. For example, gross negligence requires additional proof

of an “intentional wrongdoing or deliberate misconduct[,]” by the defendant. Ray v.

N.C. DOT, 366 N.C. 1, 13, 727 S.E.2d 675, 684 (2012). But as a type of ordinary

negligence, a plaintiff alleging negligent retention must merely show that the

defendant owed plaintiff a duty, that the defendant breached this duty, and that this

breach was a proximate cause of some injury suffered by the plaintiff. And as

explained in the next section, I conclude that Plaintiffs met their evidentiary burden.

II. Sufficiency of Plaintiffs’ Evidence for Actionable Negligence

The majority concludes that Plaintiffs failed to offer sufficient evidence on

either ordinary negligence or negligent hiring. I disagree. As stated above, negligent

hiring is merely a theory by which a plaintiff proves ordinary negligence.

A. Duty

Defendant clearly owed Plaintiffs, an elderly couple in poor health, a duty to

exercise reasonable care in providing caregivers who were not only competent in

providing for their physical needs, but also who were honest and not likely to take

advantage of their position of trust to steal from Plaintiffs. Defendant knew that its

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caregivers would have wide access to its clients’ homes and that its clients were

vulnerable to being taken advantage of by dishonest caregivers.

The majority relies, in large part, on its conclusion that Defendant owed no

legal duty to Plaintiffs for any harm Ms. Clark caused them when she was not on the

clock. The majority relies on Little v. Omega Meats I, Inc., 171 N.C. App. 583, 615

S.E.2d 45 (2005), to support this conclusion. I conclude that the majority misreads

Little as requiring that the employee to be on-duty as an essential element of every

negligent retention claim.

In Little, an employer hired a dishonest person to deliver meat from a truck to

the employer’s clients. The dishonest employee drove into a neighborhood, parked

the truck in a customer’s driveway; but then proceeded to break into the house of a

neighbor who was not a customer or prospect of the employer. Id. at 584, 615 S.E.2d

at 47. We held that even assuming the employer knew its employee was dishonest,

the employer could not be held liable for the break-in of the neighbor’s home. We

reasoned that the employer owed no duty to the neighbor because its employment

relationship with its dishonest employee had nothing to do with the break-in. Id. at

589, 615 S.E.2d at 49. Specifically, we so held based on the facts of that case because:

(1) the employee “was not in a place where he had a legal right to be [when] he broke [into the] plaintiffs’ home”;

(2) the employee “and plaintiffs did not meet as a direct result of [the employee’s] relationship with defendants” and “did not enter plaintiffs’ home as a salesman”;

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(3) the defendant-employers “received no benefit, direct, indirect or potential, from the tragic ‘meeting’ between [the employee] and plaintiffs.”

Id. at 588, 615 S.E.2d at 49.

The present case is distinguishable from Little. Here, the harm to Plaintiffs

(the break-in) had everything to do with Ms. Clark’s employment relationship with

Defendant, though it happened when she was off-duty. Plaintiffs and Ms. Clark met

as a direct result of her employment with Defendant. And though Ms. Clark was off-

duty and had no right to be in Plaintiffs’ home when the break-in occurred, Ms. Clark

used “intel” she learned while she on the clock to target Plaintiffs and to facilitate the

break-in. (This “intel” is explained more fully in subsection C. below concerning the

“proximate cause” element). And Defendant otherwise received a benefit – being paid

large sums of money by Plaintiffs – from Ms. Clark working in Plaintiffs’ home, when

she gained the “intel.”

The majority’s rigid interpretation of Little, that the harm in every negligent

retention case must occur when the employee is “in a place where he had the right to

be,” would lead to illogical results. For example, based on the majority’s logic,

Defendant would have been subject to liability only if Ms. Clark had let her

accomplices in and showed them where valuables were hidden while on duty. But,

Defendant escapes liability simply because Ms. Clark and her accomplices waited for

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her to be off duty to use her intel to gain entry and to locate Plaintiffs’ valuables. Or

consider the following example:

Assume a restaurant retained a parking valet it knew was a car thief, and assume the valet stole the car of a patron. Based on the majority’s reasoning, the restaurant would be subject to liability for negligent retention only if the valet stole the car while on duty. The restaurant, would not be liable, though, if the valet merely made a copy of the patron’s car key while on duty, as the patron dined, and then waited until he was off-duty to use that key to steal the car.

Little would be applicable if Ms. Clark and her accomplices had broken into the house

of the Plaintiffs’ next-door neighbor, to whom Defendant owed no duty and about

whom Ms. Clark would not have gained intel simply based on her employment. In

the same way, if the valet in my example did not make a key but had hot-wired the

patron’s car when off duty, perhaps the restaurant would not be liable, as there would

be no connection between the valet’s employment and the theft.

B. Breach

Defendant had a duty to Plaintiffs to exercise reasonable care to see that its

caregivers were not the type who would likely to take advantage of their access to the

lives and homes of Defendant’s clients. There was sufficient evidence, when viewed

in the light most favorable to Plaintiffs, that Defendant breached this duty it owed

to Plaintiffs by allowing Ms. Clark to continue working in Plaintiffs’ home: There

was evidence which suggested that Defendant should have known that Ms. Clark was

dishonest and capable of the robbery, perhaps not in September 2015 when she was

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initially hired by Defendant, but certainly a year later by mid-September 2016, weeks

before the break-in. By that time, Defendant knew that Ms. Clark had lied on her

job application about her criminal past; that she was having on-going money troubles;

that money had gone missing in Plaintiffs’ homes on three separate occasions, all

after Ms. Clark was assigned there; and that Ms. Clark was one of only two caregivers

likely to have been the culprit. Specifically, it could be inferred from the evidence,

viewed in the light most favorable to Plaintiffs, that:

In 2012, Defendant contracted with Plaintiffs to provide caregivers.

Three years later, in September 2015, Ms. Clark was hired by Defendant as a caregiver and was assigned to Plaintiffs’ home. Up to that time, nothing had been reported stolen by Plaintiffs. Defendant learned at some point before the break-in that Ms. Clark had lied on her job application about having no criminal history.

In October 2015, only a month after Ms. Clark began working in the Plaintiffs’ home, several hundred dollars in rolled coins belonging to Plaintiffs’ went missing, though Defendant was not immediately notified.

In May 2016, Defendant learned that Ms. Clark was having money problems: Defendant, as Ms. Clark’s employer, was notified by Pitt County that Ms. Clark was in arrears in child support payments.

Three months later, in August 2016, Plaintiffs met with Ms. Clark’s supervisor and first reported the October 2015 theft. Plaintiffs also reported that $90.00 had recently been taken from Plaintiff, Mr. Keith’s wallet and $1,200.00 had recently been taken from Plaintiff, Mrs. Keith’s dresser. Ms. Clark’s supervisor concluded that if a caregiver had stolen the money, it was likely either Ms. Clark or one other certain caregiver. Each, though, when questioned, denied stealing from Plaintiffs.

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After learning of the three thefts, Defendant removed Ms. Clark from Plaintiffs’ home. But weeks later, Defendant again placed Ms. Clark in Plaintiffs’ home, signaling to them that Defendant had used reasonable diligence to determine that Ms. Clark was not the thief.

By letter dated 9 September 2016, shortly after Ms. Clark was re- assigned to Plaintiffs’ home, Defendant was again notified that Ms. Clark was again delinquent on paying child support. Defendant, though, continued assigning Ms. Clark to work in Plaintiffs’ home without raising any concern to Plaintiffs.

Three weeks later, Ms. Clark participated in the break-in of Plaintiffs’ home, in which

well over $1,000.00 was stolen from Plaintiffs.

There are cases suggesting that an employer breaches its duty to exercise

reasonable care to provide honest caregivers by failing to conduct a criminal

background check or by knowledge of minor crimes in the remote past. However, the

issue here is not Ms. Clark’s criminal record itself, but rather that Defendant knew

Ms. Clark had lied on her job application about it. This lie put Defendant on notice

that Ms. Clark was not an honest person. And while knowledge of the lie, by itself,

might not have constituted a breach, it along with Defendant’s knowledge of the three

thefts and that Ms. Clark, a woman who had lied on her job application and who was

having money troubles, was one of two suspects were enough to reach the jury on this

issue. Reasonable minds can differ as to whether continuing to place Ms. Clark in

Plaintiffs’ home with all this knowledge was sufficient to constitute a breach. The

jury made its call.

C. Proximate Cause

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The evidence was sufficient for the jury to infer that Defendant’s breach of duty

was a proximate cause of the break-in. Plaintiff’s evidence showed that Ms. Clark

used information learned while on the job to target Plaintiff’s home and facilitate the

break in/robbery:

That Plaintiffs were advanced in age and not in good health and, therefore, easy targets for a robbery.

The location of a key to Plaintiffs’ home hidden outside in an obscure location, allowing the perpetrators to gain entry quietly, without any warning or causing any neighborhood disturbance.

The location of Mr. Keith’s gun, allowing the perpetrators to grab the gun before Plaintiffs could get to it to defend themselves.

That no one would be with Plaintiffs after 11:00 p.m., after the last caregiver left for the day.

The location of hundreds of dollars in rolled coins belonging to Mr. Keith hidden in an obscure location within the home, allowing the perpetrators to steal quickly.

That Mr. Keith had a car, could still drive, and had a bank card from which he could access money from his account, allowing the perpetrators, who did not have a car during the robbery to force Mr. Keith to drive one of them to his bank and withdraw $1,000.00.

There may have been other proximate causes. But as our Supreme Court has

instructed, “[w]hen two or more proximate causes join and concur in producing a

result complained of, the author of each cause may be held for the injuries inflicted.”

Hairston v. Alexander, 310 N.C. 227, 234, 311 S.E.2d 559, 566 (1984).

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Defendant argues that there was no proximate cause since it was not

“foreseeable” that Ms. Clark would participate in an aggressive robbery. Indeed, our

Supreme Court has held that “[f]oreseeability is [ ] a requisite of proximate cause.”

Id. at 233, 311 S.E.2d at 565.

But our Supreme Court also instructs that (1) “the test of foreseeability [ ] does

not require that defendant should have been able to foresee the injury in the precise

form in which it actually occurred” and (2) “the law of proximate cause does not

always support the generalization that the misconduct of others is unforeseeable.

The intervention of wrongful conduct of others may be the very risk that defendant’s

conduct creates.” Id. at 233-34, 311 S.E.2d at 565 (emphasis added). And whether a

defendant’s negligence was a “proximate cause of an injury is ordinarily a question

for the jury.” Short v. Chapman, 261 N.C. 674, 680, 136 S.E.2d 40, 45 (1964).

There was enough evidence here from which the jury could infer that it was

foreseeable that: (1) a dishonest caregiver might take advantage of the access and

information she would gain due to the nature of the job; (2) Ms. Clark, if she was the

culprit of the earlier thefts, might steal again, given that she was having money

troubles; and (3) Ms. Clark might wait to be off duty to steal again, which would

require a break-in, since she was recently under suspicion for the earlier thefts.8

8 Defendant cites Williamson v. Liptzin, 141 N.C. App. 1, 539 S.E.2d 313 (2000), to support its

contention that Plaintiffs’ injuries were not foreseeable. However, the facts in Williamson, where we concluded that there was no proximate cause as a matter of law, are easily distinguishable. In

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III. Jury Instructions

I disagree with the majority’s contention that the trial court committed

reversible error by giving certain jury instructions.

Defendant argues in its brief that the trial court erred in instructing the jury

on the “duty” element.

The trial court gave North Carolina Pattern Jury Instruction 102.11, which

describes “duty” generally, as follows: “Every person is under a duty to use ordinary

care to protect himself and others from injury. Ordinary care means that degree of

care which a reasonable and prudent person would use under the same or similar

circumstances to protect himself or others from injury.” N.C.P.I. Civil 102.11.

Defendant argues in its brief that the trial court should have given the

following, more detailed instruction on “duty,” which it requested and which closely

tracks language in Little:

The plaintiff must prove that the defendant owed plaintiff a legal duty of care. This means that the plaintiff must prove that [the employee] and the plaintiff were in places where each had a right to be when the wrongful act occurred, that the plaintiff encountered [the employee] as a direct result of his employment by the defendant, and that the defendant must reasonably have expected to receive some benefit, even if only potential or indirect, from the encounter between (the employee) and the plaintiff.

Williamson, the plaintiff, who had killed two people during a psychotic episode, sued a psychiatrist who had treated him several months earlier at a time when his psychosis was under control due to medication. We held that the shooting was unforeseeable because it was too remote in time from the defendant’s treatment and there was no evidence that a professional could have predicted the plaintiff’s violent acts.

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Defendant contends that the jury should have been instructed that “[w]hether the

relevant individuals were in places where they had a right to be . . . is relevant to this

matter” as this matter is a negligent retention case.

The trial court’s actual instruction was a correct statement of the law in this

case, as Plaintiffs claim was one in ordinary negligence. But it would not have

necessarily been inappropriate for the trial court to expound on some of the elements,

provided the requested instructions were a correct statement of the law as supported

by the evidence. I disagree, though, that the instruction on duty requested by

Defendant, though maybe appropriate in certain negligent retention cases, would

have been appropriate in this case. No one disputes that the “wrongful act” occurred

when Ms. Clark had no right to be in Plaintiffs’ home. However, as explained above,

it was enough for Plaintiffs to show that Ms. Clark used intel learned while she was

on the job to facilitate the robbery which occurred after she had left work for the day.

Accordingly, the instructions requested by Defendant would have confused the jury.

If followed by the jury, the instructions would have necessarily resulted in a verdict

for Defendant. In fact, if the instructions were an accurate statement of the law, as

applied to the evidence in this case, then Defendant would have been entitled to

judgment as a matter of law. Based on the requested instructions, Defendant owed

no duty to Plaintiffs solely because the robbery occurred when Ms. Clark was off the

clock, and therefore could not be held liable, notwithstanding that Defendant had

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been negligent in continuing to place Ms. Clark in Plaintiffs’ home, that Ms. Clark

provided the intel learned while placed in Plaintiffs’ home to the perpetrators to

facilitate the break-in, that it was foreseeable that Ms. Clark would try and steal from

Plaintiffs again, and that the break-in would not have otherwise occurred.

Also, I conclude that Defendant failed to meet its burden to show that the jury

was “likely misled” by the instructions which were actually given. Coppick v. Hobbs,

240 N.C. App. 324, 334, 772 S.E.2d 1, 9 (2015). It is unlikely that the jury did not

understand the case before it — that it did not find for Plaintiffs based on anything

other than its determination that Defendant owed Plaintiffs a duty to provide honest

caregivers, that Defendant breached this duty by continuing to place Ms. Clark in

Plaintiffs’ home, despite their knowledge about her, and that it was the information

that Ms. Clark learned through her employment about Plaintiffs that caused

Plaintiffs to be targeted and facilitation of the break-in.

Reasonable minds can differ regarding Defendant’s liability for the criminal

conduct of its employee Ms. Clark towards its client. But the jury has spoken in this

case, and my vote is to honor their verdict.

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