{ "id": 8525292, "name": "DONNA C. REICH v. MICHAEL R. PRICE and SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY", "name_abbreviation": "Reich v. Price", "decision_date": "1993-05-18", "docket_number": "No. 9121SC954", "first_page": "255", "last_page": "261", "citations": [ { "type": "official", "cite": "110 N.C. App. 255" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "161 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "137" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "273 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576097 ], "year": 1968, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0701-01" ] }, { "cite": "346 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "quoting Restatement (Second) of Torts \u00a7 46 Comment (d) (1965)" } ], "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "pin_cites": [ { "parenthetical": "quoting Restatement (Second) of Torts \u00a7 46 Comment (d) (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0334-03", "/nc/317/0334-02", "/nc/317/0334-05", "/nc/317/0334-01", "/nc/317/0334-04" ] }, { "cite": "340 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "123", "parenthetical": "quoting Restatement (Second) of Torts \u00a7 46 Comment (d) (1965)" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "year": 1986, "pin_cites": [ { "page": "493", "parenthetical": "quoting Restatement (Second) of Torts \u00a7 46 Comment (d) (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0483-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-270.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "345 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "quoting Black's Law Dictionary 864 (rev. 5th ed. 1979)" } ], "opinion_index": 0 }, { "cite": "317 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773046 ], "year": 1986, "pin_cites": [ { "parenthetical": "quoting Black's Law Dictionary 864 (rev. 5th ed. 1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0321-01" ] }, { "cite": "330 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524742 ], "year": 1985, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0001-01" ] }, { "cite": "151 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "pin_cites": [ { "page": "173", "parenthetical": "quoting Black's Law Dictionary 1375 (4th ed. 1951)" } ], "opinion_index": 0 }, { "cite": "4 N.Y.2d 302", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2248461 ], "year": 1958, "pin_cites": [ { "page": "308", "parenthetical": "quoting Black's Law Dictionary 1375 (4th ed. 1951)" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/4/0302-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-329", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1990, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1990, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-270.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1990, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1990, "opinion_index": 0 } ], "analysis": { "cardinality": 673, "char_count": 14707, "ocr_confidence": 0.773, "pagerank": { "raw": 2.4535327288747784e-07, "percentile": 0.804280288155796 }, "sha256": "682e119da2e3f8d2db79209748faf44ea56fffd076aeb501708376d03b495062", "simhash": "1:f7cd2f70482fd203", "word_count": 2249 }, "last_updated": "2023-07-14T20:46:54.224272+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and LEWIS concur." ], "parties": [ "DONNA C. REICH v. MICHAEL R. PRICE and SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY" ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiff appeals from an order granting defendants summary judgment on claims of professional malpractice, intentional infliction of emotional distress, and negligent employment or retention of an employee. We affirm.\nPlaintiff was employed by Southern Bell in 1979. In 1981, plaintiff first contacted Southern Bell\u2019s Employee Assistance Program (EAP) seeking assistance with marital difficulties. An employee of EAP referred plaintiff to a psychiatrist. In 1986, plaintiff again contacted EAP for assistance and spoke with defendant Michael R. Price, Director of EAP and a Certified Employee Assistance Professional. Defendant Price suggested that they meet in a local restaurant. At that meeting, defendant Price recommended that plaintiff continue seeing her present psychiatrist.\nOn 4 June 1986, plaintiff again contacted EAP and asked to speak with defendant Price. Plaintiff explained that she was very upset because she thought she was going to be fired for leaving her job suddenly without permission that morning and going home. Defendant Price was in Wilmington when plaintiff called and was contacted there concerning plaintiffs call. Defendant Price telephoned plaintiff from Wilmington, told her she should not have left her position, and left his telephone number in Wilmington. Plaintiff telephoned defendant Price in Wilmington later that day. According to plaintiff, defendant Price then told her, \u201cIf you want to come down here, there\u2019s an extra bed in my room.\u201d Plaintiff declined.\nAfter considering her options, plaintiff concluded that defendant Price was the only person who could explain her difficulties to her supervisor in order to prevent her employment termination. Plaintiff telephoned defendant Price again and told him she was coming to Wilmington. According to plaintiff, the next day defendant met her at the airport and took her back to his hotel. While at the hotel, defendant Price and plaintiff consumed alcohol, cocaine, and marijuana. Defendant Price and plaintiff also had sexual intercourse twice. The next day, defendant Price took plaintiff to the airport and she returned to Winston-Salem. After the encounter with defendant, plaintiff attempted suicide twice. Defendant Price admits that he met with plaintiff in Wilmington; however, he denies using drugs and engaging in sexual relations with her.\nOn 23 April 1990, plaintiff filed suit in Forsyth County Superior Court alleging professional malpractice by Price, intentional infliction of emotional distress by Price, and negligent employment or retention of an employee by Southern Bell. Defendants answered and moved for summary judgment. On 11 February 1991, the superior court granted defendants\u2019 summary judgment on all claims. Plaintiff appeals.\nPlaintiff first argues that there is a genuine issue of material fact as to her claim against defendant Price for professional malpractice. Specifically, plaintiff argues that as Director of the Employee Assistance Program, defendant Price owed plaintiff a legal duty not to engage in sexual conduct harmful to plaintiffs emotional well-being. We note first that plaintiff did not allege medical malpractice pursuant to N.C. Gen. Stat. \u00a7 90-21.12 (1990); rather, she alleges professional malpractice. Plaintiff states in her complaint that defendant Price was not qualified or licensed as a practicing psychologist pursuant to N.C. Gen. Stat. \u00a7 90-270.11 (1990). There is no dispute between the parties that defendant Price was not a health care provider as defined in N.C. Gen. Stat. \u00a7 90-21.11 (1990), because he was not licensed or otherwise registered or certified to engage in any of the medical professions listed in that section. Defendant also was not a Registered Practicing Counselor as defined in N.C. Gen. Stat. \u00a7 90-329 et seq. (1990).\nIn order to assert a professional malpractice claim, plaintiff must establish (1) the nature of defendant\u2019s profession, (2) defendant\u2019s duty to conform to a certain standard of conduct, and (3) that breach of the duty proximately caused injury to her. Profession is defined as:\nA vocation, calling, occupation or employment involving labor, skill, education, special knowledge and compensation or profit, but the labor and skill involved is predominantly mental or intellectual, rather than physical or manual.\nSteinbeck v. Gerosa, 4 N.Y.2d 302, 308, 151 N.E.2d 170, 173 (1958) (quoting Black\u2019s Law Dictionary 1375 (4th ed. 1951)). Malpractice is defined as \u201cany professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.\u201d Watts v. Cumberland County Hosp. System, 75 N.C. App. 1, 10, 330 S.E.2d 242, 249 (1985), rev\u2019d in part on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986) (quoting Black\u2019s Law Dictionary 864 (rev. 5th ed. 1979)). One who undertakes to render services in the practice of a profession owes a duty to exercise that degree of skill, care, and diligence exercised by members of that same profession. See Restatement (Second) of Torts \u00a7 299A (1965).\nIn the case at bar, plaintiff has failed to present evidence of each of the elements set forth above. As to the nature of defendant\u2019s profession, plaintiff alleges and defendant admits that defendant held a Master\u2019s Degree in health sciences, a Bachelor\u2019s Degree in psychology, and certification as an Employee Assistance Professional. Defendant states in an affidavit that he received certification from the Employee Assistance Certification Commission and that the certification did not require any proficiency in the area of counseling or rehabilitative counseling. Defendant states that the certification indicates only that defendant was certified to inform Southern Bell Telephone and Telegraph employees about community resources that might assist them with problems possibly affecting their work. There is nothing in the record other than defendant\u2019s statements in his affidavit indicating the nature of the Employee Assistance Certification Commission or delineating the specific certification requirements. Defendant\u2019s deposition testimony indicates that, in order to be certified, he had to receive three recommendations from people, identified or known in the field, who could \u201cverify that [he] had been involved in the field for nine years, and . . . evaluate how .well [he] did the different tasks involved in employee assistance.\u201d As noted above, defendant was not qualified or licensed as a practicing psychologist pursuant to N.C. Gen. Stat. \u00a7 90-270.1 et seq. Although plaintiff argues that defendant engaged in counseling and the practice of psychology, we find that plaintiff has failed to present evidence sufficient to establish the nature of defendant\u2019s \u201cprofession.\u201d\nPlaintiff has failed also to present evidence to establish the duty owed by defendant or that defendant\u2019s behavior deviated from accepted standards of practice for Employee Assistance \u201cprofessionals.\u201d To establish defendant Price\u2019s duty, plaintiff presented the affidavit of Dr. Nancy S. Gaby, a practicing psychiatrist, who treated plaintiff from 17 September 1986 through 9 June 1990. Dr. Gaby stated:\nIt is also my professional opinion that it is highly inappropriate for any professional person dealing with a person having emotional problems to counsel with such a client in the professional\u2019s hotel room and, particularly, to share alcohol and drugs with them and to have sexual intercourse with them. It is also my professional opinion that such conduct creates a substantial likelihood of harm to the client and the client\u2019s emotional and mental well-being.\nWe do not find this testimony sufficient to establish a legal duty between defendant Price and plaintiff or the standard of care to be observed by defendant Price. The statement makes a vague reference to \u201cany professional\u201d and does not address a standard of care for Employee Assistance Directors or members of that profession in the same or similar locality under similar circumstances. Although defendant Price stated in his deposition that sexual conduct between a person in his position and plaintiff would be unethical under the Code of Ethics published by the Association of Labor/Management Administrators and Consultants on Alcoholism (ALMACA), the Code of Ethics does not appear in the record, and defendant\u2019s statement that the Code of Ethics is a standard of conduct for people in his field is the only evidence offered to show that Employee Assistance Professionals are held to such conduct. We find that plaintiff has failed to present sufficient evidence to establish the standard of care defendant allegedly breached. Thus, while the allegations made by plaintiff, if true, depict abhorrent conduct by defendant, plaintiff has failed to offer evidence of a professional duty violated by defendant. The trial court\u2019s order granting summary judgment on plaintiff\u2019s professional malpractice claim was not error.\nPlaintiff next argues that there was a genuine issue of material fact as to her claim for intentional infliction of emotional distress. Plaintiff argues that defendant\u2019s actions rise to the level of intentional infliction of emotional distress because he acted with reckless indifference to the likelihood that his actions would cause severe emotional distress. Absent some special relationship between defendant Price and plaintiff, we cannot find under the facts of this case, that the alleged conduct was \u201c \u2018so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.\u2019 \u201d Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986) (quoting Restatement (Second) of Torts \u00a7 46 Comment (d) (1965)).\nIn her last argument, plaintiff contends there was a genuine issue of material fact as to defendant Southern Bell\u2019s liability for defendant Price\u2019s actions. Specifically, plaintiff argues that Southern Bell is liable on the basis of respondeat superior and negligent failure to supervise. We disagree. In Johnson v. Lamb, 273 N.C. 701, 707, 161 S.E.2d 131, 137 (1968), the North Carolina Supreme Court stated:\nIf an employee is negligent while acting in the course of employment and such negligence is the proximate cause of injury to another, the employer is liable in damages under the doctrine of respondeat superior, notwithstanding the fact that the employer, himself, exercised due care in the supervision and direction of the employee, the employee\u2019s violation of instructions being no defense to the employer. Conversely, failure to instruct or supervise an employee does not impose liability upon the employer if, in fact, the employee was guilty of no negligence in the performance of his work. In such event, the omission of instructions or supervision, assuming a duty to supply them, would not be a proximate cause of the injury.\nId. (citations omitted). Accordingly, plaintiff\u2019s claims based on respondeat superior and negligent failure to supervise must fall because she has failed to establish a genuine issue of material fact as to her claims against defendant Price. The trial court did not err in granting summary judgment for defendants.\nThe judgment below is\nAffirmed.\nJudges JOHNSON and LEWIS concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Herman L. Stephens and Howard C. Jones II for plaintiff appellant.", "Elrod & Lawing, P.A., hy Rachel B. Hall and Pamela A. Robertson, for defendant appellees." ], "corrections": "", "head_matter": "DONNA C. REICH v. MICHAEL R. PRICE and SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY\nNo. 9121SC954\n(Filed 18 May 1993)\n1. Professions and Occupations \u00a7 1 (NCI3d)\u2014 elements of professional malpractice\nIn order to assert a professional malpractice claim, plaintiff must establish (1) the nature of defendant\u2019s profession, (2) defendant\u2019s duty to conform to a certain standard of conduct, and (3) that breach of the duty proximately caused injury to her.\nAm Jur 2d, Negligence \u00a7\u00a7 78, 91, 190, 434.\n2. Professions and Occupations \u00a7 1 (NCI3d)\u2014 director of Employee Assistance Program \u2014professional malpractice \u2014insufficient forecast of evidence\nSummary judgment was properly entered for defendant on plaintiff\u2019s claim for professional malpractice where plaintiff\u2019s forecast of evidence tended to show that defendant was the director of her employer\u2019s Employee Assistance Program, that she consulted with defendant about her marital difficulties and was told to continue seeing her psychiatrist, that plaintiff later met with defendant in his hotel room to discuss prevention of the termination of her employment for suddenly leaving her job without permission, that while in the hotel defendant and plaintiff consumed alcohol, cocaine and marijuana and engaged' in sexual intercourse twice, and that defendant was certified as an Employee Assistance Professional, but plaintiff failed to present evidence sufficient to establish the nature of defendant\u2019s \u201cprofession,\u201d the legal duty owed by defendant to plaintiff, and the standard of care to be observed by defendant.\nAm Jur 2d, Negligence \u00a7\u00a7 78, 91, 190, 199, 203, 434; Summary Judgment \u00a7 29.\n3. Trespass \u00a7 2 (NCI3d)\u2014 intentional infliction of emotional distress \u2014insufficient forecast of evidence\nPlaintiffs forecast of evidence was insufficient to establish a genuine issue of material fact as to her claim against defendant for intentional infliction of emotional distress where plaintiff presented evidence that defendant, the director of her employer\u2019s Employee Assistance Program, consumed alcohol and drugs with plaintiff and engaged in sexual intercourse with her while she was consulting defendant about marital and employment difficulties; defendant knew plaintiff was seeing a psychiatrist; and after the encounter with defendant, plaintiff twice attempted suicide. The alleged conduct by defendant was not so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.\nAm Jur 2d, Fright, Shock, and Mental Disturbance \u00a7 44.5.\n4. Labor and Employment \u00a7 225 (NCI4th)\u2014 summary judgment for employee \u2014 respondeat superior and negligent supervision inapplicable\nDefendant employer cannot be held liable for its employee\u2019s actions on the basis of respondeat superior or negligent supervision where plaintiff failed to establish a genuine issue of material fact as to her claims against the employee.\nAm Jur 2d, Master and Servant \u00a7 406.\nAppeal by plaintiff from order entered 11 February 1991 by Judge William H. Freeman in Forsyth County Superior Court. Heard in the Court of Appeals 13 October 1992.\nHerman L. Stephens and Howard C. Jones II for plaintiff appellant.\nElrod & Lawing, P.A., hy Rachel B. Hall and Pamela A. Robertson, for defendant appellees." }, "file_name": "0255-01", "first_page_order": 285, "last_page_order": 291 }