{ "id": 8522649, "name": "HERMAN BEST v. DUKE UNIVERSITY, trading and doing business as DUKE UNIVERSITY HOSPITAL and DUKE MEDICAL CENTER", "name_abbreviation": "Best v. Duke University", "decision_date": "1993-11-16", "docket_number": "No. 9214SC1016", "first_page": "548", "last_page": "557", "citations": [ { "type": "official", "cite": "112 N.C. App. 548" } ], "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": "412 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521997 ], "year": 1992, "pin_cites": [ { "page": "202-03" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0198-01" ] }, { "cite": "417 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502432 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0743-01" ] }, { "cite": "407 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553572, 2553804, 2555695, 2556400, 2555318 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0496-01", "/nc/329/0496-03", "/nc/329/0496-04", "/nc/329/0496-02", "/nc/329/0496-05" ] }, { "cite": "400 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527942 ], "year": 1991, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0529-01" ] }, { "cite": "332 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690404, 4686826, 4689527, 4687736, 4688381 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0114-05", "/nc/314/0114-02", "/nc/314/0114-04", "/nc/314/0114-03", "/nc/314/0114-01" ] }, { "cite": "327 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "311" }, { "page": "311" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525414 ], "year": 1985, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0672-01" ] }, { "cite": "414 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "331 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499459 ], "year": 1992, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0073-01" ] }, { "cite": "284 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "572" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526621 ], "year": 1981, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0014-01" ] }, { "cite": "399 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497698, 2494955, 2493783 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0644-02", "/nc/327/0644-01", "/nc/327/0644-03" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "364 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "449", "parenthetical": "trial court's decision on motion for new trial not reviewable absent manifest abuse of discretion" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358498 ], "year": 1988, "pin_cites": [ { "page": "494", "parenthetical": "trial court's decision on motion for new trial not reviewable absent manifest abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0484-01" ] }, { "cite": "124 S.E. 845", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1924, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "188 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654227 ], "year": 1924, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc/188/0475-01" ] }, { "cite": "346 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358788 ], "year": 1986, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0296-01" ] }, { "cite": "381 A.2d 1146", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1978, "pin_cites": [ { "page": "1150", "parenthetical": "evidentiary effect of nolle prosequi depends on circumstances of entry" } ], "opinion_index": 0 }, { "cite": "281 Md. 689", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2077510 ], "year": 1978, "pin_cites": [ { "page": "695", "parenthetical": "evidentiary effect of nolle prosequi depends on circumstances of entry" } ], "opinion_index": 0, "case_paths": [ "/md/281/0689-01" ] }, { "cite": "249 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "379" }, { "page": "379" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "296 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564665 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "87" }, { "page": "86-87" }, { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0081-01" ] }, { "cite": "387 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "226", "parenthetical": "standards for deciding motion for judgment notwithstanding the verdict same as those for directed verdict" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519755 ], "year": 1990, "pin_cites": [ { "page": "111", "parenthetical": "standards for deciding motion for judgment notwithstanding the verdict same as those for directed verdict" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0110-01" ] }, { "cite": "404 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "181", "parenthetical": "in deciding motion for directed verdict, if non-movant presents substantial evidence, court must deny motion" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 31", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519379 ], "year": 1991, "pin_cites": [ { "page": "34", "parenthetical": "in deciding motion for directed verdict, if non-movant presents substantial evidence, court must deny motion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0031-01" ] }, { "cite": "323 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "312 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757224 ], "year": 1984, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0393-01" ] }, { "cite": "249 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "296 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564665 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc/296/0081-01" ] }, { "cite": "323 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "312 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757224 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/312/0393-01" ] } ], "analysis": { "cardinality": 929, "char_count": 21845, "ocr_confidence": 0.774, "pagerank": { "raw": 2.470624099554717e-07, "percentile": 0.8065004948164931 }, "sha256": "26eeebcf328b168a3a7d8c313b170906d1f0964762abc0e1fff2605c198e3c96", "simhash": "1:2842f4a00655417c", "word_count": 3487 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EAGLES concurs.", "Judge ORR concurs in the result with separate opinion." ], "parties": [ "HERMAN BEST v. DUKE UNIVERSITY, trading and doing business as DUKE UNIVERSITY HOSPITAL and DUKE MEDICAL CENTER" ], "opinions": [ { "text": "GREENE, Judge.\nHerman Best (plaintiff) brought the instant action against Duke University (defendant) and asserted causes of action for malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. At the close of the plaintiff\u2019s evidence, defendant moved for directed verdict as to all of plaintiff\u2019s claims. The motions were granted for intentional infliction of emotional distress and punitive damages. The claims for malicious prosecution and negligent infliction of emotional distress were submitted to the jury which rendered a verdict against defendant on both claims. On 28 February 1992, the jury awarded plaintiff $40,000 in damages for malicious prosecution and $60,000 in damages for negligent infliction of emotional distress. On 9 March 1992, defendant filed motions for judgment notwithstanding the verdict and new trial. The trial court denied defendant\u2019s motions as to the malicious prosecution claim and granted defendant\u2019s motion for judgment notwithstanding the verdict as to negligent infliction of emotional distress. The court additionally ruled that if its granting of defendant\u2019s motion for judgment notwithstanding the verdict was overturned on appeal, defendant would be entitled to a new trial. Defendant appeals from the trial court\u2019s denial of defendant\u2019s motions as to the malicious prosecution claim. Plaintiff appeals from the trial court\u2019s granting of defendant\u2019s motions as to the remaining three claims.\nThe evidence in the light most favorable to the plaintiff is as follows: Around 3:00 or 3:30 a.m. on 26 August 1989, plaintiff was having trouble sleeping and decided to go get something to eat. While out, he decided to take his patio furniture, three chairs and a table all blue in color, which he had promised to give to a friend.\nOn the way to his friend\u2019s house around 4:30 or 5:00 a.m., plaintiff, realizing he was going in the wrong direction, took a right onto Faculty Club Drive, pulled into a gravel parking lot, and turned around. Plaintiff had his lights on the entire time, and the maneuver took less than a minute. As plaintiff was about to pull onto Science Drive, he noticed a blue car which passed by slowly with the brake lights shining and the driver looking at plaintiff. Plaintiff was suspicious of the car because it did not have North Carolina tags and turned in the opposite direction the car was heading. Plaintiff, hoping to find some people, drove to the Washington Duke Hotel. Seeing no one, plaintiff started to leave when he noticed the blue car pulled at an angle across Science Drive in front of him. A man wearing a dark blazer, a dark pair of pants, and a dress shirt was standing outside the car and waving his arms. Plaintiff was scared and drove by the car and continued onto Highway 751. The car, flashing its headlights, followed plaintiff onto 751 and then onto Erwin Road. The car pulled up beside plaintiff, and the driver rolled down his passenger window and showed plaintiff what appeared to be a badge. Plaintiff then saw a Durham police car approaching and pulled over.\nThe blue car and the police car pulled in behind plaintiff, and Detective McDonald Vick (Vick), the man driving the blue car, approached plaintiff\u2019s car and asked plaintiff what he was doing out at such a late hour. Plaintiff explained that he was taking furniture to a friend\u2019s house. When asked if he had stolen the furniture, he replied no, that it was his.\nAt this point, Officer Steven Russell (Russell) of Duke Public Safety arrived and after speaking with Vick, questioned plaintiff. With a flashlight, Russell looked at the furniture through the windows of plaintiffs car and checked it for Duke University ID stickers. Russell sent another officer, Officer Schwab (Schwab), to check the Duke University Faculty Club to see if any furniture was missing. While Schwab was checking the Faculty Club, the plaintiff and Russell discovered they knew each other since Russell occasionally patrols the emergency room at Duke Hospital where plaintiff worked. After they carried on a twenty-five to thirty minute conversation, Schwab returned and said he did not see anything missing from the Faculty Club. The officers told plaintiff he was free to go. Plaintiff then went to his friend\u2019s house and assembled the furniture.\nUpon returning to work at 7:00 p.m. on 26 August 1989, Russell read a larceny report from Duke Faculty Club. The report described the stolen property as two tables and seven chairs, all gray in color, and did not say anything as to style, design, or construction. After reading the report, Russell, without any further investigation, obtained from the magistrate warrants against plaintiff for felony larceny and second-degree trespass. Russell and Schwab, one of them wearing a gun, went to plaintiff\u2019s place of employment, Duke University Medical Center, and arrested plaintiff. Russell asked plaintiff if he needed to get anything before they left, and plaintiff said yes. The officers followed plaintiff through his work area as he went to get his belongings. The officers then led him out a service door past several co-workers and handcuffed him in view of the co-workers and put him in a Duke Public Safety car. Plaintiff testified he was stunned, embarrassed, and very humiliated.\nAs a result of his arrest, plaintiff was suspended without pay and eventually fired. Plaintiff testified that he was overwhelmed by the course of events and that it was the worst thing that ever happened to him. Plaintiff eventually contacted and began treatment with Dr. Carolyn Burgess (Burgess), a psychologist. Burgess testified that plaintiff had multiple things happening to him which caused him anguish and depression. The worst occurrence was being arrested and losing his job because the experience destroyed his self-esteem. She testified he experienced helplessness and despair and was experiencing \u201cdwindle,\u201d which was defined as experiencing the maximum amount of stress. Because he could no longer afford treatment, plaintiff only visited Burgess six times, even though Burgess felt he needed extended treatment.\nPlaintiff pled not guilty to both charges at his criminal trial. The State took a voluntary dismissal as to the trespass charge \u201cat the close of the State\u2019s evidence.\u201d Plaintiff was found not guilty as to the larceny charge.\nThe issues presented are whether the trial court erred in: (I) denying defendant\u2019s motions for directed verdict, judgment notwithstanding the verdict, and new trial as to malicious prosecution; (II) granting defendant\u2019s motion for judgment notwithstanding the verdict as to the claim of negligent infliction of emotional distress and directing that if the judgment notwithstanding the verdict is reversed on appeal, then defendant shall receive a new trial; (III) granting defendant\u2019s motion for directed verdict as to the claim of intentional infliction of emotional distress; and (IV) granting defendant\u2019s motion for directed verdict as to the claim of punitive damages.\nI\nMalicious Prosecution\nDefendant contends that it was error for the trial court to deny its motions for directed verdict, judgment notwithstanding the verdict, and new trial as to the issue of malicious prosecution because there was not sufficient evidence of lack of probable cause and malice. We disagree.\nIn a malicious prosecution claim, the plaintiff must show: (1) initiation by the defendant of an earlier proceeding; (2) lack of probable cause for such initiation; (3) malice, either actual or implied; (4) termination of the earlier proceeding in favor of the plaintiff. Jones v. Gwynne, 312 N.C. 393, 397, 323 S.E.2d 9, 11 (1984). In the instant case, the existence of the first and fourth elements is undisputed; therefore, the question is whether there was substantial evidence of malice and lack of probable cause presented at trial. See Hines v. Arnold, 103 N.C. App. 31, 34, 404 S.E.2d 179, 181 (1991) (in deciding motion for directed verdict, if non-movant presents substantial evidence, court must deny motion). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.; see Moon v. Bostian Heights Volunteer Fire Dept., 97 N.C. App. 110, 111, 387 S.E.2d 225, 226 (1990) (standards for deciding motion for judgment notwithstanding the verdict same as those for directed verdict).\nProbable cause is defined \u201cas the existence of such facts and circumstances, known to him at the time, as would induce a reasonable man to commence a prosecution.\u201d Pitts v. Village Inn Pizza, Inc., 296 N.C. 81, 87, 249 S.E.2d 375, 379 (1978). A plaintiff makes a prima facie showing of the absence of probable cause by evidence of a voluntary dismissal of the prosecution by the State with no reason assigned for the dismissal. Id.; but see W. Page Keeton et al, Prosser & Keeton on the Law of Torts \u00a7 119, at 881 (5th ed. 1984) (usually, abandonment by public prosecutor is not, standing alone, prima facie evidence that probable cause is lacking). In determining the effect of a voluntary dismissal by the State, the reasons for the entry of dismissal should be taken into account. See Exxon Corp. v. Kelly, 281 Md. 689, 695, 381 A.2d 1146, 1150 (1978) (evidentiary effect of nolle prosequi depends on circumstances of entry).\nAt plaintiff\u2019s criminal trial, the State voluntarily dismissed the trespass charge, and the jury returned a verdict of not guilty on the larceny charge. Looking at the evidence in the light most favorable to plaintiff, Hitchcock v. Cullerton, 82 N.C. App. 296, 297, 346 S.E.2d 215, 217 (1986), the reason for the State\u2019s dismissal of the trespass charge was never established. Consequently, the voluntary dismissal of the trespass charge is prima facie evidence of the absence of probable cause under Pitt, and a reasonable mind might accept this dismissal as adequate to support a conclusion of lack of probable cause.\nPlaintiff must also show substantial evidence of either express or implied malice, Pitts, 296 N.C. at 86-87, 249 S.E.2d at 379, which is defined as a wrongful act intentionally done. Stancill v. Underwood, 188 N.C. 475, 478, 124 S.E. 845, 847 (1924). Malice may be inferred from proof that defendant lacked probable cause in initiating the proceedings. Pitts, 296 N.C. at 86-87, 249 S.E.2d at 379. Since a reasonable mind might infer malice from the lack of probable cause evidenced by the dismissal of the trespass charge, the trial court properly denied the motions for directed verdict and judgment notwithstanding the verdict. Additionally, there was no abuse of discretion by the trial court in denying the motion for new trial. Blow v. Shaughnessy, 88 N.C. App. 484, 494, 364 S.E.2d 444, 449 (1988) (trial court\u2019s decision on motion for new trial not reviewable absent manifest abuse of discretion).\nII\nNegligent Infliction of Emotional Distress\nPlaintiff contends that it was error for the trial court to grant defendant\u2019s motion for judgment notwithstanding the verdict on the issue of negligent infliction of emotional distress and in directing that if the judgment notwithstanding the verdict is reversed on appeal then defendant shall receive, a new trial. We disagree.\nTo survive a motion for directed verdict on a claim for negligent infliction of emotional distress, the plaintiff must show evidence a reasonable mind might accept as adequate to support a finding of each of the following: (1) the defendant negligently engaged in conduct; (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress; and (3) the conduct did in fact cause the plaintiff severe emotional distress. Johnson v. Ruark Obstetrics & Gynecology Assoc., 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990). For a law enforcement officer to be held negligent, the standard is that care a reasonable and prudent person in the discharge of official duties of a like nature under like circumstances should exercise. State v. Flaherty, 55 N.C. App. 14, 23, 284 S.E.2d 565, 572 (1981).\nThe uncontroverted evidence is that in the early morning hours of 26 August 1989, Vick noticed plaintiff driving in the vicinity of the Faculty Club and the Washington-Duke Hotel. Vick attempted to stop plaintiff; however, he drove by Vick who pursued him. Plaintiff stopped after Vick flashed what appeared to be a badge and the Durham Police had arrived. The officers, including Russell, noticed patio furniture in plaintiff\u2019s car. Plaintiff was allowed to leave when it could not be determined that any furniture had been taken from the Faculty Club.\nLater that evening, Russell learned that patio furniture was missing from the Faculty Club. Subsequently, Russell obtained a warrant from a magistrate based on Vick\u2019s report placing plaintiff in the area of the Faculty Club around 4:30 or 5:00 a.m. and Russell\u2019s personal observation in plaintiff\u2019s car of furniture similar to the property described as stolen from the Faculty Club on 26 August 1989. Russell and another officer, one of them wearing a gun, went to plaintiff\u2019s place of employm\u00e9nt and arrested him. Although Russell testified that \u201cit\u2019s in the officer\u2019s discretion\u201d whether to handcuff someone when making an arrest and although Russell knew plaintiff and knew where he worked, Russell handcuffed plaintiff and put him in the back seat of a Duke Public Safety Car while some of plaintiff\u2019s co-workers looked on. Plaintiff underwent treatment with a psychologist who testified that plaintiff\u2019s experiences with the course of events left him with feelings of depression, anguish, and despair.\nThe facts in this case do not present evidence from which a reasonable mind might conclude Russell conducted himself differently than a reasonable person in the discharge of official duties of a like nature under like circumstances. Because plaintiff failed to present substantial evidence of negligent conduct, the first element of his claim for negligent infliction of emotional distress, we hold that the trial court did not err in granting defendant\u2019s motion for judgment notwithstanding the verdict. Therefore, it is unnecessary to address the trial court\u2019s order that if the judgment notwithstanding the verdict is reversed on appeal, defendant shall receive a new trial.\nIll\nIntentional Infliction of Emotional Distress\nPlaintiff further contends that a reasonable mind might find plaintiff\u2019s evidence adequate to support a conclusion of intentional infliction of emotional distress. We disagree.\nIn order to survive a directed verdict motion for intentional infliction of emotional distress, the plaintiff must show substantial evidence of (1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress to the plaintiff. Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992). Whether or not conduct may reasonably be regarded as extreme and outrageous is initially a question of law for the court. Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985).\nIn order for conduct to give rise to liability for intentional infliction of emotional distress, it must be \u201cso 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.\u201d Id. at 677, 327 S.E.2d at 311; Restatement (Second) of Torts \u00a7 46 cmt. d (1989). We hold, after reviewing the officers\u2019 conduct in stopping and later arresting plaintiff, that such conduct may not be reasonably regarded as extreme or outrageous. Furthermore, there was no evidence that the officers intended to cause the plaintiff severe emotional distress. Therefore, it was not error to grant defendant\u2019s motion for directed verdict.\nIV\nPunitive Damages\nPlaintiff\u2019s final contention is that it was error for the trial court to grant defendant\u2019s directed verdict motion as to punitive damages because plaintiff presented substantial evidence on that issue. We disagree.\nTo be entitled to punitive damages, plaintiff, beyond establishing cause of action, must also show that a reasonable mind might find evidence adequate to support a conclusion of aggravating circumstances such as malicious, wanton, and reckless injury. Hawkins v. Hawkins, 101 N.C. App. 529, 534, 400 S.E.2d 472, 475, disc. rev. allowed, 329 N.C. 496, 407 S.E.2d 533 (1991), ap\u2019d, 331 N.C. 743, 417 S.E.2d 447 (1992). In order to recover punitive damages in a malicious prosecution case, the plaintiff must show he was wrongfully prosecuted from actual malice, defined as \u201cill-will, spite, or desire for revenge, or under circumstances of insult, rudeness or oppression, or in a manner evidencing a reckless and wanton disregard of plaintiff\u2019s rights.\u201d Williams v. Kuppenheimer Mfg. Co., 105 N.C. App. 198, 202-03, 412 S.E.2d 897, 901 (1992). A reasonable mind would not accept the evidence as adequate to show that the officers\u2019 conduct amounted to the actual malice necessary to sustain a claim for punitive damages. Therefore, the trial court did not err in granting defendant\u2019s motion for directed verdict as to the issue of punitive damages.\nNo error.\nJudge EAGLES concurs.\nJudge ORR concurs in the result with separate opinion.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge ORR\nconcurring in the result only.\nI am compelled by the referenced precedent in this case to concur in the result affirming the trial court\u2019s denial of defendant\u2019s motion .for a directed verdict on the issue of malicious prosecution. As I understand the cited authority, a malicious prosecution case is jury bound by introduction of evidence that an unexplained dismissal was taken in a criminal prosecution. The dismissal operates as a \u201cfavorable termination\u201d of the action for a plaintiff. Jones v. Gwynne, 312 N.C. 393, 323 S.E.2d 9 (1984). \u201cLack of probable cause\u201d is prima facie established thereafter by the voluntary dismissal without explanation. Pitts v. Village Inn Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978). Next, \u201cmalice\u201d may be inferred from proof that the defendant lacked probable cause in initiating the proceedings. Pitts, supra.\nTherefore, such a \u201cbootstrap\u201d process means that every dismissal of a criminal action without explanation opens the door to a malicious prosecution case and gets the case to the jury on the mere fact that a dismissal without explanation has taken place. That appears to be the law as it now stands, but the implication of such a standard in light of our overcrowded criminal dockets should prompt a reconsideration of this question.", "type": "concurrence", "author": "Judge ORR" } ], "attorneys": [ "Robert R. Seidel and R. Marie Sides for plaintiff-appellant/appellee.", "Patterson, Dilthey, Clay & Bryson, by Robert M. Clay, and Cranfill, Sumner & Hartzog, by Theodore B. Smyth and Kari Lynn Russwurm, for defendant-appellee/appellant." ], "corrections": "", "head_matter": "HERMAN BEST v. DUKE UNIVERSITY, trading and doing business as DUKE UNIVERSITY HOSPITAL and DUKE MEDICAL CENTER\nNo. 9214SC1016\n(Filed 16 November 1993)\n1. Malicious Prosecution \u00a7 17 (NCI4th)\u2014 earlier trespass charge voluntarily dismissed by State \u2014 lack of probable cause \u2014 inference of malice \u2014directed verdict and judgment n.o.v. properly denied\nIn a malicious prosecution action where the State had earlier voluntarily dismissed a trespass charge against plaintiff and the jury had returned a verdict of not guilty on the larceny charge, the trial court properly denied defendant\u2019s motions for directed verdict and judgment n.o.v. and did not abuse its discretion in denying defendant\u2019s motion for new trial, since a reasonable mind might infer malice from the lack of probable cause evidenced by the dismissal of the trespass charge.\nAm Jur 2d, Malicious Prosecution \u00a7\u00a7 139-190.\n2. Negligence \u00a7 6 (NCI4th)\u2014 officers\u2019 stop and subsequent arrest of plaintiff \u2014 no negligent infliction of emotional distress\nThe trial court did not err in granting defendant\u2019s motion for judgment n.o.v. on the issue of negligent infliction of emotional distress, since the facts in this case did not present evidence from which a reasonable mind might conclude that a Duke Public Safety officer who arrested plaintiff conducted himself differently from a reasonable person in the discharge of official duties of a like nature under like circumstances, and plaintiff thus failed to present substantial evidence of negligent conduct, the first element of his claim for negligent infliction of emotional distress.\nAm Jur 2d, Fright, Shock, and Mental Disturbance \u00a7 2.\n3. Trespass \u00a7 2 (NCI3d) \u2014 officers\u2019 stop and subsequent arrest of plaintiff \u2014 no intentional infliction of emotional distress\nThe trial court did not err in directing verdict for defendant in plaintiff\u2019s action for intentional infliction of emotional distress, since the officers\u2019 conduct in stopping and later arresting plaintiff could not reasonably be regarded as extreme or outrageous, and there was no evidence that the officers intended to cause plaintiff severe emotional distress.\nAm Jur 2d, Fright, Shock, and Mental Disturbance \u00a7 2.\n4. Damages \u00a7 127 (NCI4th)\u2014 officers\u2019 stop and subsequent arrest of plaintiff \u2014 no evidence of malice \u2014 directed verdict on punitive damages claim proper\nThe trial court did not err in granting defendant\u2019s motion for directed verdict on the issue of punitive damages where a reasonable mind would not accept the evidence as adequate to show that the officers\u2019 conduct in stopping and later arresting plaintiff amounted to the actual malice necessary to sustain a claim for punitive damages.\nAm Jur 2d, Damages \u00a7 731 et seq.\nJudge ORR concurring in the result only.\nAppeal by plaintiff and defendant from judgment entered 22 May 1992 in Durham County Superior Court by Judge A. Leon Stanback, Jr. Heard in the Court of Appeals 17 September 1993.\nRobert R. Seidel and R. Marie Sides for plaintiff-appellant/appellee.\nPatterson, Dilthey, Clay & Bryson, by Robert M. Clay, and Cranfill, Sumner & Hartzog, by Theodore B. Smyth and Kari Lynn Russwurm, for defendant-appellee/appellant." }, "file_name": "0548-01", "first_page_order": 578, "last_page_order": 587 }