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  "name": "NEAL MILLER, Plaintiff v. B.H.B. ENTERPRISES, INC., d/b/a VINNIE'S SARDINE GRILLE & RAW BAR, Defendant",
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    "judges": [
      "Judge THOMAS concurs.",
      "Judge TYSON concurs in part and dissents in part."
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    "parties": [
      "NEAL MILLER, Plaintiff v. B.H.B. ENTERPRISES, INC., d/b/a VINNIE\u2019S SARDINE GRILLE & RAW BAR, Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nPlaintiff, Neal Miller, brought this action seeking compensatory and punitive damages from defendant, B.H.B. Enterprises, Inc., d/b/a Vinnie\u2019s Sardine Grille & Raw Bar, for injuries sustained when plaintiff was allegedly assaulted on defendant\u2019s premises. Plaintiff alleged, inter alia, that defendant was negligent in failing to maintain its premises in a reasonably safe condition, in placing him in a dangerous situation, and in failing to intervene when he was assaulted by a third person. In its answer, defendant denied any negligence on its part and alleged, as defenses, plaintiffs contributory negligence and the intervening criminal act of a third party.\nSummarized only to the extent necessary to an understanding of the issues raised on appeal, the evidence at trial tended to show that on the evening of 18 April 1998, plaintiff, while a patron at defendant\u2019s restaurant, consumed a quantity of alcohol and became intoxicated. Jeff Beers (\u201cBeers\u201d) was also a patron \u00e1t the restaurant that evening. Beers was employed by defendant as a bouncer, but was not on duty on the evening in question. Beers also consumed alcohol and became intoxicated. During the course of the evening, plaintiff apparently became disruptive and attracted the attention of Beers. Wendy Sturges, another patron at the restaurant who didn\u2019t know plaintiff or Beers, testified that at approximately 2:00 a.m. on 19 April, she saw plaintiff fall down at the bar and then saw two of defendant\u2019s on-duty bouncers take plaintiff by his arms and lead him to the entrance. As they approached the door Ms. Sturges testified that she saw plaintiff fall again, as though he had been tripped. Plaintiff staggered to his feet and went outside, accompanied by the two bouncers and defendant\u2019s manager, Radford Bennett. At that point, Ms. Sturges testified that Beers jumped over a rope at the building\u2019s entrance and began beating plaintiff with his fists. Plaintiff fell to the ground and Beers began kicking him. Neither Bennett nor either of defendant\u2019s bouncers intervened to stop the attack. Plaintiff was rendered briefly unconscious. He was transported by ambulance to the hospital, where he received approximately 15 stitches to his head and face. Plaintiff, who testified that he had no recollection of the events that occurred outside of the restaurant, sustained permanent scars to his face.\nRadford Bennett testified that he was the manager of defendant\u2019s restaurant and that he hired the restaurant\u2019s employees. He instructed the two bouncers to remove plaintiff from the restaurant because it had been reported to him by a female bartender that plaintiff was grabbing women and \u201chorsing around.\u201d He knew that the female bartender had a dating relationship with Beers. He followed the bouncers as they led plaintiff to the door. He saw Beers come out the door and he and the two bouncers watched as Beers beat and kicked plaintiff. Bennett testified that Beers had worked at the restaurant the previous night as a bouncer and was scheduled to work on the evening in question, but that when he came to work, he told Bennett that he wanted to drink there that night rather than work.\nThe following issues were submitted to, and answered by, the jury:\n1) Was the Plaintiff injured by the negligence of the defendant?\nANSWER: Yes\n2) Did the plaintiff, by his own negligence, contribute to his injury?\nANSWER: Yes\n3) Did the defendant have the last clear chance to avoid the plaintiff\u2019s injury?\nANSWER: Yes\n4) What amount is the plaintiff entitled to recover for personal injury?\nANSWER: $5.320.00\n5) Was the plaintiff injured by the willful or wanton conduct of the defendant?\nANSWER: Yes\n6) What amount of punitive damages, if any, does the jury in its discretion award to the plaintiff?\nANSWER: $15.760.00\nDefendant appeals from the judgment entered upon the verdict.\nDefendant\u2019s counsel has ignored the requirement of N.C.R. App. P. 28(b)(6) that, in an appellant\u2019s brief, \u201c[i]mmediately following each question shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal.\u201d The Rules of Appellate Procedure are designed to expedite appellate review and defendant\u2019s failure to observe the requirements of the Rules subjects its appeal to dismissal. See Bowen v. N.C. Dept. of Health & Human Services, 135 N.C. App. 122, 519 S.E.2d 60 (1999); N.C.R. App. P. 25(b), 34(b)(1). Nevertheless, exercising the discretion granted us by N.C.R. App. P. 2, we will consider defendant\u2019s arguments.\nI.\nDefendant assigns error to the admission of testimony by Wendy Sturges that, in her opinion, Beers was intoxicated. Defendant argues plaintiff failed to establish any basis for her opinion.\nG.S. \u00a7 8C-1, Rule 701 provides that a non-expert may testify and provide opinions or inferences \u201cwhich are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2001). \u201cIf based on first-hand knowledge and helpful to the jury, this rule permits lay opinions regarding a [person\u2019s] . . . intoxication . . . .\u201d State v. Dukes, 110 N.C. App. 695, 706, 431 S.E.2d 209, 215-16 (1993) (citing State v. Adkerson, 90 N.C. App. 333, 368 S.E.2d 434 (1988)).\nSturges testified that she was present at defendant\u2019s restaurant from 11:30 p.m. until 2:00 a.m.; that she observed Beers during the entire time she was there; that he was talking loudly, and acting boisterously and obnoxiously; and that, in her opinion, he was intoxicated. Her testimony was clearly based upon first-hand knowledge from personal observation. The testimony was also relevant and helpful to the jury since the issue of Beers\u2019 intoxication was an important issue of fact in light of plaintiffs contention that defendant continued to serve Beers alcohol after he had become intoxicated, and that defendant\u2019s manager then stood by and watched as Beers beat and kicked plaintiff after the manager had ejected plaintiff from the restaurant. This assignment of error is overruled.\nII.\nBy separate assignments of error, defendant contends the trial court erred by denying its motions for directed verdict on the issues of punitive damages, negligence, and intervening criminal act of a third party. We will consider the arguments in the order in which they are presented in defendant\u2019s brief.\nA motion for directed verdict \u201ctests the legal sufficiency of the evidence, considered in the light most favorable to the nonmovant, to take the case to the jury.\u201d Northern Nat\u2019l Life Ins. v. Miller Machine Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984). If the evidence is insufficient to support a verdict in the nonmovant\u2019s favor, the motion should be granted. Stanfield v. Tilghman, 342 N.C. 389, 464 S.E.2d 294 (1995). If the trial court finds there is more than a scintilla of evidence supporting plaintiff\u2019s claim, the motion for directed verdict should be denied. Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554, disc. review denied, 351 N.C. 104, 541 S.E.2d 146 (1999). Only in exceptional cases is it appropriate to render a directed verdict against a plaintiff in a negligence claim. Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987). The sufficiency of the evidence to withstand a motion for directed verdict or judgment notwithstanding the verdict presents an issue of law. In re Will of Buck, 350 N.C. 621, 516 S.E.2d 858 (1999).\nA. Punitive Damages\nDefendant contends the trial court erred in failing to grant its motion for directed verdict as to punitive damages on two grounds: (1) there was insufficient evidence that defendant\u2019s employees acted willfully and wantonly because there was no evidence that the employees could have prevented plaintiff\u2019s injuries; and (2) there was no evidence that an officer, manager, or director of defendant participated in or condoned Beers\u2019 actions. We address each argument in turn.\nG.S. \u00a7 ID-15 provides:\n(a) Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:\n(1) Fraud.\n(2) Malice.\n(3) Willful or wanton conduct.\n(b) The claimant must prove the existence of an aggravating factor by clear and convincing evidence.\nN.C. Gen. Stat. \u00a7 ID-15 (2002).\nDefendant argues that plaintiffs position that its employees acted willfully and wantonly by failing to intercede must fail because there is no evidence that defendant\u2019s employees could have prevented plaintiff\u2019s injuries. However, in order to prove that conduct is willful or wanton within the meaning of G.S. \u00a7 ID-15, plaintiff need only show that defendant acted with \u201cconscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.\u201d N.C. Gen. Stat. \u00a7 lD-5(7).\nHere, plaintiff presented Ms. Sturges\u2019 testimony that Bennett and two of defendant\u2019s bouncers who were working that evening witnessed the \u201cbrutal attack\u201d on plaintiff. Ms. Sturges testified that Bennett and the bouncers were standing \u201cright there\u201d and were \u201cvery close\u201d as Beers began hitting plaintiff, who then fell to the ground, and repeatedly kicked plaintiff. Ms. Sturges testified that despite defendant\u2019s employees having more than one opportunity to intervene and protect plaintiff, who was \u201cnot moving\u201d and \u201clooked like he was dead,\u201d from Beers\u2019 blows, Bennett and the bouncers simply watched.\nMs. Sturges\u2019 testimony was corroborated by Bennett\u2019s, who conceded that he and the two bouncers who escorted plaintiff from the bar witnessed the beating and were standing \u201cright there\u201d when Beers came out and began hitting plaintiff, who then fell to the ground. Bennett testified that plaintiff was not able to protect himself after the first punch was thrown by Beers, and that Beers continued to kick plaintiff \u201c[m]ore than once\u201d while plaintiff was laying on the ground unable to help himself. Bennett admitted that neither he nor the bouncers did anything to help plaintiff, reasoning only that there was not enough time to do so. However, even under Bennett\u2019s estimation that one-half of a minute passed from the time Beers first punched plaintiff until he was finished with the beating, such evidence, considered under the standard for a directed verdict, is sufficient to support the trial court\u2019s denial of defendant\u2019s motion, particularly given the testimony that Bennett and the bouncers were standing \u201cright there\u201d and \u201cvery close\u201d to plaintiff for the half-minute that he was being beaten.\nMoreover, Bennett, as the bouncers\u2019 superior, had the authority to instruct them to intervene on plaintiff\u2019s behalf. Indeed, Bennett acknowledged that defendant employs bouncers to assist in dealing with people who \u201ccan\u2019t handle their alcohol;\u201d because some patrons \u201cget drunk and like to fight;\u201d and because bouncers can \u201cseparate\u201d drunk and belligerent patrons from others. Bennett\u2019s testimony establishes that part of the bouncers\u2019 duties as employees of defendant was to prevent fighting. Moreover, Bennett testified that the bouncers who witnessed plaintiff being beaten were \u201cbig dudes\u201d who were so strong that plaintiff would not have been able to struggle while being escorted from the bar even if he had wanted to. Taken in the light most favorable to plaintiff, the evidence sufficiently established that defendant\u2019s employees acted with \u201cconscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.\u201d N.C. Gen. Stat. \u00a7 lD-5(7).\nWe also reject defendant\u2019s argument that plaintiff failed to present sufficient evidence that an officer, director, or manager of defendant participated in or condoned the attack on plaintiff. Under G.S. \u00a7 1D-I5(c), punitive damages may not be assessed against a corporation unless \u201cthe officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.\u201d N.C. Gen. Stat. \u00a7 1D-I5(c). As the legislature has not seen fit to define the word \u201cmanager\u201d in this context, we must accord that word its plain meaning. See Grant Const. Co. v. McRae, 146 N.C. App. 370, 376, 553 S.E.2d 89, 93 (2001) (if word not defined in statute, courts must accord word plain meaning and refrain from judicial construction). A \u201cmanager\u201d is one who \u201cconducts, directs, or supervises something.\u201d Webster\u2019s Third New International Dictionary 1372 (1968). The record contains ample evidence that Bennett was a \u201cmanager\u201d of defendant.\nBennett testified in his deposition that he was hired by defendant for the purpose of opening the restaurant at issue in Matthews, North Carolina. He stated that he was the one who \u201cactually went in and opened up that whole establishment.\u201d He further stated that he worked \u201chand-in-hand\u201d with Britton McCorkle, defendant\u2019s owner, to open up the restaurant in Matthews. McCorkle testified that he is one of three shareholders of defendant, but that he is the \u201coperating partner\u201d of the business. Bennett testified that he worked \u201cdirectly under\u201d McCorkle. Bennett stated that once he and McCorkle opened the restaurant, he assumed control of its daily operations, including all hiring and managing of the employees necessary to run the restaurant, all training (including the training of all managers and other \u201ccertified trainers\u201d at the restaurant), and all of the ordering necessary to run the restaurant, including all food and service ware. Bennett had his own assistant to help him with running the restaurant, who performed such duties as conducting all first interviews with potential hires, with Bennett interviewing only those who had successful first interviews. Clearly, the evidence is sufficient to establish that Bennett handled, controlled, and directed defendant\u2019s operation of the restaurant.\nMoreover, the evidence, taken in the light most favorable to plaintiff, was sufficient to show that Bennett condoned the attack on plaintiff. The plain meaning of \u201ccondone\u201d is to \u201cforgive or overlook,\u201d The Oxford American Dictionary 197 (1999), or \u201cpermit the continuance of.\u201d Webster\u2019s Third New International Dictionary 473 (1968). As set forth above, the evidence established that Bennett and two bouncers stood \u201cright there\u201d while plaintiff, who was rendered helpless after the first blow, was repeatedly kicked, and that Bennett failed to intervene himself or direct his employees to intervene, despite acknowledging that it was the bouncers\u2019 job to prevent fights involving drunk patrons. This assignment of error is overruled.\nB. Negligence\nIn support of its contention that it was entitled to a directed verdict on the issue of negligence, defendant argues the evidence was not sufficient to show any breach of duty on its part in failing to protect plaintiff from the assault by a third party, Beers, or that any measures which it could have taken would have prevented plaintiffs injury because the attack by Beers was not foreseeable. We disagree.\nWhile a possessor of land is not ordinarily liable for injuries to lawful visitors to the premises which are caused by the intentional criminal acts of third persons, \u201ca proprietor of a public business establishment has a duty to exercise reasonable or ordinary care to protect his patrons from intentional injuries by third persons, if he has reason to know that such acts are likely to occur. \u201d Murrow v. Daniels, 321 N.C. 494, 500-01, 364 S.E.2d 392, 397 (1988) (emphasis supplied) (citing Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 638-39, 281 S.E.2d 36, 38 (1981) citing with approval Restatement (Second) of Torts \u00a7 344 and comment f (1965) (other citation omitted). Therefore, whether a proprietor has a duty to safeguard his invitees from injuries caused by the criminal acts of third persons is a question of foreseeability. Id. \u201cLiability for injuries may arise from failure of the proprietor to exercise reasonable care to discover that such acts by third persons are occurring, or are likely to occur, coupled with failure to provide reasonable means to protect his patrons from harm or give a warning adequate to enable patrons to avoid harm.\u201d Id. (citations omitted). Further, according to this Court, \u201cevidence pertaining to the foreseeability of criminal attack shall not be limited to prior criminal acts occurring on the premises.\u201d Sawyer v. Carter, 71 N.C. App. 556, 561, 322 S.E.2d 813, 817 (1984), disc. review denied, 313 N.C. 509, 329 S.E.2d 393 (1985).\nAt trial, defendant attempted to characterize the attack upon plaintiff by Beers as a fight between two individuals. However, considered in the light most favorable to plaintiff, the evidence tended to show (1) plaintiff was intoxicated and falling down; (2) Jeff Beers, who was defendant\u2019s off-duty employee and known to defendant\u2019s manager and on-duty bouncers, was intoxicated and had been making fun of plaintiff; (3) as a result of plaintiff\u2019s conduct directed toward the female bartender, defendant\u2019s manager and two of the on-duty bouncers led plaintiff out the front door where plaintiff again fell; (4) plaintiff was left in a perilous position; (5) while the manager and two bouncers watched, Beers came outside and attacked plaintiff; and (6) neither the manager nor either of the bouncers offered any assistance to plaintiff or took any steps to stop the brutal attack. On this evidence, the jury could have reasonably found that it was foreseeable that Beers might assault and injure plaintiff if they left plaintiff outside the restaurant in a perilous position, or did not intervene to stop the beating. The trial court properly denied defendant\u2019s motion for a directed verdict on the issue of negligence.\nC. Intervening Criminal Act of Third Party\nDefendant next contends that Beers\u2019 criminal activity was an intervening cause that relieved defendant from negligence by cutting off the proximate cause flowing from the acts of defendant\u2019s agents. We disagree.\nWith regard to the doctrine of superseding or intervening negligence, our Supreme Court has stated:\n\u201cAn efficient intervening cause is a new proximate cause which breaks the connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote.\u201d\nHairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 236, 311 S.E.2d 559, 566 (1984) (quoting Harton v. Telephone Co., 141 N.C. 455, 462, 54 S.E. 299, 301-02 (1906)).\nAs explained above, defendant, through its manager, had a duty to exercise reasonable care to protect plaintiff from harm under the facts of this case. Defendant\u2019s manager placed plaintiff in a helpless state by removing him from the restaurant and leaving him outside with knowledge that Beers was angry at plaintiff\u2019s conduct with respect to the female bartender and that Beers, an off-duty bouncer at the restaurant, had been at the restaurant for several hours drinking alcohol. Once Beers began beating plaintiff, defendant\u2019s manager knew that physical harm was occurring and did nothing to interrupt, prevent, or intervene in the affray. Therefore, Beers\u2019 actions did not entirely supersede defendant\u2019s negligent conduct. This assignment of error is overruled.\nIII.\nDefendant next contends the trial court erred by deviating from the pattern jury instructions and submitting prejudicial instructions to the jury. Specifically, defendant claims that the trial court\u2019s instructions to the jury \u201cwere prejudicial, contained misstatements of the law and placed an undue and unreasonable legal burden upon the defendant.\u201d We disagree.\nWhen the evidence is reviewed in the light most favorable to plaintiff, sufficient evidence exists to show that defendant\u2019s agents failed to exercise reasonable care to protect plaintiff from Beers. The jury could have found from the evidence that it was foreseeable that Beers would have attacked plaintiff, or that defendant\u2019s agents owed plaintiff a duty to rescue him after they had placed him in a helpless position. Defendant cites no authority or argument to support his proposition that the jury instructions were improper. We have reviewed the instructions, and discern no error. This assignment of error is overruled.\nIV.\nDefendant finally argues the trial court erred by allowing plaintiff to amend his pleadings at the close of his evidence to include the defense of last clear chance where no evidence supported this assertion. Defendant argues that plaintiff \u201cfailed to present any evidence that he put himself in a position of peril or imminent harm.\u201d\nThere is substantial evidence that plaintiff was intoxicated, fell down at least three times, and had no recollection of the events that occurred outside the restaurant. Plaintiff moved to amend his pleadings to include the doctrine of last clear chance. Defendant objected. The trial court allowed the amendment to conform to the evidence presented at trial.\nRule 15(b) of the Rules of Civil Procedure provides in pertinent part that:\nSuch amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment.... If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when . . . the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 15(b) (2001). \u201cLiberal amendment of pleadings is encouraged by the Rules of Civil Procedure in order that decisions be had on the merits and not avoided on the basis of mere technicalities.\u201d Phillips v. Phillips, 46 N.C. App. 558, 560-61, 265 S.E.2d 441, 443 (1980) (citing Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972)); see also Mauney v. Morris, 316 N.C. 67, 340 S.E.2d 397 (1986).\nThe trial judge has broad discretion in ruling on motions to amend pleadings. Auman v. Easter, 36 N.C. App. 551, 244 S.E.2d 728, disc. review denied, 295 N.C. 548, 248 S.E.2d 725 (1978). \u201cThe objecting party has the burden of satisfying the trial court that he would be prejudiced by the granting or denial of a motion to amend. The exercise of the court\u2019s discretion is not reviewable absent a clear showing of abuse thereof.\u201d Watson v. Watson, 49 N.C. App. 58, 60-61, 270 S.E.2d 542, 544 (1980) (citations omitted). Defendant did not argue here or at trial that he was prejudiced by the trial court allowing amendment of the pleadings. We find that plaintiff produced sufficient evidence to support the doctrine of last clear chance. Defendant has failed to carry its burden of showing an abuse of discretion. This assignment of error is overruled.\nThe judgment of the trial court is affirmed.\nAffirmed.\nJudge THOMAS concurs.\nJudge TYSON concurs in part and dissents in part.",
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        "author": "MARTIN, Judge."
      },
      {
        "text": "TYSON, Judge,\nconcurring in part and dissenting in part.\nI concur with parts I, IIB, IIC, III, and IV of the majority\u2019s opinion. I respectfully dissent from part IIA for two reasons: (1) plaintiff presented no evidence that \u201cthe officers, directors, or managers\u201d of B.H.B. Enterprises, Inc. participated in or condoned the battery committed against plaintiff or that (2) Radford Bennett, the manager of the restaurant, was an \u201cofficer, director, or manager\u201d of B.H.B., Enterprises, Inc.\nI. G.S. \u00a7 ID-15\nThe majority\u2019s opinion sets forth G.S. \u00a7 1D-I5(a) and (b) in their entirety. However, that opinion fails to set out subsection (c) which provides as follows:\n(c) Punitive damages shall not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another. Punitive damages may be awarded against a person only if that person participated in the conduct constituting the aggravating factor giving rise to the punitive damages, or if. in the case of a corporation, the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.\nN.C. Gen. Stat. \u00a7 1D-I5(c) (2001) (emphasis supplied).\nThe language of G.S. \u00a7 1D-I5(c) is explicit and contextual. The majority\u2019s opinion isolates the word \u201cmanagers,\u201d removes it from its contextual setting, and then defines the word \u201cmanagers\u201d using Webster\u2019s Dictionary. This approach is inconsistent with established canons of statutory construction. The majority\u2019s opinion states that \u201ccourts must accord [a] word [its] plain meaning and refrain from judicial construction.\u201d This is a standard rule of construction, but not a complete statement of the rules.\n\u201cThe words of a statute must be construed in accordance with their ordinary and common meaning unless they have acquired a technical meaning or unless a definite meaning is apparent or indicated by the context of the words.\u201d Raleigh Place Assoc. v. City of Raleigh, Bd. of Adjustment, 95 N.C. App. 217, 219, 382 S.E.2d 441, 442 (1989) (citing State v. Lee, 277 N.C. 242, 176 S.E.2d 772 (1970) (emphasis supplied)). See also Ace-Hi, Inc. v. Department of Transp., 70 N.C. App. 214, 218, 319 S.E.2d 294, 297 (1984) (citing Lafayette Transp. Service, Inc. v. County of Robeson, 283 N.C. 494, 196 S.E.2d 770 (1973)); State v. Phipps, 112 N.C. App. 626, 629, 436 S.E.2d 280, 281 (1993). \u201cWords and phrases of a statute \u2018must be construed as a part of the composite whole and accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.\u2019 \u201d Vogel v. Reed Supply Co., 277 N.C. 119, 131, 177 S.E.2d 273, 280 (1970) (quoting 7 Strong\u2019s N.C. Index 2d, Statutes \u00a7 5; State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970) (other citations omitted)). Where words have a known technical meaning, that meaning must be adopted in construing a statute. Randall v. R.R., 104 N.C. 410, 413, 10 S.E. 691, 691 (1889). \u201cA complimentary rule of construction provides that when technical terms or terms of art are used in a statute, they are presumed to be used with their technical meaning in mind, likewise absent legislative intent to the contrary.\u201d Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 588, 492 S.E.2d 369, 371-72 (1997) (citing Black v. Littlejohn, 312 N.C. 626, 639, 325 S.E.2d 469, 478 (1985)).\n\u201cUnder the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.\u201d Norfolk and Western R. Co. v. Train Dispatchers, 499 U.S. 117, 129, 113 L. Ed. 2d 95, 107 (1991). \u201cThe maxim ejusdem, generis applies especially to the construction of legislative enactments. It is founded upon the obvious reason that if the legislative body had intended the general words to be used in their unrestricted sense the specific words would have been omitted.\u201d Meyer v. Walls, 347 N.C. 97, 106, 489 S.E.2d 880, 885 (1997) (quotation omitted).\nHere, the word \u201cmanagers\u201d has (1) a limited range of meanings utilizing the principle of ejusdem generis, (2) a technical meaning, and (3) a meaning apparent and indicated within the context of G.S. \u00a7 1D-I5(c). To define the word \u201cmanagers\u201d with one of its dictionary definitions broadens its scope of possible meanings beyond permissible boundaries as set forth in the statute.\nThe legislature placed the word \u201cmanagers\u201d directly after the words \u201cofficers\u201d and \u201cdirectors.\u201d The word \u201cmanagers\u201d should be understood as a reference to subjects akin to \u201cofficers\u201d and \u201cdirectors.\u201d A restaurant \u201cmanager\u201d is not akin to an \u201cofficer\u201d or \u201cdirector\u201d of a corporation. A restaurant manager oversees a physical location; a director or officer directs or supervises a corporation.\nThe word \u201cmanagers\u201d is also defined with a technical meaning in other portions of the North Carolina General Statutes. Corporations are owned by shareholders and managed by \u201cdirectors\u201d and \u201cofficers.\u201d See North Carolina Business Corporation Act in Chapter 55 of the North Carolina General Statutes. Limited liability companies are owned by \u201cmembers\u201d and managed by \u201cmanagers.\u201d See North Carolina Limited Liability Company Act in Chapter 57C of the North Carolina General Statutes. N.C. Gen. Stat. \u00a7 57C-3-22 expressly defines the \u201cDuties of managers.\u201d The term \u201cmanagers,\u201d as technically defined in G.S. \u00a7 57C-3-22 does not resemble the dictionary definition that the majority ascribes to the word \u201cmanagers.\u201d In this context, the word \u201cmanagers\u201d is synonymous with the words \u201cdirectors\u201d and \u201cofficers\u201d in the business entity setting.\nThe meaning of the word \u201cmanagers\u201d is also apparent and indicated by the context in which it is used in G.S. 1D-I5(c). Sentence number two of G.S. \u00a7 1D-I5(c) must be read in the context of sentence one. The first sentence of G.S. \u00a7 1D-I5(c) states that \u201cPunitive damages shall not be awarded against a person solely on the basis of vicarious liability . . . .\u201d N.C. Gen. Stat. \u00a7 1D-I5(c). Restaurant managers are not \u201cofficers, directors or managers\u201d of a corporation; they are employees of the corporation. The doctrine of respondeat superior provides that \u201cthe torts of an employee that occur in the course of employment are imputed to the employer.\u201d David A. Logan & Wayne A. Logan, North Carolina Torts, \u00a7 10.30 at 233 (1996). The doctrine allows for vicarious liability.\nHere, all of the corporate defendant\u2019s liability is vicarious. Radford Bennett is an employee of the corporate defendant. B.H.B. Enterprises, Inc., defendant, is owned by Britton McCorkle (\u201cMcCorkle\u201d). There is no evidence in the record that McCorkle was present at the restaurant on the evening of the incident. There is also no evidence that Bennett is an owner of B.H.B. Enterprises, Inc. All liability sustained by defendant was acquired through the actions of defendant\u2019s employees. This is a classic example of vicarious liability. To ascribe to the majority\u2019s definition of the word \u201cmanagers\u201d obliterates the meaning of the first sentence of G.S. \u00a7 1D-I5(c).\nPlaintiff presented no evidence that McCorkle, or any other \u201cdirector, officer, or manager of the corporation participated in or condoned the conduct constituting the aggravating factor,\u201d or ordered, or ratified outrageous conduct on the part of any of the corporation\u2019s employees.\nThe majority\u2019s expansion of the meaning of \u201cmanagers\u201d beyond its statutory context violates long established rules of statutory construction. \u201cI thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies.\u201d Chisom v. Roemer, 501 U.S. 380, 404, 115 L. Ed. 2d 351, 369 (1991) (Scalia, J. dissenting) (citations omitted). \u201cToday, however, the Court adopts a method quite out of accord with that usual practice. It begins not with what the statute says, but with an expectation about what the statute must mean .... As method, this is just backwards, and however much we may be attracted by the result it produces in a particular case, we should in every case resist it.\u201d Id. at 405, 115 L. Ed. 2d at 369.\nII. Corporate Complicity\nNorth Carolina\u2019s statute is neither unique nor dissimilar to other states. G.S. \u00a7 1D-I5(c) is a codification of what other states term the \u201ccorporate complicity\u201d rule, which requires express and explicit condoning of the act by a corporate defendant in order to be vicariously liable for punitive damages.\nOther jurisdictions have enacted similar statutes limiting punitive damages for vicarious liability. While no other state has an identical provision, some other statutes are illustrative of the limiting purposes behind our N.C. Gen. Stat. \u00a7 1D-I5(c).\nKansas has adopted a statute similar to North Carolina. In K.S.A. \u00a7 60-3701(d), the legislature provided that: \u201cIn no case shall exemplary or punitive damages be assessed pursuant to this section against: (1) a principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer.\u201d K.S.A. \u00a7 60-3701(d). \u201cK.S.A. \u00a7 60-3701(d)(l) limits punitive damages assessed to an employer only in circumstances where the employer has ratified or authorized the act of the employee .... [T]he policy of Kansas regarding assessment of punitive damages against a corporation is that such damages may be assessed in accord with the complicity rule but not upon a vicarious liability rule.\u201d Hartford Accident & Indem. Co. v. American Red Ball Transit Co., Inc., 938 P.2d 1281, 1292 (Kan. 1997).\nIn Illinois, \u201c[t]he corporate-complicity rule allows for the imposition of punitive damages against a corporation if a superior officer of the corporation ordered, participated in, or ratified outrageous conduct on the part of an employee.\u201d Hargan v. Southwestern Elec. Co-op., Inc., 725 N.E.2d 807, 810-11 (Ill. App. 2000) (citing Kemner v. Monsanto Co., 576 N.E.2d 1146, 1157 (1991) (emphasis supplied)).\nThe State of Idaho also follows the corporate complicity rule. \u201cA corporation is liable for punitive damages based upon the acts of its agents if the directors and managing officers participated in, or authorized or ratified, the agents\u2019 acts.\u201d Student Loan Fund of Idaho, Inc. v. Duerner, 951 P.2d 1272, 1280 (Idaho. 1997) (emphasis supplied).\nIn North Carolina the General Assembly has spoken. G.S. \u00a7 1D-I5(c) is clear and explicit. I concur with the majority\u2019s holding that defendant is vicariously liable in negligence for the actions of its employees. However, in the total absence of any evidence that \u201cofficers, directors, or managers of [defendant] corporation participated in or condoned the conduct. . . ,\u201d I respectfully dissent from that portion of the majority\u2019s opinion that affirms the trial court\u2019s award of punitive damages against the corporate defendant based solely on vicarious liability. I would vacate that portion of the judgment awarding plaintiff punitive damages. I respectfully dissent.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "TYSON, Judge,"
      }
    ],
    "attorneys": [
      "The Law Offices of William K. Goldfarb, by William K. Goldfarb, for plaintiff-appellee.",
      "The McIntosh Law Firm, P.C., by Christopher G. Chagaris, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "NEAL MILLER, Plaintiff v. B.H.B. ENTERPRISES, INC., d/b/a VINNIE\u2019S SARDINE GRILLE & RAW BAR, Defendant\nNo. COA01-1282\n(Filed 3 September 2002)\n1. Evidence\u2014 lay opinion \u2014 intoxication of assailant\nThe trial court did not err in a negligence action that originated in a beating outside a restaurant by admitting lay opinion testimony that the off-duty bouncer who punched and kicked plaintiff was intoxicated. The testimony was based on first-hand knowledge from personal observation and was relevant and helpful to the jury. N.C.G.S. \u00a7 8C-1, Rule 701.\n2. Damages and Remedies\u2014 punitive damages \u2014 sufficiency of evidence \u2014 bouncers not halting beating\nThe trial court did not err in an action originating in a beating outside a restaurant by denying the restaurant owner\u2019s motion for a directed verdict on punitive damages based on allegedly insufficient evidence that defendant\u2019s employees acted willfully and wantonly. There was testimony that defendant\u2019s manager and two bouncers witnessed the attack on plaintiff and were \u201cvery close\u201d as plaintiff was punched, then kicked as he lay on the ground; that the bouncers\u2019 duties included preventing fighting; and that the manager had the authority to tell the bouncers to intervene.\n3. Damages and Remedies\u2014 punitive damages \u2014 beating outside restaurant \u2014 corporate complicity \u2014 manager and bouncers standing by\nThe plaintiff in a negligence action originating in a beating outside a restaurant presented evidence sufficient to support a punitive damages claim against a corporate defendant where there was ample evidence that Bennet was a manager for defendant and stood by with two bouncers while plaintiff was repeatedly kicked as he lay helpless on the ground.\n4. Negligence\u2014 beating outside restaurant \u2014 failure of manager and bouncers to intervene\nThe trial court properly denied defendant restaurant owner\u2019s motion for a directed verdict on the issue of negligence in an action arising from a beating outside the restaurant where plaintiff was intoxicated and falling down; an off-duty bouncer was intoxicated and had been making fun of plaintiff; defendant\u2019s manager and two bouncers led plaintiff out the front door as a result of plaintiff\u2019s conduct toward a female bartender; plaintiff fell and was left in a perilous position; the off-duty bouncer came outside and attacked plaintiff while the manager and two bouncers watched; and neither the manager nor the bouncers offered assistance to plaintiff or took any steps to stop the attack.\n5. Negligence\u2014 intervening cause \u2014 attack outside restaurant\nDefendant restaurant owner was not relieved of negligence by an intervening cause where defendant\u2019s manager and two bouncers escorted plaintiff from the restaurant and an off-duty bouncer punched and kicked plaintiff. Defendant\u2019s manager placed plaintiff in a helpless state by removing him from the restaurant and leaving him outside with knowledge that the off-duty bouncer had been drinking and was angry at plaintiff, and did nothing when the off-duty bouncer began beating plaintiff.\n6. Negligence\u2014 instructions \u2014 bar fight \u2014 responsibility of restaurant owners\nThe trial court did not err in its instructions in a negligence action arising from a beating by an off-duty bouncer.\n7. Pleadings\u2014 amendments \u2014 negligence\u2014last clear chance\nThe trial court did not abuse its discretion by allowing plaintiff to amend his pleadings to conform to evidence of last clear chance in an action arising from a beating outside a restaurant where there was sufficient evidence to support the doctrine and defendant restaurant owner did not argue that it was prejudiced by the amendment.\nJudge Tyson concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 19 March 2001 by Judge Raymond A. Warren in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 June 2002.\nThe Law Offices of William K. Goldfarb, by William K. Goldfarb, for plaintiff-appellee.\nThe McIntosh Law Firm, P.C., by Christopher G. Chagaris, for defendant-appellant."
  },
  "file_name": "0532-01",
  "first_page_order": 560,
  "last_page_order": 576
}
