{ "id": 9248547, "name": "LINDA GUTHRIE, Plaintiff v. RAYMOND CONROY and CLEGG'S TERMITE AND PEST CONTROL, INC., Defendants", "name_abbreviation": "Guthrie v. Conroy", "decision_date": "2002-08-06", "docket_number": "No. COA01-740", "first_page": "15", "last_page": "28", "citations": [ { "type": "official", "cite": "152 N.C. App. 15" } ], "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": "353 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135801, 135813, 135773, 135638 ], "year": 2001, "pin_cites": [ { "parenthetical": "NIED claim requires proof of negligent act by defendant" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0725-03", "/nc/353/0725-01", "/nc/353/0725-02", "/nc/353/0725-04" ] }, { "cite": "347 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551143, 551390, 551342, 551375 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0670-01", "/nc/347/0670-02", "/nc/347/0670-03", "/nc/347/0670-04" ] }, { "cite": "393 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "351", "parenthetical": "where \"plaintiff has failed to raise issue] ... in her complaint . . . [the] contention is not properly before [appellate court]\"" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523509 ], "year": 1990, "pin_cites": [ { "page": "472", "parenthetical": "where \"plaintiff has failed to raise issue] ... in her complaint . . . [the] contention is not properly before [appellate court]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0465-01" ] }, { "cite": "294 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571905, 8571842, 8571878, 8571771, 8571807 ], "year": 1982, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0555-05", "/nc/306/0555-03", "/nc/306/0555-04", "/nc/306/0555-01", "/nc/306/0555-02" ] }, { "cite": "291 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "895", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524761 ], "year": 1982, "pin_cites": [ { "page": "442", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0437-01" ] }, { "cite": "204 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "205", "parenthetical": "\"judgment on the merits in favor of the employee precludes any action against the employer where, as here, the employer's liability is purely derivative\"" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555637 ], "year": 1974, "pin_cites": [ { "page": "289", "parenthetical": "\"judgment on the merits in favor of the employee precludes any action against the employer where, as here, the employer's liability is purely derivative\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0287-01" ] }, { "cite": "551 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "NIED claim requires proof of negligent act by defendant" } ], "opinion_index": 0 }, { "cite": "542 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "352", "parenthetical": "NIED claim requires proof of negligent act by defendant" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440647 ], "year": 2001, "pin_cites": [ { "page": "273", "parenthetical": "NIED claim requires proof of negligent act by defendant" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0267-01" ] }, { "cite": "473 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "343 N.C. 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798888, 798889, 798802, 798931, 798872 ], "year": 1996, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0750-04", "/nc/343/0750-01", "/nc/343/0750-02", "/nc/343/0750-03", "/nc/343/0750-05" ] }, { "cite": "465 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "6" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915701 ], "year": 1995, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0105-01" ] }, { "cite": "500 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "493 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "65" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799567 ], "year": 1997, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0649-01" ] }, { "cite": "480 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53997 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0456-01" ] }, { "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": "445 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "vulgar sexual language; threatening behavior; \"rubbed his penis across [plaintiff's] hand" } ], "opinion_index": 0 }, { "cite": "336 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534314, 2537066, 2536085, 2534232, 2536670 ], "year": 1994, "pin_cites": [ { "parenthetical": "vulgar sexual language; threatening behavior; \"rubbed his penis across [plaintiff's] hand" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0071-01", "/nc/336/0071-04", "/nc/336/0071-05", "/nc/336/0071-03", "/nc/336/0071-02" ] }, { "cite": "437 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "113 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520443 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/113/0001-01" ] }, { "cite": "468 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "obscene suggestions; defendants held plaintiff while pulling up her shirt, and, on another occasion, held plaintiff while pulling her legs apart; sexual advances" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916430 ], "year": 1996, "pin_cites": [ { "parenthetical": "obscene suggestions; defendants held plaintiff while pulling up her shirt, and, on another occasion, held plaintiff while pulling her legs apart; sexual advances" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0221-01" ] }, { "cite": "498 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "obscene language; sexual advances; defendant unzips pants and grabs his crotch while making vulgar suggestions to plaintiff" } ], "opinion_index": 0 }, { "cite": "348 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659911 ], "year": 1998, "pin_cites": [ { "parenthetical": "obscene language; sexual advances; defendant unzips pants and grabs his crotch while making vulgar suggestions to plaintiff" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0260-01" ] }, { "cite": "473 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "40", "parenthetical": "quoting Hogan at 490, 340 S.E.2d at 121" }, { "page": "41", "parenthetical": "\"liability of [employee] is essential if [employer] is to be held responsible under a theory of respondeat superior\"" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913496 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "412", "parenthetical": "quoting Hogan at 490, 340 S.E.2d at 121" }, { "page": "413" }, { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0409-01" ] }, { "cite": "418 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "rejecting IIED claim where \"defendants engaged in kissing and heavy petting with the plaintiff in the presence of others\" while plaintiff was intoxicated to the point of unconsciousness" } ], "opinion_index": 0 }, { "cite": "331 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497251, 2498471 ], "year": 1992, "pin_cites": [ { "parenthetical": "rejecting IIED claim where \"defendants engaged in kissing and heavy petting with the plaintiff in the presence of others\" while plaintiff was intoxicated to the point of unconsciousness" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0558-01", "/nc/331/0558-02" ] }, { "cite": "414 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "359", "parenthetical": "rejecting IIED claim where \"defendants engaged in kissing and heavy petting with the plaintiff in the presence of others\" while plaintiff was intoxicated to the point of unconsciousness" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523809 ], "year": 1992, "pin_cites": [ { "page": "468", "parenthetical": "rejecting IIED claim where \"defendants engaged in kissing and heavy petting with the plaintiff in the presence of others\" while plaintiff was intoxicated to the point of unconsciousness" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0446-01" ] }, { "cite": "544 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "defendant \"physically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing\"" } ], "opinion_index": 0 }, { "cite": "352 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685064, 685034, 685013, 684949, 684925 ], "year": 2000, "pin_cites": [ { "parenthetical": "defendant \"physically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing\"" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0357-01", "/nc/352/0357-04", "/nc/352/0357-02", "/nc/352/0357-05", "/nc/352/0357-03" ] }, { "cite": "527 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "715", "parenthetical": "defendant \"physically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing\"" }, { "page": "720", "parenthetical": "where there is \"no liability on the part of [employee], plaintiff's claims against [employer] asserting ratification of [employee's] actions and negligent retention of [employee] may not be [maintained]\"" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092650 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "181", "parenthetical": "defendant \"physically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing\"" }, { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0179-01" ] }, { "cite": "388 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "prima facie case of IIED shown where defendant asked plaintiff \"how tight [her vagina] was\"; indicated that he wanted plaintiffs \"long legs wrapped around his body\"; grabbed his penis; implied that if plaintiff would have sex with him, [he] would place [her] in another position" } ], "opinion_index": 0 }, { "cite": "326 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307503 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0356-01" ] }, { "cite": "384 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489609, 2489066, 2491885, 2491031, 2489465 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0270-05", "/nc/325/0270-03", "/nc/325/0270-02", "/nc/325/0270-01", "/nc/325/0270-04" ] }, { "cite": "378 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "236", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528074 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0431-01" ] }, { "cite": "346 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4780326, 4777709, 4778478, 4779983, 4776954 ], "year": 1986, "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", "weight": 8, "year": 1986, "pin_cites": [ { "page": "121" }, { "page": "123" }, { "page": "121" }, { "page": "124", "parenthetical": "\"before the employer can be held liable, plaintiff must prove that the incompetent employee committed a tortious act resulting in injury to plaintiff'" }, { "page": "125", "parenthetical": "where \"the evidence is insufficient to establish that... [plaintiffs have] been injured by actionable tortious conduct of an employee of defendant, neither of them may maintain an action against defendant based upon its negligence in employing or retaining the allegedly incompetent employee\"" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "495" }, { "page": "496-97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0483-01" ] }, { "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", "year": 1985, "pin_cites": [ { "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": "677" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0672-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "622" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "532 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "quoting Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)" } ], "opinion_index": 0 }, { "cite": "352 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684978 ], "year": 2000, "pin_cites": [ { "parenthetical": "quoting Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0343-01" ] }, { "cite": "511 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "132 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237734 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/132/0329-01" ] }, { "cite": "502 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "19-20" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 47", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465208 ], "year": 1998, "pin_cites": [ { "page": "52-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0047-01" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "574", "parenthetical": "upon challenge to summary judgment order, trial court's \"alleged errors of law are subject to de novo review\"" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809", "parenthetical": "upon challenge to summary judgment order, trial court's \"alleged errors of law are subject to de novo review\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] }, { "cite": "391 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "848" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525347 ], "year": 1990, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0590-01" ] }, { "cite": "414 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "27", "parenthetical": "citation omitted" }, { "parenthetical": "obscene references to plaintiff's private parts; vulgarity; harasser was plaintiff's supervisor" } ], "opinion_index": 0 }, { "cite": "331 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499459 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "82", "parenthetical": "citation omitted" }, { "parenthetical": "obscene references to plaintiff's private parts; vulgarity; harasser was plaintiff's supervisor" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0073-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] }, { "cite": "545 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135880 ], "year": 2001, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0445-01" ] }, { "cite": "538 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134800 ], "year": 2000, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0737-01" ] }, { "cite": "534 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497849 ], "year": 2000, "pin_cites": [ { "page": "784-85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0778-01" ] }, { "cite": "186 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "353", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "pin_cites": [ { "page": "491", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0488-01" ] }, { "cite": "536 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "plaintiff not required to exhaust administrative remedies where alleged common law torts are not subject to administrative review" } ], "opinion_index": 0 }, { "cite": "350 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131951, 132081, 132181, 132027, 132159 ], "year": 1999, "pin_cites": [ { "parenthetical": "plaintiff not required to exhaust administrative remedies where alleged common law torts are not subject to administrative review" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0592-04", "/nc/350/0592-05", "/nc/350/0592-03", "/nc/350/0592-02", "/nc/350/0592-01" ] }, { "cite": "505 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "310" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11197262 ], "year": 1998, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0080-01" ] }, { "cite": "532 U.S. 268", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9301161 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "270", "parenthetical": "citation omitted" }, { "page": "513", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/532/0268-01" ] }, { "cite": "510 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "employee suit alleging violation of Title VII and N.C. public policy" } ], "opinion_index": 0 }, { "cite": "348 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659776, 1659845, 1659883, 1659694, 1659889 ], "year": 1998, "pin_cites": [ { "parenthetical": "employee suit alleging violation of Title VII and N.C. public policy" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0501-01", "/nc/348/0501-02", "/nc/348/0501-04", "/nc/348/0501-03", "/nc/348/0501-05" ] }, { "cite": "500 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "employee suit alleging violation of Title VII and N.C. public policy" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651268 ], "year": 1998, "pin_cites": [ { "parenthetical": "employee suit alleging violation of Title VII and N.C. public policy" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0519-01" ] }, { "cite": "155 F.Supp.2d 502", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9495080 ], "year": 2000, "pin_cites": [ { "parenthetical": "setting out elements of Title VII claim of hostile work environment caused by sexual harassment" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/155/0502-01" ] }, { "cite": "480 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "663", "parenthetical": "\"Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner\"" } ], "opinion_index": 0 }, { "cite": "345 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53948 ], "year": 1997, "pin_cites": [ { "page": "482", "parenthetical": "\"Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner\"" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0480-01" ] }, { "cite": "424 S.E.2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 780", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525714 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0780-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "803", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "pin_cites": [ { "page": "127", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "251 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "446-47" }, { "page": "447", "parenthetical": "\"That the trial court declared it to be a final, declaratory judgment does not make it so.\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "490" }, { "page": "491", "parenthetical": "\"That the trial court declared it to be a final, declaratory judgment does not make it so.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "526 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "669" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092295 ], "year": 2000, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0138-01" ] }, { "cite": "564 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "150 N.C. App. 489", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081732 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/150/0489-01" ] }, { "cite": "551 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "order that leaves claims unresolved is interlocutory" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11354615 ], "year": 2001, "pin_cites": [ { "parenthetical": "order that leaves claims unresolved is interlocutory" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0097-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "433", "parenthetical": "\"if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question . . . has not been raised by the parties themselves\"" } ], "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "page": "208", "parenthetical": "\"if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question . . . has not been raised by the parties themselves\"" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] } ], "analysis": { "cardinality": 1392, "char_count": 34651, "ocr_confidence": 0.721, "pagerank": { "raw": 4.956583799722076e-07, "percentile": 0.9350585690517091 }, "sha256": "896460607027cb9ecee689b2c2947913580a7b715bb1b8f77021db9c7085dadf", "simhash": "1:1f81dc284c272656", "word_count": 5548 }, "last_updated": "2023-07-14T14:40:03.287783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McCULLOUGH concur." ], "parties": [ "LINDA GUTHRIE, Plaintiff v. RAYMOND CONROY and CLEGG\u2019S TERMITE AND PEST CONTROL, INC., Defendants" ], "opinions": [ { "text": "BIGGS, Judge.\nPlaintiff (Linda Guthrie) appeals from a summary judgment order entered 14 March 2001 in favor of defendants (Raymond Conroy and Clegg\u2019s Termite and Pest Control, Inc.). For the reasons that follow, we affirm in part and reverse in part.\nPlaintiff was employed in 1998 by defendant Clegg\u2019s Termite and Pest, Inc. (Clegg\u2019s), as a secretary. Defendant Conroy was plaintiff\u2019s co-employee, and worked for Clegg\u2019s as a salesman and pesticide technician. On 17 March 1999, plaintiff submitted her resignation from Clegg\u2019s, in a letter stating that her departure was due to her medical problems, the side effects of various medications, and her feeling that it was unfair for her co-workers to have to \u201cput up with [her] condition.\u201d Plaintiff suffered from severe rheumatoid arthritis for which she took numerous medications, some with adverse side effects. However, plaintiff was persuaded not to leave and remained at Clegg\u2019s for two more months. On 20 May 1999, plaintiff submitted a second resignation letter, this one stating that she was quitting in order to escape sexual harassment by defendant Conroy. She then ceased working for defendant Clegg\u2019s.\nOn 5 October 1999, plaintiff filed suit against defendants, alleging (1) intentional infliction of emotional distress (IIED) by both defendants; (2) negligent infliction of emotional distress (NIED) by both defendants; (3) negligent retention and supervision of Conroy by defendant Clegg\u2019s; and (4) civil assault by both defendants. Plaintiff sought compensatory and punitive damages, and attorneys\u2019 fees. Defendants filed a summary judgment motion on 26 September 2000, which was heard in November, 2000. On 13 November 2000, the trial court issued an order granting partial summary judgment; the court dismissed all of plaintiff\u2019s claims, except for her civil assault action against defendant Conroy. Plaintiff appeals from the grant of summary judgment in favor of defendants.\nMotion to Dismiss Appeal\nOn 7 March 2001, plaintiff filed a motion \u201cpursuant to rule 54(b) and rule 60,\u201d asking the trial court to amend its 13 November 2000 summary judgment order by adding the phrase \u201cfinal judgment.\u201d Plaintiff asserted that without that phrase, the order was interlocutory and not subject to immediate appeal. On 9 March 2001, the trial court entered an amended summary judgment order making the same rulings as its 13 November order, and adding the phrase \u201cfinal judgment.\u201d Plaintiff appealed from the amended order on 20 March 2001.\nOn 15 June 2001, defendants filed a motion in this Court seeking dismissal of plaintiff\u2019s appeal. Defendants argue that the 13 November 2000 summary judgment order was immediately appeal-able, and that plaintiff was required by N.C.R. App. P. 3(c) to give notice of appeal within 30 days of its entry. We agree.\nWe note initially that plaintiff has argued that, by failing to appeal from the amended order of 9 March 2001, or to file a cross-assignment of error, defendants waived the right to move for dismissal of plaintiff\u2019s appeal. However, defendant\u2019s motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (\u201cif an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question . . . has not been raised by the parties themselves\u201d).\nThe summary judgment order from which plaintiff appeals is interlocutory, because it leaves unresolved plaintiff\u2019s claim against Conroy for civil assault. Creech v. Ranmar Props., 146 N.C. App. 97, 551 S.E.2d 224 (2001) (order that leaves claims unresolved is interlocutory). An interlocutory order is subject to immediate appeal only under two circumstances: where the order is final as to some claims or parties, and the trial court certifies pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure that there is no just reason to delay the appeal, see Alford v. Catalytica Pharmaceuticals, Inc., 150 N.C. App. 489, 564 S.E.2d 267 (2002), or where the order deprives the appellant of a substantial right that would be lost unless immediately reviewed, see Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).\nThus, if the trial court enters a judgment \u201cwhich fully terminates\u201d a claim or claims as to \u201cfewer than all the parties,\u201d Rule 54(b) allows the trial court to \u201crelease it for immediate appeal before the litigation is complete as to all claims or all parties\u201d by certifying that there is \u201cno just reason for delay\u2019\u2019Industries, Inc. v. Insurance Co., 296 N.C. 486, 490, 251 S.E.2d 443, 446-47 (1979). This is the mechanism by which the trial court expresses its determination that a final judgment should be subject to immediate appeal. Oestreicher v. Stores, 290 N.C. 118, 127, 225 S.E.2d 797, 803 (1976) (citation omitted) (trial court functions as a \u201cdispatcher\u201d and determines \u201cthe appropriate time when each \u2018final decision\u2019 upon \u2018one or more but less than all\u2019 of the claims in a multiple claims action is ready for appeal\u201d).\nThe trial court\u2019s 13 November 2000 summary judgment order states that \u201cpursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, the undersigned Judge hereby finds that there is no just reason for delay in the plaintiff\u2019s taking an appeal from this Order.\u201d Plaintiff cites no cases holding that the trial court is also required to use the phrase \u201cfinal judgment,\u201d and we find none. It is the resolution of a claim, rather than the phrase \u201cfinal judgment\u201d that determines whether an order is \u2018final.\u2019 Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979) (\u201cThat the trial court declared it to be a final, declaratory judgment does not make it so.\u201d). Nor does N.C.G.S. \u00a7 1A-1, Rule 54 require the phrase \u201cfinal judgment\u201d to be included in a trial court\u2019s certification that an order resolving one or more claims is appropriate for immediate appeal:\n(a) Definition. A judgment is either interlocutory or the final determination of the rights of the parties.\n(b) . . . When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal[.]\nN.C.G.S. \u00a7 1A-1, Rule 54(a) and (b).\nThe 13 November 2000 summary judgment order was a final judgment as to all of plaintiffs claims against Clegg\u2019s, and on all of her claims against Conroy, except for civil assault. Further, the trial court certified, pursuant to N.C.G.S. \u00a7 1A-1, 54(b) that there was \u201cno just reason for delay,\u201d of an appeal from the order. We conclude, therefore, that the order was properly certified for immediate appeal.\nBecause the 13 November 2000 order was subject to appeal, plaintiff was required by N.C.R. App. P. 3(c)(1) to file notice of appeal within 30 days of entry of judgment, or no later than 13 December 2000. Plaintiffs notice of appeal, filed 20 March 2001, or 127 days after entry of the 13 November 2000 summary judgment order, was untimely, and subjects her appeal to dismissal. Herring v. Branch Banking & Trust Co., 108 N.C. App. 780, 424 S.E.2d 925 (1993). However, this Court will exercise its discretion and grant certiorari to review plaintiffs claims on their merits, pursuant to N.C.R. App. P. 21 (2001). See Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) (\u201cRule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner\u201d).\nStandard of Review\nPreliminarily, we note that plaintiff characterizes her suit as \u201ca conventional sexual harassment case;\u201d compares the conduct at issue to that \u201cin other sexual harassment cases;\u201d and asserts that defendant Conroy\u2019s alleged conduct \u201cconstitutes classic sexual harassment that should not be tolerated in any workplace.\u201d We therefore find it necessary to clarify the nature of the matters before us on review.\nWe recognize that the right to be free of sexual harassment in the workplace is addressed in certain federal statutes, e.g., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. \u00a7 2000e et seq. (2001) (prohibiting discrimination in the \u201cterms, conditions, or privileges of employment\u201d on the basis of an employee\u2019s sex), and is implicated in our State declaration of public policy, N.C.G.S. \u00a7 143-422.2 (\u201cIt is the public policy of this State to protect. . . the right... of all persons to seek, obtain and hold employment without discrimination or abridgement on account of . . . sex\u201d). A civil suit may be brought to redress, e.g., an alleged violation of Title VII, see Brown v. Henderson, 155 F.Supp.2d 502 (M.D.N.C. 2000) (setting out elements of Title VII claim of hostile work environment caused by sexual harassment); Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728, disc. review denied, 348 N.C. 501, 510 S.E.2d 655 (1998) (employee suit alleging violation of Title VII and N.C. public policy). Such claims focus on the impact of alleged behavior on the workplace, and require proof that the sexual harassment was \u201cso severe or pervasive as to alter the conditions of [the victim\u2019s] employment and create an abusive working environment.\u201d Clark County School Dist. v. Breeden, 532 U.S. 268, 270, 149 L. Ed. 2d 509, 513 (2001) (citation omitted).\nHowever, the plaintiff in the present case does not allege violation of these or other similar statutes. Rather, she has brought common law tort claims for personal injury caused by IIED and NIED. The elements and legal prerequisites of her claims are quite different from those of a Title VII claim. For example, as this is not a statutory \u201csexual harassment case,\u201d plaintiff need not exhaust administrative remedies before bringing her action. Brooks v. Southern Nat\u2019l Corp., 131 N.C. App. 80, 86, 505 S.E.2d 306, 310 (1998), disc. review denied, 350 N.C. 592, 536 S.E.2d 626 (1999) (plaintiff not required to exhaust administrative remedies where alleged common law torts are not subject to administrative review). Further, plaintiff\u2019s claims of IIED and NIED present issues as to whether the named defendants committed certain acts against this plaintiff; however, plaintiff\u2019s claims do not involve a generalized assessment of acceptable workplace behavior, nor an analysis of the \u201cworkplace environment.\u201d In short, plaintiff has brought a common law tort action alleging personal injury, which we will treat as such.\nPlaintiff appeals from the trial court\u2019s grant of summary judgment. Summary judgment is proper when \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C.G.S. \u00a7 1A-1, 56(c) (2001). \u201c[T]he party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.\u201d Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted). However, \u201cthe real purpose of summary judgment is to go beyond or to pierce the pleadings and determine whether there is a genuine issue of material fact.\u201d Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972). In response to a motion for summary judgment, the non-movant must \u201cproduce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\u201d Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000).\nOn appeal, this Court\u2019s standard of review involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted). Moreover, \u201cthe evidence presented by the parties must be viewed in the light most favorable to the non-movant.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\nIntentional Infliction of Emotional Distress\nPlaintiff argues first that the trial court erred in its grant of summary judgment for defendants on plaintiffs claim of intentional infliction of emotional distress (IIED). We disagree.\nThe essential elements of IIED are \u201c(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.\u201d Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citation omitted). \u201cThe determination of whether the conduct alleged was intentional and was extreme and outrageous enough to support such an action is a question of law for the trial judge,\u201d Lenins v. K-Mart Corp., 98 N.C. App. 590, 599, 391 S.E.2d 843, 848 (1990), and, thus, our review is conducted de novo, see Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999) (upon challenge to summary judgment order, trial court\u2019s \u201calleged errors of law are subject to de novo review\u201d).\n\u201cA claim for intentional infliction of emotional distress exists \u2018when a defendant\u2019s conduct exceeds all bounds usually tolerated by decent society[.]\u2019 \u201d Watson v. Dixon, 130 N.C. App. 47, 52-53, 502 S.E.2d 15, 19-20 (1998), on reh\u2019g, 132 N.C. App. 329, 511 S.E.2d 37 (1999), aff'd, 352 N.C. 343, 532 S.E.2d 175 (2000) (quoting Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)) (defendant engaged in extreme and outrageous conduct when he \u201cfrightened and humiliated [plaintiff] with cruel practical jokes, which escalated to obscene comments and behavior of a sexual nature,... finally culminating in veiled threats to her personal safety\u201d). Conduct is extreme and outrageous when it is \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 Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985).\nPlaintiff cites Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986), for her assertion that \u201cNorth Carolina courts have consistently held that sexual harassment constitutes extreme and outrageous conduct intended to cause emotional distress.\u201d However, Hogan held that a claim for intentional infliction of emotional distress might in appropriate factual circumstances be based upon behavior of a sexual nature. The Court concluded that one of the Hogan plaintiffs was entitled to submit her IIED claim to the jury based upon her allegations that\n[defendant] made sexually suggestive remarks to her while she was working, coaxing her to have sex with him and telling her that he wanted to \u201ctake\u201d her. He would brush up against her, rub his penis against her buttocks and touch her buttocks with his hands. When she refused his advances, he screamed profane names at her, threatened her with bodily injury, and on one occasion, advanced toward her with a knife and slammed it down on a table in front of her.\nId. at 490, 340 S.E.2d at 121. The Court upheld summary judgment against the two other plaintiffs, on the basis that the defendant\u2019s alleged behavior towards those plaintiffs was not \u201coutrageous and extreme.\u201d Id. at 493-94, 340 S.E.2d at 123. Thus, while a claim of IIED may be based upon allegations of sexually harassing behavior, \u201cextreme and outrageous behavior\u201d must be more than \u201cmere insults, indignities, and threats.\u201d Further, \u201cplaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind.\u201d Hogan, id. See e.g., Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, (1989), review dismissed as improvidently granted, 326 N.C. 356, 388 S.E.2d 769 (1990) (prima facie case of IIED shown where defendant asked plaintiff \u201chow tight [her vagina] was\u201d; indicated that he wanted plaintiffs \u201clong legs wrapped around his body\u201d; grabbed his penis; implied that if plaintiff would have sex with him, [he] would place [her] in another position), and McLain v. Taco Bell Corp., 137 N.C. App. 179, 181, 527 S.E.2d 712, 715, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000) (defendant \u201cphysically assaulted plaintiff, . . . [demanding] sexual relations . . . [and] began masturbating, ultimately ejaculating upon plaintiffs clothing\u201d); compare with Wilson v. Bellamy, 105 N.C. App. 446, 468, 414 S.E.2d 347, 359, disc. review denied, 331 N.C. 558, 418 S.E.2d 668 (1992) (rejecting IIED claim where \u201cdefendants engaged in kissing and heavy petting with the plaintiff in the presence of others\u201d while plaintiff was intoxicated to the point of unconsciousness).\n\u201cBecause the forecast of evidence as to the factual basis of each [claim of IIED] is unique, each claim must be decided on its own merits.\u201d Denning-Boyles v. WCES, Inc., 123 N.C. App. 409, 412, 473 S.E.2d 38, 40 (1996) (quoting Hogan at 490, 340 S.E.2d at 121). However, our review of the relevant case law indicates that claims of IIED based upon allegations of sexual harassment generally have included one or more of the following: an unfair power relationship between defendant and plaintiff; explicitly obscene or \u201cX rated\u201d language; sexual advances towards plaintiff; statements expressing desire to engage in sexual relations with plaintiff, or; defendant either touching plaintiff\u2019s private areas or touching any part of the plaintiff\u2019s body with his private parts. See, e.g., Poole v. Copland, Inc., 348 N.C. 260, 498 S.E.2d 602 (1998) (obscene language; sexual advances; defendant unzips pants and grabs his crotch while making vulgar suggestions to plaintiff); Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992) (obscene references to plaintiff\u2019s private parts; vulgarity; harasser was plaintiff\u2019s supervisor); Denning-Boyles, 123 N.C. App. 409, 473 S.E.2d 38 (vulgarity; sexual advances); Ruff v. Reeves Brothers, Inc., 122 N.C. App. 221, 468 S.E.2d 592 (1996) (obscene suggestions; defendants held plaintiff while pulling up her shirt, and, on another occasion, held plaintiff while pulling her legs apart; sexual advances); Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 437 S.E.2d 519 (1993), disc. review denied, 336 N.C. 71, 445 S.E.2d 29 (1994) (vulgar sexual language; threatening behavior; \u201crubbed his penis across [plaintiff\u2019s] hand); Burlington Industries, 93 N.C. App. 431, 378 S.E.2d 232 (sexual advances; genital contact; defendant was plaintiff\u2019s supervisor); Hogan, 79 N.C. App. 483, 340 S.E.2d 116 (sexual advances by supervisor; genital contact; vulgar language).\nIn contrast, the evidence in the case sub judice, taken in the light most favorable to the plaintiff, tends to show that defendant Conroy engaged in the following behavior: (1) held plaintiff from behind, and touched or rubbed her neck and shoulders; (2) \u201cirritated\u201d her by placing a lampshade on her head when fell asleep with her head on her desk; (3) threw potting soil and water on plaintiff while she was planting flowers at work, remarking when he threw a cup of water on plaintiff that he\u2019d \u201calways wanted to see [her] in a wet T shirt\u201d; and (4) placed a Styrofoam \u201cpeanut\u201d and other small objects between the legs of a \u201cnaked man\u201d statuette that plaintiff displayed on her windowsill at work and asked her \u201chow she liked it\u201d with the addition.\nPlaintiff contends that \u201c[c]omparable conduct has been found sufficient to justify sending the claim to the jury.\u201d However, we conclude that defendant Conroy\u2019s alleged behavior, while annoyingly juvenile, obnoxious, and offensive, does not rise to the level of \u201coutrageous and extreme\u201d as the term has been interpreted and applied in tort actions alleging IIED. We note that Conroy was not plaintiff\u2019s supervisor or workplace superior; that he did not swear or employ obscene language; that he referred to nothing more vulgar than a \u201cwet T shirt\u201d; that although he gave plaintiff a \u201cshoulder rub\u201d against her wishes, he never expressed any interest in sexual activity with plaintiff; and that, notwithstanding allegations in plaintiff\u2019s complaint that defendant dropped items down the front of her blouse, the only specific instance of this behavior she described was his throwing potting soil at her while she planted flowers. This Court does not condone defendant\u2019s behavior. However, in the context of the tort claims that plaintiff brought against defendants, we conclude that defendant Conroy\u2019s behavior was not \u201catrocious, and utterly intolerable in a civilized community\u201d or \u201cextreme and outrageous.\u201d We further conclude that, because plaintiff failed to present evidence of this essential element of her claim, the trial court did not err in granting summary judgment for defendant Conroy on plaintiff\u2019s IIED claim.\nPlaintiff also brought claims of IIED against defendant Clegg\u2019s, basing their alleged liability on a theory of respondeat superior, and arguing that Clegg\u2019s ratified Conroy\u2019s tortious behavior. However, having concluded that defendant Conroy did not engage in the alleged tortious behavior, we necessarily conclude that plaintiff has no claim against defendant Clegg\u2019s for ratification. Denning-Boyles, 123 N.C. App. at 413, 473 S.E.2d at 41 (\u201cliability of [employee] is essential if [employer] is to be held responsible under a theory of respondeat superior\u201d).\nFor the reasons discussed above, we conclude that the trial court did not err by granting summary judgment for defendants on plaintiff\u2019s claims of IIED.\nNegligent Infliction of Emotional Distress\nPlaintiff argues next that the trial court erred in granting summary judgment for defendants on her claims of negligent infliction of emotional distress (NIED). We disagree.\nThe elements of NIED are \u201c(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as \u2018mental anguish\u2019), and (3) the conduct did in fact cause the plaintiff severe emotional distress.\u201d Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990).\nNegligence is the breach of a legal duty owed by defendant that proximately causes injury to plaintiff. Tise v. Yates Construction Co., 345 N.C. 456, 480 S.E.2d 677 (1997). \u201cIn order to establish actionable negligence, a plaintiff must show that: (1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligent] breach of such duty was the proximate cause of the injury.\u201d Gordon v. Garner, 127 N.C. App. 649, 661, 493 S.E.2d 58, 65 (1997), disc. review denied, 347 N.C. 670, 500 S.E.2d 86 (1998). \u201cA duty is defined as an obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.\u201d Davis v. N.C. Dept. of Human Resources, 121 N.C. App. 105, 112, 465 S.E.2d 2, 6 (1995), disc. review denied, 343 N.C. 750, 473 S.E.2d 612 (1996) (citation omitted).\nPlaintiff correctly states that NIED may be predicated upon negligent conduct, and does not require proof of extreme and outrageous conduct, and further argues that \u201ceven if Conroy\u2019s conduct was not outrageous and extreme, it was sufficient to constitute [NIED].\u201d However, plaintiff alleges no duty that Conroy owed plaintiff, and no evidence was presented of a breach of any duty of care owed by Conroy to plaintiff. Absent a breach of duty of care, plaintiff\u2019s suit against Conroy for NIED cannot be maintained. See Fox-Kirk v. Hannon, 142 N.C. App. 267, 273, 542 S.E.2d 346, 352, disc. review denied, 353 N.C. 725, 551 S.E.2d 437 (2001) (NIED claim requires proof of negligent act by defendant).\nMoreover, the liability of defendant Clegg\u2019s for negligence is predicated upon tortious behavior of Conroy, and is derivative of Conroy\u2019s commission of tortious acts. Hogan, 79 N.C. App. at 495, 340 S.E.2d at 124 (\u201cbefore the employer can be held liable, plaintiff must prove that the incompetent employee committed a tortious act resulting in injury to plaintiff\u2019); Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974) (\u201cjudgment on the merits in favor of the employee precludes any action against the employer where, as here, the employer\u2019s liability is purely derivative\u201d). Thus, because we have upheld the trial court\u2019s grant of summary judgment on plaintiff\u2019s IIED and NIED claims against defendant Conroy, defendant Clegg\u2019s cannot be liable for NIED based upon Conroy\u2019s behavior. We conclude, therefore, that the trial court did not err by granting summary judgment in favor of both defendants on plaintiff\u2019s claim of NIED.\nNegligent Retention and Supervision\nAbsent a viable tort claim against Conroy, plaintiff cannot maintain an action against Clegg\u2019s for negligent retention and supervision of Conroy. McLain, 137 N.C. App. at 190, 527 S.E.2d at 720 (where there is \u201cno liability on the part of [employee], plaintiff\u2019s claims against [employer] asserting ratification of [employee\u2019s] actions and negligent retention of [employee] may not be [maintained]\u201d); Hogan, 79 N.C. App. at 496-97, 340 S.E.2d at 125 (where \u201cthe evidence is insufficient to establish that... [plaintiffs have] been injured by actionable tortious conduct of an employee of defendant, neither of them may maintain an action against defendant based upon its negligence in employing or retaining the allegedly incompetent employee\u201d). We conclude, therefore, that the trial court\u2019s grant of summary judgment on plaintiff\u2019s NIED and IIED claims against Conroy precludes defendant Clegg\u2019s liability for negligence in supervising and retaining Conroy in regard to those claims.\nRatification of Civil Assault\nPlaintiff also assigns error to the trial court\u2019s grant of summary judgment on defendant Clegg\u2019s liability for the alleged civil assault by Conroy, and contends that evidence was presented of Clegg\u2019s liability on the theory of ratification. The civil assault was the only claim to survive defendants' motion for summary judgment.\nRatification has been defined by this Court as \u201cthe affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account,\u201d and \u201cmay be inferred from failure to repudiate an unauthorized act... or from conduct... inconsistent with any other position than intent to adopt the act.\u201d American Travel Corp. v. Central Carolina Bank, 57 N.C. App. 437, 442, 291 S.E.2d 892, 895, disc. review denied, 306 N.C. 555, 294 S.E.2d 369 (1982) (citation omitted). To establish that an employer has ratified an employee\u2019s actions, it must be shown that the employer had \u201cfull knowledge of all the material facts,\u201d American Travel, id., or had \u201cknowledge of facts which would lead a person of ordinary prudence to investigate further.\u201d Denning-Boyles, 123 N.C. App. at 415, 473 S.E.2d at 42 (citation omitted). Further, \u201c[t]he jury may find ratification from any course of conduct on the part of the principal which reasonably tends to show an intention on his part to ratify the agent\u2019s unauthorized acts[,] and \u201c[s]uch course of conduct may involve an omission to act.\u201d Burlington Industries, 93 N.C. App. at 437, 378 S.E.2d at 236 (citation omitted).\nIn the instant case the evidence, taken in the light most favorable to the plaintiff, tends to show that in August, 1998, plaintiff complained to her supervisor, Joseph Joy, that defendant Conroy had placed a Styrofoam \u2018peanut\u2019 between the legs of a nude \u2018action hero\u2019 doll that plaintiff displayed on her windowsill; Joy indicated he had not personally witnessed the incident, and took no further action. At some point during the next few months, when plaintiff had laid her head down on her desk, Conroy placed a lampshade on her head. Instead of disciplining Conroy for this behavior, Joy laughed and asked plaintiff if she had \u201ca new hat.\u201d According to plaintiff, she next complained in January, 1999, when she contacted company management in Durham, and told an administrator that she was \u201chaving trouble with one of the technicians,\u201d but did not identify Conroy. The administrator requested that she allow Clegg\u2019s \u201clocal management\u201d to resolve the problem. Plaintiff then discussed Conroy\u2019s behavior with Joy, who told her he would \u201chandle it.\u201d However, Joy\u2019s interventions, if any, were insufficient to prevent Conroy from continuing to bother plaintiff. In April, 1999, she again called the Durham office to complain, this time telling them the details of various incidents. The following day Clegg\u2019s owner, Phil Clegg, flew to Morehead City, where he convened a meeting of the entire staff of plaintiff\u2019s office to review the company\u2019s policy against sexual harassment. Clegg warned his employees that sexual harassment \u201cwould not be tolerated\u201d by the company. However, shortly after the staff meeting, while plaintiff was planting flowers at work, another incident occurred in which Conroy threw potting soil in plaintiffs hair, and also got her wet while they were watering the flowers, prompting his remark that he\u2019d \u201calways wanted to see [her] in a wet T shirt.\u201d Joy was made aware of the incident, but he took no disciplinary action. When Clegg\u2019s administrators called plaintiff to follow up on the staff meeting and inquire whether the situation was resolved, plaintiff reported the flower-planting incident. In response, a Clegg\u2019s administrator returned to their office. This time, the office was remodeled to place a privacy wall around plaintiff\u2019s desk, and Conroy was formally reprimanded. Thereafter, Conroy \u201cstayed away\u201d from plaintiff.\nWe conclude that plaintiff\u2019s evidence regarding the response of Joy, her immediate supervisor, to Conroy\u2019s behavior is sufficient to create a genuine issue of material fact regarding Clegg\u2019s ratification of Conroy\u2019s alleged civil assault against plaintiff. Moreover, given the evidence that Clegg\u2019s directed plaintiff to \u201clet local management handle\u201d the problem, we conclude that Joy\u2019s failure to intervene raises a genuine issue of material fact as to the company\u2019s ratification. See Burlington Industries, 93 N.C. App. 431, 378 S.E.2d 232 (jury question presented regarding company\u2019s ratification of defendant\u2019s actions, notwithstanding company\u2019s eventual discharge of defendant, where plaintiff\u2019s immediate supervisor took no action for two years). We conclude that the trial court erred in granting summary judgment on the issue of Clegg\u2019s ratification of Conroy\u2019s alleged civil assault against plaintiff.\nWe hold that the trial court did not err in entering summary judgment for defendants on plaintiff\u2019s claims of IIED and NIED, and on her claim against Clegg\u2019s for negligent retention or supervision as regards IIED and NIED; accordingly, these portions of the court\u2019s order are affirmed. We further hold that the trial court erred by granting summary judgment for defendant Clegg\u2019s on plaintiff\u2019s claim that Clegg\u2019s ratified the alleged civil assault by Conroy, and that part of the trial court\u2019s order is reversed.\nAffirmed in part, reversed in part.\nJudges WYNN and McCULLOUGH concur.\n. Although plaintiff also argues that Clegg\u2019s was liable for its negligent retention or supervision of Conroy as regards his alleged civil assault, this claim was not made in plaintiffs complaint and, therefore, is not considered by this Court. Elliott v. Owen, 99 N.C. App. 465, 472, 393 S.E.2d 347, 351 (1990) (where \u201cplaintiff has failed to raise issue] ... in her complaint . . . [the] contention is not properly before [appellate court]\u201d).", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Patterson, Harkavy, & Lawrence, L.L.P., by Martha A. Geer, and Davis, Murrelle & Lyles, by Edward L. Murrelle, for plaintiff - appellant.", "Kathryn P. Fagan, for defendant-appellants." ], "corrections": "", "head_matter": "LINDA GUTHRIE, Plaintiff v. RAYMOND CONROY and CLEGG\u2019S TERMITE AND PEST CONTROL, INC., Defendants\nNo. COA01-740\n(Filed 6 August 2002)\n1. Appeal and Error\u2014 partial summary judgment \u2014 certification \u2014 phrase \u201cfinal judgment\u201d \u2014 not necessary\nPlaintiff\u2019s claims were subject to dismissal (but were heard in the discretion of the Court of Appeals) where plaintiff appealed more than 30 days from entry of a partial summary judgment for defendants. Although plaintiff\u2019s notice of appeal was within 30 days of an amendment that added \u201cfinal judgment\u201d to the order, whether an order is final is determined by the resolution of the claim rather than the phrase \u201cfinal judgment.\u201d\n2. Emotional Distress\u2014 intentional inflection \u2014 sexual harassment \u2014 behavior juvenile but not extreme\nThe trial court did not err by granting summary judgment for defendants on a claim for intentional infliction of emotional distress (IIED) involving alleged workplace sexual harassment where the alleged behavior was annoyingly juvenile, obnoxious, and offensive, but not outrageous and extreme.\n3. Emotional Distress\u2014 negligent inflection \u2014 sexual harassment by co-worker \u2014 no breach of duty\nThe trial court did not err by granting summary judgment for defendants on plaintiff\u2019s claim for negligent infliction of emotional distress (NIED) arising from alleged workplace sexual harassment where plaintiff did not allege a duty owed to her by the co-employee who was allegedly harassing her. While NIED does not require extreme and outrageous conduct, negligence involves the breach of a duty.\n4. Employer and Employee\u2014 negligent retention and supervision \u2014 underlying tort\nThe trial court did not err by granting summary judgment for defendant employer on a claim for negligent retention and supervision of an employee accused of sexually harassing plaintiff where there was no viable tort claim against the employee.\n5. Employer and Employee\u2014 civil assault \u2014 sexual harassment \u2014 ratification\nThe trial court erred in a sexual harassment action by granting summary judgment for the employer on a claim for civil assault where the evidence was sufficient to create a genuine issue of material fact regarding ratification.\nAppeal by plaintiff from order entered 14 March 2001 by Judge Steve A. Balog in Orange County Superior Court. Heard in the Court 6f Appeals 17 April 2002.\nPatterson, Harkavy, & Lawrence, L.L.P., by Martha A. Geer, and Davis, Murrelle & Lyles, by Edward L. Murrelle, for plaintiff - appellant.\nKathryn P. Fagan, for defendant-appellants." }, "file_name": "0015-01", "first_page_order": 43, "last_page_order": 56 }