{ "id": 8897331, "name": "CYNTHIA SMITH-PRICE, Plaintiff v. CHARTER BEHAVIORAL HEALTH SYSTEMS, d/b/a CHARTER HOSPITAL, and JAY LAWS, joint and severally Defendants", "name_abbreviation": "Smith-Price v. Charter Behavioral Health Systems", "decision_date": "2004-05-18", "docket_number": "No. COA99-1523", "first_page": "349", "last_page": "357", "citations": [ { "type": "official", "cite": "164 N.C. App. 349" } ], "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": "439 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "800" }, { "page": "800" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523816 ], "year": 1994, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0598-01" ] }, { "cite": "568 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248584 ], "year": 2002, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0025-01" ] }, { "cite": "351 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167313 ], "year": 1987, "pin_cites": [ { "page": "10-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0001-01" ] }, { "cite": "418 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "extreme and outrageous behavior was not found where defendant engaged in kissing and heavy petting with an intoxicated plaintiff while others were present" } ], "opinion_index": 0 }, { "cite": "331 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497251, 2498471 ], "year": 1992, "pin_cites": [ { "parenthetical": "extreme and outrageous behavior was not found where defendant engaged in kissing and heavy petting with an intoxicated plaintiff while others were present" } ], "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": "extreme and outrageous behavior was not found where defendant engaged in kissing and heavy petting with an intoxicated plaintiff while others were present" } ], "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": "extreme and outrageous behavior was not found where defendant engaged in kissing and heavy petting with an intoxicated plaintiff while others were present" } ], "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": "extreme and outrageous behavior found where defendant, after physically assaulting plaintiff, began masturbating, and ejaculated on plaintiff" } ], "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": "extreme and outrageous behavior found where defendant, after physically assaulting plaintiff, began masturbating, and ejaculated on plaintiff" } ], "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", "year": 2000, "pin_cites": [ { "parenthetical": "extreme and outrageous behavior found where defendant, after physically assaulting plaintiff, began masturbating, and ejaculated on plaintiff" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092650 ], "year": 2000, "pin_cites": [ { "parenthetical": "extreme and outrageous behavior found where defendant, after physically assaulting plaintiff, began masturbating, and ejaculated on plaintiff" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0179-01" ] }, { "cite": "532 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "extreme and outrageous behavior found where defendant frightened and humiliated plaintiff with cruel practical jokes, made obscene comments to her, made indecent physical suggestions and threatened her personal safety" } ], "opinion_index": 0 }, { "cite": "352 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684978 ], "year": 2000, "pin_cites": [ { "parenthetical": "extreme and outrageous behavior found where defendant frightened and humiliated plaintiff with cruel practical jokes, made obscene comments to her, made indecent physical suggestions and threatened her personal safety" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0343-01" ] }, { "cite": "502 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "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": "53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0047-01" ] }, { "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": 4, "pin_cites": [ { "page": "123" }, { "page": "121" }, { "page": "121", "parenthetical": "extreme and outrageous behavior found where defendant made sexually suggestive remarks and physical insinuations to plaintiff and when she refused his advances he screamed profane names at her, threatened her with bodily injury and slammed a knife down on the table in front of her" }, { "page": "122-23", "parenthetical": "extreme and outrageous behavior was not found where defendant yelled and threw menus at plaintiff and interfered with her supervision of employees" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "weight": 3, "pin_cites": [ { "page": "493" }, { "page": "490" }, { "page": "493" } ], "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", "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525414 ], "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0672-01" ] }, { "cite": "414 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "27", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "331 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499459 ], "year": 1992, "pin_cites": [ { "page": "82", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0073-01" ] }, { "cite": "567 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248547 ], "year": 2002, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0015-01" ] }, { "cite": "311 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "310 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402972 ], "year": 1984, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0227-01" ] }, { "cite": "399 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497698, 2494955, 2493783 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0644-02", "/nc/327/0644-01", "/nc/327/0644-03" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "326 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523542 ], "year": 1985, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0295-01" ] }, { "cite": "355 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "319 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741625 ], "year": 1987, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0413-01" ] }, { "cite": "338 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523436 ], "year": 1986, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0647-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "146", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "year": 2002, "pin_cites": [ { "page": "681-82", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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": "443 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527946 ], "year": 1994, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0693-01" ] }, { "cite": "61 L. Ed. 2d 297", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532170, 1532010, 1532202, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-03", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "912" } ], "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] }, { "cite": "11 U.S.C. \u00a7 362", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 943, "char_count": 19444, "ocr_confidence": 0.752, "pagerank": { "raw": 2.5032884301726087e-07, "percentile": 0.809772114127117 }, "sha256": "edb7f5cb3d8c6d1e493a8559b866f1bbaec9be1044e6f4b7ad0045f3494f48a7", "simhash": "1:8d01feb14415371b", "word_count": 3037 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and GEER concur." ], "parties": [ "CYNTHIA SMITH-PRICE, Plaintiff v. CHARTER BEHAVIORAL HEALTH SYSTEMS, d/b/a CHARTER HOSPITAL, and JAY LAWS, joint and severally Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nIn her amended complaint in this action against defendants Charter Behavioral Health Systems (\u201cCharter\u201d), Jean Hubbard (\u201cHubbard\u201d), Charter\u2019s Director of Nursing, and Jay Laws (\u201cLaws\u201d), a mental health specialist at Charter, plaintiff alleges claims for negligent infliction of emotional distress, intentional infliction of emotional distress, defamation and retaliation for reporting illegal, unprofessional and immoral conduct. Plaintiff also alleged claims against defendant Charter for negligent supervision and negligent retention of three of its employees. All defendants filed answers in which they denied the material allegations of plaintiff\u2019s amended complaint and asserted affirmative defenses. Plaintiff subsequently dismissed the action against Hubbard with prejudice, and defendants Charter and Laws moved for summary judgment.\nMaterials before the trial court at the hearing on defendants\u2019 motions for summary judgment disclose that plaintiff, a registered nurse, and Laws worked in the children\u2019s unit at Charter\u2019s Greensboro facility. Although Laws was under the direct supervision of plaintiff, she had no administrative authority. As early as November 1997, plaintiff complained about Laws\u2019 tardiness, abuse of phone privileges, failure to follow policy, insubordination and his inappropriate sexual relationship with a co-worker. She also expressed dissatisfaction with Charter\u2019s under-staffing, but Charter took no corrective action.\nOn 5 February 1998, Laws arrived late at work, which, according to plaintiff, was not uncommon. After plaintiff confronted Laws about his tardiness, excessive phone calls, taking \u201coff orders\u201d and his attitude at work, he angrily walked away from plaintiff. Laws returned a few minutes later, claiming taking \u201coff orders\u201d was not his job, and threw a packet of papers containing a job description at plaintiff, hitting her in the chest. Plaintiff testified in her deposition that the impact caused her little physical pain, but the incident was emotionally traumatic. After this episode, plaintiff enlisted the help of the assistant director of nursing, Kathy Williams, who agreed that defendant Laws should be sent home for the day for insubordination. At the request of Williams, plaintiff prepared a written statement of the events to submit to Hubbard the following day.\nAlthough Laws was not scheduled to work the following day, he came into Charter and submitted a report claiming plaintiff had sexually harassed him. An investigation of the allegation was promptly initiated by Charter. Some employees corroborated Laws\u2019 complaints while others expressed no knowledge of inappropriate behavior by plaintiff. However, because of the allegations, plaintiff was moved to the adult unit of the hospital while Laws remained on the children\u2019s unit. On or about 10 February 1998 plaintiff took a medical leave due to the stress caused by the accusations.\nThe trial court granted summary judgment in favor of both defendants and plaintiff gave notice of appeal. On 16 February 2000, Charter filed for relief under Chapter 11 of the United States Bankruptcy Code.. By order dated 3 March 2000, this Court stayed all further proceedings in this case until notified that the automatic stay provided by 11 U.S.C. \u00a7 362 had been lifted. Such notification was received by this Court on 16 July 2003.\nPlaintiff\u2019s Appeal as to Defendant Charter\nOn 22 October 2001, the United States Bankruptcy Court for the District of Delaware disallowed plaintiffs claims against Charter in full. .Charter has moved to dismiss plaintiff\u2019s appeal of the order granting summary judgment in its favor on the grounds that plaintiff\u2019s claim against Charter has been disallowed by the Bankruptcy Court, rendering the issues between plaintiff and Charter in this appeal moot.\nWhenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\nIn re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979). \u201cAn appeal which presents a moot question should be dismissed.\u201d Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 698, 443 S.E.2d 127, 131 (1994). The order of the Bankruptcy Court disallowing plaintiff\u2019s claim against Charter has rendered moot the issue of whether Charter was entitled to summary judgment dismissing plaintiff\u2019s claims. Charter\u2019s motion to dismiss plaintiff\u2019s appeal is, therefore, allowed.\nPlaintiff\u2019s Appeal as to Defendant Laws\nI.\n\u201c[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Summary judgment is appropriate when \u201cviewed in the light most favorable to the non-movant,\u201d Id., \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. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). The moving party must establish the lack of any triable issue of material fact \u201cby proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.\u201d DeWitt v. Eveready Battery Co., 355 N.C. 672, 681-82, 565 S.E.2d 140, 146 (2002) (citation omitted). The burden then shifts to the nonmoving party to \u201cproduce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial.\u201d Id. (citation omitted). Although summary judgment is seldom granted in negligence cases, it may be granted where the evidence shows \u201ca lack of any negligence on the part of the defendant.\u201d Surrette v. Duke Power Co., 78 N.C. App. 647, 650, 338 S.E.2d 129, 131 (1986).\nII.\nInitially, defendant Laws argues that plaintiffs appeal should be dismissed because plaintiff has not followed the North Carolina Rules of Appellate Procedure which require each assignment of error to \u201cstate plainly, concisely and without argumentation the legal basis upon which error is assigned.\u201d N. C. R. App. P. Rule 10(c). \u201cAn assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\u201d Id.\nEach of plaintiff\u2019s assignments of error state, \u201cThe trial court erred by granting the defendants\u2019 motion for summary judgment as to plaintiff\u2019s claim of . . . .\u201d An appeal from an order granting summary judgment raises only the issues of whether, on the face of the record, there is any genuine issue of material fact, and whether the prevailing party is entitled to a judgment as a matter of law. Therefore, the notice of appeal suffices as an assignment of error directed to the order of summary judgment. Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987); Vernon, Vernon, Wooten, Brown & Andrews, P.A. v. Miller, 73 N.C. App. 295, 297, 326 S.E.2d 316, 319 (1985). Plaintiff\u2019s assignments of error are clearly sufficient.\nIII.\nPlaintiff contends the trial court erred by granting defendant Laws\u2019 motion for summary judgment as to her claim for negligent infliction of emotional distress. The negligent act upon which plaintiff\u2019s claim is grounded is that Laws \u201ccommunicat[ed] false and misleading information regarding the Plaintiff\u2019s employment behavior and job performance to the defendant company.\u201d\nTo establish a claim for negligent infliction of emotional distress, the plaintiff must prove that \u201c(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress.\u201d Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990). \u201cIn order to establish actionable negligence, plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury.\u201d Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 232, 311 S.E.2d 559, 564 (1984).\nIn this case, plaintiff presented no evidence to establish that defendant Laws owed her a duty of care or that he breached such a duty. Therefore, an essential element of plaintiff\u2019s claim for negligent infliction of emotional distress is unsupported by the evidence and summary judgment was properly allowed. See Guthrie v. Conroy, 152 N.C. App. 15, 25, 567 S.E.2d 403, 411 (2002).\nIV.\nPlaintiff next contends the trial court erred by granting defendant Laws\u2019 motion for summary judgment as to her claim for intentional infliction of emotional distress. The elements for the tort of intentional infliction of emotional distress are: \u201c1) extreme and outrageous conduct by the defendant 2) which is intended to cause 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). 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 (citation omitted), cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). The behavior must be more than \u201cmere insults, indignities, threats, . . . and . . . plaintiffs 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 v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123 (citation omitted), disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The determination of whether the alleged conduct is considered extreme and outrageous is a question of law for the trial judge, however, the jury must determine whether the conduct is \u201csufficiently extreme and outrageous to result in liability.\u201d Id. at 490-91, 340 S.E.2d at 121.\nThe evidence, considered in the light most favorable to plaintiff, does not, as a matter of law, show extreme and outrageous conduct on Laws\u2019 part. Plaintiff asserts that prior to 5 February 1998, defendant Laws failed to follow policies and procedures, took excessive personal phone calls, and failed to perform certain tasks. On 5 February 1998, when plaintiff confronted Laws, he threatened to make accusations against her, yelled at her, walked off his assignment and then, when he returned, threw a package of papers at plaintiff. The next day he filed a complaint of sexual harassment against plaintiff. Although defendant\u2019s behavior was undeniably churlish and ill-mannered, it does not rise to the level of the extreme and outrageous conduct which is required to sustain a claim for intentional infliction of emotional distress. See Hogan, 79 N.C. App. at 490, 340 S.E.2d at 121 (extreme and outrageous behavior found where defendant made sexually suggestive remarks and physical insinuations to plaintiff and when she refused his advances he screamed profane names at her, threatened her with bodily injury and slammed a knife down on the table in front of her); Watson v. Dixon, 130 N.C. App. 47, 53, 502 S.E.2d 15, 20 (1998), aff'd, 352 N.C. 343, 532 S.E.2d 175 (2000) (extreme and outrageous behavior found where defendant frightened and humiliated plaintiff with cruel practical jokes, made obscene comments to her, made indecent physical suggestions and threatened her personal safety); McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000) (extreme and outrageous behavior found where defendant, after physically assaulting plaintiff, began masturbating, and ejaculated on plaintiff); 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) (extreme and outrageous behavior was not found where defendant engaged in kissing and heavy petting with an intoxicated plaintiff while others were present); Hogan, 79 N.C. App. at 493, 340 S.E.2d at 122-23 (extreme and outrageous behavior was not found where defendant yelled and threw menus at plaintiff and interfered with her supervision of employees). Because plaintiff has not presented evidence sufficient to support a finding of the element of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress, the trial court properly granted defendant Laws\u2019 motion for summary judgment as to that claim.\nV.\nIn her final argument, plaintiff contends that the trial court erred by granting defendant Laws\u2019 motion for summary judgment as to her claim for defamation. To prevail on a claim of defamation, \u201ca plaintiff must allege and prove that the defendant made false, defamatory statements of or concerning the plaintiff, which were published to a third person, causing injury to the plaintiff\u2019s reputation.\u201d Tyson v. L\u2019Eggs Products, Inc., 84 N.C. App. 1, 10-11, 351 S.E.2d 834, 840 (1987). \u201cIn North Carolina, the term defamation applies to the two distinct torts of libel and slander.\u201d Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 898 (2002). Slander is defined as \u201cthe speaking of base or defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood.\u201d Black\u2019s Law Dictionary, 1559 (4th Ed. 1968). In this case, plaintiff argues that defendant Laws slandered her by making accusations that she had sexually harassed him.\n\u201cHowever, even if it is determined that a statement is slanderous, the law recognizes certain communications as privileged.\u201d Long v. Vertical Technologies, 113 N.C. App. 598, 601, 439 S.E.2d 797, 800 (1994). \u201cThe essential elements for the qualified privilege to exist are good faith, an interest to be unheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner and the proper parties only.\u201d Id. at 602, 439 S.E.2d at 800. \u201cAdditionally, a qualified privilege may be lost by proof of actual malice on the part of the defendant.\u201d Id.\nThere is conflicting evidence in the record as to whether defendant\u2019s allegations were true. Laws testified that plaintiff sexually harassed him by rubbing his head and telling him his head was \u201csexy,\u201d hugging him inappropriately, making explicit sexual comments about his penis, and by pulling her clothing aside so as to expose her bra and thong. Hubbard testified in her deposition that although she \u201cinitially was not sure [Laws] was telling the truth,\u201d she felt like \u201cthere was something going on\u201d even though she could not substantiate the accusations. However, in her deposition, plaintiff denied all of Laws\u2019 accusations. Therefore, there is a genuine issue of material fact as to the truth of Laws\u2019 accusations.\nMoreover, although Laws had a legitimate interest in reporting any incidents of improper sexual advances or conduct to plaintiff\u2019s supervisor, there is evidence which would support a finding that he did not act in good faith, so as to be entitled to a qualified privilege. There was evidence that Laws filed his sexual harassment claim the morning after he was sent home for insubordination, having never before mentioned any alleged sexual harassment on plaintiff\u2019s part. There was also evidence that during the 5 February 1998 incident, Laws threatened to tell Charter\u2019s administration that plaintiff was having a relationship with another employee, William Bynum. Therefore, there are genuine issues of fact as to whether defendant Laws acted in good faith in accusing plaintiff of sexual harassment and the trial court should not have granted summary judgment as to her claim for defamation.\nAffirmed in part, reversed in part and remanded.\nJudges HUDSON and GEER concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Gray, Newell, Johnson & Blackmon, LLP, by Angela Newell Gray, for plaintiff-appellant.", "Smith Moore LLP, by Julie G. Theall, for defendant-appellee Charter Behavioral Health Systems.", "Haynsworth Baldwin Johnson & Greaves LLC, by Lucretia D. Guia, for defendant-appellee Jay Laws." ], "corrections": "", "head_matter": "CYNTHIA SMITH-PRICE, Plaintiff v. CHARTER BEHAVIORAL HEALTH SYSTEMS, d/b/a CHARTER HOSPITAL, and JAY LAWS, joint and severally Defendants\nNo. COA99-1523\n(Filed 18 May 2004)\n1. Appeal and Error\u2014 appealability \u2014 bankruptcy court action \u2014 mootness\nDefendant employer\u2019s motion to dismiss plaintiff employee\u2019s appeal in a negligent infliction of emotional distress, intentional infliction of emotional distress, defamation, retaliation for reporting illegal, unprofessional, and immoral conduct, negligent supervision, and negligent retention of employees case is allowed because the order of the bankruptcy court disallowing plaintiff\u2019s claims against defendant has rendered moot the issue of whether defendant was entitled to summary judgment dismissing plaintiff\u2019s claims.\n2. Appeal and Error\u2014 preservation of issues \u2014 assignments of error\nAlthough defendant contends that plaintiff\u2019s appeal should be dismissed based on plaintiff\u2019s alleged failure to follow N.C. R. App. R Rule 10(c) which requires each assignment of error to state plainly, concisely, and without argumentation the legal basis upon which error is assigned, the notice of appeal sufficed as an assignment of error directed to the order of summary judgment.\n3. Emotional Distress\u2014 negligent infliction \u2014 duty of care\nThe trial court did not err by granting defendant co-worker\u2019s motion for summary judgment on plaintiff\u2019s claim for negligent infliction of emotional distress based on defendant co-worker communicating false and misleading information regarding plaintiff\u2019s employment behavior and job performance to defendant company, because plaintiff failed to present evidence that defendant co-worker owed her a duty of care or that he breached such a duty.\n4. Emotional Distress\u2014 intentional infliction \u2014 extreme and outrageous conduct required\nThe trial court did not err by granting defendant co-worker\u2019s motion for summary judgment on plaintiffs claim for intentional infliction of emotional distress because considered in the light most favorable to plaintiff, the evidence does not show extreme and outrageous conduct on defendant\u2019s part.\n5. Libel and Slander\u2014 slander \u2014 good faith\nThe trial court erred by granting defendant co-worker\u2019s motion for summary judgment on plaintiff\u2019s slander claim, because there are genuine issues of material fact as to whether defendant acted in good faith in accusing plaintiff of sexual harassment.\nAppeal by plaintiff from judgment entered 20 September 1999 by Judge Russell G. Walker, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 17 March 2004.\nGray, Newell, Johnson & Blackmon, LLP, by Angela Newell Gray, for plaintiff-appellant.\nSmith Moore LLP, by Julie G. Theall, for defendant-appellee Charter Behavioral Health Systems.\nHaynsworth Baldwin Johnson & Greaves LLC, by Lucretia D. Guia, for defendant-appellee Jay Laws." }, "file_name": "0349-01", "first_page_order": 381, "last_page_order": 389 }