Keith v. Health-Pro Home Care Servs., Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: McGEE, Chief Judge.
• Citation: Keith v. Health-Pro Home Care Servs., Inc., 853 S.E.2d 28 (N.C. App. 2020)
• Decision Date: 15 December 2020
• Docket Number: No. COA19-118,COA19-118
• Parties: Thomas KEITH and Teresa Keith, Plaintiffs-Appellees/Cross-Appellants, v. HEALTH-PRO HOME CARE SERVICES, INC., Defendant-Appellant/Cross-Appellee.

853 S.E.2d 28

Thomas KEITH and Teresa Keith, Plaintiffs-Appellees/Cross-Appellants,

v.HEALTH-PRO HOME CARE SERVICES, INC., Defendant-Appellant/Cross-Appellee.

No. COA19-118

Court of Appeals of North Carolina.

Filed: December 15, 2020

Ward and Smith, P.A., Wilmington, by Jeremy M. Wilson, Alexander C. Dale, and Christopher S. Edwards, for Plaintiffs-Appellees and Plaintiffs-Cross-Appellants.

Hedrick Gardner Kincheloe & Garafalo LLP, by M. Duane Jones, Charlotte, Michael S. Rothrock, and Linda Stephens, Raleigh, for Defendant-Appellant and Defendant-Cross-Appellee.

McGEE, Chief Judge.

Defendant-Employer Health-Pro Home Care Services, Inc. ("Defendant" or "Health-Pro") appeals from the denial of its motions for directed verdict and its motion for a judgment notwithstanding the verdict ("JNOV") on the negligence claim of Plaintiffs Thomas Keith ("Mr. Keith") and Teresa Keith ("Mrs. Keith," together with Mr. Keith, "Plaintiffs"). Because this Court holds that Plaintiffs’ claim was one pursuant to the doctrine of negligent hiring, retention, or supervision, not, as argued by Plaintiffs, one in ordinary negligence, we agree with Defendant, reverse, and remand for entry of a JNOV in Defendant's favor. We further dismiss Plaintiffs’ conditional cross-appeal as moot.

I. Facts

In relevant part, the substantial evidence introduced at trial supporting Plaintiffs’ negligence complaint included the following facts: Defendant "provides in-home health care for disabled and elderly individuals." Plaintiffs "are an elderly couple who live alone at their home in Pitt County[.]" Plaintiffs "hired [Defendant] approximately three years [prior to filing this action] to provide in-home care." "Originally, Health-Pro aides were scheduled to come to [Plaintiffs’] home from 8:00 a.m. to 2:00 p.m. and then again from 6:00 p.m. to 11:00 p.m." However, Plaintiffs "eventually" requested that "Health-Pro aides" provide services "for the entire day." "Health-Pro aides" such as Deitra Clark ("Ms. Clark") would "provide the following services to [Plaintiffs], among others: laundry; retrieving the mail and newspaper; preparing meals; washing, bathing, and dressing Mrs. Keith; cleaning the house; and running various errands for [Plaintiffs], including driving Mrs. Keith to the store and to doctor appointments." Aides such as Ms. Clark were employees of Defendant. Naturally, due to the nature of the job, "[Ms.] Clark was able to gain extensive information about [Plaintiffs] and their home including, but not limited to, how to enter and exit the home, details of [Plaintiffs’] personal property and other assets, and the location of valuables within the home."

"In the fall of 2015, [Plaintiffs] discovered that approximately $90.00 in rolled coins had been stolen from a box inside their home." "In July or August 2016, approximately ... $1,200.00 was stolen from [Mrs. Keith's] dresser drawer, and $90.00 was stolen from Mr. Keith's wallet." At the time Plaintiffs noticed the missing money in August, they informed "Sylvester Bailey [("Mr. Bailey")], one of the officers and owners of Health-Pro, of the" money missing from Mr. Keith's wallet, the money missing from Mrs. Keith's dresser drawer, as well as the "missing rolled coins" allegedly stolen in "the fall of 2015." In response, "[Mr.] Bailey stated that he would take appropriate action, including determining which employee might be responsible and responding accordingly." "[Mr.] Bailey identified two employees who may have been working for Plaintiffs "in the fall of 2015" as well as "[i]n July or August 2016," one of whom was Ms. Clark, the other Clementine Little ("Ms. Little") and "assured [Plaintiffs] that neither [employee would] again [ ] be assigned to [Plaintiffs’] home. [Plaintiffs and their son, Frederick Keith ("Frederick"),] specifically told [Mr.] Bailey that they did not want [Ms.] Clark assigned as an aide [ ] in their home." However, two or three weeks later, Defendant "again assigned [Ms.] Clark to [work as an aide in Plaintiffs’] home." Plaintiffs allege that because they "relied on Health-Pro aides to take care of them, including to assist with various activities of daily living and to transport Mrs. Keith to the medical appointments," Plaintiffs "essentially were forced to accept aide assignments made by [Defendant]."

Sometime "between 12:00 midnight and 1:00 a.m. on September 29, 2016," Plaintiffs were the victims of "a home invasion [ ] robbery" perpetrated by Ms. Clark and two male accomplices. "[Ms.] Clark [knew the location of] a key to [Plaintiffs’] home which, upon information and belief, was used to enter the home[.]" "The male accomplices forced their way inside [Plaintiffs’] home[ and one of the men] held a gun to Mr. Keith's head. One male accomplice then forced Mr. Keith at gunpoint to drive him to an ATM, where he forced Mr. Keith to withdraw $1,000.00 in cash." "The other male accomplice held Mrs. Keith at the home as a hostage during the time." "In addition to the $1,000.00 in cash, [Ms.] Clark and the two male accomplices stole over $500.00 in coins as well as a gun from [Plaintiffs’] home." Ms. Clark did not enter Plaintiffs’ home and, at the time of the robbery and kidnapping, Plaintiffs did not know Ms. Clark was involved.

"Following the robbery, [Ms.] Clark and one of her accomplices went to Wal-Mart, spent some of the money they had stolen from [Plaintiffs], and then tried to ‘cash in’ the rolled coins. [Ms.] Clark and her two male accomplices were all subsequently arrested." Mr. Bailey's wife Doris Bailey ("Ms. Bailey"), "the director of Health-Pro, came to [Plaintiffs’] home the morning following the robbery. [Ms.] Bailey admitted that [Ms.] Clark was involved in the robbery and as a result was being terminated by [Defendant]. [Ms.] Bailey also revealed that [Defendant] had some prior knowledge of a criminal record concerning [Ms.] Clark."

Plaintiffs included two claims in their complaint—a claim of "negligence," and a claim for "punitive damages." Defendant moved for summary judgment on 7 September 2017, which motion was denied on 12 December 2017. Defendant stipulated before trial that Ms. Clark "was an employee of Defendant ... on September 29, 2016"—the date of the criminal acts perpetrated against Plaintiffs—and that Ms. Clark "was involved with, and had responsibility for, the .. home invasion and robbery of Plaintiffs[.]" "Plaintiffs’ contested issue[ ] to be tried by the jury" was set forth by Plaintiffs as: "Were [ ] Plaintiffs ... injured by the negligence of Defendant[.]" This matter went to trial on 19 March 2018.

At trial, Defendant objected to the introduction of certain screenshots from Ms. Clark's Facebook page, stating that it was Defendant's "understanding Plaintiffs intend to introduce [the] screenshots ... [and] argue that [Ms. Clark's Facebook account] was one of the things [ ] Defendant should have checked when hiring her and also having her as an employee. " (Emphasis added). Defendant's attorney argued that Ms. Clark posted the contested Facebook posts while she was employed by Defendant, not before , and that "there is no legal authority which I am aware of that requires perspective employers to utilize social media as a screening tool for job applicants and there's no legal authority which I am aware of that requires a current employer to continually screen an employee's social media account." Plaintiffs argued the Facebook posts were relevant because "Defendants themselves create a duty two separate ways. One, they had a background check policy that said if there were any sort of charges or even misdemeanors but before someone is hired there needed to be an investigation of exactly what happened" and, two, "these posts are the one threat ... during the time [Ms. Clark] was in [Plaintiffs’] home when money started going missing[.]" (Emphasis added).

After the close of Plaintiffs’ evidence, Defendant moved for a directed verdict, arguing that Plaintiffs had failed to introduce sufficient evidence to support a claim for negligent hiring, supervision, or retention,¹ or for punitive damages. Plaintiffs countered that their claim was one based upon "ordinary" negligence, not negligent hiring. The trial court denied Defendant's motion. At the close of all the evidence, Defendant renewed its motion which was again denied. However, the trial court granted Defendant's motion for a directed verdict on Plaintiff's claim for punitive damages.

The trial court instructed the jury, in relevant part, as follows: "W[ere] [ ] Plaintiff[s] ... injured by the negligence of [ ] Defendant[.]" "This means that [ ] Plaintiff[s’] must prove by the greater weight of the evidence that [ ] Defendant was negligent and that such negligence was a proximate cause of [ ] Plaintiff[s’] injury." "[N]egligence refers to a person's or company's failure to follow a duty of conduct imposed by law. Every person or company is under a duty to use ordinary care to protect himself and others from injury." The trial court instructed that "ordinary care" meant "that degree of care which a reasonable and prudent person would use under the same or similar circumstances[.]" The trial court defined proximate cause as "a cause which in natural and continuous sequence produces a person's injury and is a cause which a reasonable and prudent person could have foreseen would probably produce such injury or some similar injurious result." The jury found in favor of Plaintiffs, awarded Mr. Keith $500,000.00 in damages, and Mrs. Keith $250,000.00. Defendant moved for a JNOV, which the trial court denied. Defendant appeals, and Plaintiffs include a conditional cross-appeal from the trial court's grant of a directed verdict in favor of Defendant on Plaintiffs’ claim for punitive damages.

II. Analysis

Defendant argues on appeal that the trial court erred in allowing Plaintiffs’ action to go to the jury as one in "ordinary" negligence, and in instructing the jury accordingly. Defendant contends Plaintif...