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

Decision Date17 June 2022
Docket Number33A21
Citation381 N.C. 442,873 S.E.2d 567
Parties Thomas KEITH and Teresa Keith v. HEALTH-PRO HOME CARE SERVICES, INC.
CourtNorth Carolina Supreme Court

Ward and Smith, P.A., by Jeremy M. Wilson, Wilmington, Alex C. Dale, and Christopher S. Edwards, for plaintiff-appellants.

Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, Charlotte, Michael S. Rothrock, and Linda Stephens, Raleigh, for defendant-appellee.

Van Winkle, Buck, Wall, Starnes & Davis, P.A., Asheville, by Heather Whitaker Goldstein, for the National Academy of Elder Law Attorneys and the North Carolina Chapter of the National Academy of Elder Law Attorneys, amici curiae.

Fox Rothschild LLP, Raleigh, by Troy D. Shelton, for the National Center for Victims of Crime, amicus curiae.

The Sumwalt Group, Charlotte, by Vernon Sumwalt, and White & Stradley, PLLC, Raleigh, by J. David Stradley, for the North Carolina Advocates for Justice, amicus curiae.

Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall, Raleigh, Emily L. Poe, Charlotte, and Steven C. Wilson, Raleigh, for North Carolina Association of Defense Attorneys, North Carolina Retail Merchants Association and the Chamber Legal Institute, amici curiae.


¶ 1 In this matter, we must consider whether the Court of Appeals erred by reversing the judgment in favor of plaintiffs and remanding to the trial court for entry of an order granting defendant's motion for judgment notwithstanding the verdict and by determining that the trial court erred by denying defendant's requested instruction. After careful review of the record, we find that plaintiffs submitted sufficient evidence for each element of the claim.

¶ 2 Employers are in no way general insurers of acts committed by their employees, but as recognized by our precedent, an employer may owe a duty of care to a victim of an employee's intentional tort when there is a nexus between the employment relationship and the injury. Here, when the evidence is viewed in the light most favorable to the plaintiffs, plaintiffs, who are an elderly infirm couple that contracted with a company to provide them a personal care aide in their home, have shown a nexus between their injury and the employment relationship. The employee was inadequately screened and supervised, being placed in a position of opportunity to commit crimes against vulnerable plaintiffs after her employer suspected her of stealing from plaintiffs. Therefore, we conclude that the Court of Appeals erred by reversing the judgment in favor of plaintiffs and by remanding for entry of a judgment notwithstanding the verdict in favor of defendant. Further, the Court of Appeals misinterpreted North Carolina precedent, and thus erred by holding the trial court erred by denying defendant's requested instructions.

I. Background

¶ 3 On 29 September 2016, plaintiffs Thomas and Teresa Keith (Mr. and Mrs. Keith), an elderly married couple with health and mobility issues, were the victims of a home invasion and armed robbery orchestrated by a personal care aide working for defendant Health-Pro Home Care Services, Inc. (Health-Pro). The aide, Deitra Clark, was assigned to assist the Keiths in their home. Clark subsequently pleaded guilty to first-degree burglary and second-degree kidnapping for her conduct.

¶ 4 In December 2016, the Keiths sued Health-Pro for negligence and punitive damages. The Keiths alleged that they hired Health-Pro as their in-home health care provider and "[d]espite Deitra Clark's criminal record, lack of a driver's license, and history of prior incidents [of suspected prior thefts from the Keiths’ home], Health-Pro negligently allowed Deitra Clark to provide in-home care to the Keiths, and Health-Pro's conduct in assigning Deitra Clark to these responsibilities, as opposed to some other position in the company, was a proximate cause of the robbery of the Keiths and the consequent injuries sustained by them."

¶ 5 The case proceeded to trial and was tried before a jury at the 19 March 2018 session of superior court in Pitt County. At the conclusion of the Keiths’ presentation of evidence, Health-Pro moved for directed verdict on the negligence claim pursuant to North Carolina Rule of Civil Procedure 50. Health-Pro argued that:

As far as negligence, your Honor, we would contend there has been no evidence to meet the Plaintiffs’ burden of proof. My understanding from the proposed jury instructions that the Plaintiffs have passed up is they treat this as an ordinary negligence case. The Defense contends this is negligence [sic] hiring retention and supervision case, which is part of our proposed instructions. That's very similar to what the Plaintiffs have pled. That type of case is what has essentially been argued to this jury and that's what the evidence has revealed. In order to succeed on that case ... and even in an ordinary negligence case the Plaintiffs have to show that the events of September 29th, 2016, and Deitra Clarks’ unfitness and participation in those events were foreseeable to my clients. Those are the events that have caused the Plaintiffs the only injury they complain of. And there is nothing in the record that suggests that it was foreseeable.

¶ 6 The trial court denied Health-Pro's motion for directed verdict at the close of the Keiths’ evidence.

¶ 7 At the close of all evidence, Health-Pro renewed its motion for a directed verdict. The trial court denied the motion.

¶ 8 The trial court then held a charge conference for the jury instructions. As relevant to this appeal, the trial court proposed using for the negligence issue North Carolina Pattern Jury Instructions 102.10, 102.11, 102.19, and 102.50, which included an instruction on the general common law of negligence. Health-Pro objected to the foregoing Pattern Jury Instructions and instead requested Pattern Jury Instruction 640.42, entitled Employment Relationship - Liability of Employer for Negligence in Hiring, Supervision or Retention of an Employee. N.C.P.I.–Civil 640.42 (2009). Health-Pro's counsel contended that this is a negligent hiring case,1 not an ordinary negligence case, and tendered its proposed instruction to the trial court in writing. The Keiths disagreed, arguing that their complaint pleaded an ordinary negligence claim and the facts in the case were beyond the Pattern Jury Instruction for negligent hiring. The trial court denied Health-Pro's requested jury instruction and instructed the jury in accordance with the trial court's proposed instruction.

¶ 9 After hearing the instructions from the trial court and deliberating, the jury returned a verdict in favor of the Keiths. The jury answered in the affirmative that both Mr. and Mrs. Keith were injured by the negligence of Health-Pro. The jury found Mr. Keith entitled to recover $500,000 in damages from Heath-Pro for his personal injuries and found Mrs. Keith entitled to recover $250,000 in damages from Health-Pro for her personal injuries. The trial court then entered judgment to this effect on 11 April 2018.

¶ 10 Health-Pro subsequently moved for judgment notwithstanding the verdict under North Carolina Rule of Civil Procedure 50 and, in the alternative, for a new trial pursuant to North Carolina Rule of Civil Procedure 59. The trial court denied these post-trial motions on 3 May 2018. Health-Pro appealed the 11 April 2018 judgment and the 3 May 2018 order denying the post-trial motions.2

¶ 11 On appeal, a divided panel of the Court of Appeals reversed the judgment and remanded for entry of a judgment notwithstanding the verdict in Health-Pro's favor. Keith v. Health-Pro Home Care Servs., Inc. , 275 N.C. App. 43, 44, 853 S.E.2d 28 (2020).

¶ 12 To address Health-Pro's appeal of the trial court's denial of its motions for directed verdict and motion for judgment notwithstanding the verdict, the Court of Appeals determined that it "must first decide whether [the Keiths’] case was appropriately presented to the jury as an ‘ordinary’ negligence claim instead of an action for negligent hiring." Id. at 48–49, 853 S.E.2d 28. The Court of Appeals considered the allegations in the Keiths’ complaint and the evidence presented at trial "within the context of precedent governing both ordinary negligence and negligent hiring." Id. at 51, 853 S.E.2d 28. The Court of Appeals ultimately indicated that it agreed with Health-Pro that the Keiths’ "allegations and the facts of this case constituted a claim for negligent hiring," obligating the Keiths to prosecute their claim as one for negligent hiring. Id. at 61, 853 S.E.2d 28. The Court of Appeals explained as follows:

All of Plaintiffs’ relevant allegations and evidence directly challenge whether Defendant should have hired Ms. Clark as an in-home aide; whether Defendant acted appropriately in response to hearing from Plaintiffs that money had been taken from their home on two occasions—which would have involved either greater supervision of—such as moving Ms. Clark to a no-client-contact position, as suggested by Plaintiffs—or a decision regarding whether to retain her in Defendant's employ at all. Plaintiffs have cited no binding authority for the proposition that an action brought on allegations, and tried on facts, that clearly fall within the scope of a negligent hiring claim may avoid the heightened burden of proving all the elements of negligent hiring by simply designating the action as one in ordinary negligence, and we find none.

Id. at 64–65, 853 S.E.2d 28.

¶ 13 As such, the Court of Appeals held that the trial court erred by denying Health-Pro's motions for directed verdict and judgment notwithstanding the verdict "with respect to ordinary negligence, as that claim was not properly before the trial court, and no evidence could support it." Id. at 66, 853 S.E.2d 28. Given the Court of Appeals’ conclusion that the Keiths’ claim was not one of ordinary negligence, the Court of Appeals also held that it was error to deny Health-Pro's requested jury instruction on negligent hiring. Id. at...

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