Keller by and through Keller v. Deerfield Episcopal Retirement Community, Inc.

Decision Date02 June 2020
Docket NumberNo. COA19-633,COA19-633
Citation271 N.C.App. 618,845 S.E.2d 156
CourtNorth Carolina Court of Appeals
Parties Nancy KELLER, BY AND THROUGH her attorney-in-fact, Leslie Ann KELLER, Plaintiff, v. DEERFIELD EPISCOPAL RETIREMENT COMMUNITY, INC. and Jeffrey Todd Earwood, Defendants.

Law Office of David Pishko, P.A., Winstom Salem, by David Pishko, for plaintiff-appellant.

Parker Poe Adams & Bernstein LLP, Charlotte, by John H. Beyer and Katherine H. Graham, for defendant-appellee Deerfield Episcopal Retirement Community, Inc.

Dickie, McCamey & Chilcote, PC, Charlotte, by Joseph L. Nelson, for defendant-appellee Jeffrey Todd Earwood.


Plaintiff Nancy Keller, by and through her attorney-in-fact, Leslie Ann Keller, appeals from (1) an order granting summary judgment and dismissing Keller's claims against Defendant Deerfield Episcopal Retirement Community, Inc.; and (2) a judgment entered upon a jury's verdict finding in favor of Defendant Jeffrey Todd Earwood on Keller's claim of battery. After careful review, we affirm.


In April 2013, Plaintiff Nancy Keller ("Keller") joined Defendant Deerfield Episcopal Retirement Community, Inc. ("Deerfield"), as an independent living resident. In December 2014, Keller moved to Deerfield's assisted living section because "she was consistently forgetting to do things" and required supervision. Soon thereafter, on 11 March 2015, Keller moved to Deerfield's skilled nursing section, due to her advanced dementia.

Defendant Jeffrey Todd Earwood ("Earwood"), was employed as a certified nursing assistant at Deerfield. On 30 March 2015, Earwood was assisting Deerfield residents returning to their rooms after lunch when he noticed Keller walking down the hallway, "heading in the wrong direction" and "looking confused." Earwood offered to help her back to her room, which was a usual task after lunch. While Earwood was helping Keller, another Deerfield staff member asked for Earwood's help with a dressing change for a patient in the neighboring room.

Earwood led Keller into her room, closing the bottom half of the Dutch door behind them, but leaving the top half open. When Keller asked Earwood where she should sit, he reminded her that this was her room, and she could sit anywhere she wanted. Keller sat on her bed, and Earwood asked her if he could get her anything. Keller replied that she did not "know if [she] c[ould] trust [him,]" so Earwood sat down beside her on the edge of the bed, getting "eye level"—as he was trained to do—and jokingly asked Keller, "[I]s this not a face you can trust?" Keller responded, "[T]he rest is up to you." Earwood then stood up and told Keller that he would "prove [him]self" in order to earn her trust. He patted Keller on the shoulder, and Earwood left to help with another patient's dressing change. Earwood was in Keller's room "for approximately one minute."

Soon thereafter, Keller's personal aide, Iris Hinze, arrived. Keller told her aide that "someone had exposed himself to her and had put her hand on his private parts." Hinze then stepped in the hallway, and asked Earwood if "it was him who had walked [Keller] back to her room[.]" Earwood confirmed and inquired whether "everything was okay," and then left to finish his shift.

Upon Keller's request, Hinze called Keller's daughter, Leslie Ann Keller, and Keller informed her of the alleged incident. Leslie arrived at Deerfield soon thereafter, and she took Keller and Hinze to meet with the facility's social worker. Keller shared with the social worker that "a man had come into her room and exposed himself to her." She also told the social worker that the man had "placed her hand on his private parts and ... fondled himself" in front of her.

The acting director of nursing was immediately notified of the incident, and Earwood was questioned about the alleged sexual battery during a phone call with Deerfield's director of quality assurance and the unit coordinator. Earwood was suspended, pending Deerfield's internal investigation of the sexual battery allegation.

On 31 March 2015, Deerfield submitted the required 24-Hour Initial Report to the North Carolina Department of Health and Human Services, Health Care Personnel Registry. Deerfield timely submitted the requisite "5-Working Day Report" on 6 April 2015. Deerfield concluded its internal investigation that day, determining that it was "unable to substantiate allegations" due to the absence of direct witnesses, Keller's clinical diagnosis of dementia, and a physician's determination that she lacked capacity. After 31 March 2015, Keller never raised the allegation again.

On 7 April 2015, Earwood was reinstated and permitted to return to work. Upon his return, Earwood was assigned to work on a different hall where he did not have direct contact with Keller, and where he received more supervision.

By mid-June 2015, the Healthcare Personnel Registry; Buncombe County Department of Social Services, Adult Protective Services Unit ("DSS"); and the North Carolina Division of Health Service Regulation had received reports about the alleged assault. The three agencies independently concluded that the allegation was unsubstantiated. However, Leslie did not agree with these conclusions, and thus, as attorney-in-fact for her mother, on 30 January 2017, Leslie filed a complaint asserting claims against Earwood and Deerfield. Specifically, the complaint asserted claims for assault and battery against Earwood. The complaint also asserted claims against Deerfield for ratification of Earwood's assault and battery under the theory of respondeat superior, and for negligent supervision and retention of Earwood. She also sought to recover punitive damages from Deerfield.

On 9 March 2017, Earwood filed a motion to dismiss, answer, and affirmative defenses. On 6 June 2018, Deerfield moved for summary judgment and attorney's fees. Earwood also moved for summary judgment on 23 July 2018.

Defendantsmotions for summary judgment came on for hearing before the Honorable Marvin P. Pope, Jr., in Buncombe County Superior Court on 13 August 2018. On 17 August 2018, Judge Pope entered orders denying Earwood's motion for summary judgment, granting Deerfield's motion for summary judgment, dismissing Keller's claims against Deerfield with prejudice, and denying Deerfield's motion for attorney's fees.

On 24 September 2018, Keller's claims against Earwood came on for trial by jury in Buncombe County Superior Court, the Honorable Thomas H. Lock presiding. On 28 September 2018, Judge Lock granted Earwood's motion for directed verdict on the claim of assault. On 1 October 2018, the jury unanimously found that Earwood did not commit a battery upon Keller, and on 6 November 2018, Judge Lock entered judgment in accordance with the jury's verdict.

Keller filed timely notice of appeal to this Court from the order granting summary judgment in favor of Deerfield, and the trial court's final judgment reflecting the jury's verdict in favor of Earwood.


Keller sets forth four arguments on appeal: (i) the trial court erred in granting summary judgment in favor of Deerfield on the claim that Deerfield ratified Earwood's sexual battery; (ii) the trial court erred in granting summary judgment in favor of Deerfield on the claim for negligent retention and supervision of Earwood; (iii) the trial court erred by overruling her objection to the admission of opinion testimony by James Parsons, M.D.; and (iv) the trial court erred by excluding evidence of an alleged prior assault by Earwood against a Deerfield resident.

I. Summary Judgment

Keller first challenges the trial court's grant of summary judgment in favor of Deerfield as to her claims for (i) ratification of Earwood's sexual battery; and (ii) negligent retention and supervision of Earwood.

A. Standard of Review

Summary judgment is proper only if: "(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law." Honeycutt v. Honeycutt , 208 N.C. App. 70, 77, 701 S.E.2d 689, 694 (2010) (citation omitted).

In ruling on a motion for summary judgment, the trial court must view the evidence "in the light most favorable to the non-moving party." RME Mgmt., LLC v. Chapel H.O.M. Assocs., LLC , 251 N.C. App. 562, 566, 795 S.E.2d 641, 644 (citation omitted), disc. review denied , 370 N.C. 213, 804 S.E.2d 546 (2017). Furthermore, it is well established that

[t]he party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact. This burden may be met by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of h[er] claim or cannot surmount an affirmative defense which would bar the claim.

Badin Shores Resort Owners Ass'n v. Handy Sanitary Dist. , 257 N.C. App. 542, 549, 811 S.E.2d 198, 204 (2018) (citation omitted).

"Once the party seeking summary judgment makes the required showing, the burden shifts to the non-moving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that [s]he can at least establish a prima facie case at trial." Id. at 550, 811 S.E.2d at 204 (citation omitted). "[T]he non-moving party must forecast sufficient evidence to show the existence of a genuine issue of material fact in order to preclude an award of summary judgment." Id. (citation omitted).

"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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." In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and internal quotation marks omitted). Indeed, "if a grant of...

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  • Foxx v. Davis
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    ...trial court must view the evidence in the light most favorable to the non-moving party." Keller v. Deerfield Episcopal Ret. Cmty., Inc., 271 N.C.App. 618, 622, 845 S.E.2d 156, 160 (2020) (quotation marks and citation omitted). "The party moving for summary judgment bears the burden of estab......
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    ...he was prejudiced and a different result would have likely ensued had the error not occurred." Keller v. Deerfield Episcopal Ret. Cmty., Inc. , 271 N.C. App. 618, 635, 845 S.E.2d 156, 167, disc. rev. denied , 376 N.C. 544, 851 S.E.2d 372 (2020). Defendant makes no argument that he was preju......
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