Medlin v. Bass, 7A90

• Decision Date: 05 December 1990
• Docket Number: No. 7A90,7A90
• Citation: 398 S.E.2d 460,327 N.C. 587
• Court: North Carolina Supreme Court
• Parties: , 64 Ed. Law Rep. 590 Gail West MEDLIN, Guardian Ad Litem for Pamela Lynn Medlin v. Vann J. BASS, Individually and as agent for Franklin County Board of Education; Luther Baldwin, Individually and as agent for Franklin County Board of Education; Warren W. Smith, Franklin County Board of Education; Russell E. Allen, Individually and as Agent for Franklin County Board of Education; Franklin County Board of Education, Defendants.

Page 460

398 S.E.2d 460

327 N.C. 587, 64 Ed. Law Rep. 590

Gail West MEDLIN, Guardian Ad Litem for Pamela Lynn Medlin v. Vann J. BASS, Individually and as agent for Franklin County Board of Education; Luther Baldwin, Individually and as agent for Franklin County Board of Education; Warren W Smith, Franklin County Board of Education; Russell E Allen, Individually and as Agent for Franklin County Board of Education; Franklin County Board of Education, Defendants.

No. 7A90.

Supreme Court of North Carolina.

Dec. 5, 1990.

J. Wilson Parker, Winston-Salem, and Kirk, Gay, Kirk, Gwynn & Howell by Andy W. Gay, and Katherine M. McCraw, Wendell, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by David H. Batten, Raleigh, Davis, Sturges & Tomlinson by Charles M. Davis, Louisburg, for defendant-appellee Franklin County Bd. of Educ.

Young, Moore, Henderson & Alvis by David P. Sousa, Theodore S. Danchi, and Knox Proctor, Raleigh, for defendant-appellee Warren W. Smith.

J. Wilson Parker, Winston-Salem, for the North Carolina Academy of Trial Lawyers, amicus curiae.

William G. Simpson, Jr., Raleigh, Charles M. Putterman, Raleigh, for the North Carolina Civ. Liberties Union Legal Foundation, amicus curiae.

Katherine Holliday, Charlotte, for the Children's Law Center, amicus curiae.

WHICHARD, Justice.

Plaintiff, as guardian ad litem for her minor daughter, sought to recover from defendants compensatory and punitive damages allegedly sustained as the result of sexual assaults upon the minor plaintiff by defendant Vann J. Bass, principal of the school which the minor plaintiff attended. She alleged that on one occasion defendant Bass sexually assaulted the minor plaintiff by committing lewd and lascivious acts and taking immoral, improper and indecent liberties, and that on a second occasion defendant Bass sexually assaulted the minor plaintiff by the same acts and additionally by willfully carnally knowing and abusing the minor plaintiff. Plaintiff asserted claims against defendant Bass for assault and battery, false imprisonment, and intentional infliction of mental distress.

In an amended complaint plaintiff joined, as additional defendants, the Franklin County Board of Education (FCB), Warren W. Smith, Superintendent of FCB, Russell E. Allen, Assistant Superintendent of FCB, and Luther Baldwin, Truancy Officer for FCB. She alleged that defendants Smith and Allen were negligent in hiring and retaining defendant Bass, and that defendant Baldwin inflicted severe emotional distress upon the minor plaintiff by causing issuance of a juvenile petition against her without proper investigation of all relevant facts. She alleged that all individual defendants at all relevant times were acting within the course and scope of their employment with defendant FCB and that their acts or omissions thus should be imputed to defendant FCB.

After consideration of the pleadings, affidavits, and deposition transcripts, including attachments and exhibits, the trial court denied defendant Bass' motion for summary judgment, but allowed motions for summary judgment filed on behalf of defendants Smith, Allen, Baldwin, and FCB. Plaintiff appealed, and the Court of Appeals affirmed. Medlin v. Bass, 96 N.C.App. 410, 386 S.E.2d 80 (1989). Judge Phillips dissented as to the summary judgments in favor of defendants FCB and Smith. Plaintiff exercised her right to appeal to this Court. N.C.G.S. § 7A-30(2) (1989).

Because this appeal is before us pursuant to N.C.G.S. § 7A-30(2), review is limited to the issues raised in Judge Phillips' dissent: (1) whether defendant Smith, as FCB Superintendent, negligently investigated defendant Bass before hiring him, and (2) whether defendant Bass' offenses occurred in the course and scope of his employment, thus subjecting FCB to liability under a respondeat superior theory. Medlin, 96 N.C.App. at 416-17, 386 S.E.2d at 83-84. See N.C.R.App.P. 16(b). We hold that plaintiff did not forecast evidence that defendant Smith was negligent in his investigation of defendant Bass or that defendant Bass was acting within the course and scope of his employment at the time he allegedly attacked the minor plaintiff. We thus affirm the Court of Appeals.

Summary judgment is proper when "the 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." N.C.G.S. § 1A-1, Rule 56(c) (1990). "[I]ts purpose is to eliminate formal trials where only questions of law are involved." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971).

North Carolina recognizes a claim for negligent employment or retention when the plaintiff proves:

(1) the specific negligent act on which the action is founded ... (2) incompetency, by inherent unfitness or previous specific acts of negligence, from which incompetency may be inferred; and (3) either actual notice to the master of such unfitness or bad habits, or constructive notice, by showing that the master could have known the facts had he used ordinary care in 'oversight and supervision,' ...; and (4) that the injury complained of resulted from the incompetency proved.

Walters v. Lumber Co., 163 N.C. 536, 541, 80 S.E. 49, 51 (1913) (quoting Shearman & Redfield on Negligence § 190 (6th ed. 1913)) (emphasis added); see also Pleasants v. Barnes, 221 N.C. 173, 19 S.E.2d 627 (1942) (plaintiff must show employer's hiring or retention after actual or constructive knowledge of employee's incompetence).

Evidence before the trial court upon defendants' motions for summary judgment showed that before working in the Franklin County Schools, defendant Bass had worked as a teacher and principal in Rocky Mount, North Carolina, for ten years. In June 1968, a Rocky Mount student and the student's father alleged that Bass had assaulted the student sexually. Bass neither confirmed nor denied the incident when Rocky Mount Superintendent Fields asked him about it; instead, he resigned. The official explanation for the resignation was "health reasons"; Rocky Mount school personnel never investigated the incident beyond Fields' inquiry.

Bass moved to Franklin County in the summer of 1968 and did not work until FCB hired him in January 1969. Before FCB hired Bass, Margaret Holmes, FCB Associate Superintendent, telephoned one of his references, Millie Moore, Holmes' college friend and a respected educator. In early February, Holmes sent forms to two of the three references Bass listed on his application. FCB's policy at the time was to contact two of the three references. Holmes' inquiries to Millie Moore, a school supervisor in Rocky Mount, and Ella Moore, a principal there, two of Bass' three listed references, did not reveal the previous alleged sexual assault. Ella Moore commented that she knew of no "habit, [or] physical or mental peculiarities, likely to interfere" with Bass' success and described him as "one of the most promising men in education." Millie Moore wrote that Bass did "an excellent job" and that Rocky Mount "lost a very valuable educator when [the school system] lost Mr. Bass."

Holmes visited and interviewed Rocky Mount Superintendent Fields, Bass' third reference, later that spring after a FCB principal mentioned hearing a rumor that Bass was a homosexual. Bass was still a teacher at this time. According to Holmes' deposition, in that interview she specifically asked Fields about Bass' sexual proclivities. Fields does not recall whether Holmes questioned Bass' sexual proclivities specifically. Fields said nothing about the previous alleged assault during the interview. Before Bass became a FCB principal in June 1969, FCB Superintendent defendant Smith called Fields to ask whether Bass would be a good principal.

Although Holmes, who worked under defendant Smith, the FCB Superintendent, did not receive the written recommendations until after Bass was hired, it is clear that the recommendations contained no information indicating that Bass was a pedophile. It is equally clear that the only rumor relating to Bass' sexual tendencies was investigated and remained unconfirmed. Further, Bass performed his official duties in a satisfactory manner for approximately sixteen years. His alleged sexual assaults on the minor plaintiff occurred during the first few days of the 1984-85 school year, when, according to her forecast of evidence, he called her to his office ostensibly to discuss her attendance problems and then assaulted her.

The foregoing forecast is devoid of evidence that defendants FCB or Smith knew or reasonably could have known of defendant Bass' alleged pedophilic tendencies prior to the incident that is the subject of this lawsuit. It thus fails to establish an essential element of a claim for negligent hiring or retention, Walters v. Lumber Co., 163 N.C. 536, 80 S.E. 49, and summary judgment for defendants on this claim was proper.

Plaintiff also argues that there is a genuine issue of material fact regarding defendant FCB's liability under a respondeat superior theory. An employer will be liable under this theory when the employee's act is "expressly authorized; ... committed within the scope of [the employee's] employment and in furtherance of his master's business--when the act comes within his implied authority; ... [or] when ratified by the principal." Snow v. DeButts, 212 N.C. 120, 122, 193 S.E. 224, 226 (1937). In Snow, this Court found that an employer was not liable when its employee, a general manager, assaulted the plaintiff after the plaintiff expressed his views at a public hearing. It concluded that even though the manager had broad implied authority, the assault was not within the scope of his authority. Thus, where the employee's action is not expressly authorized or subsequently ratified, an employer is liable only if the act is "committed...