Wilkerson v. Duke Univ.

• Decision Date: 17 September 2013
• Docket Number: No. COA13–181.,COA13–181.
• Citation: 748 S.E.2d 154
• Parties: Brian WILKERSON, Plaintiff, v. DUKE UNIVERSITY and Christopher Day, Defendants.
• Court: North Carolina Court of Appeals

748 S.E.2d 154

Brian WILKERSON, Plaintiff,

v.DUKE UNIVERSITY and Christopher Day, Defendants.

No. COA13–181.

Court of Appeals of North Carolina.

Sept. 17, 2013.

Appeal by plaintiff from orders entered 17 September 2012 by Judge Orlando F. Hudson, Jr., in Durham County Superior Court. Heard in the Court of Appeals 13 August 2013.

Ekstrand & Ekstrand LLP, by Robert C. Ekstrand, Durham, for plaintiff-appellant.

Ellis & Winters LLP, by Leslie C. Packer, Cory and Ashley K. Brathwaite, for defendant-appellees.

STEELMAN, Judge.

Where there were issues of material fact with respect to plaintiff's claims for false imprisonment, assault, battery, and negligent supervision and retention, the portion of the trial court's order granting summary judgment to defendants as to those claims is reversed. Where there was no evidence of severe emotional distress, the trial court's dismissal of plaintiff's claims for intentional infliction of emotional distress and negligent infliction of emotional distress is affirmed. Where plaintiff has an adequate remedy in state law, the trial court properly granted summary judgment in favor of defendants with respect to plaintiff's state constitutional claims. Where plaintiff filed a motion to amend his complaint thirteen months after he filed his initial complaint and five days before the hearing on summary judgment, we cannot say the trial court abused its discretion in denying plaintiff's motion to amend.

I. Factual and Procedural Background

On 15 July 2008, Brian Wilkerson (plaintiff) was working as an attendant at a valet parking area at Duke University Hospital. The valet parking area contained a gated lot. Plaintiff had been instructed to allow Duke University Police officers entry into the gated lot in the event of an emergency, but that in non-emergency situations, to inform police officers that they should park vehicles along a traffic circle, outside of the lot. On 15 July 2008, Duke University Police Officer Christopher Day (Day) came to the Hospital to assist in unlocking a car parked in the gated lot. Plaintiff refused to open the gate to the lot, resulting in a physical confrontation with Day. Day issued a notice of trespass to plaintiff, which forbade him to go upon any Duke University property. This resulted in plaintiff losing his job as a parking attendant.

Plaintiff filed a verified complaint in this action on 20 July 2011 against Day and Duke University. The complaint asserted the following claims: false imprisonment, assault, battery, public stigmatization, negligence, negligent supervision and retention, negligent infliction of emotional distress, intentional infliction of emotional distress, and violations of the North Carolina Constitution. Plaintiff sought compensatory and punitive damages. Defendants filed an answer and a motion to dismiss all of plaintiff's claims pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. On 18 May 2012, defendants filed a motion for summary judgment and the matter came on for hearing at the 10 September 2012 Civil Session of Durham County Superior Court. On 5 September 2012, plaintiff filed a motion to amend his complaint to assert additional claims for tortious interference with contract, tortious interference with prospective contract, and unfair and deceptive trade practices. In ruling on defendants' motion for summary judgment, the trial court considered written discovery, depositions, and the pleadings. The trial court denied plaintiff's motion to amend and subsequently granted defendants' motion for summary judgment dismissing all of plaintiff's claims. The order did not specify whether the dismissal was with or without prejudice.

Plaintiff appeals.

II. Entry of Summary Judgment

In his first argument, plaintiff contends that the trial court erred in granting summary judgment in favor of defendants. We agree in part. We address each of plaintiff's claims, first discussing his claims against Day and then addressing his claims against Duke University.

A. Standard of Review

“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 entitledto a judgment as a matter of law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523–24, 649 S.E.2d 382, 385 (2007)). We view the evidence in the light most favorable to the non-movant, and any question resolving the credibility of the witnesses is for the jury to decide. Clark v. Brown, 99 N.C.App. 255, 259–60, 393 S.E.2d 134, 136 (1990).

B. Claims Against Day

Plaintiff's claims against Day are based upon Day's conduct during the physical confrontation with plaintiff. Plaintiff's testimony, contained in his deposition, sets forth the following version of events:

I was coming back to the booth and that's when he pointed at my face and asked me for my information, and then that's when I asked him nicely to not point at my face. He kept doing it, so I went back to work. Then that's when he pulled me and tried to grab me and then I got his arm off of me and then he grabbed me with his other arm on the other arm. Then I got that one off of me, and then he went to grab me with both arms and then I got both of his arms off me. He dropped everything in his packers [sic], and that's when he stopped and just waited for my managers to come.

Day's testimony from his deposition supports a different version:

I put my hand on [plaintiff's] chest and—and stopped him from going around me and told him, again, that I needed his ID.... [Plaintiff] basically kept saying, “There it is. There it is,” but [plaintiff] and I basically locked arms, and he kept trying to go around me, and he told me to get my hands off of him. And at that point, his hands somehow grasped hold of, I guess, my pockets, and what I had in my pockets ... came flying out and went all over the ground.

We now address each of plaintiff's claims against Day below.

1. False Imprisonment

False imprisonment is the restraint of a person where the restraint is both unlawful and involuntary. Black v. Clark's Greensboro, Inc., 263 N.C. 226, 228, 139 S.E.2d 199, 201 (1964). The elements of false imprisonment include: “(1) the illegal restraint of plaintiff by defendant, (2) by force or implied threat of force, and (3) against the plaintiff's will.” Rousselo v. Starling, 128 N.C.App. 439, 449, 495 S.E.2d 725, 732 (1998). “The restraint requirement of this action requires no appreciable period of time, simply sufficient time for one to recognize his illegal restraint. The tort is complete with even a brief restraint of the plaintiff's freedom.” West v. King's Dep't Store, Inc., 321 N.C. 698, 703, 365 S.E.2d 621, 624 (1988).

In the instant case, plaintiff's verified complaint alleges: “Day was detaining [plaintiff] with hands, physically detaining and controlling [plaintiff's person] and completely restricting [plaintiff's] freedom of movement. [Plaintiff] freed himself of [Day's] grip, and in the process, a notebook and coins fell from Day's shirt pocket.” We treat the verified complaint as an affidavit. See Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972) (“A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.”). Plaintiff's testimony from his deposition also asserts this version of events. In their brief, defendants assert that any restraint of plaintiff was lawful because Day was conducting an investigatory stop. Defendants, however, do not point to any conclusive facts in the record that demonstrate Day had “reasonable suspicion, based on objective facts, that [plaintiff was] involved in criminal activity.” See State v. Jones, 304 N.C. 323, 328, 283 S.E.2d 483, 486 (1981) (citation omitted) (describing the reasonable suspicion required to conduct an investigatory stop). We hold that there are genuine issues of material fact as to whether plaintiff was restrained and if so, whether that restraint was unlawful. The portion of the trial court's order granting summary judgment in favor of Day with respect to plaintiff's claim for false imprisonment is reversed.

2. Assault and Battery

“The elements of assault are intent, offer of injury, reasonable apprehension, apparent ability, and imminent threat of injury.” Hawkins v. Hawkins, 101 N.C.App. 529, 533, 400 S.E.2d 472, 475 (1991)aff'd,331 N.C. 743, 417 S.E.2d 447 (1992). “A battery is made out when the person of the plaintiff is offensively touched against his will[.]” Ormond v. Crampton, 16 N.C.App. 88, 94, 191 S.E.2d 405, 410 (1972).

Based upon plaintiff's deposition testimony and Day's deposition testimony, there exist genuine issues of material fact as to whether plaintiff was in reasonable apprehension of injury by Day and whether there was a harmful or offensive contact. The portion of the trial court's order granting summary judgment in favor of Day with respect to plaintiff's claims of assault and battery is reversed.

3. Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress

The elements of a claim for intentional infliction of emotional distress are “(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress....” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). The elements of a claim for negligent infliction of emotional distress are: “(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as ‘mental anguish’), and (3) the conduct did in fact cause the plaintiff severe emotional distress.” Johnson v. Ruark Obstetrics & Gynecology...