PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants
Case Details
- Citation
- 113 N.C. App. 1
- Judge(s)
- Judges WELLS and GREENE concur.
- Procedural Posture — the stage the case had reached
- jury verdict
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Jury awarded plaintiff $25,000 in compensatory damages and $225,000 in punitive damages for intentional infliction of emotional distress based on sexual harassment and retaliation by supervisor; appellate court affirmed, rejecting defendant's statute of limitations defense.
Excerpt
PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants No. 9121SC814 (Filed 21 December 1993) 1. Intentional Infliction of Mental Distress § 2 (NCI4th)— statute of limitations — acts more than three years before claim filed Evidence of sexual harassment and retaliation which occurred more than three years prior to the filing of plaintiff’s claim against her supervisor and employer for intentional infliction of emotional distress did not constitute evidence of complete and separate torts but was evidence of elements of the claim itself and was not barred by the three-year statute of limitations. Furthermore, plaintiff’s claim was not barred by the statute of limitations where she presented evidence of specific incidents which occurred within three years of the filing of her claim and of medical treatment for emotional distress that she received during that time as a result of her supervisor’s conduct. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 2. Evidence and Witnesses § 1174 (NCI4th) — summary judgment hearing —statements by attorney — not judicial admissions Statements made by plaintiff’s counsel to the trial court during a summary judgment hearing to the effect that plaintiff was not seeking damages for events occurring more than three years before the complaint was filed did not constitute judicial admissions and were not binding on the plaintiff in the subsequent trial. Am Jur 2d, Evidence §§ 597, 615, 665. 3. Intentional Infliction of Mental Distress § 3 (NCI4th) — sufficiency of evidence against supervisor — employer’s ratification of supervisor’s acts Plaintiff’s evidence of conduct and intent was sufficient for submission to the jury of plaintiff’s claim against her former supervisor for intentional infliction of emotional distress where it tended to show that when plaintiff rebuffed sexual advances by defendant supervisor, he began treating plaintiff unfairly, repeatedly threatened her and her job, and created situations in which she could not effectively do the work assigned to her; plaintiff received unfavorable evaluations, was required to hire staff persons she felt were unqualified, and was called names such as “Nazi,” “Rambo,” and “Gestapo” by defendant supervisor; and defendant supervisor’s conduct caused plaintiff to seek medical attention from two doctors and to resign from her job. Furthermore, the evidence supported plaintiff’s claim that defendant employer ratified the acts of defendant supervisor so that the employer was liable for his actions where it tended to show that plaintiff submitted twenty-two complaints about her supervisor to the employer’s personnel manager and held conversations with other management personnel about defendant’s conduct; plaintiff’s discussions with management personnel which she thought were held in confidence were reported to defendant supervisor; management personnel told plaintiff that complaints of that nature were not welcome from employees; nothing was ever done about defendant supervisor’s conduct toward plaintiff; plaintiff was told that she had a bad attitude and was placed on probation; and plaintiff thereafter resigned her job. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 4. Jury § 68 (NCI4th)— jury less than twelve —stipulation — excusal of jurors for “guilty” rather than “innocent” reasons Where the parties in an action for intentional infliction of emotional distress stipulated at the beginning of the trial that the trial could proceed with a jury of ten persons if necessary, the trial court did not abuse its discretion in the denial of defendants’ motions for a mistrial and a new trial because the verdict was rendered by a ten-person jury after the trial court excused two jurors who had read a newspaper article reporting that the court had allowed defendants’ pretrial motion to suppress evidence of the individual defendant’s sexual involvement with other women employed by defendant employer. There was no merit to defendants’ argument that their agreement to a jury of ten persons was only to allow the trial to proceed in the event of illness or emergency of jurors, an “innocent” reason, and not to allow a jury of less than twelve for the “guilty” reason that two jurors had read a newspaper article about evidence excluded by pretrial motion, since an agreement to have a verdict by less than twelve jurors does not depend on whether the jurors are excused for an “innocent” rather than a “guilty” reason. Am Jur 2d, Jury § 124 et seq. Appeal by defendants from judgment entered 25 January 1991 in Forsyth County Superior Court by Judge James A. Beaty, Jr. Heard in the Court of Appeals 15 September 1992. This action arises out of a female employee’s complaints against a male supervisor at Thalhimer Brothers in Winston-Salem. Plaintiff was employed by Thalhimers from September 1982 until her resignation in February 1987. The plaintiff filed suit on 5 December 1989, seeking damages for intentional infliction of emotional distress, wrongful termination, and negligent retention. The complaint alleged that the defendant Scruggs Colvin, who was employed by Thalhimers as the regional manager in loss prevention in 1984, began harassing her sexually in early 1985. The plaintiff further alleged that when she rebuffed the sexual advances of her supervisor, he began treating her unfairly in an attempt to force her resignation. From 1986 until her resignation, the complaint alleged that he repeatedly threatened her and her job, while creating situations in which she could not effectively do the work assigned to her. She received unfavorable evaluations, she was required to hire staff persons that she felt were unqualified, and she was called names such as “Nazi”, “Rambo”, and “Gestapo” by the defendant. Plaintiff contended that during this period she complained to supervisory personnel with the corporation about these incidents of harassment and retaliation. The defendants’ answer denied the material allegations of the complaint and raised, inter alia, the affirmative defense of the three-year statute of limitations. The defendants asserted that the statute barred recovery for damages for events which occurred prior to 5 December 1986. Defendants moved for summary judgment on that basis. The motion was denied on 15 November 1990. Just prior to trial, the defendants filed motions in limine seeking to exclude evidence of Defendant Colvin’s prior sexual relationships with other employees of Thalhimers and to exclude evidence of events that was barred by the statute of limitations. Additionally, they filed a motion to compel admissions based on representations made by plaintiff’s counsel during the earlier summary judgment hearing to the effect that the plaintiff was not seeking damages for events occurring prior to 5 December 1986. The motion to exclude the evidence of past relationships was allowed, while the motion to exclude the incidents prior to December 1986 and the motion to compel admissions were denied. Jury selection was completed on 9 January 1991. The next day, an article appeared in the Winston-Salem Journal which reported the evidence of the prior sexual relationships of Defendant Colvin and that it had been excluded from the trial. Two of the jurors had read the article and were excused by the judge. Three other jurors were aware of the article, and one juror had been told by her husband not to read the article. Defendants moved for a mistrial, having produced evidence that the plaintiff’s counsel had released the excluded evidence to the newspaper. That motion was denied. The trial proceeded with ten jurors. At the close of plaintiff’s evidence, defendants moved for a directed verdict which was denied and subsequently renewed at the close of all the evidence. At that time, the trial court allowed the motion with respect to the wrongful termination claim. The claim for intentional infliction of emotional distress went to the jury on 23 January 1991. The trial judge denied the defendants’ request for an instruction on the three-year statute of limitations. The following day, the jury returned a verdict for the plaintiff of $25,000.00 in compensatory damages and $225,000.00 in punitive damages. On 1 February 1991, the defendants filed motions for judgment notwithstanding the verdict and a new trial. These motions were denied by the trial judge. Defendants appeal from the judgment entered upon the jury verdict. Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellee. Haynsworth, Baldwin, Johnson and Greaves, P.A., by Charles P. Roberts III and Gregory P. McGuire, for defendant-appellants. ORR, Judge. We note at the onset that we are in our discretion addressing the merits of the defendants’ first argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. The issue has not been raised properly. As a result of incorrect pagination, the page stating the argument and referencing the assignment of error has been omitted. Ordinarily, if a party fails to include references to the assignment of error, the question is deemed abandoned and will not be considered on appeal. However, “[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest . . .”, Rule 2 allows us to waive this requirement and proceed to the merits. See State v. Shelton, 53 N.C. App. 632, 635, 281 S.E.2d 684, 688 (1981), appeal dismissed and cert. denied, 305 N.C. 306, 290 S.E.2d 707 (1982). I. The defendants have raised eight assignments of error for review by this Court. Initially, we address those issues which revolve around the applicable statute of limitations and the exclusion of evidence of conduct of Defendant Colvin which occurred prior to 5 December 1986. Defendants first contend that the trial court committed reversible error in denying their motions for directed verdict and judgment notwithstanding the verdict because the plaintiff’s claim arising out of the defendants’ conduct prior to 5 December 1986 was barred by the three-year statute of limitations applying to claims of intentional infliction of emotional distress. Secondly, they argue that plaintiff’s counsel made admissions during the arguments on preliminary motions that effectively foreclosed plaintiff seeking damages for events occurring prior to 5 December 1986. Third, they argue that the trial judge committed error in refusing to instruct the jury on the applicable statute of limitations. Finally, they assert that the trial court’s denial of the defendants’ motion in limine to exclude evidence of events prior to 5 December 1986 was reversible error. We hold that the evidence of conduct occurring prior to the 5 December 1986 date was not evidence of complete and separate torts, but rather was evidence of the elements of the claim itself and therefore, was not barred by the statute of limitations. Accordingly, we overrule the defendants’ assignments of error based on the statute of limitations. A. The defendants assert that the plaintiffs claim for intentional infliction of emotional distress is barred by the three-year statute of limitations found at N.C. Gen. Stat. § 1-52(5). See also Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683 (1990), aff’d in part and reversed in part on other grounds, 331 N.C. 73, 414 S.E.2d 22 (1992). It is well settled in North Carolina that in determining whether the evidence is sufficient to withstand a motion for a directed verdict, the plaintiff’s evidence must be taken as true and all the evidence must be viewed in the light most favorable to her, giving her the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the plaintiffs favor. Hornby v. Pennsylvania National Mutual Casualty Insurance Co., 62 N.C. App. 419, 303 S.E.2d 332, cert. denied, 309 N.C. 461, 307 S.E.2d 364 (1983). Where more than a scintilla of evidence has been presented by the plaintiff which supports each element of his prima facie case, a directed verdict should be denied. Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991). A motion for a judgment notwithstanding the verdict is essentially the renewal of the directed verdict motion, and the standards are the same. Miller v. Cannon Motors, Inc., 40 N.C. App. 48, 257 S.E.2d 925 (1979). Both motions serve to test the sufficiency of the evidence presented at trial, first after the plaintiff’s case in chief and then again after the jury’s decision. In order to prove a claim for intentional infliction of emotional distress, the plaintiff is required to show that the defendant (1) engaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress. Hogan v. Forsyth Country Club, 79 N.C. App. 483, 340 S.E.2d 116, review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The tort may also lie where a “defendant’s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 330 (1981). The statute of limitations for the tort of intentional infliction of emotional distress is three years. Id. at 444, 276 S.E.2d at 330. “Civil actions can only be commenced . . . [within the three-year period], after the cause of action has accrued, . . . .” N.C. Gen. Stat. § l-15(a) (1983). The recent decision by the North Carolina Supreme Court, Waddle, 331 N.C. 73, 414 S.E.2d 22, held that where the plaintiff could not show that “any of the specific incidents” took place within the statutory period, she could not survive a motion for summary judgment. In Waddle, suit was filed on 20 April 1988. Both plaintiffs alleged intentional infliction of emotional distress in response to repeated harassment and sexual innuendoes by the defendant Sparks. The purported harassment began sometime in 1983. Both the defendants pleaded the statute of limitations as an affirmative defense in their answer and moved for summary judgment on that basis after depositions of the plaintiffs were taken. The co-plaintiff, Simpson, could not produce evidence of any specific acts of harassment within three years of the filing of the suit. “Not only could she not remember a day or month when any of defendant’s alleged comments of a sexually suggestive nature occurred, but she also failed to recall the year they occurred.” Waddle, 331 N.C. at 86, 414 S.E.2d at 29. “If plaintiff Simpson could have testified that any of the specific incidents with Sparks occurred as late as February of 1986, her evidentiary forecast . . . would have been sufficient to survive a summary judgment motion based on the statute of limitations.” Id. at 87, 414 S.E.2d at 29. The issue in Waddle, as to the plaintiff Simpson, was whether there was sufficient evidence of each element of the tort to create an issue for the jury to decide at trial. Simpson could not show any evidence of one of the elements of the tort, and therefore, summary judgment was appropriate. However, the Court in no way suggested that the prior occurrences would have been excluded at trial, nor was the issue of exclusion of evidence before the Court. Moreover, in the case at bar, there were two incidents occurring on or after 5 December 1986. Therefore, there was sufficient evidence to create an issue to be decided at trial, certainly when combined with evidence of the incidents of alleged conduct which took place in 1985. The defendants rely on the rule of Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, which established that three years is the applicable statute of limitations for claims of intentional infliction of emotional distress and that evidence of the defendants’ intentional torts against the plaintiff which took place prior to the applicable limitations period may not be considered in determining damages. However, both the law and the facts of Dickens are distinguishable from the case at bar. In Dickens, the plaintiff alleged intentional infliction of emotional distress in his complaint which was filed more than one year and less than three years after the incident complained of took place. The action arose out of a single occurrence during which the defendant not only committed an assault and battery (governed by the one-year statute of limitations of G.S. § 1-54(3)) against the plaintiff, but also made significant threats of future harm. The defendant argued that the action was only one for assault and battery, although cast as one for intentional infliction of emotional distress. They further argued that even if the plaintiff had alleged a cause of action for emotional distress, that it, too, was governed by the one-year statute. The Supreme Court disagreed, finding that the more general language of G.S. § 1-52(5) controlled the intentional infliction claim and that the plaintiff’s showing was sufficient to create an actionable claim for emotional distress. The Court concluded that “[although the assaults and batteries serve to color and give impetus to the future threat and its impact on plaintiff’s emotional condition, plaintiff may not recover damages flowing directly from the assaults and batteries themselves.” Dickens, 302 N.C. at 455, n. 11, 276 S.E.2d at 336 (emphasis added). The Court further stated that, “[although plaintiff’s recovery for injury, mental or physical, directly caused by the assaults and batteries is barred by the statute of limitations, these assaults and batteries may be considered in determining the outrageous character of the ultimate threat and the extent of plaintiff’s mental or emotional distress caused by it.” Id. Thus, while the Court did not allow damages for the separate torts, it did allow the evidence of the extreme and outrageous conduct of the defendant as an element of the plaintiffs emotional distress claim, even though an assault and battery claim was barred. In the case sub judice, the evidence presented at trial tended to indicate that incidents between the plaintiff and Defendant Colvin began in early 1985, soon after he was hired by Thalhimers in 1984. According to the plaintiffs testimony, the first conversation of a sexual nature was-on a trip to Sears in Hanes Mall in Winston-Salem to pick up supplies for the Hanes Mall Thalhimers location. The defendant asked her if she’d ever had an affair with anyone. She responded that she had not. The plaintiff also testified to the following: A. He told me he liked women with large breasts. Q. When he made that statement to you, can you tell the ladies and gentlemen of the jury what he was looking at? A. He was looking down at my breast area. On another occasion of sexually related conduct, the plaintiff testified that [w]e were moving the desk. And I was on one side and he was on the other. And I had hold of the desk and he came around on my side and he rubbed his penis across my hand. And I don’t know how, but it got caught in my ring and I jerked my hand away because was — it just flew all over me, embarrassed me. I was just humiliated. I mean it just — it just embarrassed me to death. The plaintiff also testified that the next day he called me down to the office. And he was sitting on my desk facing me. And he told me to pull my pants down because he wanted to see a bee sting. And he didn’t smile. He had that same dirty grin on his face. She told him at that time that he made her sick to her stomach. He then “jerked my door open and slammed it and left.” Except for the last incident, which plaintiff testified could have been an accident, the defendant never physically touched the plaintiff. On 24 September 1985, the plaintiff submitted some twenty-two complaints about Mr. Colvin to Tida Williams, personnel manager. She told Ms. Williams that she would be hiring an attorney to bring harassment, charges against Colvin. Ms. Williams recorded the complaints
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