Lawsuit results in clarification of NC law

By Haviland Stewart hstewart@nclawyersweekly.com

A verdict that was appealed and overturned twice before ultimately being reinstated by the North Carolina Supreme Court has resulted in the clarification of case law regarding negligent hiring, supervision or retention.

From 2012 to 2016, Thomas and Teresa Keith, an an elderly couple, hired a home health care agency, Health-Pro Home Care Services Inc. to help them manage their declining health.

In 2015, Health-Pro assigned a new aide, Deitra Clark, to the Keiths.

Shortly after, the Keiths began noticing money missing from their house. In August 2016, after reporting this, Health-Pro determined that Clark, as well as one other aide, were suspects.

The Keiths would eventually file a lawsuit against Health-Pro.

According to the Keith’s counsel, Jeremy Wilson (Christopher Edwards and Alex Dale served as co-counsel), Clark was dishonest about her background and Health-Pro failed to perform proper inspection before hiring her. On her Health-Pro application, Clark certified that she had never been convicted of, or pled guilty, to a crime.

At trial the Keith’s son testified to telling Health-Pro not to send Clark back into the home, and that HealthPro agreed not to. It also agreed to continue to “investigate everything” regarding the missing money.

According to Wilson, Health-Pro took no further action in investigating this, and two weeks later placed Clark back in the Keith’s home. The Keiths assumed that if Clark was back to their home, Health-Pro must have completed its investigation and determined she was not a threat.

At trial, Health-Pro disputed many of these allegations and contested numerous issues of fact.

Shortly after Clark was placed back in the home, she used the knowledge that she had gained while working with the Keiths to orchestrate a home invasion and armed robbery in September 2016.

Clark eventually pleaded guilty to first-degree burglary and second-degree kidnapping.

According to Wilson, after that night, life became very different for the Keiths. The feeling of safety and security in their home was gone, and they were both diagnosed with PTSD.

The Keith’s filed a lawsuit against Health-Pro in December 2016, alleging that Health-Pro had been negligent in assigning Clark to their home, in failing to identify the warning signs associated with her conduct, in placing her back in the home despite stating that they would not do so, and in failing to conduct proper investigation of the initial theft.

The Keiths presented their case as one for “ordinary negligence” and did not make a specific claim for “negligent hiring, supervision, or retention.” A jury trial was held in April 2018, and the jury awarded a $750,000 verdict to the Keith’s.

Health-Pro appealed, arguing, in part, that North Carolina law did not allow a company to be held responsible for intentional acts of its employees, particularly when this type of conduct occurs “off the clock.”

Arguing that the home invasion and robbery were not foreseeable harms, and that the Keith’s claim should be negligent hiring, supervision, or retention rather than ordinary negligence.

The Court of Appeals agreed and overturned the jury’s verdict largely based on the interpretation of Little v. Omega Meats Supreme Court Opinion.

The Keith’s appealed to the North Carolina Supreme Court. The Supreme Court overturned the Court of Appeals and reinstated the jury’s verdict. The Supreme Court concluded that the Keiths had presented a claim for negligent hiring, supervision, or retention, and, while these claims do have additional requirements under North Carolina law, the Keith’s presented sufficient evidence to reach the jury.

The Supreme Court found that the Court of Appeals had erred in applying an overly restrictive interpretation of Little v. Omega Meats. The Supreme Court concluded that the jury verdict should be reinstated. In its opinion, the Supreme Court clarified case law concerning what evidence must exist to establish a valid claim for negligent hiring, supervision, or retention. With interest, the Keith’s jury verdict totaled at over $1 million.

The Supreme court clarified case law and the required standard, including that an employer may owe a duty of care to a victim of an employee’s intentional conduct, “when there is a nexus between the employment relationship and the injury.”

While the Supreme Court opinion doesn’t expand on employer liability, it clarifies this area of the law, which is vital for the legal community, employers, and members of the public.

Smith Anderson elects three to partnership

Smith Anderson, the largest business and litigation law firm headquartered in the Research Triangle region of North Carolina, has elected attorneys Jordan Fieldstein, Casey Vaughn and Philip Romohr as partners in the firm.

Fieldstein focuses her practice on transactional tax, private equity and corporate transactional work. She is a key member of the firm’s deal teams.

Vaughn is a member of the firm’s Construction and Litigation groups, representing contractors, owners, developers and others in a wide range of disputes and construction related matters.

Romohr works with the firm’s Banking and Finance team, with a focus on venture finance, representing banks and other financial institutions on banking and regulatory matters, loans and finance transactions and general commercial/ corporate issues.

Former Duke Energy executive joins firm

Brian Franklin, who spent 15 years at Duke Energy, most recently as managing director of regulatory affairs for North Carolina, has joined McGuireWoods as a partner in Charlotte, NC.

At Duke, Franklin led a team handling all regulatory matters for its subsidiaries

Duke Energy

Carolinas and Duke Energy Progress.

Franklin previously served as Duke Energy’s associate general counsel, representing the company before public utility commissions in both North and South Carolina.

Firm names office managing partner

Womble Bond Dickinson announced that John Morrow has been named office managing partner of the firm’s WinstonSalem and Greensboro offices. He succeeds Kim Mann, who has led the Winston-Salem office for the past five years and the Greensboro office since last year.

Morrow’s practice focuses primarily on infringement disputes involving patents, trademarks/trade dress, and copyrights, as well as unfair competition, trade secret misappropriation, false advertising, and cybersecurity. He served as chair of Womble Bond Dickinson’s Intellectual Property Litigation practice group from 2012 to 2021.

Shumaker adds partner at Charlotte location

Shumaker announced today that four lawyers have been elected to firm partnership, including at its Charlotte office.

Tom BenGera joins the firm’s Charlotte office. An intellectual property lawyer, BenGera focuses specifically on trademark, patent, and copyright law. He represents and counsels technology clients in IP matters, including pre-suit diligence, fact and expert discovery, motion practice, depositions, and at trial.

BenGera has counseled clients on the offensive and defensive side of patent, antitrust, and trademark disputes, and has represented some of the world’s premier multinational corporations. His practice covers a wide range of technology.

Attorney rejoins Robinson Bradshaw as shareholder

Robinson Bradshaw has welcomed back Jeffrey Hart as a shareholder at the firm in

Chapel Hill. Hart first joined Robinson Bradshaw in 1997 and opened the firm’s Research Triangle office in 2008.

His primary areas of practice include private equity financings and investments, joint ventures and private fund formation. He earned his law degree from Duke University and graduated cum laude with honors from Davidson College, where he was Phi Beta Kappa and a Ken Kelley Scholar.

Hart will work in Robinson Bradshaw’s Research Triangle office.

International firm names new partner

International law firm Bryan Cave Leighton Paisner announced the addition of Partner Jennifer Csik Hutchens to the Corporate & Finance Transactions Department as the firm’s new Global Head of Health Care.

Csik Hutchens will lead the firm’s cross-sectional practice across the health care industry vertical, which comprehensively spans transactions, risk management and litigation. She will be resident in BCLP’s Charlotte office.

She joins BCLP from Robinson Bradshaw, where she co-chaired that firm’s Health Care Practice Group.

Ragsdale Liggett adds partner

Ragsdale Liggett announced Skye MacLeod has been named partner. MacLeod has more than 25 years’ experience handling complex legal issues. Her practice is focused in the areas of environmental, estates and trusts, business, real property, construction, and insurance litigation with extensive experience in the areas of product liability, fire and water losses and personal injury.

MacLeod has a master’s of studies degree in Environmental Law from Vermont Law School, and earned her JD from Cumberland School of Law and her bachelor’s from Davidson College.

Ward and Smith welcomes new attorney

Ward and Smith announced that veteran litigation attorney Ellis Boyle has joined the firm’s Raleigh office.

Ellis has nearly 20 years of experience handling complex legal disputes in courtrooms across North Carolina. He joins a deep bench at Ward and Smith.

Ellis’s practice encompasses a range of areas, including business disputes, personal injury and wrongful death claims, and other general litigation matters.

Womble Bond Dickson makes eight additions

Womble Bond Dickinson LLP has promoted 16 new partners and of counsel — eight of whom are based in the firm’s North Carolina offices.

They include:

Dave Easwaran (partner, Charlotte,) concentrates his practice on software patent matters. He is experienced in all aspects of patent practice, including patent portfolio development, post-grant proceedings, pre-litigation interactions, and litigation.

Sam Hartzell (partner, Raleigh,) is a business litigation attorney who joined the firm in 2015. He came to WBD following a federal clerkship with the U.S. Court of Appeals for the Fourth Circuit.

Chris Hewitt (of counsel, Winston-Salem,) is a corporate and private wealth lawyer, focusing his practice in the areas of com- plex estate planning, generational wealth transfer planning, trust and estate administration and tax-exempt planning.

Travis Iams (partner, Charlotte) is an intellectual property attorney focused on mechanical patent prosecution.

Kimberly Richards (partner, WinstonSalem) guides clients in corporate and commercial real estate transactions, including financings, acquisitions, dispositions, and real estate development projects.

Gemma Saluta (partner, Winston-Salem) defends large insurance carriers in first-party bad faith litigation.

Jesse Schaefer (partner, Raleigh) regularly represents clients in high-stakes litigation involving contracts, business and regulatory disputes, judgment enforcement and defense, contested will and trust matters, and life insurance and disability insurance disputes.

Al Windham (partner, Raleigh) helps manufacturers in the retail and consumer goods industry navigate complex products liability and mass torts litigation.