Preview:

NO. COA01-906 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2002

LOLITTA HUNT CAPLE, and husband, LUTHER R. CAPLE, JR., Plaintiffs, v. BULLARD RESTAURANTS, INC., d/b/a BURGER KING, TAR HEEL, INC. d/b/a BURGER KING, CLIFFORD BULLARD, JR., and WAYNE FIELDS, Defendants. Appeal by plaintiffs from judgment entered 29 January 2001 by Judge D. Jack Hooks, Jr., in Scotland County Superior Court. Heard in the Court of Appeals 24 April 2002. Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr.; and Hayes Hofler & Associates, P.A., by R. Hayes Hofler, for plaintiff appellants. Moreau, Marks & Gavigan, PLLC, by W. Timothy Moreau; Etheridge, Moser, Garner & Bruner, by Terry R. Garner; and Cranfill, Sumner & Hartzog, L.L.P., by Samuel H. Poole, Jr., for defendant appellees. McCULLOUGH, Judge. Plaintiffs Lolitta Hunt Caple and Luther R. Caple, Jr., appeal from an order granting summary judgment in favor of defendants Bullard Restaurants, Inc., d/b/a Burger King, Tar Heel, Inc., d/b/a Burger King and Clifford Bullard, Jr., entered 29 January 2001 by the Honorable Jack D. Hooks, Jr., during the 27 November 2000 Civil Session of Scotland County Superior Court. Plaintiff Lolitta Caple was the assistant manager of defendant Tar Heel, Inc.'s Burger King restaurant in Hamlet, North Carolina. On 14 May 1998, she was assigned by her supervisor to work as the night manager at defendant Bullard Restaurants, Inc.'s Laurinburg

-2Burger King restaurant. The two defendant companies had

interlocking ownership and management. Defendant Wayne Fields worked at the Laurinburg restaurant as the night porter on 14 May 1998. The night porter at Burger King,

among other things, was to safeguard fellow employees when the restaurant closed at night by making sure they left safely. Fields was hired by defendant Bullard Restaurants, When he

Inc.,

indicated on his application that he had not been convicted, pled guilty, or pled no contest to any felony or misdemeanor other than a traffic violation in the past five years. Defendants did not

perform a criminal record check, or for that matter verify anything else from Fields' application. of several crimes within the Fields had in fact been convicted previous five years, including

breaking and entering, assault on a female, communicating threats, and injury to real property. Defendant Fields had also been

convicted of second-degree murder in 1986. Mrs. Caple's duties as night manager were to run the shift, do inventory, transfer the money from the registers to the safe after counting it, and make sure that all was ready for the morning shift. The night manager was not to leave the restaurant until the night porter arrived. Fields arrived at the restaurant on 14 May 1998 after

plaintiff had finished counting the money and putting it in the safe. After the last of the employees left, plaintiff and Fields Fields then assaulted

were the only ones still in the restaurant.

her from behind with a pipe wrench. He demanded that she open the

-3safe. When she could not, he threatened to kill her. Then, he

tied her up and attempted to open the safe. Fields ended up stealing the safe instead of getting it open. Plaintiff eventually escaped and was found by police in the area. Fields was apprehended and convicted of robbery, assault, and various other crimes arising out of the incident. Mrs. Caple signed a Form 21 Agreement for Workers'

Compensation Benefits on 25 May 1998.

This form represents the

agreement between Mrs. Caple and Bullard's workers' compensation carrier that she "sustained an injury by accident . . . arising out of and in the course of employment on or by May 14, 1998." The

injuries resulting from the assault by Fields were listed as to her "wrist, ankle, and scapular contusion, psychological." Mrs. Caple

has received workers' compensation payments beginning in May of 1998 to the present, as well as payment for all of her medical bills as required under the act. Nevertheless, Mrs. Caple filed this civil suit against

defendants on 22 October 1998.

The complaint alleges that Mrs.

Caple suffers from "severe post traumatic stress syndrome and depression. She is unable to eat, sleep, work, relax, leave her The complaint asserts

home, or function at any reasonable level."

several theories of recovery, including negligence as to Bullard Restaurants and Clifford Bullard's hiring of Fields, negligent infliction of emotional distress, intentional infliction of

emotional distress as to Bullard Restaurants, Clifford Bullard, and Fields; breach of contract as to Bullard Restaurants, Inc., Tar

-4Heel, Inc., assault and battery and false imprisonment as to Fields, and a loss of consortium claim by her husband. In her negligence claim, she alleges that she "continues to suffer

decreased earning capacity[.]"

The crux of the complaint was that

there was no investigation into Fields' application before he was hired to assist in the protection of his fellow employees. Defendants Bullard Restaurants, Inc., Tar Heel, Inc., and Clifford Bullard, Jr., made their motion for summary judgment on 8 May 2000. Evidence from discovery tended to show that during the three weeks that Fields worked before the assault and robbery, he did nothing to alert anyone as to his violent tendencies, or that he was a safety risk. The evidence also showed that the hiring practices used with Fields were the practices used in hiring all other employees. Bullard Restaurants had no actual knowledge of

Fields' criminal history, and no indication of it through his conduct at work. However, evidence for plaintiff revealed that Fields' application showed unusual gaps for a 41-year-old man and that defendants violated its own practices as well as industry practices in failing to verify any information in the Fields application. Had they checked with Fields last employer, they would have found that he had been fired and became violent. That would have mandated a criminal record check. After a hearing, Judge Hooks found that there was no genuine issue as to any material fact and granted summary judgment to defendants, except for Fields, who had a default judgment entered against him. Plaintiffs appeal from this order.

-5The plaintiffs' sole assignment of error is that the trial court erred in granting defendant's motion for summary judgment. I. The main issue at the trial court and on appeal is whether the claims are barred by the exclusivity provisions of the Workers' Compensation Act which turns on whether the injuries suffered by plaintiff are covered by the Workers' Compensation Act. N.C. Gen. Stat.

Download 01-906-6.pdf

South Carolina Law