Keith v. Health-Pro Home Care Servs., Inc.

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-72

No. 33A21

Filed 17 June 2022

THOMAS KEITH and TERESA KEITH

v.

HEALTH-PRO HOME CARE SERVICES, INC.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 275 N.C. App. 43 (2020), reversing a judgment entered on

11 April 2018 by Judge Marvin K. Blount in Superior Court, Pitt County, and

remanding for an order granting defendant’s motion for judgment notwithstanding

the verdict. Heard in the Supreme Court on 16 February 2022.

Ward and Smith, P.A., by Jeremy M. Wilson, Alex C. Dale, and Christopher S.

Edwards, for plaintiff-appellants.

Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, Michael S.

Rothrock, and Linda Stephens, for defendant-appellee.

Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Heather Whitaker Goldstein,

for the National Academy of Elder Law Attorneys and the North Carolina

Chapter of the National Academy of Elder Law Attorneys, amici curiae.

Fox Rothschild LLP, by Troy D. Shelton, for the National Center for Victims of

Crime, amicus curiae.

The Sumwalt Group, by Vernon Sumwalt, and White & Stradley, PLLC, by J.

David Stradley, for the North Carolina Advocates for Justice, amicus curiae.

Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall, Emily L. Poe, and

Steven C. Wilson, for North Carolina Association of Defense Attorneys, North

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Carolina Retail Merchants Association and the Chamber Legal Institute, amici

curiae.

BARRINGER, Justice.

¶1 In this matter, we must consider whether the Court of Appeals erred by

reversing the judgment in favor of plaintiffs and remanding to the trial court for entry

of an order granting defendant’s motion for judgment notwithstanding the verdict

and by determining that the trial court erred by denying defendant’s requested

instruction. After careful review of the record, we find that plaintiffs submitted

sufficient evidence for each element of the claim.

¶2 Employers are in no way general insurers of acts committed by their

employees, but as recognized by our precedent, an employer may owe a duty of care

to a victim of an employee’s intentional tort when there is a nexus between the

employment relationship and the injury. Here, when the evidence is viewed in the

light most favorable to the plaintiffs, plaintiffs, who are an elderly infirm couple that

contracted with a company to provide them a personal care aide in their home, have

shown a nexus between their injury and the employment relationship. The employee

was inadequately screened and supervised, being placed in a position of opportunity

to commit crimes against vulnerable plaintiffs after her employer suspected her of

stealing from plaintiffs. Therefore, we conclude that the Court of Appeals erred by

reversing the judgment in favor of plaintiffs and by remanding for entry of a judgment

notwithstanding the verdict in favor of defendant. Further, the Court of Appeals

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misinterpreted North Carolina precedent, and thus erred by holding the trial court

erred by denying defendant’s requested instructions.

I. Background

¶3 On 29 September 2016, plaintiffs Thomas and Teresa Keith (Mr. and Mrs.

Keith), an elderly married couple with health and mobility issues, were the victims

of a home invasion and armed robbery orchestrated by a personal care aide working

for defendant Health-Pro Home Care Services, Inc. (Health-Pro). The aide, Deitra

Clark, was assigned to assist the Keiths in their home. Clark subsequently pleaded

guilty to first-degree burglary and second-degree kidnapping for her conduct.

¶4 In December 2016, the Keiths sued Health-Pro for negligence and punitive

damages. The Keiths alleged that they hired Health-Pro as their in-home health care

provider and “[d]espite Deitra Clark’s criminal record, lack of a driver’s license, and

history of prior incidents [of suspected prior thefts from the Keiths’ home], Health-

Pro negligently allowed Deitra Clark to provide in-home care to the Keiths, and

Health-Pro’s conduct in assigning Deitra Clark to these responsibilities, as opposed

to some other position in the company, was a proximate cause of the robbery of the

Keiths and the consequent injuries sustained by them.”

¶5 The case proceeded to trial and was tried before a jury at the 19 March 2018

session of superior court in Pitt County. At the conclusion of the Keiths’ presentation

of evidence, Health-Pro moved for directed verdict on the negligence claim pursuant

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to North Carolina Rule of Civil Procedure 50. Health-Pro argued that:

As far as negligence, your Honor, we would contend there

has been no evidence to meet the Plaintiffs’ burden of proof.

My understanding from the proposed jury instructions that

the Plaintiffs have passed up is they treat this as an

ordinary negligence case. The Defense contends this is

negligence [sic] hiring retention and supervision case,

which is part of our proposed instructions. That’s very

similar to what the Plaintiffs have pled. That type of case

is what has essentially been argued to this jury and that’s

what the evidence has revealed. In order to succeed on that

case . . . and even in an ordinary negligence case the

Plaintiffs have to show that the events of September 29th,

2016, and Deitra Clarks’ unfitness and participation in

those events were foreseeable to my clients. Those are the

events that have caused the Plaintiffs the only injury they

complain of. And there is nothing in the record that

suggests that it was foreseeable.

¶6 The trial court denied Health-Pro’s motion for directed verdict at the close of

the Keiths’ evidence.

¶7 At the close of all evidence, Health-Pro renewed its motion for a directed

verdict. The trial court denied the motion.

¶8 The trial court then held a charge conference for the jury instructions. As

relevant to this appeal, the trial court proposed using for the negligence issue North

Carolina Pattern Jury Instructions 102.10, 102.11, 102.19, and 102.50, which

included an instruction on the general common law of negligence. Health-Pro objected

to the foregoing Pattern Jury Instructions and instead requested Pattern Jury

Instruction 640.42, entitled Employment Relationship - Liability of Employer for

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Negligence in Hiring, Supervision or Retention of an Employee. N.C.P.I.–Civil 640.42

(2009). Health-Pro’s counsel contended that this is a negligent hiring case,1 not an

ordinary negligence case, and tendered its proposed instruction to the trial court in

writing. The Keiths disagreed, arguing that their complaint pleaded an ordinary

negligence claim and the facts in the case were beyond the Pattern Jury Instruction

for negligent hiring. The trial court denied Health-Pro’s requested jury instruction

and instructed the jury in accordance with the trial court’s proposed instruction.

¶9 After hearing the instructions from the trial court and deliberating, the jury

returned a verdict in favor of the Keiths. The jury answered in the affirmative that

both Mr. and Mrs. Keith were injured by the negligence of Health-Pro. The jury found

Mr. Keith entitled to recover $500,000 in damages from Heath-Pro for his personal

injuries and found Mrs. Keith entitled to recover $250,000 in damages from Health-

Pro for her personal injuries. The trial court then entered judgment to this effect on

11 April 2018.

¶ 10 Health-Pro subsequently moved for judgment notwithstanding the verdict

under North Carolina Rule of Civil Procedure 50 and, in the alternative, for a new

trial pursuant to North Carolina Rule of Civil Procedure 59. The trial court denied

1Like the Court of Appeals, we will use the shorthand “negligent hiring” to refer to

the doctrine that includes negligent hiring, retention, and supervision for ease of reading.

See Keith v. Health-Pro Home Care Servs., Inc., 275 N.C. App. 43, 47 n.1 (2020). Similarly,

we use the term “hiring” to refer to and include hiring, retention, and supervision.

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these post-trial motions on 3 May 2018. Health-Pro appealed the 11 April 2018

judgment and the 3 May 2018 order denying the post-trial motions.2

¶ 11 On appeal, a divided panel of the Court of Appeals reversed the judgment and

remanded for entry of a judgment notwithstanding the verdict in Health-Pro’s favor.

Keith v. Health-Pro Home Care Servs., Inc., 275 N.C. App. 43, 44 (2020).

¶ 12 To address Health-Pro’s appeal of the trial court’s denial of its motions for

directed verdict and motion for judgment notwithstanding the verdict, the Court of

Appeals determined that it “must first decide whether [the Keiths’] case was

appropriately presented to the jury as an ‘ordinary’ negligence claim instead of an

action for negligent hiring.” Id. at 48–49. The Court of Appeals considered the

allegations in the Keiths’ complaint and the evidence presented at trial “within the

context of precedent governing both ordinary negligence and negligent hiring.” Id. at

51. The Court of Appeals ultimately indicated that it agreed with Health-Pro that the

Keiths’ “allegations and the facts of this case constituted a claim for negligent hiring,”

obligating the Keiths to prosecute their claim as one for negligent hiring. Id. at 61.

The Court of Appeals explained as follows:

All of Plaintiffs’ relevant allegations and evidence

directly challenge whether Defendant should have hired

Ms. Clark as an in-home aide; whether Defendant acted

appropriately in response to hearing from Plaintiffs that

2The Keiths also appealed an issue to the Court of Appeals, but that issue has not

been appealed to this Court. Keith, 275 N.C. App. at 44. Thus, we have omitted discussion of

the Keiths’ appeal.

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money had been taken from their home on two occasions—

which would have involved either greater supervision of—

such as moving Ms. Clark to a no-client-contact position, as

suggested by Plaintiffs—or a decision regarding whether to

retain her in Defendant’s employ at all. Plaintiffs have

cited no binding authority for the proposition that an action

brought on allegations, and tried on facts, that clearly fall

within the scope of a negligent hiring claim may avoid the

heightened burden of proving all the elements of negligent

hiring by simply designating the action as one in ordinary

negligence, and we find none.

Id. at 64–65.

¶ 13 As such, the Court of Appeals held that the trial court erred by denying Health-

Pro’s motions for directed verdict and judgment notwithstanding the verdict “with

respect to ordinary negligence, as that claim was not properly before the trial court,

and no evidence could support it.” Id. at 66. Given the Court of Appeals’ conclusion

that the Keiths’ claim was not one of ordinary negligence, the Court of Appeals also

held that it was error to deny Health-Pro’s requested jury instruction on negligent

hiring. Id. at 65.

¶ 14 The Court of Appeals then considered whether the Keiths’ evidence was

sufficient to survive a motion for judgment notwithstanding the verdict “based upon

the theory of negligent hiring.” Id. at 66. It began by discussing the Court of Appeals’

case Little v. Omega Meats I, Inc., 171 N.C. App. 583 (2005), which this Court affirmed

per curiam without written opinion, 360 N.C. 164 (2005). Keith, 275 N.C. App. at 66–

67.

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¶ 15 The Court of Appeals concluded that according to Little, “three specific

elements . . . must be proven [by a plaintiff] in order to show that an employer had a

duty to protect a third party from its employee’s negligent or intentional acts

committed outside of the scope of the employment.” Id. at 67. Specifically,

(1) the employee and the plaintiff must have been in places

where each had a right to be when the wrongful act

occurred; (2) the plaintiff must have met the employee,

when the wrongful act occurred, as a direct result of the

employment; and (3) the employer must have received

some benefit, even if only potential or indirect, from the

meeting of the employee and the plaintiff that resulted in

the plaintiff’s injury.

Id. (cleaned up). The Court of Appeals held that there was no evidence to support any

of the three elements in this case. Id. at 68.

¶ 16 Next, the Court of Appeals concluded that even if the requirements of Little

are not applicable to this case, the trial court still erred by denying Health-Pro’s

motion for judgment notwithstanding the verdict based on a theory of negligent

hiring. Id. at 69. Specifically, the Court of Appeals held that Health-Pro had no duty

to protect the Keiths’ from Clark’s criminal acts on 29 September 2016, id. at 82, and

the Keiths’ “evidence was insufficient to demonstrate proximate cause,” id. at 83.

¶ 17 The dissent disagreed with the majority’s holding that the judgment in favor

of the Keiths must be reversed and that Health-Pro was entitled to judgment as a

matter of law. Id. at 84 (Dillon, J., dissenting). The dissent contended that although

the Keiths alleged that Health-Pro was negligent in hiring Clark, the evidence of

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negligent hiring “is merely a means by which a plaintiff proves ordinary negligence.”

Id. “[N]egligent [hiring] (like any other ordinary negligence claim) requires a plaintiff

to show that the defendant owed a duty, that the defendant breached that duty, and

that the plaintiff suffered an injury proximately caused by the breach.” Id.

¶ 18 Further, the dissent argued that when viewed in the light most favorable to

the Keiths, the evidence was sufficient to make out an ordinary negligence claim

based on their evidence of Health-Pro’s negligent hiring of a dishonest employee. Id.

Unlike the majority, the dissent concluded that the Keiths did not have to prove that

the robbery occurred while Clark was on duty. Id. The evidence was sufficient for a

negligence claim because when viewed in the light most favorable to the Keiths,

Health-Pro’s “dishonest employee use[d] ‘intel’ learned while on duty to facilitate a

theft.” Id.

¶ 19 The dissent asserted its view that the majority misread Little, id. at 87–88,

and analyzed how the evidence when viewed in the light most favorable to the Keiths,

as the non-moving party, is sufficient for each element, rendering denial of the

motions for directed verdict and judgment notwithstanding the verdict proper, id. at

86–91.

¶ 20 Further, as to the jury instructions, the dissent stated:

The trial court’s actual instruction was a correct

statement of the law in this case, as Plaintiffs claim was

one in ordinary negligence. But it would not have

necessarily been inappropriate for the trial court to

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expound on some of the elements, provided the requested

instructions were a correct statement of the law as

supported by the evidence. I disagree, though, that the

instruction on duty requested by Defendant, though maybe

appropriate in certain negligent [hiring] cases, would have

been appropriate in this case. No one disputes that the

“wrongful act” occurred when Ms. Clark had no right to be

in Plaintiffs’ home. However, as explained above, it was

enough for Plaintiffs to show that Ms. Clark used intel

learned while she was on the job to facilitate the robbery

which occurred after she had left work for the day.

Accordingly, the instructions requested by Defendant

would have confused the jury. If followed by the jury, the

instructions would have necessarily resulted in a verdict

for Defendant. In fact, if the instructions were an accurate

statement of the law, as applied to the evidence in this case,

then Defendant would have been entitled to judgment as a

matter of law. Based on the requested instructions,

Defendant owed no duty to Plaintiffs solely because the

robbery occurred when Ms. Clark was off the clock, and

therefore could not be held liable, notwithstanding that

Defendant had been negligent in continuing to place Ms.

Clark in Plaintiffs’ home, that Ms. Clark provided the intel

learned while placed in Plaintiffs’ home to the perpetrators

to facilitate the break-in, that it was foreseeable that Ms.

Clark would try and steal from Plaintiffs again, and that

the break-in would not have otherwise occurred.

Id. at 92–93.

¶ 21 The dissent acknowledged that reasonable minds may reach different

conclusions concerning Health-Pro’s liability for the criminal conduct of Clark in this

case, but that decision was for the jury, and the jury has spoken in this case in favor

of liability. Id. at 93.

¶ 22 The Keiths appealed based on the dissent pursuant to N.C.G.S. § 7A-30(2).

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II. Standard of Review

¶ 23 Pursuant to North Carolina Rule of Appellate Procedure 16, this Court

“reviews the decision of the Court of Appeals to determine whether it contains any

errors of law.” State v. Melton, 371 N.C. 750, 756 (2018) (citing N.C. R. App. P. 16(a);

State v. Mumford, 364 N.C. 394, 398 (2010)). The Court of Appeals’ majority and

dissent disagreed on whether the trial court erred by denying Health-Pro’s motions

for directed verdict and judgment notwithstanding the verdict under North Carolina

Rule of Civil Procedure 50 and by denying Health-Pro’s requested jury instruction

under North Carolina Rule of Civil Procedure 51. The Keiths appealed based on this

disagreement. Therefore, we address each of these issues. See N.C. R. App. P. 16(a),

(b).

III. Analysis

A. Health-Pro’s Rule 50 Motions

¶ 24 To address the issues before us, we must summarize the relevant aspects of

the law of this State concerning negligence and negligent hiring. The common law

claim of negligence has three elements: (1) a legal duty owed by the defendant to the

plaintiff, (2) a breach of that legal duty, and (3) injury proximately caused by the

breach. Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 328 (2006); Kientz v.

Carlton, 245 N.C. 236, 240 (1957). Precedent decided by this Court further defines

the contours of these three elements. For instance, this Court has recognized that

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“[n]o legal duty exists unless the injury to the plaintiff was foreseeable and avoidable

through due care.” Stein, 360 N.C. at 328.

¶ 25 Given this limitation, a defendant rarely has a legal duty to prevent the

criminal acts of others. Id. However, “a defendant may be liable for the criminal acts

of another when the defendant’s relationship with the plaintiff or the third person

justifies making the defendant answerable civilly for the harm to the plaintiff.” Id. at

329. For example, this Court has recognized that a common carrier owes to its

passengers a duty to provide for their safe conveyance and that, in the performance

of its duty, it must protect a passenger from assault by the carrier’s employees and

intruders when by the exercise of due care, the acts of violence could have been

foreseen and avoided. See Smith v. Camel City Cab Co., 227 N.C. 572, 574 (1947).

Similarly, a store owner owes to a customer on its premises during business hours for

the purpose of transacting business thereon a duty to protect or warn the customer

of endangerment from the criminal acts of third persons when reasonably foreseeable

by the store owner and when such acts could have been prevented by the exercise of

ordinary care by the store owner. Foster v. Winston-Salem Joint Venture, 303 N.C.

636, 638–40 (1981).

¶ 26 In the context of employment, this Court held that a defendant employer owes

its employees the duty to exercise reasonable care in its employment and retention of

employees, and if there be negligence in this respect, which is shown to be proximate

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cause of the injury to the employee, the defendant employer may be liable for the

injury caused by the negligence of the fellow employee, Walters v. Durham Lumber

Co., 163 N.C. 536, 541 (1913), or by the intentional torts of the employer’s supervisors,

Lamb v. Littman, 128 N.C. 361, 362–65 (1901). Later precedent recognized that an

employer’s duty to exercise reasonable care in its employment and retention of

employees could extend to third persons. See Braswell v. Braswell, 330 N.C. 363, 373

(1991) (quoting O’Connor v. Corbett Lumber Corp., 84 N.C. App. 178, 182–83 (1987));

Medlin v. Bass, 327 N.C. 587, 590 (1990).

¶ 27 In Braswell and Medlin, this Court expressly recognized that North Carolina

courts have recognized a cause of action for negligent hiring. Braswell, 330 N.C. at

373; Medlin, 327 N.C. at 590. In Medlin, this Court delineated what a plaintiff must

prove for this claim:

(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.

327 N.C. at 591 (emphasis omitted) (quoting Walters, 163 N.C. at 541).

¶ 28 In Little, the Court of Appeals addressed whether there was sufficient evidence

for a claim by third-person plaintiffs for negligent hiring against a defendant

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employer when the injury causing acts were intentional torts and criminal. 171 N.C.

App. at 584–90. The Court of Appeals held that on the record before it, the defendant

employer did not owe plaintiffs a duty of care and affirmed the trial court’s granting

of directed verdict in the defendant employer’s favor. Id. at 589. The Court of Appeals

explained:

In the instant case Smith[, an independent

contractor for defendant employer Omega,] was not in a

place where he had a legal right to be since he broke in to

plaintiffs’ home; Smith and plaintiffs did not meet as a

direct result of Smiths’ relationship with defendants, since

he did not enter plaintiffs’ home as a salesman; finally,

defendants received no benefit, direct, indirect or potential,

from the tragic “meeting” between Smith and plaintiffs. We

have found no authority in North Carolina suggesting that

defendants owed plaintiffs a duty of care on these facts, and

we hold that in fact none existed.

We refuse to make employers insurers to the public

at large by imposing a legal duty on employers for victims

of their independent contractors’ intentional torts that bear

no relationship to the employment. We note that because

this is a direct action against the employer, for the

purposes of this appeal the result would be the same if

Smith had been an employee of defendants instead of an

independent contractor. Smith could have perpetrated the

exact same crimes against these plaintiffs, in the exact

same manner, and with identical chances of success, on a

day that he was not selling Omega’s meats and driving

Omega’s vehicle.

Id. at 588–89.

¶ 29 Prior to this analysis and holding, the Court of Appeals quoted three sentences

from an article published in the Minnesota Law Review:

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Most jurisdictions accepting the theory of negligent hiring

have stated that an employer’s duty to select competent

employees extends to any member of the general public

who comes into contact with the employment situation.

Thus, courts have found liability in cases where employers

invite the general public onto the business premises, or

require employees to visit residences or employment

establishments. One commentator, in analyzing the

requisite connection between plaintiffs and employment

situations in negligent hiring cases, noted three common

factors underlying most case law upholding a duty to third

parties: (1) the employee and the plaintiff must have been

in places where each had a right to be when the wrongful

act occurred; (2) the plaintiff must have met the employee

as a direct result of the employment; and (3) the employer

must have received some benefit, even if only potential or

indirect, from the meeting of the employee and the

plaintiff.

Id. at 587–88 (quoting Cindy M. Haerle, MINNESOTA DEVELOPMENTS: Employer

Liability for the Criminal Acts of Employees Under Negligent Hiring Theory: Ponticas

v. K.M.S. Investments, 68 Minn. L. Rev. 1303, 1308–09 (1984)). Citing this Article,

the Court of Appeals in Little further stated, “[c]ourts in other jurisdictions have

generally, though not exclusively, declined to hold employers liable for the acts of

their independent contractors or employees under the doctrine of negligent hiring or

retention when any one of these three factors was not proven.” Id. at 588 (citing 68

Minn. L. Rev. 1303, 1308–09).

¶ 30 The dissent in Little contended that “our courts have already established a

duty on the part of employers of independent contractors and that the majority

opinion’s conclusion that there is no duty in this case—as a matter of law—cannot be

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reconciled with this authority.” Id. at 591–92 (Geer, J., dissenting). This Court

affirmed per curiam the Court of Appeals’ decision. Little v. Omega Meats I, Inc., 360

N.C. 164, 164 (2005).

¶ 31 In the case before us, the Court of Appeals interpreted the aforementioned

statements in Little as having “identified three specific elements that must be proven

in order to show that an employer had a duty to protect a third party from its

employee’s negligent or intentional acts committed outside of the scope of the

employment.” Keith, 275 N.C. App. at 67. We hold that the Court of Appeals erred by

reading Little as adopting such rigid requirements for reasons similar to those that

the Court of Appeals’ dissent in this case raised. See id. at 87 (Dillon, J., dissenting).

¶ 32 In Little, the Court of Appeals quoted a statement from a Minnesota Law

Review article that “[o]ne commentator . . . noted three common factors underlying

most case law upholding a duty to third parties” and cited this article for support that

there is a general, but not exclusive, trend in other jurisdictions related to these

factors. Little, 171 N.C. App. at 588 (emphasis added).3 The Court of Appeals’ analysis

3 The Minnesota Law Review article cited as the “[o]ne commentator” a note by a

Chicago-Kent Law Review staff member from 1977. Cindy M. Haerle, MINNESOTA

DEVELOPMENTS: Employer Liability for the Criminal Acts of Employees Under Negligent

Hiring Theory: Ponticas v. K.M.S. Investments, 68 Minn. L. Rev. 1303, 1308–09 (1984) (citing

John C. North, Note, The Responsibility of Employers for the Actions of Their Employees: The

Negligent Hiring Theory of Liability, 53 Chi-Kent L. Rev. 717, 724 (1977)). While published

scholarship by law students and their attempts to deduce patterns in the holdings of various

court rulings can be informative, such observations do not mean that other jurisdictions have

adopted these three factors as requirements. On the same page as its description of the

factors, the Minnesota Law Review article expressly recognized the lack of predictive

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in Little implicitly reflected consideration of these factors, but the Court of Appeals

indicated that its decision turned on the lack of “authority in North Carolina

suggesting that defendants owed plaintiffs a duty of care on these facts.” Id. (emphasis

added).

¶ 33 The Court of Appeals did not state that it adopted these factors. It further did

not even describe other jurisdictions as holding these factors to be elements. Nowhere

in the Little decision did it state that these factors must be alleged, proven, or shown

in courts of this State to establish an employer’s duty to a third-party injured by an

employee to exercise reasonable care in its hiring of employees. Cf. Walters, 163 N.C.

at 541 (using the terms “it is shown” and “must be established” when addressing an

employer’s liability). Nor is it said that these factors are required. Rather, the Court

of Appeals “refuse[d] to make employers insurers to the public at large by imposing a

legal duty on employers for victims of their independent contractors’ intentional torts

that bear no relationship to the employment,” and thus “required [for a duty to third

relevance of one of these factors in determining when courts find an employer owes a duty of

care to a particular plaintiff. Id. at 1309. The cases cited by Little in addition to the Minnesota

Law Review article also do not identify or adopt a three-factor test. Little v. Omega Meats I,

Inc., 171 N.C. App. 583, 588 (2005) (citing McLean v. Kirby Co., 490 N.W.2d 229 (N.D. 1992);

Baugher v. A. Hattersley & Sons, Inc., 436 N.E.2d 126, 129 (Ind. Ct. App. 1982); Parry v.

Davidson-Paxon Co., 73 S.E.2d 59 (Ga. Ct. App. 1952); Goforth v. Off. Max, No. L97-2972,

1999 WL 33722384 (Va. Cir. Ct. Apr. 16, 1999)). Regardless, while we need not and do reach

not this issue, we observe as set forth in more detail that in this case, there is evidence

reflecting that the Keiths and Clark met through her employment as their personal care aide;

the Keiths paid defendant for Clark’s services; and at the time of the armed robbery, the

Keiths were in their home, and Clark was in her car awaiting her accomplices.

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parties for negligent hiring] a nexus between the employment relationship and the

injury.” Little, 171 N.C. App. at 588–89. The Little court considered these factors, in

the absence of existing North Carolina law, in determining whether there is a

sufficient nexus between the employment relationship and the injury, but it did not

adopt a requirement that all three factors be proven.

¶ 34 Thus, the Court of Appeals in this case erred by reading Little to have

“identified three specific elements that must be proven,” and by declining “to hold

employers liable for the acts of their employees under the doctrine of negligent hiring

or retention when any one of these three factors was not proven.” Keith, 275 N.C.

App. at 67 (cleaned up).

¶ 35 The Court of Appeals further erred by holding that the trial court erred by

denying Health-Pro’s motions for directed verdict and judgment notwithstanding the

verdict. Id. at 66. The Court of Appeals agreed with defendant that the Keiths’ were

obligated to prosecute their claim as one for negligent hiring because the Keiths’

allegations and facts of this case constituted a claim for negligent hiring. Id. at 61.

However, this conclusion and the analysis supporting it failed to properly apply the

standard of review for Rule 50 motions, the matter before the Court of Appeals.

¶ 36 The standard of review for Rule 50 motions is well-established. Motions for

directed verdict and judgment notwithstanding verdict are questions of law that

appellate courts review de novo. Desmond v. News & Observer Publ’g Co., 375 N.C.

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21, 41 (2020). On appeal, the standard of review for both motions is the same:

“whether the evidence, taken in the light most favorable to the non-moving party, is

sufficient as a matter of law to be submitted to the jury.” Davis v. Dennis Lilly Co.,

330 N.C. 314, 322–23 (1991). “In determining the sufficiency of the evidence to

withstand a motion for a directed verdict, all of the evidence which supports the non-

movant’s claim must be taken as true and considered in the light most favorable to

the non-movant, giving the non-movant the benefit of every reasonable inference

which may legitimately be drawn therefrom and resolving contradictions, conflicts,

and inconsistencies in the non-movant’s favor.” Turner v. Duke Univ., 325 N.C. 152,

158 (1989). “If, after undertaking such an analysis of the evidence, the [court] finds

that there is evidence to support each element of the nonmoving party’s cause of

action, then the motion for directed verdict and any subsequent motion for judgment

notwithstanding the verdict should be denied.” Abels v. Renfro Corp., 335 N.C. 209,

215 (1993).

¶ 37 Even when addressing an argument by Health-Pro that the negligence claim

in this case is in fact a negligent hiring claim, a Rule 50 motion turns on the

sufficiency of the evidence at the trial. Thus, we analyze the evidence at trial to assess

whether there is support for each element of the nonmoving party’s cause of action.4

4In addition to analyzing the evidence at trial, the Court of Appeals analyzed the

pleadings and justified its review and analysis of the pleadings on Burton v. Dixon, 259 N.C.

473 (1963) and CommScope Credit Union v. Butler & Burke, LLP, 369 N.C. 48 (2016). Keith,

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¶ 38 The evidence at trial tended to show the following when viewed in the light

most favorable to the nonmoving party, the Keiths. The Keiths were an elderly couple

with serious health issues and limited mobility. Mr. Keith had just undergone heart

surgery when they sought an at-home-care provider. The Keiths and their son, Fred

Keith (Fred), met with Health-Pro’s sole owner, Chief Executive Officer, and

President, Sylvester Bailey III (Mr. Bailey). Health-Pro provided at-home personal

and health care. During that meeting, Health-Pro, through Mr. Bailey, informed

them that all employees undergo criminal background checks. After the meeting, the

Keiths hired Health-Pro for their services in December 2012.

¶ 39 In 2015, Health-Pro received an employment application from Clark and

permission to conduct a criminal background check. Pursuant to State law, “[a]n offer

of employment by a home care agency licensed under [Chapter 131E on Health Care

Facilities and Services] to an applicant to fill a position that requires entering the

275 N.C. App. at 51–54. Burton and CommScope addressed objections to the sufficiency of a

pleading to state a claim. CommScope, 369 N.C. at 51; Burton, 259 N.C. at 476–77. This

matter reaches us well past that stage. Thus, these cases do not inform our analysis. We are

reviewing motions for directed verdict and judgment notwithstanding the verdict, which are

made during and after a trial. Further, Health-Pro did not object to any of the evidence as

outside the scope of the pleadings. Pursuant to North Carolina Rule of Civil Procedure 15(b),

“[w]hen issues not raised by the pleadings are tried by the express or implied consent of the

parties, they shall be treated in all respects as if they had been raised in the pleadings.”

N.C.G.S. § 1A-1, Rule 15(b) (2021). Thus, even if evidence addressed issues beyond the scope

of the pleadings, we must treat them as if raised in the pleadings pursuant to Rule 15(b) on

account of the Keiths’ and Health-Pro’s implied consent. Therefore, we need not concern

ourselves with the pleadings, and, instead, consistent with the standard of review for the

matter before us, we concern ourselves with the evidence at trial.

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patient’s home is conditioned on consent to a criminal history record check of the

applicant.” N.C.G.S. § 131E-265(a) (2021).

¶ 40 Health-Pro’s criminal background investigation policy was that “[a]ll

employees of Health-Pro must undergo a criminal background check by the State

Bureau of Investigation or other approved entity” and “[i]f the criminal history

involves a felony not listed above, a misdemeanor, a series of arrests, or a criminal

conviction greater than seven years, the agency will review the offense, its relevance

to the particular job performance, and to the length of time between conviction and

the employment date.” Further, “[a] decision regarding employment will be reached

only after the nature, severity and date of the offense have been carefully evaluated.”

¶ 41 Similarly, under State law,

[w]ithin five business days of making [a] conditional offer

of employment, a . . . home care agency shall submit a

request to the Department of Public Safety under

[N.C.]G.S. [§] 143B-939 to conduct a State or national

criminal history record check required by [N.C.G.S.

§ 131E-265], or shall submit a request to a private entity to

conduct a State criminal history record check required by

[N.C.G.S. § 131E-265].

N.C.G.S. § 131E-265(a). “If an applicant’s criminal history record check reveals one

or more convictions of a relevant offense, the . . . home care agency . . . shall consider

[the enumerated] factors [in this section] in determining whether to hire the

applicant[.]” N.C.G.S. § 131E-265(b). Relevant offense is defined as “a county, state,

or federal criminal history of conviction or pending indictment of a crime, whether a

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misdemeanor or felony, that bears upon an individual’s fitness to have responsibility

for the safety and well-being of aged or disabled persons.” N.C.G.S. § 131D-40(d)

(2021); see N.C.G.S. § 131E-265(d) (“As used in this section, the term ‘relevant offense’

has the same meaning as in [N.C.]G.S. [§] 131D-40.”). “An entity and officers and

employees of an entity shall be immune from civil liability for failure to check an

employee’s history of criminal offenses if the employee’s criminal history record check

is requested and received in compliance with [N.C.G.S. § 131E-266.]” N.C.G.S.

§ 131E-265(g).

¶ 42 Health-Pro admitted that it did not run a criminal background check with the

State Bureau of Investigation or other approved entity and admitted that the review

and evaluation required by the policy was not completed. However, Health-Pro

contended it ran a criminal background check and was aware of Clark’s misdemeanor

convictions and other charges. To the contrary, the only document in Health-Pro’s

employment file relating to a criminal background check was one page and only

showed the following:5

5 This document has been redacted for purposes of this opinion to remove irrelevant

personal information.

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Additionally, the company, from which Health-Pro contended it ran a criminal

background check, stated on its website that its services cannot be used to conduct

background checks for employees or applicants.

¶ 43 Mr. Bailey offered conflicting testimony at trial concerning why Health-Pro’s

employment file for Clark only contained this one page, first stating that Health-Pro

culled down the file every year because some reports were fifteen pages and then later

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saying Health-Pro just prints one page of a criminal background report for the file.

Notably, Mr. Bailey also testified at his deposition that he conducted the criminal

background check but did not have a specific memory of running the check or seeing

the charges and convictions. Yet, he subsequently changed his testimony when

deposed as the Rule 30(b)(6) representative of Health-Pro and when he testified at

trial.

¶ 44 Health-Pro’s criminal background investigation policy also dictated that the

criminal history record information received from the criminal background check be

stored in a separate locked file in the Human Resource Department, but this was not

done. Additionally, the Interviewing and Hiring Process form used by Health-Pro for

hiring Clark did not have checks next to the boxes for a criminal background check

as reflected below:

¶ 45 Thus, viewed in the light most favorable to the Keiths, Health-Pro did not run

a criminal background check of Clark upon hiring her as a personal care aide in

September 2015. It did not check to confirm that she had a driver’s license as

indicated on her application. Health-Pro simply interviewed Clark after receiving her

application and then hired her. Nevertheless, Health-Pro represented on its website

that it carefully screened caregivers by calling previous employers and performing

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criminal background checks.

¶ 46 As of the date of her hiring, a criminal background check of Clark would have

revealed the following: 2007 charge for no operator’s license; 2008 found guilty of

driving while license revoked; 2009 charge for possession of marijuana; 2009 found

guilty of possession of drug paraphernalia; 2010 charge for possession of drug

paraphernalia; 2010 charge for communicating threats (dismissed because of

noncooperating witness); 2010 found guilty of criminal contempt; and 2011 charge for

communicating threats (dismissed because of noncooperating witness). Further, at

that time, Clark did not have a valid driver’s license.

¶ 47 Clark, however, indicated on her employment application that she had never

been convicted of or entered a plea of guilty in a court of law. Thus, as conceded by

Health-Pro, Clark lied on her job application about her criminal background. Health-

Pro acknowledged that this dishonesty would be concerning to Health-Pro if caught.

Clark also identified that she had a driver’s license on her application, but she did

not have a driver’s license at the time of her application, just an identification card.

¶ 48 A few months later in November or December, Health-Pro assigned Clark to

work for the Keiths as a personal care aide at their home. The Keiths understood that

Health-Pro ran background checks on all their aides, including Clark, and would

provide aides that would do a good job and not pose a danger.

¶ 49 Clark was one of the primary aides working for the Keiths. She helped in the

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home by cleaning the house, doing laundry, and driving Mrs. Keith for errands. Clark

had access to the whole house and could move around the house freely. Through her

employment, Clark learned about the Keiths, their valuables, their schedules, their

collection of rolled coins, and their spare key.

¶ 50 On or about 25 May 2016, Health-Pro received a letter from Pitt County Child

Support Enforcement indicating that a claim against Clark for nonpayment of child

support was being pursued.

¶ 51 In 2016, after Clark had been assigned to the Keiths’ home, the Keiths’

granddaughter and daughter discovered that about $900 of rolled coins were missing.

Additionally, $1,260 in cash went missing from Mrs. Keith’s dresser. Before the cash

went missing, an aide had seen Mrs. Keith remove money from her dresser drawer.

Mrs. Keith thought the aide was Clark but was not positive, so she did not accuse her

when the cash went missing. Cash also went missing from Mr. Keith’s wallet on two

occasions.

¶ 52 The Keiths informed Health-Pro about the missing money, and Mr. Bailey on

behalf of Health-Pro came to the Keiths’ home to discuss in July 2016. The missing

money was not located at the meeting (nor was it ever found), but Health-Pro said it

would investigate everything and removed Clark and the other aide assigned at the

time from servicing the Keiths’ home. Health-Pro also agreed to pay back the missing

money to the Keiths.

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¶ 53 Health-Pro determined that Clark and one other aide were the only aides in

the home on the days that money went missing and spoke to them. Yet, Health-Pro

did nothing further; it did not run a criminal background check or report the incident

to the police.

¶ 54 Fred, the Keiths’ son, also met with Mr. Bailey after he learned about the

missing money. Mr. Bailey informed Fred that it was either Clark or the other aide

but that he had a strong belief that Clark was the one involved. Mr. Bailey assured

Fred that neither one of them would be back in his parents’ home, and Fred made

clear that he did not want Clark back in his parents’ home.

¶ 55 Nevertheless, a few weeks later, Health-Pro assigned Clark back to the Keiths’

home. Although Health-Pro contended that Fred asked for Clark to return to the

home because Clark gave Mrs. Keith better baths than other aides, Fred testified

that he disputed Health-Pro’s contention, and the Keiths testified that they did not

ask for Clark to be reassigned to their home. The Keiths assumed that Health-Pro,

after completing its investigation, thought Clark did not pose a threat to the Keiths.

Health-Pro also admitted that it did not inform Fred that they were sending Clark

back to the home. Thus, viewing the evidence in the light most favorable to the Keiths,

Health-Pro made the unilateral decision to reassign Clark as a personal care aide to

the Keiths’ home after the thefts.

¶ 56 On 9 September 2016, Health-Pro received another letter from Pitt County

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Child Support Enforcement.

¶ 57 A few weeks later on 28 September 2016, Clark used the information that she

gleaned about the Keiths’ home, the comings and goings of Health-Pro aides and the

Keiths’ family, and their valuables to accomplish a home invasion and robbery. Clark

informed her accomplices about everything, including the location of the spare hidden

key. Clark also knew and shared with her accomplices that the Health-Pro aide

assigned to work that evening, Erica, would leave when her shift ended at 11:00 p.m.

and no other family was visiting and staying with the Keiths that evening.

¶ 58 The assigned aide, Erica, did in fact leave in accordance with her shift schedule

at 11:00 p.m. on the evening of 28 September 2016. Shortly thereafter, Clark drove

her two accomplices in her car to the Keiths’ house and dropped them off to complete

the home invasion and robbery. Her accomplices dressed in dark clothing and wore

masks. Between 11:30 p.m. and 12:00 a.m., the accomplices used the spare hidden

key to enter the house and walked into the den where Mr. Keith was watching a

movie. Mrs. Keith was in bed. The accomplices disconnected the telephone.

¶ 59 As testified by Mr. Keith, the accomplices knew exactly where to go in the

house; they knew where everything was.

¶ 60 One accomplice had a gun and pointed the gun at Mr. Keith and ordered Mr.

Keith to lay on the floor face down. The other accomplice walked into the bedroom

where Mrs. Keith was lying in bed and took from the bed stand the .32 caliber

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Harrison and Richardson pistol belonging to Mr. Keith. The originally armed

accomplice found Mr. Keith’s ATM card in one of his desk drawers and started

waiving it around like it was something for which he was searching. Additionally,

while in the home, the other accomplice stole the Keiths’ two boxes of rolled coins,

totaling $500. The Keiths had stored the boxes in a black bag under Mr. Keith’s work

desk in the den of their home. One of the accomplices also told Mrs. Keith that she

should be sure to mention the name of Erica.

¶ 61 The originally armed accomplice forced Mr. Keith at gunpoint to drive him to

an ATM. During the drive to the ATM, the accomplice asked Mr. Keith if he had a

worker that comes over to the home named Erica. After Mr. Keith answered

affirmatively, the accomplice told Mr. Keith that he needed to fire Erica because she

left the door open. Arriving at the ATM around 12:30 a.m., the accomplice forced Mr.

Keith to withdraw a thousand dollars. The accomplice then ordered Mr. Keith to drive

him to an elementary school, where the accomplice got out of the car and ran away.

¶ 62 Clark picked up both accomplices along with the stolen cash, coins, and gun.

Thereafter, she and the accomplices took her car to Walmart to convert the stolen

coins into cash by using a Coinstar machine at around 1:00 a.m.

¶ 63 Health-Pro terminated Clark after it identified her in the video footage from

the police showing the conversion of the coins to cash at the Coinstar machine.Only

after the home invasion and robbery and after firing Clark did Health-Pro run a

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criminal background check on Clark.

¶ 64 After undertaking an analysis of the evidence and considering it in the light

most favorable to the Keiths, we find that there is evidence to support each element

of the Keiths’ cause of action and that the motion for directed verdict and subsequent

motion for judgment notwithstanding the verdict should be denied. See Abels v.

Renfro Corp., 335 N.C. at 215.

¶ 65 Here, the Keiths pursued a negligence claim against the employer of the

intentional tortfeasor, Health-Pro, premised on Health-Pro’s own negligence in

hiring, retaining, and/or assigning Clark, the intentional tortfeasor, to work as a

personal care aide at their home. Given that the Keiths’ claim relied on negligence by

the employer in hiring, retaining, and/or assigning an employee, our precedent

recognizes this claim under the theory of liability known as negligent hiring, or more

commonly framed as a claim for negligent hiring. While the elements of negligence

are a legal duty, breach, and injury proximately caused by the breach, appellate

precedent further defines the contours of these elements in specific contexts as

previously discussed. Thus, when a plaintiff alleges an employer negligently hired,

retained, or supervised an employee, and seeks recovery from the employer for injury

caused by the employee, the Medlin elements for negligent hiring and the Little nexus

requirement for duty must be satisfied to show a negligence claim in this context.

¶ 66 Therefore, to survive a motion for directed verdict or judgment

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notwithstanding the verdict for their negligence claim, the Keiths had to present

evidence to support each element set forth in Medlin and to support a nexus between

the employment and the injury as required by Little.6 The evidence when viewed in

the light most favorable to the Keiths, as summarized previously, satisfied the

elements in Medlin and the nexus requirement in Little. In addition to evidence

supporting each of the elements, there is enough distinguishing this case from Little

and enough similarity with Lamb to preclude our precedent from foreclosing the

claim as a matter of law.

¶ 67 Unlike Little, the evidence viewed in the light most favorable to plaintiffs

suggests a sufficient nexus between the injurious act and employment relationship

to create a duty. The plaintiffs in this case were daily customers of the defendant

employer and had been for years. The defendant employer assigned the intentional

tortfeasor employee to work for the plaintiffs inside plaintiffs’ home. Thus, defendant

employer participated in the meeting between the intentional tortfeasor employee

and the plaintiffs and gained financially from their continued meeting. When viewed

in the light most favorable to the Keiths, the intentional tortfeasor employee also

injured the plaintiff customer, the Keiths, by disclosing and using the intel she gained

through her employment to orchestrate a robbery at the intentional tortfeasor

6Since we conclude that the Keiths’ claim is one of negligent hiring pursuant to our

precedent, in this particular case liability under a negligence theory is not available, and,

thus, we do not address its application.

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employee’s place of employment, the Keiths’ home.

¶ 68 When the evidence is viewed in the light most favorable to the Keiths, the

intentional tortfeasor employee was skilled at her work but incompetent to work for

vulnerable customers in the customers’ home without supervision by another,

rendering this case similar to Lamb. See Lamb, 128 N.C. at 363. In Lamb, the

defendant’s supervisor had command over the department in which plaintiff, a ten-

year-old boy, worked as floor sweeper. Id. at 362. The supervisor shoved plaintiff

causing him injury, and plaintiff sued the supervisor’s employer. Id. at 361–62, 365.

While there was no evidence of the unskillfulness of the supervisor, he had treated

the plaintiff poorly the day before the injury and had a general reputation for his

cruelty and temper. Id. at 362. This Court concluded that “the evidence shows that

he was unfit and incompetent to perform the duties of supervising children and the

help under him by reason of his cruel nature and high temper.” Id. at 363. Given the

foregoing, this Court found that the trial court erred by not submitting the case to

the jury and reversed the motion dismissing the case for nonsuit. Id. at 361–62.

¶ 69 In this case, evidence concerning the falsities in Clark’s employment

application, Health-Pro’s belief that she committed the prior thefts, and the

particulars of her criminal background support the inference that Health-Pro knew

or should have known of Clark’s incompetence for her assignment to the Keiths’

home. See id. at 362. Health-Pro’s personal care aides served elderly and vulnerable

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adults and by the nature of their work gained information about their clients’ daily

routine, personality, finances, and home and were not supervised while in the home.

The Keiths, in fact, retained Health-Pro because Mr. Keith needed an at-home-care

provider after his heart surgery and throughout their engagement of Health-Pro’s

services were elderly and with serious health issues and limited mobility.

¶ 70 In addition to the foregoing, evidence also supports the foreseeability of the

injury to the Keiths from such incompetence. “Proximate cause is a cause which in

natural and continuous sequence produces a plaintiff’s injuries and one from which a

person of ordinary prudence could have reasonably foreseen that such a result or

some similar injurious result was probable.” Murphey v. Ga. Pac. Corp., 331 N.C. 702,

706 (1992). “It is not necessary that a defendant anticipate the particular

consequences which ultimately result from his negligence. It is required only that a

person of ordinary prudence could have reasonably foreseen that such a result, or

some similar injurious result, was probable under the facts as they existed.” Sutton

v. Duke, 277 N.C. 94, 107 (1970) (cleaned up).

¶ 71 In this matter, Health-Pro acknowledged that it must discipline employees

when Health-Pro knows the employee did something out of compliance because

absent discipline, there is a risk that the conduct would get worse. Health-Pro also

knew or should have known that Clark was under financial strain on account of the

child support enforcement letters and that Clark may retaliate against the Keiths for

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disclosing the prior thefts given particulars in her criminal background, including

charges of communicating threats and a conviction for criminal contempt. Health-Pro

further knew or should have known that Clark committed prior thefts in the Keiths’

home. Additionally, because of their age, medical conditions, and limited mobility,

the Keiths were vulnerable to adverse conduct against them in their home by an

incompetent Health-Pro employee. Thus, when viewed in the light most favorable to

the Keiths, a person of ordinary prudence could have reasonably foreseen that as a

result of Health-Pro’s negligent hiring, the home invasion and robbery of the Keiths’

home or some similar injurious result was probable and that the trauma from such

event would injure the Keiths.

¶ 72 Thus, in this case, the jury, not the court, must decide the outcome of the

Keiths’ claim. The Court of Appeals in this matter erred by not considering the

evidence in the light most favorable to the Keiths, just as Health-Pro’s arguments

urge us to do. Health-Pro contends that Clark’s actions bore no relationship to her

employment and no action or inaction by Health-Pro proximately caused the Keiths’

injuries because “[a]ny information Clark learned about [the Keith]s’ home on the job

could have been ascertained just as easily by others watching the home from the

street.” The jury could have agreed with Health-Pro and weighed the evidence in its

favor but given the testimony and evidence before the trial court supporting a

contrary interpretation of the facts, this argument cannot justify judgment in Health-

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Pro’s favor as a matter of law. We must view all of the evidence which supports the

Keith’s claim as true and consider the evidence in the light most favorable to the

Keiths, giving them the benefit of every reasonable inference that may legitimately

be drawn therefrom and resolving contradictions, conflicts, and inconsistencies in

their favor. Turner, 325 N.C. at 158. Therefore, we conclude that the Court of Appeals

erred by reversing the trial court and remanding for entry of judgment in favor of

Health-Pro.

B. Jury Instructions

¶ 73 “In evaluating the validity of a party’s challenge to the trial court’s failure to

deliver a particular jury instruction, ‘we consider whether the instruction requested

is correct as a statement of law and, if so, whether the requested instruction is

supported by the evidence.’ ” Chisum v. Campagna, 376 N.C. 680, 2021-NCSC-7, ¶ 52

(quoting Minor v. Minor, 366 N.C. 526, 531 (2013)). When the requested jury

instruction does not accurately state the applicable law, even if from a North Carolina

Pattern Jury Instruction, the trial court does not err by failing to the instruct the jury

as requested. Id. ¶ 54.

¶ 74 In this matter, the trial court proposed using the North Carolina Pattern Jury

Instructions on negligence, specifically 102.10, 102.11, 102.19, and 102.50. Health-

Pro counsel objected and requested instead Pattern Jury Instruction 640.42. The

requested instruction, however, does not accurately state the applicable law.

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¶ 75 First, as previously discussed, this Court has not adopted the factors discussed

in Little as elements necessary to prove a claim for negligent hiring. Thus, the

requested instruction as reproduced below is an inaccurate statement of the law.

First, the plaintiff must prove that the defendant

owed the plaintiff a legal duty of care. This means that the

plaintiff must prove that Deitra Clark and the plaintiff

were in places where each had a right to be when the

wrongful act occurred, that the plaintiff encountered

Deitra Clark as a direct result of her employment by the

defendant, and that the defendant must reasonably have

expected to receive some benefit, even if only potential or

indirect, from the encounter between Deitra Clark and the

plaintiff.

(emphasis added).

¶ 76 While the Little factors are relevant in assessing whether an employer has a

legal duty to a third party for its employee’s intentional torts as exemplified by the

analysis conducted in Little and in this opinion, Little did not hold that they “must”

be proven by the plaintiff. Little, 171 N.C. App. at 588–89.

¶ 77 Second, the instruction concerning the employee’s incompetence is not an

accurate statement of the law in this case. The Keiths have not contended, nor does

the evidence support, that Clark lacked the physical capacity, natural mental gifts,

skill, training, or experience needed for her job or that Clark previously committed

acts of carelessness or negligence. As recognized in Lamb, incompetence and

unfitness for employment is not so limited; incompetence and unfitness can exist on

account of the employee’s disposition, such as the cruel nature and high temper of the

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supervisor of children as in Lamb. 128 N.C. at 363; see also Walters, 163 N.C. at 542

(“[I]t may be well to note that this term, incompetency, is not confined to a lack of

physical capacity or natural mental gifts or of technical training when such training

is required, but it extends to any kind of unfitness which renders the employment or

retention of the servant dangerous to his fellow-servant[.]” (cleaned up)).

¶ 78 In this case, the incompetence alleged and supported by the evidence when

viewed in the light most favorable to the Keiths is Clark’s dishonesty and propensity

to steal and break the law. Thus, the requested instruction as reproduced below

would not have been proper in this case.

Second, the plaintiff must prove that Deitra Clark

was incompetent. This means that Deitra Clark was not fit

for the work in which she was engaged. Incompetence may

be shown by inherent unfitness, such as the lack of physical

capacity or natural mental gifts, or the absence of skill,

training or experience.

Incompetence may also be inferred from previous

specific acts of careless or negligent conduct by Deitra

Clark, or from prior habits of carelessness or inattention on

the part of Health-Pro Home Care Services, Inc. in any

kind of work where careless or inattentive conduct is likely

to result in injury. However, evidence, if any, tending to

show that Deitra Clark may have been careless or

negligent in the past may not be considered by you in any

way on the question of whether Deitra Clark was negligent

on the occasion in question, but may only be considered in

your determination of whether Deitra Clark[ ]was

incompetent, and whether such incompetence was known

or should have been known to the defendant.

¶ 79 Because Health-Pro’s requested instruction was not an accurate statement of

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the law, we agree with the dissent in the Court of Appeals that it would have been

inappropriate in this case and that the trial court did not err by denying the request.

However, as we have concluded that the Keiths’ claim was a claim for negligence

dependent on a theory of negligent hiring, requiring satisfaction of the Medlin

elements and Little nexus requirement, we do not endorse the use of the generic

common law negligence instruction in a case substantially similar to this matter. This

Court has refused and continues to “refuse to make employers insurers to the public

at large by imposing a legal duty on employers for victims of their [employee]s’

intentional torts that bear no relationship to the employment,” Little, 171 N.C. App.

at 588–89, aff’d per curiam, 360 N.C. 164 (2005), and the generic common law

negligence instructions fail to account for our holdings to this effect.

¶ 80 Where our precedent requires an element to support a claim or theory, the jury

should be instructed to this effect. Cf. Calhoun v. State Highway & Pub. Works

Comm’n, 208 N.C. 424, 426 (1935) (“The rule of practice is well established in this

jurisdiction that when a request is made for a specific instruction, correct in itself and

supported by evidence, the trial court, while not obliged to adopt the precise language

of the prayer, is nevertheless required to give the instruction, in substance at

least[.]”). Nevertheless, under current law, an argument concerning an error in the

jury instructions must be preserved for review by this Court by tendering a requested

instruction that is an accurate statement of the law and that is supported by the

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Opinion of the Court

evidence. See Chisum, 2021-NCSC-7, ¶ 52. Since we conclude that the trial court did

not err in denying Health-Pro’s requested jury instructions because the requested

jury instruction was not an accurate statement of the law, we reverse the Court of

Appeals’ holding to the contrary.7

IV. Conclusion

¶ 81 We agree with the Court of Appeals that plaintiffs’ negligence claim was

dependent on a theory of negligent hiring, which is commonly plead as a negligent

hiring claim. However, the evidence, taken in the light most favorable to plaintiffs,

was sufficient as a matter of law to be presented to the jury. There was evidence to

support each element of the claim, the Medlin elements, and the Little nexus

requirement. Therefore, the Court of Appeals erred by reversing the judgment in

favor of plaintiffs and by remanding to the trial court for entry of an order granting

defendant’s motion for judgment notwithstanding the verdict. Further, the Court of

Appeals misinterpreted precedent from Little, and under a proper reading of that case

and other precedent, the jury instruction requested by defendant was not an accurate

statement of the law. Therefore, the Court of Appeals also erred by holding that the

trial court erred by denying defendant’s requested instruction. Accordingly, we

reverse the Court of Appeals’ decision.

7 Given our holding, it is recommended that the North Carolina Pattern Jury

Instruction Committee promptly withdraw N.C.P.I.–Civil 640.42 (2009) and revise it

consistent with this opinion.

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Opinion of the Court

REVERSED.

Chief Justice NEWBY concurring in part and dissenting in part.

¶ 82 I agree with the majority that plaintiffs’ claim was one for negligent hiring and

that to prove a claim for negligent hiring, a plaintiff must “present evidence to

support each element set forth in Medlin [v. Bass, 327 N.C. 587, 398 S.E.2d 460

(1990)] and to support a nexus between the employment and the injury as required

by Little [v. Omega Meats I, Inc., 171 N.C. App. 583, 615 S.E.2d 45 (2005)].” The

majority also properly holds that in the light most favorable to the plaintiffs, the

evidence was sufficient to submit the case to the jury on a negligent hiring theory.

Moreover, the majority correctly concludes that N.C. Pattern Jury Instruction 640.42

wrongly uses the Little factors to define the required legal duty and improperly

focuses on an employee’s “incompetence” as opposed to the employee’s “unfitness.”

Finally, I agree that when a plaintiff presents a negligent hiring claim, a trial court

errs by instructing the jury on ordinary negligence instead of negligent hiring. I write

separately, however, because I would hold that the trial court’s failure to give a

negligent hiring instruction prejudiced defendant such that defendant is entitled to

a new trial. Accordingly, I concur in part and dissent in part.

¶ 83 “According to well-established North Carolina law, a party’s decision to request

the delivery of a particular instruction during the jury instruction conference suffices

to preserve a challenge to the trial court’s refusal to deliver that instruction to the

jury.” State v. Benner, 380 N.C. 621, 2022-NCSC-28, ¶ 32; see also N.C. R. App. P.

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Newby, C.J., concurring in part and dissenting in part

10(a)(2) (2021) (“A party may not make any portion of the jury charge or omission

therefrom the basis of an issue presented on appeal unless the party objects thereto

before the jury retires to consider its verdict, stating distinctly that to which objection

is made and the grounds of the objection.”). “It is the duty of the court to charge the

law applicable to the substantive features of the case arising on the evidence without

special request and to apply the law to the various factual situations presented by

the conflicting evidence.” Griffin v. Watkins, 269 N.C. 650, 653, 153 S.E.2d 356, 359

(1967) (quoting 4 Strong’s N.C. Index: Trial, § 33, at 331 (1961)). “A charge which

fails to submit one of the material aspects of the case presented by the allegation and

proof is prejudicial.” W. Conf. of Original Free Will Baptists of N.C. v. Miles, 259 N.C.

1, 13, 129 S.E.2d 600, 607 (1963) (quoting 4 Strong’s N.C. Index: Trial, § 33, at 331–

32 (1961)).

¶ 84 To show ordinary negligence, a plaintiff must show “(1) a legal duty; (2) a

breach thereof; and (3) injury proximately caused by the breach.” Stein v. Asheville

City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267 (2006). The tort of negligent

hiring, which this Court has recognized for over a century, focuses on whether an

employee was unfit for the work the employee was hired to perform. See Lamb v.

Littman, 128 N.C. 361, 362, 38 S.E. 911, 911 (1901). In Lamb, we considered whether

an owner of a mill could be liable under a theory of negligent hiring when a supervisor

assaulted a ten-year-old employee. Id. We noted that “the evidence show[ed] that [the

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Newby, C.J., concurring in part and dissenting in part

supervisor] was unfit and incompetent to perform the duties of supervising children

and the help under him by reason of his cruel nature and high temper,” id. at 363, 38

S.E. at 912, and that this unfitness “ought to have been known to defendant,” id. at

362, 38 S.E. at 911. We further stated that

[w]e do not wish to be understood as holding that the

[employer] is generally an insurer of the good conduct of his

representative, or an insurer against his violence resulting

from his own malice or ill will, or sudden outbursts of

temper, although in charge of the [employer]’s business;

but only when he puts in such representative as is by him

known, or ought to have been known, to be violent and

mean, and the injury is the natural result of such

character.

Id. at 364, 38 S.E. at 912. Accordingly, because the supervisor was unfit, and the

employer should have known of the supervisor’s unfitness, the employer could be

liable under a negligent hiring theory. Id. at 364–65, 38 S.E. at 912.

¶ 85 We again addressed the tort of negligent hiring in Walters v. Durham Lumber

Co., 163 N.C. 536, 538, 80 S.E. 49, 50 (1913). We stated that an employer “is held . . .

to the exercise of reasonable care in selecting employees who are competent and fitted

for the work in which they are engaged.” Id. at 541, 80 S.E. at 51. Thus, we held that

[t]he burden of proving negligence in selecting or

continuing an unfit [employee] is upon the plaintiff. He

must prove (1) the specific negligent act on which the action

is founded, which may, in some cases, but not generally, be

such as to prove incompetency, but never can, of itself,

prove notice to the [employer]; (2) incompetency, by

inherent unfitness or previous specific acts of negligence,

from which incompetency may be inferred; and (3) either

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Newby, C.J., concurring in part and dissenting in part

actual notice to the [employer] of such unfitness or bad

habits, or constructive notice, by showing that the

[employer] could have known the facts had he used

ordinary care in oversight and supervision, or by proving

general reputation of the [employee] for incompetency or

negligence; and (4) that the injury complained of resulted

from the incompetency proved.

Id. (internal quotation marks omitted). We further clarified that “incompetency” is

not limited “to a lack of physical capacity or natural mental gifts or of technical

training when such training is required, but it extends to any kind of unfitness which

renders the employment or retention of the [employee] dangerous.” Id. at 542, 80 S.E.

at 52 (internal quotation marks omitted). Thus, we held that whether an employee

was unfit and whether an employer had notice of the unfitness were questions for the

jury. Id. at 543, 80 S.E. at 52.

¶ 86 In Lamb and Walters, this Court referred to the “incompetence” of the

employee. The term “incompetent” is now often understood to refer to a person’s

mental fitness. See Incompetent Person, Ballentine’s Law Dictionary (3d ed. 2010)

(“[O]ne lacking competency, physical or mental. Usually having reference in the law

to an insane or feeble-minded person.”). As used in Lamb and Walters, however,

“incompetent” is synonymous with “unfitness.” See Lamb, 128 N.C. at 363, 38 S.E. at

912 (“[T]he evidence show[ed] that [the employee] was unfit and incompetent to

perform the duties of supervising children and the help under him . . . .”); Walters,

163 N.C. at 542, 80 S.E. at 52 (holding that “incompetency” properly “extends to any

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Newby, C.J., concurring in part and dissenting in part

kind of unfitness which renders the employment or retention of the [employee]

dangerous.” (internal quotation marks omitted)); see also Incompetency, Black’s Law

Dictionary (1st ed. 1891) (“Lack of ability . . . or fitness to discharge the required

duty.”). Accordingly, the proper inquiry is whether an employee was unfit for the work

the employee was hired to perform.

¶ 87 During the jury charge conference, the trial court proposed using the pattern

jury instructions for common law negligence. Defendant twice objected to the trial

court’s proposed instructions and requested that the trial court instead use N.C.

Pattern Jury Instruction 640.42, titled “Employment Relationship—Liability of

Employer for Negligence in Hiring, Supervision, or Retention of an Employee.” In

addition to the elements from Medlin, that instruction included the disputed factors

from Little and a requirement that the employee be found “incompetent.” These latter

two requirements, which this Court has now correctly deemed too inflexible, made

the defendant’s requested jury instruction partially inappropriate for this case. The

trial court, however, declined to use any aspect of defendant’s requested jury

instruction on negligent hiring. Instead, the trial court instructed the jury only on

ordinary common law negligence. Defendant then renewed its objection after the trial

court instructed the jury. In response, the trial court stated, “I’ll, again, overrule [the

objections], but they are preserved for the record.” Thus, defendant requested a

specific instruction during the jury charge conference and objected to the trial court’s

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Newby, C.J., concurring in part and dissenting in part

instructions both before and after the instructions were given. Accordingly,

defendant’s objections to the jury instructions were properly preserved for appellate

review.

¶ 88 The majority has properly “concluded that the Keiths’ claim was a claim for

negligence dependent on a theory of negligent hiring.” As the majority also notes,

“[w]here our precedent requires an element to support a claim or theory, the jury

should be instructed to this effect.” By instructing only on ordinary common law

negligence, however, the trial court did not require the jury to find: (1) that Clark was

unfit for the work she was hired to perform; (2) that defendant had notice of Clark’s

unfitness; or (3) that there was a nexus between the employment relationship and

the injury. These are factual questions that must be resolved by a jury. As the

majority notes, “in this case, the jury, not the court, must decide the outcome of the

Keiths’ claim.” Because the jury was not properly instructed on the elements of

negligent hiring and retention, defendant was prejudiced. Accordingly, I would

reverse the Court of Appeals and remand this case for a new trial. Therefore, I

respectfully concur in part and dissent in part.

Justice BERGER dissenting.

¶ 89 This Court has recognized the law’s reluctance to hold individuals and

organizations responsible for the criminal acts committed by others. See Stein v.

Asheville City Bd. Of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 268 (2006). Where no

duty exists, liability should not be imposed. Today’s opinion, however, increases the

business community’s exposure to liability for the intentional and unforeseeable acts

of their employees. Because the Court of Appeals properly reversed and remanded to

the trial court for entry of judgment notwithstanding the verdict in favor of

defendant, I respectfully dissent.

¶ 90 To establish a claim for negligence, a plaintiff must show “the existence of a

legal duty or obligation, breach of that duty, proximate cause and actual loss or

damage.” Little v. Omega Meats I, Inc. 171 N.C. App. 583, 586, 615 S.E.2d 45, 48

(2005). “[T]he threshold question is whether [a] plaintiff[ ] successfully allege[s] [a]

defendant had a legal duty to avert the attack on [plaintiff].” Stein, 360 N.C. at 328,

626 S.E.2d at 267. Absent this legal duty, a defendant cannot be liable to a plaintiff

for negligence. This Court has recognized that, “[n]o legal duty exists unless the

injury to the plaintiff was foreseeable and avoidable through due care.” Id. Moreover,

foreseeability generally depends on the facts of the particular case. Id. at 328, 626

S.E.2d at 267–68.

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Berger, J., dissenting

¶ 91 In cases where a plaintiff asserts liability founded on a defendant’s

relationship to a third party who injured them, the establishment of a legal duty

hinges on whether defendant held a special relationship with the third party. See Id.

at 329, 626 S.E.2d at 268. This Court explained further that:

[N]o special relationship exists between a defendant and a

third person unless (1) the defendant knows or should

know of the third person’s violent propensities and (2) the

defendant has the ability and opportunity to control the

third person at the time of the third person’s criminal acts.

Id. at 330, 626 S.E.2d at 269. Under a negligence theory, employment alone does not

establish a special relationship.

¶ 92 In Stein, the plaintiffs brought a negligence claim against the defendant for

the actions of third parties. Id. at 328, 626 S.E.2d at 268. There, the plaintiffs rested

their claim on the failure of the defendant, a special school for behaviorally and

emotionally handicapped children, to take reasonable steps to stop two gunmen who

were students at the school. Id. This Court noted that the plaintiffs’ asserted liability

depended on whether the defendant’s relationship with the gunmen amounted to a

special relationship which would impose a duty on the defendant. Id. at 329, 626

S.E.2d at 268. Because the shooting occurred “entirely outside of [the] defendant’s

custody” as it took place well after normal school hours and not on property belonging

to the defendant, this Court concluded that the defendant did not owe the plaintiff a

legal duty to prevent the shooting. Id. at 332, 626 S.E.2d at 270.

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Berger, J., dissenting

¶ 93 Here, the claim against defendant based on the actions of Clark similarly

hinges on whether a legal duty existed. Defendant could not have known or

reasonably anticipated that Clark was a violent individual who would engage in a

home invasion and armed robbery. After all, at worst, Clark’s previous convictions

were for non-violent misdemeanors, and defendant had not received any complaints

concerning Clark’s work or character. Moreover, at the time of the robbery, defendant

had no ability or authority to exercise supervision or control over Clark’s actions. The

robbery in the instant case took place outside of Clark’s normal working hours. An

employer is not the guarantor of employee conduct at all times and for all purposes.

Defendant did not and could not have reasonably anticipated that Clark would

orchestrate a home invasion and armed robbery against one of defendant’s clients.

Because Clark’s intentional criminal acts were not foreseeable, defendant did not owe

plaintiffs a legal duty.

¶ 94 For similar reasons, I would also conclude that the Court of Appeals correctly

determined that plaintiffs’ evidence was insufficient to establish a claim upon the

theory of negligent hiring. As stated above, before an employer may be held liable to

a plaintiff for negligent hiring, it must be shown that the employer owes the plaintiff

a legal duty. Little, 171 N.C. App. at 587, 615 S.E.2d at 48.

¶ 95 The Court of Appeals in Little delineated three factors to determine when an

employer owes a duty to a plaintiff under a negligent hiring theory:

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Berger, J., dissenting

(1) [T]he employee and the plaintiff must have been in

places where each had a right to be when the wrongful act

occurred; (2) the plaintiff must have met the employee as a

direct result of the employment; and (3) the employer must

have received some benefit, even if only potential or

indirect, from the meeting of the employee and the

plaintiff.

171 N.C. at 588, 615 S.E.2d at 49. Courts decline to hold employers “liable for the

acts of their . . .employees under the doctrine of negligent hiring or retention when

any one of these three factors [i]s not proven.” Id. at 588, S.E.2d at 49.

¶ 96 Here, Clark did not have a right to be in plaintiff’s home and was not acting as

a health care aide at the time the home invasion and robbery were committed. In

addition, defendant has not received any benefit from Clark’s actions in orchestrating

the robbery. To the contrary, defendant’s reputation is undoubtedly damaged due to

Clark’s actions. While Clark did indeed meet plaintiffs through her employment, all

three factors must be met for a duty to be established. As a result, I would affirm the

Court of Appeals.