1. Alienation of Affections--vicarious liability of employer--scope of employment--
deviation
The trial court did not err by granting summary judgment in favor of defendant employer
based on plaintiff's failure to forecast sufficient evidence to support his claim that defendant
employee's alienation of affection of plaintiff's wife was in the scope of the employee's
employment, because the employee's personal involvement with plaintiff's wife represented a
deviation from the duties of his employment and was not committed in furtherance of his
employer's business.
2. Alienation of Affections--ratification of employer--no facts alleging knowledge
The trial court did not err by granting summary judgment in favor of defendant employer
based on its finding that the employer did not ratify any of defendant employee's alleged wrongful
acts of alienation of affection of plaintiff's wife, because: (1) plaintiff did not allege facts
indicating the employer's knowledge of its employee's conduct and an intention to ratify the acts;
and (2) even if plaintiff had properly alleged the employer's supposed ratification of its
employee's misdeeds, plaintiff failed to forecast sufficient evidence in support of his claim.
John K. Burns, for plaintiff-appellant.
Butler & Butler, by Algernon L. Butler, III, for defendant-
appellee U-Haul Company of North Carolina.
Gilbert Daniels, pro se. No brief filed.
SMITH, Judge.
Plaintiff William J. Mercier, Sr. appeals from the trial
court's “Revised and Final Order and Judgment” granting summary
judgment in favor of defendant U-Haul Company of North Carolina (U-
Haul) on 17 May 1999. We affirm.
William and Nancy Mercier were married in 1969, separated in1992, reconciled in 1994 and lived together continuousl
y from 1994
until 29 December 1997. Mr. and Mrs. Mercier jointly operated Auto
Specialists, a used car dealership in Wilmington, North Carolina.
Mr. Mercier purchased, repaired and sold cars, while Mrs. Mercier
performed office duties and paperwork. In the spring of 1997, the
Merciers sought to supplement income from car sales by acquiring a
U-Haul dealership.
At that time, defendant Gilbert Daniels was employed with
defendant U-Haul as an area field manager. He was responsible for
supervising thirty U-Haul dealerships in southeastern North
Carolina. His duties included helping prospective U-Haul dealers
complete applications, teaching new dealers about U-Haul procedures
and paperwork, assisting dealers with business operations and
moving U-Haul equipment between dealerships. Daniels first met Mr.
and Mrs. Mercier when they applied for a dealership in 1997. In
time, Daniels' business relationship with the Merciers developed
into friendship.
After an argument between the Merciers on 29 December 1997,
Mrs. Mercier left the marital home and went to her daughter's
house. She called Daniels and asked if she could stay in his home
temporarily. After briefly returning to the marital home in early
January 1998, Mrs. Mercier moved in with Daniels permanently.
On 20 April 1998, Mr. Mercier commenced this civil action
against Daniels for alienation of affection and criminalconversation. The complaint alleged that U-Haul was vicariously
liable for alienation of affection caused by Daniels.
U-Haul and Daniels generally denied Mr. Mercier's allegations
of misconduct in their respective answers. On 30 April 1999, U-
Haul filed a motion for summary judgment supported by the
affidavits of Mrs. Mercier and James Frawley, U-Haul's vice
president. In reply, Mr. Mercier submitted a response to the
motion for summary judgment and a counteraffidavit. On 17 May1999, after considering the pleadings, affidavits and depositions,
the trial court granted summary judgment in favor of U-Haul.
Plaintiff appeals.
According to appellee U-Haul's brief, after the trial court
granted summary judgment, the case was tried before a jury.
Following their verdict, the trial court entered judgment against
Daniels on 21 May 1999, and no appeal from the judgment against
Daniels has been brought forward.
Before considering appellant's assignments of error, we note
that normally “it is not a part of the function of the court on a
motion for summary judgment to make findings of fact and
conclusions of law.” Capps v. City of Raleigh, 35 N.C. App. 290,
292, 241 S.E.2d 527, 528 (1978). Although “in rare situations it
can be helpful to set out the undisputed facts which form the basis
for [a] judgment,” id. at 292, 241 S.E.2d at 529, “the enumeration
of findings of fact . . . is technically unnecessary and generally
inadvisable in summary judgment cases,” Ellis v. Williams, 319 N.C.
413, 415, 355 S.E.2d 479, 481 (1987). In the instant case, we
believe it was unnecessary for the trial court to make the detailed
findings and conclusions in its judgment.
In this case, the court's order granting summary judgment
contained the following statements:
The Court finds that U-Haul did not expressly
authorize any wrongful or malicious conduct of
Daniels. . . .
. . . .
The Court . . . finds that Daniels committedno wrongful or malicious act or any acts that
caused the alleged alienation of affection in
the course or scope of his employment or
implied authority.
. . . .
The Court . . . finds that U-Haul did not
ratify any of the alleged wrongful acts
. . . which caused the alleged alienation of
affections.
Pursuant to Mosley v. Finance Co., 36 N.C. App. 109, 111, 243
S.E.2d 145, 147, disc. review denied, 295 N.C. 467, 246 S.E.2d 9
(1978), these findings of fact can be disregarded on appeal.
A motion for summary judgment is properly granted when
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that any party is entitled to a
judgment as a matter of law.
N.C.G.S. § 1A-1, Rule 56(c) (1999). When considering the substance
of a motion for summary judgment, a defendant bears the burden of
showing (1) an essential element of plaintiff's claim is
nonexistent; (2) plaintiff is unable to produce evidence which
supports an essential element of his claim; or, (3) plaintiff
cannot overcome an affirmative defense which would bar his claim.
Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347,
350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150
(1996).
Once defendant has met his burden, the plaintiff must
“forecast sufficient evidence of all essential elements of [his]
claims.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27
(1992). In ruling on the motion, the trial court must view allevidence in the light most favorable to the plaintiff, accepting
his facts as true, and drawing all inferences in his favor. See
Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581,
583, 448 S.E.2d 280, 281 (1994).
In order to survive U-Haul's motion for summary judgment, Mr.
Mercier must show: (1) all of the elements of the alienation of
affection claim against Daniels are satisfied; and (2) there is a
basis for imposing liability against U-Haul. Assuming arguendo Mr.
Mercier forecast sufficient evidence of all essential elements of
his alienation of affection claim against Daniels, we conclude he
did not present any evidence to support U-Haul's vicarious
liability.
Our courts have held that:
liability of a principal for the torts of his agent may
arise in three situations: (1) when the agent's act is
expressly authorized by the principal; (2) when the
agent's act is committed within the scope of his
employment and in furtherance of the principal's
business; or (3) when the agent's act is ratified by the
principal.
Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 491, 340
S.E.2d 116, 121, disc. review denied, 317 N.C. 334, 346 S.E.2d 140
(1986). In the case sub judice, Mr. Mercier concedes that U-Haul
did not expressly authorize Daniels' wrongful conduct. Thus, we
address only his remaining contentions that either Daniels acted
within the scope of his employment or U-Haul ratified his behavior.
[1]Mr. Mercier first argues that the trial court erred in
finding that he failed to forecast evidence sufficient to support
his claim that Daniels' alienation of Mrs. Mercier's affection wasin the scope of his employment with U-Haul. We disagree. “To be
within the scope of employment, an employee, at the time of the
incident, must be acting in furtherance of the principal's business
and for the purpose of accomplishing the duties of his employment.”
Troxler v. Charter Mandala Center, 89 N.C. App. 268, 271, 365
S.E.2d 665, 668, disc. review denied, 322 N.C. 838, 371 S.E.2d 284
(1988). The North Carolina Supreme Court held that an employer “is
not liable if the employee departed, however briefly, from his
duties in order to accomplish a purpose of his own, which purpose
was not incidental to the work he was employed to do.” Wegner v.
Delicatessen, 270 N.C. 62, 66-67, 153 S.E.2d 804, 808 (1967).
U-Haul contends that Daniels' involvement with Mrs. Mercier
“was not done in furtherance of U-Haul's business, . . . but was a
product of Daniels' own purpose and was done in consummation of his
personal desire.” While we find no published decisions in North
Carolina involving an employer's vicarious liability for alienation
of affection, we find support for U-Haul's position in cases
concerning workplace sexual harassment. In Hogan, 79 N.C. App. at
492, 340 S.E.2d at 122, we held that a male employee's gestures and
suggestive remarks, though committed in the workplace while he and
the plaintiff were on duty, were acts “in pursuit of some corrupt
or lascivious purpose of his own.” As such, we held that he was
not acting within the scope of his employment. Id.; see also
Phelps v. Vassey, 113 N.C. App. 132, 437 S.E.2d 692 (1993); Brown
v. Burlington Industries, Inc., 93 N.C. App. 431, 378 S.E.2d 232
(1989), disc. review improvidently allowed, 326 N.C. 356, 388S.E.2d 769 (1990).
At least one jurisdiction has considered an employer's
liability for alienation of affection caused by an employee. In
Jackson v. Righter, 891 P.2d 1387 (Utah 1995), the plaintiff
commenced a civil action against his wife's supervisors and
employers, alleging, inter alia, that the defendants were liable
for alienating his wife's affection. While the plaintiff's wife
was an employee of the defendant companies, she was romantically
and physically involved with two of her supervisors. Id. The
court held that, “although [a supervisor] used business activities
as a forum for pursuing his romantic relationship with [the
plaintiff's wife], [the supervisor's] acts were clearly an
abandonment of employment and outside the scope of his employment.”
Id. at 1391.
In light of these decisions and in accordance with the
evidence in this case, we conclude that Daniels' personal
involvement with Mrs. Mercier represented a deviation from the
duties of his employment with U-Haul. Mr. Mercier argues that
Daniels, in the course and scope of his employment, alienated Mrs.
Mercier's affection by talking with her about personal problems and
relationships, declaring his love for her and transporting her to
his home. As an area field manager, Daniels was responsible for
setting up new dealerships and visiting and supporting existing
dealers. U-Haul encouraged him to promote “good will” between
dealers and the company. Daniels was required to have almost daily
personal contact with dealers in the first weeks of operation,quarterly personal contact with established dealers and regular
telephone communication with all U-Haul dealers.
While U-Haul may have endorsed frequent interaction with
dealers, Daniels' personal, romantic involvement with Mrs. Mercier
was not for the purpose of accomplishing any of his duties or U-
Haul's business. To the contrary, Daniels' romantic interest in
Mrs. Mercier was clearly personal and in no way in furtherance of
his employment. In his deposition, Mr. Daniels testified that his
relationship with Mrs. Mercier “had absolutely nothing to do with
U-Haul” and was “[his] personal life. One hundred percent.” As in
the cases mentioned above, where the individual defendants made
sexual advances toward their coworkers, Daniels' behavior should
not be construed as promoting U-Haul's business. See Hogan, 79
N.C. App. 483, 340 S.E.2d 116; Phelps, 113 N.C. App. 132, 437
S.E.2d 692; Brown, 93 N.C. App. 431, 378 S.E.2d 232. Thus, we hold
that Daniels' actions were not within the scope of his employment.
[2]Mr. Mercier also contends that “the trial court erred in
finding that defendant U-Haul did not ratify any of [Daniels']
alleged wrongful acts.” After reviewing the evidence in the light
most favorable to Mr. Mercier and drawing all inferences in his
favor, we disagree.
Under North Carolina law, “[i]n order to show that the
wrongful act of an employee has been ratified by his employer, it
must be shown that the employer had knowledge of all material facts
and circumstances relative to the wrongful act, and that the
employer by words or conduct, shows an intention to ratify theact.” Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122 (citing
Equipment Co. v. Anders, 265 N.C. 393, 144 S.E.2d 252 (1965)).
Thus, in order to properly state a claim for ratification, Mr.
Mercier is required to allege facts indicating U-Haul's knowledge
of Daniels' conduct and an intention to ratify his acts.
In Mr. Mercier's unverified complaint, the only references to
U-Haul are contained in the jurisdictional allegation, the prayer
for relief, and the following passages in the body of the
complaint:
18. [Daniels] was, at all times relevant to
this civil action, a District Manager for the
[U-Haul] district in which the plaintiff was
doing business. The plaintiff was a local
dealer of [U-Haul]. [Mrs. Mercier] worked in
the plaintiff's business, including the U-Haul
dealership part of the business.
19. Regular direct contact with the plaintiff
and his employees was within the course and
scope of [Daniels'] employment with [U-Haul].
20. This business relationship required
frequent contact between [Daniels] and [Mrs.
Mercier]. . . .
21. [Daniels] . . . deliberately used his
position as a district manager . . . to
manipulate the emotions of [Mrs. Mercier] and
to alienate her affections from the plaintiff.
None of these statements directly or implicitly suggest that U-Haul
had knowledge of or intended to ratify Daniels' conduct.
Even if Mr. Mercier had properly alleged U-Haul's supposed
ratification of Daniels' misdeeds, he failed to forecast sufficient
evidence in support of his claim. His affidavit referred to U-Haul
only four times:
10. In 1997 I was told on numerous occasions,after the fact, of lunches or dinners that my
wife and [Daniels] had taken alone. I was
told on each occasion that the meal was a U-
Haul business necessity.
. . . .
12. . . . [Daniels] would leave his dog in the
care of my wife for a day or two at a time,
while he was out of town on U-Haul business. .
. .
. . . .
15. The largest problem we ever encountered
was financial and in the course of 1997 it
appeared that the success of our U-Haul
dealership would bring long-term financial
relief.
. . . .
19. Defendant Daniels' inducing my wife to
abandon me has impoverished me. Before his
misconduct, I lived in a home with a good
income from the U-Haul dealership that I
founded with my wife. Because of his
misconduct, the dealership was closed.
Like the complaint, this affidavit failed to state any fact
which would corroborate the assertions in Mr. Mercier's brief.
While U-Haul's vice president denied all knowledge of the
relationship between Daniels and Mrs. Mercier before January 1998,
Mr. Mercier's own affidavit contained no statements or facts in
rebuttal. Mr. Mercier's affidavit also failed to state any facts
from which it may be inferred that U-Haul had any intention to
ratify or affirm Daniels' actions. Thus, on both elements of
ratification, Mr. Mercier did not forecast sufficient evidence to
overcome summary judgment on his claim that U-Haul ratified
Daniels' acts. See Waddle, 331 N.C. at 82, 414 S.E.2d at 27.
U-Haul satisfied its burden on the motion for summary judgmentby showing that an essential element of Mr. Mercier's
claim was
nonexistent, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350.
Because plaintiff failed to allege knowledge or affirmation of
Daniels' conduct or present sufficient evidence thereof,
defendant's motion for summary judgment was properly granted.
Affirmed.
Judges WALKER and TIMMONS-GOODSON concur.
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