Abdelaziz v. Asmar

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1424
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
EHAB ABDELAZIZ
Plaintiff,
v. Mecklenburg County
No. 11 CVS 19947
MOHAMMED ASMAR, KHALID
AYOUB ALNABULSI, and SUMA, INC.,
d/b/a XPRESS 13, a dissolved NC
corporation,
Defendants.
Appeal by plaintiff from judgment entered 4 March 2013 by
Judge Robert T. Sumner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 23 April 2014.
Wait Law, P.L.L.C., by John L. Wait, for plaintiff.
Caudle & Spears, P.A., by Christopher P. Raab and L.
Cameron Caudle, Jr., for defendants.
ELMORE, Judge.
On 13 February 2013, a jury, in relevant part, found that
1.) Mohammed Asmar (Asmar) committed an assault and battery
against Ehab Abdelaziz (plaintiff), but 2.) Suma, Inc., through
its owner, Khalid Ayoub Alnabulsi (defendant), did not ratify
Asmar’s acts. The trial court ordered that plaintiff recover
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from Asmar $140,000 for personal injury, $200,000 for punitive
damages with an interest rate of eight percent per annum from 27
October 2011 until paid in full, and $3,663.06 for court costs.
The trial court dismissed with prejudice plaintiff’s claims
against defendant and further ordered that plaintiff recover
nothing from him. Plaintiff appeals. After careful
consideration, we hold that the trial court did not err.
I. Facts
On 12 April 2010, Asmar attacked plaintiff at a gas station
and convenience store located on Westinghouse Boulevard in
Charlotte. The gas station and convenience store were leased
and operated by Suma, Inc., whose sole shareholder and owner was
defendant. Asmar was defendant’s employee, and plaintiff was an
operations manager for the lessor, Sam’s Mart, Inc. (Sam’s Mart)
at all times relevant to this appeal. On the day of the assault
and battery, plaintiff went to defendant’s store to conduct an
on-site inspection pursuant to his role as an operations manager
for Sam’s Mart. Initially, plaintiff and defendant discussed
business matters and walked throughout the store. Plaintiff
then noted that Asmar was not wearing a proper uniform, at which
point Asmar approached plaintiff, exchanged some words, began
swearing, and pushed him. All three men exited the store, Asmar
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punched and kicked plaintiff, and plaintiff sustained a
fractured left knee and torn ACL. Once the altercation
concluded, plaintiff terminated Asmar “[o]n the spot outside the
store” and told him to leave the premises immediately.
On 27 October 2011, plaintiff filed a complaint that
alleged the following: 1.) assault and battery against both
Asmar and defendant; 2.) intentional infliction of mental
distress against Asmar; and 3.) negligent hiring and supervision
against defendant. Before trial, plaintiff submitted proposed
written jury instructions to the trial court, which, in relevant
part, stated:
A principal will be liable for an agent’s
intentional wrongful acts under the doctrine
of respondeat superior when, by a
preponderance of the evidence, plaintiff
proves that the agent’s act(s)[.] . . . is
ratified by the principal. . . . (b)
Ratification is the affirmance by a person
of a prior act which did not bind him but
which was done or professedly done on his
account, whereby the act, as to some or all
persons, is given effect as if originally
authorized by him.
(c) To establish ratification of an
otherwise unauthorized act, the plaintiff
must show that the principal had knowledge
of all material facts and circumstances
relative to the wrongful act, and that the
principal, by words or conduct, showed an
intention to ratify the act.
(d) A jury may find ratification from any
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course of conduct on the part of the
principal which reasonably tends to show an
intention on his part to ratify the agent’s
unauthorized acts; such course of conduct
may involve an omission to act.
(emphasis added). During the charge conference, plaintiff
requested the trial court to adopt his proposed instructions
that included the emphasized ratification-by-omission
instruction above. The trial court denied plaintiff’s request
and did not include the ratification-by-omission language in its
instructions to the jury.
II. Analysis
This Court first notes that it dismisses plaintiff’s appeal
for his failure to give timely notice of appeal in accordance
with N.C. Appellate Procedure Rule 3(c). Nevertheless, after
determining that the lost appeal was no fault of defendant’s but
an error by his attorney, we grant defendant’s petition for writ
of certiorari and address the merits of his appeal pursuant to
N.C. Appellate Procedure Rule 21. See N.C.R. App. P. 21
(stating that “writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of the
judgments and orders of trial tribunals when the right to
prosecute an appeal has been lost by failure to take timely
action”).
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On appeal, plaintiff argues that the trial court erred by
refusing to provide the jury with the ratification-by-omission
instruction. Specifically, plaintiff avers that the trial court
should have instructed the jury that defendant could be liable
for Asmar’s assault and battery through defendant’s omission to
act during the altercation. We disagree.
We review the sufficiency of jury instructions under a de
novo standard of review. State v. Osorio, 196 N.C. App. 458,
466, 675 S.E.2d 144, 149 (2009).
[W]hen 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, and
unless this is done, either in direct
response to the prayer or otherwise in some
portion of the charge, the failure will
constitute reversible error.
Erie Ins. Exch. v. Bledsoe, 141 N.C. App. 331, 335, 540 S.E.2d
57, 60 (2000) (quoting Calhoun v. State Highway & Pub. Works
Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935)), disc. review
denied, 353 N.C. 371, 547 S.E.2d 442 (2001). Furthermore,
[w]hen reviewing the refusal of a trial
court to give certain instructions requested
by a party to the jury, this Court must
decide whether the evidence presented at
trial was sufficient to support a reasonable
inference by the jury of the elements of the
claim. If the instruction is supported by
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such evidence, the trial court’s failure to
give the instruction is reversible error.
Ellison v. Gambill Oil Co., 186 N.C. App. 167, 169, 650 S.E.2d
819, 821 (2007) (citations omitted), aff’d per curiam and disc.
review improvidently allowed, 363 N.C. 364, 677 S.E.2d 452(2009). In sum, “[a] specific jury instruction should be given
when ‘(1) the requested instruction was a correct statement of
law and (2) was supported by the evidence, and that (3) the
instruction given, considered in its entirety, failed to
encompass the substance of the law requested and (4) such
failure likely misled the jury.’” Outlaw v. Johnson, 190 N.C.
App. 233, 243, 660 S.E.2d 550, 559 (2008) (quoting Liborio v.
King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274, disc. review
denied, 356 N.C. 304, 570 S.E.2d 726 (2002)).
Generally, an individual owes no duty to another “to
anticipate that a crime will be committed . . . and to act upon
that belief.” O’Connor v. Corbett Lumber Corp., 84 N.C. App.
178, 182, 352 S.E.2d 267, 270 (1987) (citation and quotation
omitted). However, “an employer may be held liable for the
criminal act of his employee if the act was . . . ratified after
its commission[.]” Id. (citation omitted). Ratification is
“the affirmance by a person of a prior act which did not bind
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him but which was done or professedly done on his account[.]”
Guthrie v. Conroy, 152 N.C. App. 15, 27, 567 S.E.2d 403, 411-12
(2002) (citation and quotation omitted) (emphasis added). A
jury can find ratification based on “any course of conduct on
the part of the principal which reasonably tends to show an
intention on his part to ratify the agent’s unauthorized acts,
and such course of conduct may involve an omission to act.” Id.
at 27, 567 S.E.2d at 412 (citations and quotations omitted).
Our courts have recognized that an employer can be held
liable for his failure to act during an assault. In Wegner v.
Delly-Land Delicatessen, Inc., the plaintiff went to the
defendant’s restaurant and was assaulted by defendant’s
employee, a bus boy. 270 N.C. 62, 64, 153 S.E.2d 804, 806
(1967). Evidence showed that moments before the assault
occurred, another employee of the defendant attempted to
separate the bus boy from the plaintiff. Id. In holding that
the defendant was not liable for the plaintiff’s injuries, our
Supreme Court noted that the plaintiff failed to show that “any
officer or other employee of the defendant failed to act
promptly to restrain [the bus boy] when the difficulty arose” or
“any act or omission by the defendant, itself, which would
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constitute a breach of its duty to its invitee.” Id. at 66, 153
S.E.2d at 807.
Similarly, in Wallace v. M, M & R, Inc., the defendant-
employer was found liable for injuries to the plaintiff
inflicted by employee-bouncers when he “failed to intervene in
the beating of [the] plaintiff. He did not ask the bouncers to
stop or attempt to break up the attack on [the] plaintiff in any
way.” 165 N.C. App. 827, 834, 600 S.E.2d 514, 518 (2004).
Plaintiff contends that a ratification-by-omission-
instruction should have been given because defendant “fail[ed]
to intervene when Mr. Asmar assaulted and battered [him][.]”
Plaintiff’s argument is without merit.
A review of the surveillance video shows that when
plaintiff and Asmar (the men) began to converse, defendant stood
next to them and monitored the situation. Defendant then
attended to a customer quickly, but as the exchange between the
men escalated, defendant walked towards them and motioned with
his left arm to move the men away from customers. When the men
started pushing each other inside the store, defendant moved in
between them in an attempt to stop the altercation. Despite
defendant’s efforts, the altercation commenced in the store and
continued outside. Defendant followed the men outside despite
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having customers waiting inside the store. As Asmar punched and
kicked plaintiff, defendant, once again, placed himself in
between the men and moved plaintiff away from Asmar, at which
point the altercation ended. After the violent acts ended,
defendant immediately fired Asmar and told him to “leave right
now. . . . Don’t come here anymore.” Thus, the evidence at
trial was devoid of any indication that defendant failed to act
during the altercation. Conversely, he put himself at risk of
physical harm during his multiple attempts to defuse the
situation. Accordingly, the trial court did not err by refusing
plaintiff’s ratification-by-omission instruction.
III. Conclusion
In sum, the trial court did not err by refusing to provide
the jury with a ratification-by-omission instruction because no
evidence at trial supported such an instruction.
No error.
Judges McCULLOUGH and DAVIS concur.
Report per Rule 30(e).