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

Vernon Sumwalt

The Sumwalt Group

Vernon Sumwalt works at The Sumwalt Group Workers’ Compensation and Trial Lawyers in Charlotte, North Carolina, in cases involving workplace and other injuries, occupational exposures, and wrongful deaths.  He is the Immediate Past President of the North Carolina Advocates for Justice and a Fellow in the national College of Workers’ Compensation Lawyers.  Mr. Sumwalt is a board-certified specialist in both appellate practice and workers’ compensation law by the North Carolina State Bar, where he chaired its Workers’ Compensation Specialization Committee for three years after serving on the committee for four years.  In 2011, the North Carolina State Bar Board of Legal Specialization honored him with the James L. Cross Leadership Award.

He served as president of NCAJ in 2020-2021.

David Stradley

Attorney J. David Stradley is a native of Statesville, North Carolina. He is a magna cum laude graduate of Wake Forest University, where he was a Guy T. Carswell scholar. In 1995, he graduated from Duke University School of Law with high honors.

Mr. Stradley’s practice concentrates on representing individuals and families in medical malpractice casestractor-trailer crashes, and other catastrophic personal injury litigation. He also represents individuals in a variety of insurance matters.  

Mr. Stradley lectures frequently on a variety of topics, including trial practice and insurance issues. He is an active member of the North Carolina Bar Association and the North Carolina Academy of Trial Lawyers. He serves as editor of The Litigator, the newsletter of the Litigation Section of the North Carolina Bar Association.

Personal Biography

Mr. Stradley is married to Sarah Elizabeth Winslow. They have two daughters, Sarah Catherine and Rachel Elizabeth.

Mr. Stradley has broad interests outside of the practice of law. He enjoys singing, especially bluegrass and classical music. In addition, he has been known to strum a chord or two on the guitar. He also enjoys hunting and shooting sporting clays (a variant of skeet and trap). In addition, he is an instrument-rated pilot.

Case Link View Now
Opinion Filed June 17, 2022
Attorney for the Case Jeremy Wilson
Amicus Brief Writers Vernon Sumwalt David Stradley
Court NC Supreme Court
Docket No. 33A21

Trial judges are empowered with sound discretion to instruct juries as efficiently and comprehensively as they choose, as long as doing so is not legal error and will cover all disputed issues of fact in a case. In Keith v. Pro-Health, a majority of the Court of Appeals reversed a jury verdict favoring the plaintiff and insisted—as a matter of law—that the trial judge should have instructed on negligent hiring instead of the instruction given for ordinary negligence, even though:

  1. The complaint stated a claim only for “negligence.”
  2. The evidence at trial, as urged by the dissenting opinion of Judge Chris Dillon, was enough to warrant the trial judge’s discretion in giving an ordinary negligence instruction to the jury.
  3. Both ordinary negligence claims are available in addition to—not instead of—each other.
    The plaintiff in Keith appealed to the Supreme Court on the basis of Judge Dillon’s dissenting opinion. The dissent asserted that the trial judge properly exercised his discretion in instructing the jury on ordinary negligence, which the evidence at trial warranted. In other words, Judge Dillon would have upheld the jury verdict.
    To complement the emphasis on the dissenting opinion in Plaintiff’s New Brief, NCAJ’s amicus brief disarmed the fundamental premise of the majority opinion that the two possible instructions had to be given “instead of” each other. NCAJ asserted that claims for ordinary negligence and negligent hiring are available in addition to each other, not instead of—or mutually exclusive to—each other, based on 120 years of precedent. In doing so, NCAJ’s amicus brief explains why the Keiths adequately pled an ordinary “negligence” claim, why notice pleading let them to this (contrary to the either-or approach insisted upon by the Court of Appeals’ majority), why our legislature and courts recognize trial judges’ discretion to instruct juries as efficiently and comprehensively as possible given the evidence presented at trial, and why the trial judge in the Keiths’ case did not commit legal error—and did not abuse his discretion—in choosing to instruct the jury on ordinary negligence only. This instruction was enough to support the verdict, even if another instruction for “negligent hiring” could have also been given.