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In Keith v. Pro-Health, NC Supreme Court Rejects Narrow Definition of Negligent Hiring

June 29, 2022   |   Erwin Byrd

NC Court Finds That Employers Owed Duty to Third Parties for Criminal Acts of Its Employees.

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

Opinion Filed: June 17, 2022
Attorneys for the Case: Jeremy M. Wilson, Alex C. Dale and Christopher S. Edwards
Amicus Brief Writers: Vernon Sumwalt and J. David Stradley

Supreme Court of North Carolina No. 33A21

This month, the Supreme Court of North Carolina made clear that certain decisions involving negligence belong to the jury, not the judge. Overturning a majority opinion by the Court of Appeals in Keith v. Pro-Health Home Care Services, Inc., which would have granted a directed verdict despite a jury verdict in the plaintiff’s favor, the Supreme Court held that negligence by employers for the foreseeable criminal acts of their employees is a question for the jury. The Court held that 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.” 

NCAJ filed an amicus brief in this case, written by Vernon Sumwalt and David Stradley. The brief argued that the trial court was empowered to instruct the jury as it did – on ordinary negligence – rather than being required to use the defendant’s tendered jury instructions on negligent hiring. Though the Supreme Court did not endorse the use of a generic negligence instruction in similar cases in the future, it did hold that the negligent hiring instructions proffered by the defendant employer and upheld by the Court of Appeals were too strict and narrow, and were thus an incorrect statement of the law.

The law on negligent hiring is, as this recent opinion shows, just another flavor of negligence. Thanks in part to NCAJ’s efforts in this case, our law on negligent hiring favors the jury’s ability to do its job. Thank you NCAJ Board of Governors member Jeremy M. Wilson, who along with his colleagues at Ward & Smith, PA, Alex C. Dale and Christopher S. Edwards, represented the Keiths and to NCAJ members Vernon Sumwalt and David Stradley, who wrote the amicus brief to the Supreme Court of North Carolina. 

About the Author

Erwin Byrd

Contract Amicus Brief Writer

Erwin Byrd

Contract Amicus Brief Writer

Erwin Byrd started working with NCAJ in January 2020. Her legal career began with a seven-year stint at Legal Aid of North Carolina, where she was a staff attorney for its statewide project, Advocates for Children’s Services. There, she represented children in matters involving special education, access to a constitutionally adequate education, school discipline and Medicaid. Byrd taught school discipline law as an adjunct at North Carolina Central University School of Law and clerked from 2017-2019 for Justice Samuel J. Ervin IV at the Supreme Court of North Carolina.

She is an avid reader, loves writing and enjoys researching all areas of law (with the possible exception of taxation and trusts and estates law). At NCAJ, she is the contracted amicus consultant, who writes and assists in the drafting and filing of amicus briefs in North Carolina state and federal appellate courts. This year, she is the president of her children’s elementary school PTA, and has found that’s about all the extracurricular work she can sustain. Byrd is a graduate of the University of the South in Sewanee in Tennessee and the University of North Carolina School of Law. She, her husband and their two children live in Durham and can often be found at a soccer field or in a lake or river.