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Fox v. Sara Lee Corp.

Court of Appeals of North Carolina

October 21, 2014

PENNY FOX, Plaintiff,
v.
SARA LEE CORPORATION and JOHN ZIEKLE, Defendants

Argued September 9, 2014

Heard in the Court of Appeals 9 September 2014.

Stephen A. Boyce, for plaintiff-appellant.

Constangy, Brooks & Smith, LLP by Robin E. Shea, for defendants-appellees.

STROUD, Judge. Judges MCGEE and BRYANT concur.

Page 625

Appeal by plaintiff from order entered 3 December 2013 by Judge David L. Hall in Superior Court, Forsyth County, No. 09 CVS 8153.

OPINION

STROUD, Judge.

Plaintiff appeals the trial court order granting defendant Sara Lee Corporation's motion for summary judgment and dismissing her claim. Because plaintiff failed to present any evidence that defendant Sara Lee ratified the tortious actions of its employee, defendant John Ziekle, we affirm the trial court's order granting summary judgment and dismissing plaintiff's claim.

I. Background

In 2005, plaintiff and defendant Ziekle were both employees of defendant Sara Lee and worked " in the Sara Lee Corporation Madison Park facility in Winston-Salem, North Carolina." Plaintiff was employed as an analyst in defendant Sara Lee's business government department, while defendant Ziekle worked in the information technology department and one of his duties was to service " the computer systems the Plaintiff used in her work." This case arises out of defendant's Ziekle's alleged sexual assault of plaintiff on 24 August 2005. Plaintiff's complaint was previously dismissed by the trial court and appealed to this Court. Fox v. Sara Lee Corp., 210 N.C.App. 706, 707, 709 S.E.2d 496, 498 (2011) (" Fox I " ). We set forth the procedural background for this case in the first appeal, in Fox I :

Penny Fox (Plaintiff) filed a complaint against Sara Lee Corporation (Sara Lee) and John Ziekle (Mr. Ziekle) (collectively, Defendants) on 24 September 2009. In her complaint, Plaintiff alleged that she

Page 626

had been an employee at Sara Lee, and that Mr. Ziekle had been a co-worker. Plaintiff contended that she had been sexually assaulted by Mr. Ziekle and, as a result, suffered severe mental health problems that led to the loss of her job with Sara Lee. Plaintiff asserted claims of assault, battery, false imprisonment, intentional infliction of emotional distress and negligence, and sought damages. Sara Lee filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), contending that all of Plaintiff's claims were barred by the statute of limitations. In an order entered 21 January 2010, the trial court granted Sara Lee's motion and dismissed Plaintiff's complaint in its entirety with prejudice. Plaintiff appeals.

Id. at 707, 709 S.E.2d at 497-98.

In Fox I, we determined that plaintiff had abandoned " her claims for assault, battery, and false imprisonment." Id. at 708, 709 S.E.2d at 498. The only remaining issue in Fox I was " whether the trial court properly granted Sara Lee's motion to dismiss Plaintiff's claims based on emotional distress" because they were barred by the statute of limitations. Id. In Fox I, this Court reversed the dismissal of plaintiff's claim based on the statute of limitations because

Plaintiff's complaint sufficiently alleged that: (1) Plaintiff became an incompetent adult for the purposes of tolling the statute of limitations; and (2) Plaintiff was under a disability at the time she suffered the severe emotional distress which caused her claims to accrue. Therefore, we reverse the trial court's order granting Sara Lee's N.C.G.S. § 1A-1, Rule 12(b)(6) motion to dismiss as to Plaintiff's claims for emotional distress and remand to the trial court.

Id. at 715, 709 S.E.2d at 502 (quotation marks omitted). Fox I was filed 5 April 2011. See Fox I, 210 ...


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