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Oddo v. Presser6/17/2003
ended college but for her injuries before attaining three years of age, see Fox Kirk v. Hannon, id., I cannot agree that evidence of plaintiff's lost tuition benefits for his children, all of whom were at least three years of age at the time of trial, is overly speculative.
The majority also concludes plaintiff's evidence of lost tuition benefits is too speculative because plaintiff did not offer evidence that Davidson's tuition program would continue to exist in the future. However, the uncontradicted evidence was that Davidson's tuition benefit program, rather than being a bonus, is guaranteed to all employees who have worked at Davidson for at least three years. The reasonable inference is that, in the absence of evidence to the contrary, Davidson's guaranteed tuition benefit program will exist when plaintiff's children are college age.
In view of case law and the facts in this case, plaintiff's evidence of lost tuition benefits was properly submitted to the jury. I would affirm the award of compensatory damages in all respects.
II. PUNITIVE DAMAGES FOR ALIENATION OF AFFECTIONS
Secondly, there is error in the judgment on punitive damages. I do not agree with the majority that the evidence of sexual intercourse, without other evidence of aggravating circumstances, is sufficient to allow the submission of punitive damages to the jury in this action for alienation of affections.
This Court recently examined an issue similar to that presented in this case, and stated that, " vidence of `sexual relations' will allow a plaintiff to get to the jury on the issue of punitive damages in a claim for alienation of affections." Ward v. Beaton, 141 N.C. App. 44, 50, 539 S.E.2d 30, 34 (2000) (emphasis added). However, Ward cited and summarized the following cases in support of this proposition:
Hutelmyer v. Cox, 133 N.C. App. [364,] 371, 514 S.E.2d [554,] 560 [(1999)] (finding sufficient aggravating factors where defendant engaged in sexual relations with plaintiff's husband, publicly displayed the affair, welcomed him into her home numerous times, and called plaintiff's home to determine his whereabouts); Jennings v. Jessen, 103 N.C. App. 739, 744, 407 S.E.2d 264, 267 (1991) (finding sufficient aggravating factors where defendant engaged in sexual intercourse with plaintiff's husband, as well as "cohabited for several weeks with and was audacious enough to call plaintiff's home in an attempt to discover whereabouts"); Shaw v. Stringer, 101 N.C. App. 513, 517, 400 S.E.2d 101, 103 (1991) (finding sufficient aggravating factors where defendant had sexual intercourse with plaintiff's wife, ignored plaintiff's request not to visit the marital home, and laughed when plaintiff's wife told him that plaintiff knew of the relationship).
Id. Ward also cited the following cases where the court found the evidence insufficient to submit the issue of punitive damages to the jury: Cottle v. Johnson, 179 N.C. 426, 431, 102 S.E. 769, 771 (1920) (ordering new trial where plaintiff received punitive damages for alienation of affections in case in which plaintiff did not make out criminal conversation and the court found no aggravating circumstances); Chappell v. Redding, 67 N.C. App. 397, 403, 313 S.E.2d 239, 243 (1984) (finding no evidence of criminal conversation, and reversing and remanding on the issue of punitive damages for alienation of affections because, although "the increasing amounts of time spent with plaintiff's wife was enough to permit the alienation of affections issue to go to the jury, plaintiff [failed to show] additional circumstances of aggravation to justify the submission of the punitive damages issue"); Heist v. Heist, 46 N.C. A
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