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Beck v. City of Durham12/3/2002
ell for tortious interference with contract and with prospective advantage.
A. Constructive Wrongful Discharge
Plaintiff argues the court erred in dismissing his claim against McNeil for constructive wrongful discharge in his individual capacity. However, North Carolina courts have yet to adopt this tort. Graham v. Hardee's Food Systems, 121 N.C. App. 382, 385, 465 S.E.2d 558, 560 (1996). Our courts have only recognized the validity of a claim for constructive discharge "in the context of interpreting whether constructive termination by [a plaintiff's] employer triggered the termination payment provision of employment contract." Doyle v. Asheville Orthopaedic Assocs., P.A., 148 N.C. App. 173, 177, 557 S.E.2d 577, 579 (2001), disc. review denied, 355 N.C. 348, 562 S.E.2d 278 (2002). Since this is not the factual scenario currently on appeal, we hold the court did not err in dismissing plaintiff's constructive wrongful discharge claim.
B. IIED
Next, plaintiff argues the court erred in dismissing his claim against Ewell for IIED in his individual capacity.
In an action for IIED, a plaintiff must prove "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another." Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). This Court has defined the element of "extreme and outrageous conduct" as "`"conduct [which] exceeds all bounds usually tolerated by decent society."'" Fieldcrest Cannon, Inc. v. Fireman's Fund Insurance Co., 124 N.C. App. 232, 252, 477 S.E.2d 59, 72 (1996) (citations omitted). "It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery." Hogan v. Forsyth County Club Co., 79 N.C. App. 483, 490, 340 S.E.2d 116, 121 (1986).
Based on our reading of the complaint, plaintiff's allegations that Ewell spoke negatively about him to one of plaintiff's clients do not demonstrate the level of "extreme and outrageous conduct" necessary to support an action for IIED. Thus, the trial court did not err.
C. Tortious Interference with Contract and with Prospective Advantage
Plaintiff also argues his claims for tortious interference with contract and with prospective advantage against Ewell in his individual capacity were improperly dismissed by the trial court. The elements of tortious interference with contract are as follows:
(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff. United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988).
"In order to maintain an action for tortious interference with prospective advantage, Plaintiff must show that Defendants induced a third party to refrain from entering into a contract with Plaintiff without justification. Additionally, Plaintiff must show that the contract would have ensued but for Defendants' interference." DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 585, 561 S.E.2d 276, 286, (citing Cameron v. New Hanover Memorial Hospital, 58 N.C. App. 414, 440, 293 S.E.2d 901, 917 (1982)), temporary stay allowed, 355 N.C. 284, 560 S.E.2d 798 (2002).
Both of these claims require Ewell's interference to be "without justification." This Court has held that in order to establish this element, plai
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