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Phillips v. Restaurant Management of Carolina9/18/2001
Appeal by plaintiff from order entered 26 January 2000 by Judge Charles C. Lamm, Jr. in Superior Court, Buncombe County. Heard in the Court of Appeals 6 February 2001.
While on duty for the North Carolina Highway Patrol, Trooper Chris T. Phillips stopped to order food from the drive-through window of a Taco Bell restaurant in Black Mountain, North Carolina. Restaurant Management of Carolina, L.P. owned and operated the restaurant under a franchise agreement with Taco Bell Corp. Apparently recognizing that the trooper had ordered food, an employee of the restaurant, Jason Paul Jones, spat in the trooper's food before serving it to him. Shortly thereafter, while consuming the food, the trooper noticed a substance on the food that appeared to be human saliva. He returned immediately to the restaurant and spoke to the shift manager, who denied any knowledge of the incident. Nonetheless, the trooper reported the incident to the local police department and to his supervisor. A State Bureau of Investigation laboratory report later confirmed the presence of human saliva in the food. Two days later, Jones revealed to his shift supervisor that he spat in the trooper's food because he had been "harassed" by local police officers for skateboarding and thought the trooper-customer could have been one of those officers.
The trooper brought actions against Jones, Restaurant Management and Taco Bell for: (1) Breach of implied warranty of merchantability; (2) Intentional infliction of emotional distress; (3) Gross negligence; and (4) Punitive damages. Following responsive pleadings and discovery, the trial court granted summary judgment in favor of Restaurant Management and Taco Bell. The trooper now appeals to us.
Conspicuously, the summary judgment order in this case disposed of fewer than all claims brought by the trooper--the claims against Jones remain; ordinarily, such an order is interlocutory and not immediately appealable. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). However, pertinent to this appeal, N.C. Gen. Stat. § 7A-27(d) (1999) permits an appeal from an interlocutory order that affects "a substantial right which may be lost or prejudiced if not reviewed prior to final judgment." Dalton Moran Shook Inc. v. Pitt Development Co., 113 N.C. App. 707, 710, 440 S.E.2d 585, 588 (1994).
On appeal, the trooper contends that his claims against Restaurant Management and Taco Bell involve issues of fact common to his claims against Jones and that if this appeal is dismissed as interlocutory, separate trials will be required to determine the same factual issues. We agree with him. See Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (" he right to avoid the possibility of two trials on the same issues can be . . . a substantial right" that permits an appeal of an interlocutory order when there are issues of fact common to the claim appealed and remaining claims) (internal citations omitted).
Accordingly, we address the merits of the trooper's claims against both Restaurant Management and Taco Bell.
I. Restaurant Management
A. Vicarious Liability
The trooper first argues that the record shows a genuine issue of fact as to the vicarious liability of Restaurant Management for the acts of its employee, Jones. See N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999) (Summary judgment is inappropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show a genuine issue as to any material fact). We agree.
The parties in this appeal contend that the following language from our Supreme Court's decision in Wegner
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