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Phillips v. Restaurant Management of Carolina9/18/2001
t. See Rich v. Shaw, 98 N.C. App. 489, 391 S.E.2d 220, disc. review denied, 327 N.C. 432, 395 S.E.2d 689 (1990). Accordingly, the trial court properly granted summary judgment to Taco Bell on this issue.
D. Trooper's Remaining Claims
The trooper's remaining claims of intentional infliction of emotional distress, gross negligence, and punitive damages against Taco Bell are based upon a theory of Taco Bell's vicarious liability for Jones's actions (or the actions of alleged "Doe Employees," whom the trooper alleges knew or should have known that the nacho chips were contaminated by Jones's spit). Based on our finding in section II.A., above, that the trial court did not err in granting summary judgment to Taco Bell on the issue of vicarious liability, we conclude that summary judgment in favor of Taco Bell was proper on the issues of intentional infliction of emotional distress, gross negligence, and punitive damages. See G.S. ยง 1D-15(a) (punitive damages may not be awarded against a defendant absent liability for compensatory damages).
In summation, the trial court's grant of summary judgment in favor of Restaurant Management is vacated and remanded as to the trooper's claims for intentional infliction of emotional distress and gross negligence (on the basis of vicarious liability), and breach of the implied warranty of merchantability. However, the trial court's grant of summary judgment in favor of Restaurant Management is affirmed as to the trooper's claim for punitive damages, as well as his claims for intentional infliction of emotional distress and gross negligence insofar as those claims are based upon a theory of ratification by defendant Restaurant Management of the acts of defendant Jones. Finally, the trial court's grant of summary judgment in favor of Taco Bell is affirmed as to all of the trooper's claims.
Affirmed in part, reversed in part as to Restaurant Management.
Affirmed as to Taco Bell.
Judges McGEE and BIGGS concur.
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