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Iadanza v. Harper4/19/2005
ve their claim of negligence at trial, they would be entitled to all damages which proximately flow from this negligence including all physical and mental injuries and pain and suffering. As to the element of damages for pain and suffering: Pain and suffering damages are intended to redress a wide array of injuries ranging from physical pain to anxiety, depression, and the resulting adverse impact upon the injured party's lifestyle.
Connelly v. Family Inns of Am., Inc., 141 N.C. App. 583, 595-96, 540 S.E.2d 38, 43 (2000) (citing David A. Logan and Wayne A. Logan, North Carolina Torts ยง 8.20 (d) at 178 (1996)) (emphasis added).
Defendant also argues that plaintiff cannot recover general damages for pain and suffering without proof of "severe emotionaldistress." This argument confuses the "severe emotional distress" that is an essential element of a claim for negligent or intentional infliction of emotional distress, with the emotional suffering that may be part of a claim seeking damages for general "pain and suffering." Defendant cites no cases in support of the proposition that the psychological component of damages for "pain and suffering" must meet the same standard as the element of "severe emotional distress" that is part of claims for infliction of emotional distress, and we find none. Accordingly, we reject defendant's argument.
Finally, defendant argues that the trial court's entry of summary judgment on plaintiff's claim for damages should be upheld on the grounds that plaintiff failed to produce sufficient evidence of "severe emotional distress" such as could withstand a summary judgment motion. This issue is not properly before this Court. Defendants moved for partial summary judgment only on plaintiff's claim for compensatory damages, and the trial court's order was confined to a ruling on that issue. The adequacy of plaintiff's complaint to state claims for infliction of emotional distress was neither raised at the trial level nor assigned as error on appeal. "[Defendant] raise th issue for the first time on appeal to this Court. This Court has long held that issues and theories of a case not raised below will not be considered on appeal, and th issue[s are] not properly before this Court." Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298,309, 554 S.E.2d 634, 641 (2001). As this issue is not properly before us, we do not address it.
We conclude that the trial court erred by granting partial summary judgment on the issue of damages, and that the order for partial summary judgment must be reversed.
Defendant's Appeal From Dismissal of Counterclaims
Defendant appeals from the trial court's dismissal of his counterclaims for slander per se, unfair and deceptive trade practices, civil conspiracy, and malicious prosecution.
We first consider the trial court's dismissal of defendant's claim for slander per se. "The term defamation includes two distinct torts, libel and slander. In general, libel is written while slander is oral." Tallent v. Blake, 57 N.C. App. 249, 251, 291 S.E.2d 336, 338 (1982) (citation omitted). Specifically:
Slander has been defined by this Court as ' oral defamation,' or 'the speaking [as opposed to the writing] of base or defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood.' . . . e reaffirm the historical distinction between libel and slander.
Donovan v. Fiumara, 114 N.C. App. 524, 526, 536, 442 S.E.2d 572, 574 and 580 (1994) (quoting Morrow v. Kings Department Stores, 57 N.C. App. 13, 20, 290 S.E.2d 732, 736 (1982), and citing Tallent, 57 N.C. App. at 251, 291 S.E.2d at 33
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