The North Carolina Court of Appeals recently issued a decision in B.C. and M.B. v. Palmetto Wellness Group NC, LLC d/b/a Massage Envy Fayetteville (COA24-335, filed June 4, 2025) that will have significant implications for plaintiffs pursuing civil claims against employers for negligent hiring and supervision in cases involving sexual assault by employees. The court's opinion underscores the availability of joint and several liability in cases involving both negligent and intentional torts that produce a single, indivisible injury.
Background
This case arose from the sexual assault of Plaintiff M.B. by a massage therapist at a Massage Envy franchise operated by Palmetto Wellness Group. Before his employment with Palmetto, this massage therapist assaulted another employee at a different spa. Despite being warned about the massage therapist’s past misconduct by that prior victim—who Palmetto later employed—Palmetto hired him anyway. The massage therapist went on to assault multiple clients, including Plaintiff.
M.B. sued the massage therapist and Palmetto for various claims, including battery, intentional infliction of emotional distress, negligence, negligent hiring, and fraudulent concealment. The massage therapist never responded to the suit, and default was entered against him. At trial, the jury awarded M.B. $600,000 against the massage therapist ($100,000 for battery, $250,000 for IIED, and $250,000 in punitive damages) and $40,000 jointly and severally against the massage therapist and Palmetto on the negligence claims.
Procedural Error: Jury Instruction on Joint and Several Liability
On appeal, M.B. argued that the trial court erred by refusing to instruct the jury that Palmetto could be held jointly and severally liable for all of M.B.’s damages—including those arising from the massage therapist’s intentional torts. The Court of Appeals agreed and reversed on this issue.
The trial court had instructed the jury that joint and several liability applied only to the damages arising from the negligence claims. However, North Carolina law does not limit joint and several liability to negligent acts. As the Court emphasized, joint and several liability applies whenever independent wrongful acts—whether negligent or intentional—concur to cause a single, indivisible injury. The key precedent included:
- Phillips v. Hassett Mining Co., 244 N.C. 17 (1956)
- Casado v. Melas Corp., 69 N.C. App. 630 (1984)
- Ipock v. Gilmore, 73 N.C. App. 182 (1985)
The Court held that the trial court’s refusal to instruct on joint and several liability for all damages likely misled the jury into apportioning damages among tortfeasors inappropriately. Given the indivisible nature of Plaintiff’s injuries, Palmetto should have been jointly and severally liable for the full amount of damages caused by the massage therapists intentional conduct if Palmetto’s own negligence contributed to the same harm.
Misunderstanding of Respondeat Superior Doctrine
Palmetto attempted to argue that joint and several liability was precluded because Plaintiff had also alleged a claim under respondeat superior. The Court rejected this as a red herring. Joint and several liability and respondeat superior are distinct legal doctrines. While respondeat superior imposes vicarious liability based on an agency relationship, joint and several liability applies where multiple defendants—whether acting together or independently—cause a single injury.
The Court noted that Palmetto’s liability was grounded in its own direct negligence, particularly negligent hiring and supervision, not solely vicarious liability.
Remand for New Trial on Damages
Because the error in the jury instruction may have led to a misallocation of damages, the Court remanded the case for a new trial on damages only. It did not disturb the jury’s findings on liability.
Importantly, the Court declined Plaintiff’s request to amend the judgment to impose joint and several liability retroactively under Rule 59, concluding that the error could not be cured without a new trial due to ambiguity in how the jury apportioned damages.
Key Takeaways for Plaintiffs and Employers
- Joint and several liability in North Carolina applies equally to intentional and negligent acts when they result in a single, indivisible injury.
- Employers may be held fully liable for an employee’s intentional torts if their own negligence (e.g., hiring someone with known prior misconduct) contributed to the injury.
- Proper jury instructions on the law of damages are critical, and failure to request or obtain the right instruction can affect the plaintiff’s full recovery.
- Respondeat superior does not preclude joint and several liability, and the doctrines operate independently.
Final Thought
This case is a strong reminder that employers bear legal responsibility not only for their employees' conduct but also for their own hiring and oversight practices. It also reinforces the importance of careful trial preparation—particularly jury instructions—in complex tort cases involving multiple theories of liability.