An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1424
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


EHAB ABDELAZIZ
     Plaintiff,

      v.                                      Mecklenburg County
                                              No. 11 CVS 19947
MOHAMMED ASMAR, KHALID
AYOUB ALNABULSI, and SUMA, INC.,
d/b/a XPRESS 13, a dissolved NC
corporation,
     Defendants.


      Appeal by plaintiff from judgment entered 4 March 2013 by

Judge Robert T. Sumner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 23 April 2014.


      Wait Law, P.L.L.C., by John L. Wait, for plaintiff.

      Caudle & Spears, P.A., by Christopher                   P.    Raab   and    L.
      Cameron Caudle, Jr., for defendants.


      ELMORE, Judge.

      On 13 February 2013, a jury, in relevant part, found that

1.)   Mohammed    Asmar    (Asmar)     committed     an   assault    and   battery

against Ehab Abdelaziz (plaintiff), but 2.) Suma, Inc., through

its owner, Khalid Ayoub Alnabulsi (defendant), did not ratify

Asmar’s acts.        The trial court ordered that plaintiff recover
                                    -2-
from Asmar $140,000 for personal injury, $200,000 for punitive

damages with an interest rate of eight percent per annum from 27

October 2011 until paid in full, and $3,663.06 for court costs.

The   trial   court   dismissed    with    prejudice      plaintiff’s    claims

against   defendant    and    further   ordered    that    plaintiff    recover

nothing   from      him.       Plaintiff       appeals.       After     careful

consideration, we hold that the trial court did not err.

                                    I. Facts

      On 12 April 2010, Asmar attacked plaintiff at a gas station

and   convenience     store   located     on   Westinghouse    Boulevard     in

Charlotte.     The gas station and convenience store were leased

and operated by Suma, Inc., whose sole shareholder and owner was

defendant.    Asmar was defendant’s employee, and plaintiff was an

operations manager for the lessor, Sam’s Mart, Inc. (Sam’s Mart)

at all times relevant to this appeal.            On the day of the assault

and battery, plaintiff went to defendant’s store to conduct an

on-site inspection pursuant to his role as an operations manager

for Sam’s Mart.       Initially, plaintiff and defendant discussed

business matters and walked throughout the store.                     Plaintiff

then noted that Asmar was not wearing a proper uniform, at which

point Asmar approached plaintiff, exchanged some words, began

swearing, and pushed him.        All three men exited the store, Asmar
                                         -3-
punched     and    kicked      plaintiff,       and     plaintiff            sustained   a

fractured       left   knee    and     torn    ACL.         Once       the    altercation

concluded, plaintiff terminated Asmar “[o]n the spot outside the

store” and told him to leave the premises immediately.

    On     27     October     2011,    plaintiff       filed       a    complaint      that

alleged    the    following:     1.)    assault       and   battery          against   both

Asmar     and    defendant;      2.)    intentional         infliction         of   mental

distress against Asmar; and 3.) negligent hiring and supervision

against defendant.            Before trial, plaintiff submitted proposed

written jury instructions to the trial court, which, in relevant

part, stated:

            A principal will be liable for an agent’s
            intentional wrongful acts under the doctrine
            of   respondeat    superior   when,   by   a
            preponderance of the evidence, plaintiff
            proves that the agent’s act(s)[.] . . . is
            ratified by the principal. . . . (b)
            Ratification is the affirmance by a person
            of a prior act which did not bind him but
            which was done or professedly done on his
            account, whereby the act, as to some or all
            persons, is given effect as if originally
            authorized by him.

            (c)   To   establish   ratification of  an
            otherwise unauthorized act, the plaintiff
            must show that the principal had knowledge
            of all material facts and circumstances
            relative to the wrongful act, and that the
            principal, by words or conduct, showed an
            intention to ratify the act.

            (d) A jury may find ratification from any
                                      -4-
            course of conduct on the part                  of the
            principal which reasonably tends to            show an
            intention on his part to ratify the            agent’s
            unauthorized acts; such course of              conduct
            may involve an omission to act.

(emphasis   added).         During   the    charge    conference,     plaintiff

requested the trial court to adopt his proposed instructions

that     included      the        emphasized         ratification-by-omission

instruction above.      The trial court denied plaintiff’s request

and did not include the ratification-by-omission language in its

instructions to the jury.

                                     II. Analysis

       This Court first notes that it dismisses plaintiff’s appeal

for his failure to give timely notice of appeal in accordance

with N.C. Appellate Procedure Rule 3(c).                 Nevertheless, after

determining that the lost appeal was no fault of defendant’s but

an error by his attorney, we grant defendant’s petition for writ

of certiorari and address the merits of his appeal pursuant to

N.C.   Appellate    Procedure     Rule     21.   See     N.C.R.   App.   P.   21

(stating that “writ of certiorari may be issued in appropriate

circumstances by either appellate court to permit review of the

judgments   and    orders    of   trial     tribunals    when   the   right   to

prosecute an appeal has been lost by failure to take timely

action”).
                                -5-
    On appeal, plaintiff argues that the trial court erred by

refusing to provide the jury with the ratification-by-omission

instruction.   Specifically, plaintiff avers that the trial court

should have instructed the jury that defendant could be liable

for Asmar’s assault and battery through defendant’s omission to

act during the altercation.    We disagree.

    We review the sufficiency of jury instructions under a de

novo standard of review.      State v. Osorio, 196 N.C. App. 458,

466, 675 S.E.2d 144, 149 (2009).

         [W]hen a request is made for a specific
         instruction, correct in itself and supported
         by evidence, the trial court, while not
         obliged to adopt the precise language of the
         prayer, is nevertheless required to give the
         instruction, in substance at least, and
         unless this is done, either in direct
         response to the prayer or otherwise in some
         portion of the charge, the failure will
         constitute reversible error.

Erie Ins. Exch. v. Bledsoe, 141 N.C. App. 331, 335, 540 S.E.2d

57, 60 (2000) (quoting Calhoun v. State Highway & Pub. Works

Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935)), disc. review

denied, 353 N.C. 371, 547 S.E.2d 442 (2001).   Furthermore,

         [w]hen reviewing the refusal of a trial
         court to give certain instructions requested
         by a party to the jury, this Court must
         decide whether the evidence presented at
         trial was sufficient to support a reasonable
         inference by the jury of the elements of the
         claim. If the instruction is supported by
                                       -6-
            such evidence, the trial court’s failure to
            give the instruction is reversible error.


Ellison v. Gambill Oil Co., 186 N.C. App. 167, 169, 650 S.E.2d

819, 821 (2007) (citations omitted), aff’d per curiam and disc.

review    improvidently    allowed,     363     N.C.    364,   677    S.E.2d        452

(2009).     In sum, “[a] specific jury instruction should be given

when ‘(1) the requested instruction was a correct statement of

law and (2) was supported by the evidence, and that (3) the

instruction    given,     considered       in   its     entirety,         failed    to

encompass    the   substance    of   the     law    requested       and    (4)     such

failure likely misled the jury.’” Outlaw v. Johnson, 190 N.C.

App. 233, 243, 660 S.E.2d 550, 559 (2008) (quoting Liborio v.

King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274, disc. review

denied, 356 N.C. 304, 570 S.E.2d 726 (2002)).

    Generally,      an    individual    owes       no   duty   to    another       “to

anticipate that a crime will be committed . . . and to act upon

that belief.”      O’Connor v. Corbett Lumber Corp., 84 N.C. App.

178, 182, 352 S.E.2d 267, 270 (1987) (citation and quotation

omitted).     However, “an employer may be held liable for the

criminal act of his employee if the act was . . . ratified after

its commission[.]”        Id.   (citation omitted).             Ratification is

“the affirmance by a person of a prior act which did not bind
                                             -7-
him but which was done or professedly done on his account[.]”

Guthrie v. Conroy, 152 N.C. App. 15, 27, 567 S.E.2d 403, 411-12

(2002) (citation and quotation omitted) (emphasis added).                                     A

jury can find ratification based on “any course of conduct on

the part of the principal which reasonably tends to show an

intention on his part to ratify the agent’s unauthorized acts,

and such course of conduct may involve an omission to act.”                                  Id.

at 27, 567 S.E.2d at 412           (citations and quotations omitted).

       Our courts have recognized that an employer can be held

liable for his failure to act during an assault.                                In Wegner v.

Delly-Land         Delicatessen,       Inc.,       the        plaintiff        went   to    the

defendant’s         restaurant        and        was     assaulted        by     defendant’s

employee, a bus boy.             270 N.C. 62, 64, 153 S.E.2d 804, 806

(1967).           Evidence    showed        that       moments    before        the   assault

occurred,         another    employee        of        the    defendant        attempted     to

separate the bus boy from the plaintiff.                          Id.     In holding that

the defendant was not liable for the plaintiff’s injuries, our

Supreme Court noted that the plaintiff failed to show that “any

officer      or    other     employee       of     the       defendant    failed      to    act

promptly to restrain [the bus boy] when the difficulty arose” or

“any   act    or     omission    by    the       defendant,       itself,       which      would
                                          -8-
constitute a breach of its duty to its invitee.”                    Id. at 66, 153

S.E.2d at 807.

       Similarly, in Wallace v. M, M & R, Inc., the defendant-

employer       was    found     liable    for     injuries     to   the    plaintiff

inflicted by employee-bouncers when he “failed to intervene in

the beating of [the] plaintiff.                 He did not ask the bouncers to

stop or attempt to break up the attack on [the] plaintiff in any

way.”      165 N.C. App. 827, 834, 600 S.E.2d 514, 518 (2004).

       Plaintiff       contends       that       a   ratification-by-omission-

instruction should have been given because defendant “fail[ed]

to intervene when Mr. Asmar assaulted and battered [him][.]”

Plaintiff’s argument is without merit.

       A     review   of      the   surveillance      video    shows      that   when

plaintiff and Asmar (the men) began to converse, defendant stood

next    to    them    and     monitored   the     situation.        Defendant    then

attended to a customer quickly, but as the exchange between the

men escalated, defendant walked towards them and motioned with

his left arm to move the men away from customers.                      When the men

started pushing each other inside the store, defendant moved in

between them in an attempt to stop the altercation.                          Despite

defendant’s efforts, the altercation commenced in the store and

continued outside.            Defendant followed the men outside despite
                                      -9-
having customers waiting inside the store.             As Asmar punched and

kicked   plaintiff,    defendant,     once    again,    placed   himself   in

between the men and moved plaintiff away from Asmar, at which

point the altercation        ended.     After the violent acts        ended,

defendant immediately fired Asmar and told him to “leave right

now. . . .      Don’t come here anymore.”         Thus, the evidence at

trial was devoid of any indication that defendant failed to act

during the altercation.        Conversely, he put himself at risk of

physical     harm   during   his   multiple    attempts    to    defuse    the

situation.     Accordingly, the trial court did not err by refusing

plaintiff’s ratification-by-omission instruction.

                             III. Conclusion

    In sum, the trial court did not err by refusing to provide

the jury with a ratification-by-omission instruction because no

evidence at trial supported such an instruction.

    No error.

    Judges McCULLOUGH and DAVIS concur.

    Report per Rule 30(e).
