Your spouse, who works for a fairly large company, has been acting suspicious lately: putting in more hours at work, traveling extensively for business, having conference calls at odd times. Your marriage is strained from the behavior, and your spouse wants a separation.

After investigation, you find that your spouse has been having an affair with the supervisor at work. The seducing supervisor and your spouse are both employed by a multi-million dollar corporation. You believe the paramour enticed your spouse while the two were working, carried on the relationship while both were on the job, and even had sexual relations within the office. Further, there exists evidence that other employees knew about the affair. Now your spouse and the supervisor are living together, and divorce is imminent.

In North Carolina, you may have a suit for alienation of affection or criminal conversation, i.e. a tort claim, against the paramour. However, the “big pockets” belong to the corporation. Can you sue the paramour and the corporation? Is the corporation liable for the supervisor seducing your spouse while “on the clock?”

Until very recently, this question remained unanswered by North Carolina case law. However, in October 2007, the United States District Court for the Western District of North Carolina, in Smith v. Lee, 2007 U.S. Dist. LEXIS 78987, decided the answer is “No.” (As a procedural note, the case was heard in federal court because the parties were from different states.)

In Smith v. Lee, the facts were similar to the scenario described above. Douglas Smith was married to Melissa Smith. Douglas discovered that Melissa was having an affair with her supervisor, Troy Lee. Troy and Melissa both worked for Progressive Lighting, Inc. Douglas decided to sue Troy for alienation of affections and criminal conversation. However, Douglas also decided to join Progressive Lighting, Inc. as a party, on the theory of vicarious liability to the claim for alienation of affection.

For an employer to be liable under a theory of vicarious liability in North Carolina, the plaintiff must prove one of the following about the employer:

1) The employer authorized the employee’s acts;
2) The employee’s acts were committed within the scope of his employment and in
furtherance of the employer’s business; or
3) The employer ratifies the employee’s acts.

A straight-forward example of a typical vicarious liability suit is when a pizza restaurant owner is taken to court for a wreck caused by one of his pizza delivery trucks.

In Smith v. Lee, Douglas tried to use the “pizza delivery boy” theory. Douglas claimed that Troy solicited his wife in his capacity as her supervisor, that Troy’s acts happened while he was at work, and in the scope of his employment and in furtherance of Progressive Lighting’s business; and therefore, Progressive Lighting should be held responsible for the very personal injury inflicted on Douglas and his marriage.

Not only did the Court not agree with Douglas, but they dismissed his claim against Progressive Lighting on a summary judgment motion. The Court found that “even if the Court accept[ed] [Douglas’] allegations that [Troy’s] employer knew of the affair, knowledge alone is not enough to show ratification…Progressive Lighting is not in the business of relationships, and the Court fails to see how relationships between employees would be either in the scope of the company’s business or would further the business in any sort of productive manner.”

The Court did not elaborate on what else – besides actual knowledge of the affair – was needed to show that the company had “ratified” the affair. The Court may have excused itself from such elaboration because of what it found next.

After clarifying that Progressive had not “ratified” the behavior, the Court also extended its holding to include a public policy basis for ruling against Douglas. It stated, “[T]his Court is loathe to apply vicarious liability against employer for torts of alienation of affection or criminal conversation. It is simply unreasonable to expect businesses to regulate the intimate and personal affairs of their employees…NC public policy disfavors the extension of marital torts to employers. Torts of alienation of affection and criminal conversation are private and personal. Holding employers to owe a duty to the spouses of their employees would extend the potential liability of employers infinitely.”

Smith v. Lee presents a broad holding that seems to shut the door on vicarious liability for employers for plaintiffs asserting heart balm torts. If you suspect your spouse is having an affair, regardless if it is with a coworker, you should arrange a consultation with a family law attorney in your area as soon as possible. Such conduct could lead to a claim for alienation of affection, or on a more basic level, affect a claim for alimony.

Contributor: Rebecca F. Redwine. Rebecca Redwine is a Raleigh Family Law Attorney with the North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC.

For more information Contact the Raleigh, North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488, or go to www.gailorwallishunt.com

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case.

This entry was posted on Wednesday, September 1st, 2010 at 4:10 pm and is filed under Divorce Education, Marital Torts, News. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.