In Wilkerson v. Duke University and Christopher Day, plaintiff sued Duke and Day for a laundry list of civil torts including false imprisonment, infliction of emotional distress, assault, battery and negligent supervision and retention of Day by Duke.

Plaintiff Wilkerson was working as a parking lot attendant at Duke University Hospital.  Defendant Day, a Duke University Police Officer, came to the hospital to assist with unlocking a parked car.  It was alleged that Plaintiff refused to let Day into the parking lot which led to a fight.

The trial court dismissed all claims.  The Court of Appeal confirmed the dismissal of all claims except the dismissal of the claim that Duke negligently supervised and retained Day.  The Court of Appeals, citing well-established North Carolina law, stated that to support this claim Wilkerson “must show sufficient evidence of Day’s tortious act that resulted in injury to Wilkerson and that Day’s supervisors knew or had reason to know of Day’s incompetency.”

To try and support this claim, Plaintiff referred the Court to 2 performance evaluations of Day by Duke stating:

1) “I would like for PO Day to try and keep ‘Hank” (Day’s nickname) under control.  At times, PO Day can seem disrespectful when he vents his frustration.  He needs to keep his personal opinions more closely to himself and not speak of them in an open forum.  Some officers think that he comes off as a disgruntled employee who complains a lot.  He needs to take those concerns and discuss them privately and through proper channels.”

2)  “Officer Day is professional and courteous during interaction with the public and with other members of this department.  He treats people fairly and with dignity.  He does not abuse his authority as a law enforcement officer.  He tends to let his personal problems distract him from completely focusing on his job.  He is outspoken and is trying to be less vocal in voicing complaints and concerns.” 

The Court of Appeals noted “it is unclear whether [Day's supervisors'] awareness of Day’s behavior related solely to his tendency to complain publicly within the department or whether it also related to his conduct during interactions with the public.”  Nonetheless, the Court of Appeals determined that there was sufficient evidence for a North Carolina jury to decide whether or not Duke negligently supervised and/or retained Day.