An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-409
Filed: 2 January 2019
Mecklenburg County, No. 16-CVS-14300
VINCENT BORDINI, Plaintiff,
v.
DONALD J. TRUMP FOR PRESIDENT, INC., and EARL PHILLIP, Defendants.
Appeal by Plaintiff from order entered 22 November 2017 by Judge Robert C.
Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 31
October 2017.
Spengler & Agans, PLLC, by Eric Spengler, and Van Kampen Law, P.C., by
Sean F. Herrmann, for the Plaintiff.
Van Hoy, Reutlinger, Adams & Dunn, PLLC, by Phillip M. Van Hoy and G.
Bryan Adams III, for the Defendant.
DILLON, Judge.
Plaintiff Vincent Bordini appeals from the trial court’s order granting the
motion of Defendant Donald J. Trump for President, Inc. (the “Campaign”) for
summary judgment. Plaintiff brought a number of claims against the Campaign for
negligent retention of Earl Phillip, as well as vicarious liability for Phillip’s actions.

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

Plaintiff argues that he presented sufficient evidence such that a jury could
reasonably find in his favor. After careful review, we affirm the trial court’s order.
I. Background
The evidence before the trial court at the summary judgment hearing tended
to show as follows:
Beginning in November 2015, the Campaign hired Earl Phillip to serve as
director over its North Carolina efforts. Phillip served under Stuart Jolly, Campaign
National Field Director, and Corey Lewandowski, National Campaign Manager.
Phillip later hired Plaintiff as a data director within the campaign’s information
technology staff.
Phillip possessed a concealed carry permit and frequently carried his pistol,
nicknamed “Roscoe,” including while on duty for the Campaign.
In February 2016, Phillip and Plaintiff rode together to a campaign event.
While Phillip was driving his vehicle with Plaintiff in the passenger seat, Phillip
allegedly held his pistol against Plaintiff’s knee with his finger on the trigger.
In August 2016, Plaintiff filed a complaint against Phillip and the Campaign,
alleging five causes of action stemming from the February 2016 incident: (1) assault;
(2) battery; (3) intentional infliction of emotional distress (“IIED”); (4) negligent
infliction of emotional distress (“NIED”); and (5) negligent retention and supervision.
The Campaign filed a motion for summary judgment on all of Plaintiff’s claims.

-2-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

In November 2017, after a hearing on the matter, Judge Ervin granted the
Campaign’s motion for summary judgment.1 Plaintiff appeals.
II. Analysis
Plaintiff appeals from Judge Ervin’s order granting summary judgment in
favor of the Campaign. “Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record shows that ‘there is no
genuine issue as to any material fact and that any party is entitled to a judgment as
a matter of law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).
Plaintiff contends that the evidence presented supported a denial of the Campaign’s
motion for summary judgment with respect to each of his claims. We address each
claim in turn.
A. Jurisdiction
We briefly note the Campaign’s contention that the subject matter of this case
is rightfully under the jurisdiction of our Industrial Commission, and therefore not
properly before this Court. We disagree.
The North Carolina Workers’ Compensation Act preempts normal negligence
actions against employers for injuries to employees “arising out of and in the course
of the employment.” Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 251, 293 S.E.2d
196, 198 (1982); N.C. Gen. Stat. § 97-2(6) (2017). Generally, “an injury arises out of

1

Plaintiff and Phillip filed a mutual Dismissal of Claims Without Prejudice of all claims
against one another following the trial court’s order granting summary judgment to the Campaign.

-3-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

the employment when it is a natural and probable consequence or incident of the
employment and a natural result of one of its risks[.]” Robbins v. Nicholson, 281 N.C.
234, 239, 188 S.E.2d 350, 354 (1972) (internal citation omitted). “The injury must
come from a risk which might have been contemplated by a reasonable person as
incidental to the service when he entered the employment.”

Lockey v. Cohen,

Goldman & Co., 213 N.C. 356, 359, 196 S.E. 342, 344 (1938).
Further, intentional torts are generally not preempted by the Workers’
Compensation Act, in an effort to deter the tortfeasor from future misconduct. See
Pleasant v. Johnson, 312 N.C. 710, 717, 325 S.E.2d 244, 249 (1985). The risk of being
intentionally assaulted at gunpoint by a coworker is not one which a reasonable
person may have contemplated when accepting an information technology job on a
presidential campaign.2 Therefore, Plaintiff’s appeal is rightfully before this Court.
B. Vicarious Tort Liability
Plaintiff contends that the Campaign is vicariously liable for his tort claims
arising from the February 2016 incident. We conclude that, assuming Plaintiff can
show the necessary elements of assault, battery, IIED, and NIED, he cannot show
that the Campaign should be held vicariously liable for Phillip’s behavior.

2

The Campaign cites Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582 (1982), to show
that the Workers’ Compensation Act has jurisdiction over a supervisor’s intentional assault of a
coworker. However, in Daniels, the assault followed a heated discussion of the plaintiff coworker’s job
performance and therefore arose out of and in the course of employment. Id. at 558, 286 S.E.2d at 584.
Here, Phillip exhibiting his skill with guns by grabbing Roscoe by the handle and pointing it at his
coworkers was not in the course of Phillip nor Plaintiff’s duties with the Campaign.

-4-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

An employer may be held vicariously liable for an employee’s tortious conduct
where: “(1) the employer expressly authorizes the employee's act; (2) the tort is
committed by the employee in the scope of employment and in furtherance of the
employer's business; or (3) the employer ratifies the employee's tortious conduct.” Fox
v. Sara Lee Corp., 237 N.C. App. 7, 13, 764 S.E.2d 624, 628-29 (2014); see also Snow
v. DeButts, 212 N.C. 120, 122, 193 S.E. 224, 226 (1937). “Generally, one who employs
an independent contractor is not liable for the independent contractor's negligence[.]”
Woodson v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991).
Essentially turning on the employer’s “right of control” over the tortfeasor, our
Supreme Court has described the following factors for determining whether an
employer-employee relationship exists:
[t]he person employed
(a) is engaged in an independent business, calling, or
occupation;
(b) is to have the independent use of his special skill,
knowledge, or training in the execution of the work;
(c) is doing a specified piece of work at a fixed price or for a
lump sum or upon a quantitative basis;
(d) is not subject to discharge because he adopts one
method of doing the work rather than another;
(e) is not in the regular employ of the other contracting
party;
(f) is free to use such assistants as he may think proper;
(g) has full control over such assistants; and
(h) selects his own time.
Hayes v. Bd. of Trustees of Elon Coll., 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944).
When the facts underlying the relationship between the tortfeasor and the employer
-5-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

are established, whether vicarious liability attaches is a question of law. Beach v.
McLean, 219 N.C. 521, 525, 14 S.E.2d 515, 518 (1941).
We conclude that the forecast of evidence demonstrates that Phillip served the
Campaign as an independent contractor: The evidence shows that the Campaign
contracted with a political consulting company who obtained Phillip’s assistance with
the Campaign’s efforts in North Carolina. Though an admittedly vague and lofty
goal, Phillip had the specific, designated task of “[w]inning North Carolina for Donald
Trump.” In achieving this goal, Phillip’s employment agreement with the Campaign
stated that “[Phillip] must direct what will be done and how it will be done. [The
Campaign] will direct only the desired result.” Each day, Phillip received instructions
and a “to-do list” from Lewandowski, but typically these instructions consisted of
target counties and outreach goals.
Further, the Campaign informed Phillip that “hiring employees for [North
Carolina was] essentially up to [Phillip’s] discretion” as the Campaign’s State
Director. Under this term, Phillip would determine when there was need for further
assistance in the state. When Phillip determined that there was a need for additional
personnel, he found applicants and referred them to Jolly, but only to ensure that the
Campaign’s budget would allow additional hires.

Phillip did not pay his hires

himself. Phillip was not paid hourly and had no set work hours; rather, he received
$8,000 per month for all work performed. Phillip was not under regular employment

-6-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

by the Campaign. His initial term of service was one month, to be renewed as long
as the Campaign was satisfied with his performance. Phillip received no health
benefits from the Campaign, and the Campaign withheld no taxes from Phillip’s
monthly fee.
Overall, Phillip was responsible to the Campaign only for “the result of his
work[,]” not for the manner in which he performed it. Cooper v. Asheville CitizenTimes Pub. Co., 258 N.C. 578, 588, 129 S.E.2d 107, 114 (1963). We conclude that the
trial court properly granted the Campaign summary judgment because there was no
issue of fact with respect to whether it was vicariously liable for Phillip’s actions. The
evidence showed that Phillip was an independent contractor for, not an employee of,
the Campaign as a matter of law.3
C. Negligent Retention
Plaintiff’s last claim alleges that the Campaign negligently retained and
supervised Phillip despite prior notice of Phillip’s erratic behavior.

Specifically,

Plaintiff contends that the evidence forecasted was sufficient to show that the
Campaign had either actual or constructive notice of Phillip’s prior incidents
involving Roscoe, his pistol. We disagree, and affirm the trial court.

3

We recognize that Plaintiff also expressly contends that the Campaign is liable for Phillip’s
assault and battery because it ratified Phillip’s actions. However, while ratification of an employee’s
action does lead to vicarious liability, the tortfeasor must nonetheless be an employee. Because we
hold that Phillip was not an employee, we decline to address whether his actions were ratified.

-7-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

An employer may be held liable for negligently retaining an employee or
independent contractor where that employee commits a tortious act and, prior to the
act, the employer knew or had reason to know that it may reasonably occur. Pleasants
v. Barnes, 221 N.C. 173, 173, 19 S.E.2d 627, 629 (1942). To show negligent retention,
a plaintiff must prove:
(1) the specific negligent act on which the action is
founded[,]
(2) incompetency, by inherent unfitness or previous specific
acts of negligence, from which incompetency may be
inferred; and
(3) either actual notice to the master of such unfitness or bad
habits, or constructive notice, by showing that the master
could have known the facts had he used ordinary care in
oversight and supervision[,] and
(4) that the injury complained of resulted from the
incompetency proved.
Medlin v. Bass, 327 N.C. 587, 590-91, 398 S.E.2d 460, 462 (1990) (emphasis in
original) (internal citation omitted).

Again, assuming that Plaintiff can show

sufficient evidence of the specific underlying torts committed by Phillip, we hold that
his argument nonetheless fails because he cannot show that the Campaign had notice
of Phillip’s prior acts.
In comparison to the February 2016 incident, Plaintiff references three
incidents in which Phillip used Roscoe in a reckless manner while on official business:
First, while working for the North Carolina Grand Old Party (“NCGOP”) in 2013,
Phillip angrily demanded a coworker get into his vehicle while brandishing Roscoe.

-8-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

Next, while working an event for the Campaign in 2015, Cory Bryson, a coworker,
witnessed Phillip unholster Roscoe, cock it, waive it around, and point it towards the
feet of Taylor Playforth, another coworker. Lastly, on another trip for the Campaign
in early 2016, Phillip unholstered Roscoe while sitting in a vehicle with Playforth.
Plaintiff states the Campaign was aware of each of these incidents, and that retaining
Phillip with such notice was negligent.
In support of Phillip’s history of erratic behavior, Plaintiff offers two affidavits
by officials who worked with or oversaw Phillip while he worked with the NCGOP.
However, there is no evidence that anyone within the Campaign knew or should have
known of the event that occurred while Phillip worked for the NCGOP. Evidence
suggests that an NCGOP official may have spoken with Jolly and/or Lewandowski,
but only insofar as letting them know that Phillip carried a gun – not that he had a
history of erratic behavior. See Bass, 327 N.C. at 592, 398 S.E.2d at 463 (stating that
summary judgment is proper where plaintiff fails to show notice of prior acts by the
employee similar to the wrongful conduct giving rise to his or her claim).
Further, Plaintiff claims that the Campaign had actual notice of the events
involving Bryson and Playforth because they were “managers.” Specifically, Plaintiff
states that Playforth had knowledge of the incidents against him, and Bryson
witnessed an incident, therefore individuals in managerial capacities had actual
knowledge of Phillip’s conduct. However, the rule is not simply that a manager has

-9-

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

actual knowledge, but that a manager who is “vested with the general conduct and
control of defendant’s business[]” has knowledge. Brown v. Burlington Indus., Inc.,
93 N.C. App. 431, 437, 378 S.E.2d 232, 236 (1989). Bryson and Playforth served as
“Directors” within the Campaign, but their positions did not hold the power and
responsibility contemplated in the definition of “manager.” Each reported to Jolly
and Lewandowski. In his deposition Jolly stated that, though he worked in the same
building as and spoke with Bryson and Playforth on many occasions, neither ever
mentioned Phillip’s erratic behavior.
Likewise, we cannot say that there was evidence to show that the Campaign
had constructive notice of Phillip’s potential behaviors. It is true that Lewandowski
admitted that, if Phillip’s behaviors were occurring, he “should have known if that
stuff was occurring.” But the evidence does not show that the incidents referenced
above were ever reported to Lewandowski or Jolly. Rather, Plaintiff contends that
Playforth, Bryson, and other employees of the Campaign never received proper
information and/or training regarding the Campaign’s weapons policy, which would
have instructed them to report the incidents. However, Plaintiff cites no authority,
and our research finds no authority, for the proposition that a lack of appropriate
training by an employer means that the employer should have known about an
otherwise reportable incident.

- 10 -

 BORDINI V. TRUMP FOR PRESIDENT
Opinion of the Court

We conclude that there was no issue of material fact as to whether the
Campaign had either actual or constructive notice of any events which would alert
them as to Phillip’s potential for erratic behavior with a firearm. Indeed, Plaintiff
himself admitted in a deposition that he “[didn’t] see why [the Campaign] would have
a reason[]” to know about Phillip’s behavior.
III. Conclusion
We hold that the forecast of evidence raised no issues of material fact with
respect to Plaintiff’s claims for the vicarious liability of and negligent retention by the
Campaign. Phillip was an independent contractor for the Campaign, working under
minimal direction, and his tortious conduct may not be transferred to the Campaign.
Further, the Campaign had neither actual nor constructive notice of Phillip’s past
erratic behavior with firearms, and therefore was not negligent in its retention of
Phillip. Therefore, we affirm Judge Ervin’s decision granting summary judgment to
the Campaign.
AFFIRMED.
Judges ELMORE and STROUD concur.
Judge Elmore concurred in this opinion prior to 31 December 2018.
Report per Rule 30(e).

- 11 -