McCraney v. Flanagan

267 S.E.2d 404 (1980)

Theresa McCRANEY v. Michael FLANAGAN and Red Springs Motors, Inc.

No. 7916SC1171.

Court of Appeals of North Carolina.

July 1, 1980.

*405 James R. Nance, Jr., Fayetteville, for plaintiff-appellant.

I. Murchison Biggs, Lumberton, for defendants-appellees.

ARNOLD, Judge.

Plaintiff argues that summary judgment was not appropriate in this case. We find, however, that no genuine issue of material fact exists, see G.S. 1A-1, Rule 56(c), and that summary judgment for defendant was proper.

It is undisputed that on the morning of 2 June 1977 the parties agreed to "go somewhere" together, and that they went in defendant's car to a dirt road in a field. Each of them had two drinks of Crown Royal mixed with Coca-Cola. Plaintiff testified on deposition that she took one swallow out of a third drink, and that after that she remembered nothing until she found herself back in town. A subsequent examination by a doctor showed evidence of sperm in plaintiff's vagina, a blood alcohol content of .08 per cent, and no evidence of drugs in her system. Defendant testified on deposition that after reaching the field the parties talked for a while, began kissing, and eventually had intercourse.

This evidence raises no issue of fact as to whether plaintiff was either assaulted or seduced, as she alleges. Plaintiff testified that she has no recollection that defendant ever kissed her, embraced her or had intercourse with her, and that she "had no reason to ask [him] not to touch me because he never tried." The tort of assault occurs when a person is put in apprehension of a harmful or offensive contact, Prosser, Handbook of the Law of Torts § 10 (4th ed. 1971), and there is no evidence here that plaintiff feared, or even knew, that such a contact might occur. She has no recollection at all of the events. "Since the interest involved is the mental one of apprehension of contact, it should follow that the plaintiff must be aware of the defendant's act at the time . . . ." Id. at 38-39.

With regard to the tort of seduction, the law is that "the mere proof of intercourse, and no more, is not sufficient to warrant recovery." Hutchins v. Day, 269 N.C. 607, 609, 153 S.E.2d 132, 133 (1967). Plaintiff needed to show "deception, enticement, or other artifice," id., 153 S.E.2d 134, and she did not do so. The evidence is that she went willingly with defendant to park in the field, willingly drank two alcoholic drinks, and later discovered she had had intercourse. There is no evidence that defendant enticed or deceived her in any way.

Affirmed.

ROBERT M. MARTIN and HILL, JJ., concur.