North Carolina II, LP v. Branch Banking & Trust Co. (Lawyers Weekly No. 12-16-1255, 7 pp.) (Cheri Beasley, J.) Appealed from Forsyth County Superior Court (Edgar B. Gregory, J.) N.C. App. Unpub.
Holding: Our adoption of Restatement (Second) of Torts § 876 – aiding and abetting tortious conduct – has been limited to situations in which the defendant incited another to tortious conduct. Here, the defendant-bank’s conduct was merely complicit with a contractor’s alleged slander of plaintiffs’ title. Our courts do not recognize the tort of aiding and abetting slander to title as it is alleged by plaintiffs.
We affirm the trial court’s order granting the bank’s motion to dismiss.
The bank is an assignee of a contractor. The contractor has liens against the plaintiff-developers’ property in Wake County. In the Wake County lien enforcement actions, the trial court would not allow the developers to amend their counterclaims against the contractor to include claims against the bank.
The developers filed this Forsyth County action against the bank, claiming that the bank continued the contractor’s slander to title against the developers or aided and abetted therein by continuing to pursue the Wake County action. The Forsyth County court granted the bank’s motion to dismiss for failure to state a claim.
Although plaintiffs cite Restatement (Second) of Torts § 876 in support of their argument that the bank is liable for aiding and abetting slander to title, we have only adopted Section 876 in limited circumstances: “This Court has stated that § 876 of the Restatement of Torts is adopted as it is applied to the negligence of joint tortfeasors.” This application has been included in cases involving multiple defendants involved in drag racing, Boykin v. Bennett, 253 N.C. 725, 118 S.E.2d 12 (1961), and multiple defendants who fired pellet guns where it was not possible to determine which shot caused the injury, McMillan v. Mahoney, 99 N.C. App. 448, 393 S.E.2d 298 (1990).
Conversely, in Hinson v. Jarvis, 190 N.C. App. 607, 660 S.E.2d 604 (2008), we found that a wife who rode as a passenger in the car with her husband who did not have a current license and was prone to strokes “was only complicit in her husband’s breach of ordinary care and did not ‘incite’ him to drive.”
We are bound by, and agree with, the precedent set by Hinson. The bank played no role in inciting any tortious action by the contractor. Any action by the bank occurred after the contractor’s alleged tort. The complaint outlines actions by the bank that are more closely aligned with complicit action than with incitement. We find no case law, and plaintiffs cite none, that adopts § 876 to apply in these circumstances.