An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

NO. COA13-1424

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

EHAB ABDELAZIZ

Plaintiff,

v. Mecklenburg County

No. 11 CVS 19947

MOHAMMED ASMAR, KHALID

AYOUB ALNABULSI, and SUMA, INC.,

d/b/a XPRESS 13, a dissolved NC

corporation,

Defendants.

Appeal by plaintiff from judgment entered 4 March 2013 by 

Judge Robert T. Sumner in Mecklenburg County Superior Court. 

Heard in the Court of Appeals 23 April 2014.

Wait Law, P.L.L.C., by John L. Wait, for plaintiff.

Caudle & Spears, P.A., by Christopher P. Raab and L. 

Cameron Caudle, Jr., for defendants.

ELMORE, Judge.

On 13 February 2013, a jury, in relevant part, found that 

1.) Mohammed Asmar (Asmar) committed an assault and battery 

against Ehab Abdelaziz (plaintiff), but 2.) Suma, Inc., through 

its owner, Khalid Ayoub Alnabulsi (defendant), did not ratify 

Asmar’s acts. The trial court ordered that plaintiff recover 
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from Asmar $140,000 for personal injury, $200,000 for punitive 

damages with an interest rate of eight percent per annum from 27 

October 2011 until paid in full, and $3,663.06 for court costs. 

The trial court dismissed with prejudice plaintiff’s claims 

against defendant and further ordered that plaintiff recover 

nothing from him. Plaintiff appeals. After careful 

consideration, we hold that the trial court did not err.

I. Facts

On 12 April 2010, Asmar attacked plaintiff at a gas station 

and convenience store located on Westinghouse Boulevard in 

Charlotte. The gas station and convenience store were leased 

and operated by Suma, Inc., whose sole shareholder and owner was 

defendant. Asmar was defendant’s employee, and plaintiff was an 

operations manager for the lessor, Sam’s Mart, Inc. (Sam’s Mart) 

at all times relevant to this appeal. On the day of the assault

and battery, plaintiff went to defendant’s store to conduct an 

on-site inspection pursuant to his role as an operations manager 

for Sam’s Mart. Initially, plaintiff and defendant discussed 

business matters and walked throughout the store. Plaintiff 

then noted that Asmar was not wearing a proper uniform, at which 

point Asmar approached plaintiff, exchanged some words, began 

swearing, and pushed him. All three men exited the store, Asmar 
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punched and kicked plaintiff, and plaintiff sustained a 

fractured left knee and torn ACL. Once the altercation 

concluded, plaintiff terminated Asmar “[o]n the spot outside the 

store” and told him to leave the premises immediately.

On 27 October 2011, plaintiff filed a complaint that 

alleged the following: 1.) assault and battery against both 

Asmar and defendant; 2.) intentional infliction of mental 

distress against Asmar; and 3.) negligent hiring and supervision 

against defendant. Before trial, plaintiff submitted proposed 

written jury instructions to the trial court, which, in relevant 

part, stated: 

A principal will be liable for an agent’s 

intentional wrongful acts under the doctrine 

of respondeat superior when, by a 

preponderance of the evidence, plaintiff 

proves that the agent’s act(s)[.] . . . is 

ratified by the principal. . . . (b) 

Ratification is the affirmance by a person 

of a prior act which did not bind him but 

which was done or professedly done on his 

account, whereby the act, as to some or all 

persons, is given effect as if originally

authorized by him. 

(c) To establish ratification of an 

otherwise unauthorized act, the plaintiff 

must show that the principal had knowledge 

of all material facts and circumstances 

relative to the wrongful act, and that the 

principal, by words or conduct, showed an 

intention to ratify the act. 

(d) A jury may find ratification from any 
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course of conduct on the part of the 

principal which reasonably tends to show an 

intention on his part to ratify the agent’s 

unauthorized acts; such course of conduct 

may involve an omission to act.

(emphasis added). During the charge conference, plaintiff 

requested the trial court to adopt his proposed instructions 

that included the emphasized ratification-by-omission 

instruction above. The trial court denied plaintiff’s request

and did not include the ratification-by-omission language in its 

instructions to the jury.

II. Analysis

This Court first notes that it dismisses plaintiff’s appeal 

for his failure to give timely notice of appeal in accordance 

with N.C. Appellate Procedure Rule 3(c). Nevertheless, after 

determining that the lost appeal was no fault of defendant’s but 

an error by his attorney, we grant defendant’s petition for writ 

of certiorari and address the merits of his appeal pursuant to 

N.C. Appellate Procedure Rule 21. See N.C.R. App. P. 21

(stating that “writ of certiorari may be issued in appropriate 

circumstances by either appellate court to permit review of the 

judgments and orders of trial tribunals when the right to 

prosecute an appeal has been lost by failure to take timely 

action”). 
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On appeal, plaintiff argues that the trial court erred by 

refusing to provide the jury with the ratification-by-omission 

instruction. Specifically, plaintiff avers that the trial court 

should have instructed the jury that defendant could be liable 

for Asmar’s assault and battery through defendant’s omission to 

act during the altercation. We disagree. 

We review the sufficiency of jury instructions under a de 

novo standard of review. State v. Osorio, 196 N.C. App. 458, 

466, 675 S.E.2d 144, 149 (2009). 

[W]hen a request is made for a specific 

instruction, correct in itself and supported 

by evidence, the trial court, while not 

obliged to adopt the precise language of the 

prayer, is nevertheless required to give the 

instruction, in substance at least, and 

unless this is done, either in direct 

response to the prayer or otherwise in some 

portion of the charge, the failure will 

constitute reversible error.

Erie Ins. Exch. v. Bledsoe, 141 N.C. App. 331, 335, 540 S.E.2d 

57, 60 (2000) (quoting Calhoun v. State Highway & Pub. Works 

Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935)), disc. review 

denied, 353 N.C. 371, 547 S.E.2d 442 (2001). Furthermore, 

[w]hen reviewing the refusal of a trial 

court to give certain instructions requested 

by a party to the jury, this Court must 

decide whether the evidence presented at 

trial was sufficient to support a reasonable 

inference by the jury of the elements of the 

claim. If the instruction is supported by 
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such evidence, the trial court’s failure to 

give the instruction is reversible error.

Ellison v. Gambill Oil Co., 186 N.C. App. 167, 169, 650 S.E.2d 

819, 821 (2007) (citations omitted), aff’d per curiam and disc. 

review improvidently allowed, 363 N.C. 364, 677 S.E.2d 452 

(2009). In sum, “[a] specific jury instruction should be given 

when ‘(1) the requested instruction was a correct statement of 

law and (2) was supported by the evidence, and that (3) the 

instruction given, considered in its entirety, failed to 

encompass the substance of the law requested and (4) such 

failure likely misled the jury.’” Outlaw v. Johnson, 190 N.C. 

App. 233, 243, 660 S.E.2d 550, 559 (2008) (quoting Liborio v. 

King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274, disc. review 

denied, 356 N.C. 304, 570 S.E.2d 726 (2002)).

Generally, an individual owes no duty to another “to 

anticipate that a crime will be committed . . . and to act upon 

that belief.” O’Connor v. Corbett Lumber Corp., 84 N.C. App. 

178, 182, 352 S.E.2d 267, 270 (1987) (citation and quotation 

omitted). However, “an employer may be held liable for the 

criminal act of his employee if the act was . . . ratified after 

its commission[.]” Id. (citation omitted). Ratification is 

“the affirmance by a person of a prior act which did not bind 
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him but which was done or professedly done on his account[.]” 

Guthrie v. Conroy, 152 N.C. App. 15, 27, 567 S.E.2d 403, 411-12 

(2002) (citation and quotation omitted) (emphasis added). A 

jury can find ratification based on “any course of conduct on 

the part of the principal which reasonably tends to show an 

intention on his part to ratify the agent’s unauthorized acts, 

and such course of conduct may involve an omission to act.” Id.

at 27, 567 S.E.2d at 412 (citations and quotations omitted). 

Our courts have recognized that an employer can be held 

liable for his failure to act during an assault. In Wegner v. 

Delly-Land Delicatessen, Inc., the plaintiff went to the 

defendant’s restaurant and was assaulted by defendant’s 

employee, a bus boy. 270 N.C. 62, 64, 153 S.E.2d 804, 806 

(1967). Evidence showed that moments before the assault 

occurred, another employee of the defendant attempted to 

separate the bus boy from the plaintiff. Id. In holding that 

the defendant was not liable for the plaintiff’s injuries, our 

Supreme Court noted that the plaintiff failed to show that “any 

officer or other employee of the defendant failed to act 

promptly to restrain [the bus boy] when the difficulty arose” or 

“any act or omission by the defendant, itself, which would 
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constitute a breach of its duty to its invitee.” Id. at 66, 153 

S.E.2d at 807. 

Similarly, in Wallace v. M, M & R, Inc., the defendantemployer was found liable for injuries to the plaintiff 

inflicted by employee-bouncers when he “failed to intervene in 

the beating of [the] plaintiff. He did not ask the bouncers to 

stop or attempt to break up the attack on [the] plaintiff in any 

way.” 165 N.C. App. 827, 834, 600 S.E.2d 514, 518 (2004). 

Plaintiff contends that a ratification-by-omissioninstruction should have been given because defendant “fail[ed] 

to intervene when Mr. Asmar assaulted and battered [him][.]” 

Plaintiff’s argument is without merit. 

A review of the surveillance video shows that when 

plaintiff and Asmar (the men) began to converse, defendant stood 

next to them and monitored the situation. Defendant then 

attended to a customer quickly, but as the exchange between the 

men escalated, defendant walked towards them and motioned with 

his left arm to move the men away from customers. When the men 

started pushing each other inside the store, defendant moved in 

between them in an attempt to stop the altercation. Despite 

defendant’s efforts, the altercation commenced in the store and 

continued outside. Defendant followed the men outside despite 
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having customers waiting inside the store. As Asmar punched and 

kicked plaintiff, defendant, once again, placed himself in 

between the men and moved plaintiff away from Asmar, at which 

point the altercation ended. After the violent acts ended, 

defendant immediately fired Asmar and told him to “leave right 

now. . . . Don’t come here anymore.” Thus, the evidence at 

trial was devoid of any indication that defendant failed to act 

during the altercation. Conversely, he put himself at risk of 

physical harm during his multiple attempts to defuse the 

situation. Accordingly, the trial court did not err by refusing 

plaintiff’s ratification-by-omission instruction. 

III. Conclusion

In sum, the trial court did not err by refusing to provide 

the jury with a ratification-by-omission instruction because no 

evidence at trial supported such an instruction. 

No error. 

Judges McCULLOUGH and DAVIS concur.

Report per Rule 30(e).