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Holloway v. Wachovia Bank _ Trust Co

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					                      Holloway v. Wachovia Bank & Trust Co.

                         428 S.E.2d 453 (N.C. Ct. App. 1993)



Parties:
              Plaintiff – Hallie Holloway – Person who defaulted on car loan that
              was made by D.
              Defendant – Wachovia Bank & Trust Co – Company that employed
              Jean Dawson, person who tried to repossess car while P was in it.

Facts:
      P purchased a car that was financed by D. P defaulted on the car loan. Jean
Dawson, an employee of D, tried to repossess the car in the parking lot outside of a
laundromat. In the car was, P, P’s mother Sue, P’s 10 year old niece Swanzett and P’s
4 month old son Damien. Dawson brandished a gun while trying to repossess the car

Procedural Posture:
      Each P sought recovery for assault. Haliie and Damien Holloway also sought
recovery for battery arising from Dawson’s touching them while trying to take the
keys out of the ignition. Trial court dismissed assault claims for Hallie and Sue
Holloway because of statute of limitations. Trial court held in favor for D on Damien
Holloway’s battery claim and both Swanzett and Damien Holloway’s assault claims.
P appealed.

Issue:

       Whether the trial court was correct in dismissing Damien Holloway’s claim
for assault?
       Whether the trial court was correct in dismissing Damien Holloway’s claim
for battery?
       Whether the trial court was correct in dismissing Swanzette Holloway’s claim
for assault?

Holding:
      The court holds that the trial court was correct in dismissing Damien
Holloway’s assault claim. The court also holds that both Damien’s battery claim and
Swanzette’s assault claim are valid and remand for a new trial for these two claims.

Legal Reasoning:
Issue 1 – Legal Reasoning
        The assault claim for Damien Holloway was correctly dismissed because
Hallie testified that during the repossession of the car Damien was either asle ep or
too young to understand what was going on. Since Damien didn’t experience any
apprehension of injury, he doesn’t have a valid claim for assault

Issue 2 – Legal Reasoning

       While trying to take the car keys out of the ignition, Jean Dawson had her
elbow in the back of Damien Holloway. Since Dawson didn’t have any consent to
touch Damien, Damien’s claim for battery should have gone to the jury.

Issue 3 – Legal Reasoning (Swanzett’s assault claim)
       Even though Swanzett testified that the gun wasn’t directly pointed at her
but at Hallie and Damien, the court claims that Swanzett has a valid claim based on
the theory of transferred intent.

Transferred Intent:
       If an act is done with the intention of affecting a third person but puts
       another in apprehension of a harmful or offensive contact, the actor is
       subject to liability to such other as fully as though he intended so to affect
       him.

				
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posted:9/30/2010
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