Parking attendant wins reversal in suit against Duke, cop

Sep. 17, 2013 @ 08:14 PM

The N.C. Court of Appeals has ruled that that a parking lot attendant can go forward with his lawsuit against Duke University and one of its police officers.

Brian Wilkerson, who worked at a gated parking lot at Duke University Hospital, appealed a decision by Durham County Superior Court Judge Orlando Hudson after Hudson dismissed Wilkerson's lawsuit.

Wilkerson filed the lawsuit on June 6, 2011, against Duke University and police officer Christopher Day. Wilkerson claimed he was falsely imprisoned, assaulted and battered by Day during an encounter at a valet parking area at the hospital.

Wilkerson was working as an attendant at the lot and had been instructed to allow Duke University police officers entry into the gated lot for emergencie. But he was instructed to inform police officers, if it was not an emergency, to park along the traffic circle outside the lot.

On July 15, 2008, Day drove to the lot to help someone who had locked keys inside a vehicle. Wilkerson "refused to open the gate to the lot, resulting in a physical confrontation with Day," the ruling stated. "Day issued a notice of trespass to [Wilkerson], which forbade him to go upon any Duke University property. This resulted in [Wilkerson] losing his job as a parking attendant."

Wilkerson filed a lawsuit claiming false imprisonment, assault, battery, public stigmatization, negligence, negligent supervision and retention and negligent and intentional infliction of emotional distress. He sought compensatory and punitive damages.

Duke and Day filed a motion for summary judgment, and Hudson heard the case on Sept. 10, 2012, in Durham County Civil Superior Court. Hudson granted Duke's and Day's motion, dismissing all of Wilkerson's claims.

Wilkerson appealed, and the Court of Appeals first considered his claims against Day. In his deposition, Wilkerson claimed he was walking back to the parking booth when Day pointed his finger in his face and asked for his information.

According to Wilkerson, Day grabbed him by the arms.

Day said he put his hand on Wilkerson's chest to stop him from going around him and told Wilkerson he needed his ID. Day said he "basically locked arms" as Wilkerson kept trying to go around him.

"He told me to get my hands off of him," Day said. "At that point, his hands somehow grasped hold of, I guess, my pockets, and what I had in my pockets ... came flying out and went all over the ground."

Wilkerson claimed Day falsely imprisoned him with his hands by physically detaining and controlling him.

Duke and Day claimed any restraining of Wilkerson was lawful because Day was conducting an investigatory stop.

The Court, however, said Duke and Day did not point to any facts that showed Day had reasonable suspicions that Wilkerson was involved in criminal activity.

Based on that, the Court of Appeals reversed Hudson's dismissal of the false imprisonment claim. It also  reversed Hudson's dismissal of Wilkerson's claim that Day assaulted and battered him meaning. Wilkerson can go forward with those parts of the lawsuit against Duke and Day.

The appeals court did not reverse Hudson's dismissal of Wilkerson's claims of emotional distress, ruling Wilkerson offered no evidence of that.

The Court reversed Hudson's dismissal of Wilkerson's claims against Duke of false imprisonment, assault and battery, meaning he can go forward on those.

Wilkerson claimed Duke negligently supervised and retained Day as a police officer, saying his supervisors "knew or had reason to know of his incompetency." His performance reviews spoke of his need to keep his personal complaints and opinions to himself, although they also said he did not abuse his authority as a police officer.

The Court of Appeals said there are issues as to what his supervisors knew about Day, and it reversed Hudson's order dismissing that part of the claim.

Durham attorney Robert Ekstrand filed the appeal for Wilkerson. He could not be reached for comment Tuesday.

Court of Appeals Judge Sanford Steelman Jr. wrote the decision for the Court of Appeals and Judges Linda McGee and Sam Ervin concurred.