DONALD EARL WHITAKER and THOMAS LEE WHITAKER, JR., Co-
Administrators of the Estate of CARLTON WHITAKER, Deceased,
Plaintiffs,
v.
TOWN OF SCOTLAND NECK, C.T. HASTY, Individually and in his
official capacity as Safety Director for the Town of Scotland
Neck, and DOUGLAS BRADDY, Individually and in his official
capacity as Public Works Superintendent for the Town of Scotland
Neck,
Defendants.
Joynes & Gaidies Law Group, P.A., by Frank D. Lawrence, III,
for plaintiff-appellants.
Cranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan and
Donna R. Rascoe, for defendant-appellees.
EAGLES, Chief Judge.
Donald and Thomas Whitaker (“plaintiffs”) appeal from summary
judgment in favor of the Town of Scotland Neck (“defendant”).
Plaintiffs are co-administrators of the estate of Carlton Whitaker
(“decedent”). Charles Hasty, the town's Safety Director, and
Douglas Braddy, the town's Public Works Superintendent, were also
named as defendants. On appeal, plaintiffs assert one assignment
of error: that the trial court erred in granting defendant's motion
for summary judgment. After careful review of the record, briefs,and arguments by counsel, we agree and reverse and remand for
further proceedings.
The evidence tends to show the following. Carlton Whitaker
was employed by defendant Town of Scotland Neck before his death.
On 30 July 1997, decedent was assigned to a crew operating Scotland
Neck's garbage truck Number 84. The other men on the crew were
Danny Wood and Fred Shields. The truck's route included the
dumpster at Hobgood Academy. Mr. Wood, who was driving Truck
Number 84, used the mechanical arms of the truck to pick up the
Academy's dumpster. While the dumpster was in the air being
emptied into the back of the truck, it came partially detached from
the truck's mechanical arms. The dumpster swung loose and pinned
decedent against the side of the garbage truck. Decedent died from
the resulting crush injury to his chest twenty-eight days later.
Defendant's Safety Director Hasty investigated the accident on
the date it occurred. His report confirmed that the dumpster
became loose while it was being lifted in the air because of a
defective latching device on Truck Number 84. Several town
employees also stated that the dumpster at Hobgood Academy
previously had fallen to the side of a garbage truck in a similar
fashion while being emptied approximately three weeks before the
accident on 30 July 1997. According to several employees, the
earlier incident had been reported to Public Works Superintendent
Braddy, but he did not take action to fix the truck or the dumpster
until after decedent's accident. Woods and Shields testified in
depositions that they told Braddy the dumpster at Hobgood Academywas unsafe and that Truck Number 84 had a broken locking latch.
Shields estimated that the latch had been broken for two to three
months. Another town employee, Linwood Clark, stated the latch had
been broken for six months. Braddy denied having knowledge of the
earlier accident and denied knowledge of any defect in the truck or
dumpster involved in decedent's death.
The North Carolina Department of Labor's Division of
Occupational Safety and Health (“OSHA”) performed an investigation
of the accident, which began on 15 August 1997. OSHA found five
“serious” violations by the Town of Scotland Neck stemming from the
accident on 30 July 1997. These violations included citations for
failure to train employees in a safe manner of operating the
garbage truck equipment, failure to supervise employees in the
operation of the equipment, failure to set up a program ensuring
inspection of the equipment, operating unsafe equipment and
operating equipment in an unsafe manner. The OSHA report stated
that “defective equipment was the proximate cause of the accident”
and “the accident . . . was a result of employment conditions that
were not in compliance with the safety standards of OSHA.” The
report found that “with reasonable diligence and routine inspection
employer could and should have known” of the broken latch on Truck
Number 84. Defendant town was assigned a penalty of $10,500 as a
result of the violations found in the OSHA report.
Plaintiffs filed a claim in superior court on behalf of
decedent's estate alleging gross negligence and wanton misconduct
and seeking compensatory and punitive damages. Defendant respondedthat plaintiffs' claim was barred by the North Carolina Workers'
Compensation Act and that recovery under the Act was plaintiffs'
exclusive remedy against defendant. Defendant's first motion to
dismiss was denied by an order entered 26 April 2001. Defendant
did not respond to plaintiffs' request for admissions that were
filed on 25 June 2001. Defendant renewed its motion for summary
judgment, which was granted by order on 15 August 2001. From that
order, plaintiffs appeal.
On appeal, plaintiffs argue that the trial court erred in
granting defendant's motion for summary judgment. Plaintiffs argue
that decedent's accident fits within an exception to the North
Carolina Workers' Compensation Act. Because a genuine issue of
material fact exists regarding whether defendant's actions were
“substantially certain” to cause decedent's death, we agree that
summary judgment was not proper.
The North Carolina Workers' Compensation Act is the sole
remedy in most cases for employees who suffer from employment-
related diseases and injuries. G.S. § 97-1 et seq. (2001). The
Workers' Compensation Act was created to “provide certain limited
benefits to an injured employee regardless of negligence on the
part of the employer, and simultaneously to deprive the employee of
certain rights he had at the common law.” Brown v. Motor Inns, 47
N.C. App. 115, 118, 266 S.E.2d 848, 849, disc. review denied 301
N.C. 86, 273 S.E.2d 300 (1980).
In 1991, the North Carolina Supreme Court created an exception
to the general rule that the Workers' Compensation Act was the soleremedy for injured employees. The exception outlined in Woodson v.
Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), addresses intentional
misconduct by employers:
We hold that when an employer intentionally
engages in misconduct knowing it is
substantially certain to cause serious injury
or death to employees and an employee is
injured or killed by that misconduct, that
employee, or the personal representative of
the estate in case of death, may pursue a
civil action against the employer. Such
misconduct is tantamount to an intentional
tort, and civil actions based thereon are not
barred by the exclusivity provisions of the
Act. Because, as also discussed in a
subsequent portion of this opinion, the injury
or death caused by such misconduct is
nonetheless the result of an accident under
the Act, workers' compensation claims may also
be pursued. There may, however, only be one
recovery.
Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228
(1991). According to Woodson, if employers committed the
equivalent of an intentional tort, employees would be allowed to
step outside the bounds of the Workers' Compensation Act and sue
employers for their injuries. Woodson v. Rowland, 329 N.C. 330,
341, 407 S.E.2d 222, 228-29 (1991).
Since creation of the Woodson exception, a number of employees
have asked courts to apply the exception to allow their claims
outside of the Workers' Compensation Act. Before this case, no
claim has been brought successfully under the Woodson exception.
In an attempt to clarify when the Woodson exception should be
applied, this Court listed the factors to be used when determining
whether an employer engaged in misconduct with substantial
certainty of causing his employee harm. See Wiggins v. Pelikan,Inc., 132 N.C. App. 752, 513 S.E.2d 829 (1999). The Wiggins case
analyzed the cases following Woodson and created a list of six
factors to use when defining substantial certainty:
(1) Whether the risk that caused the harm
existed for a long period of time without
causing injury. . . .
(2) Whether the risk was created by a
defective instrumentality with a high
probability of causing the harm at issue. . .
.
(3) Whether there was evidence the
employer, prior to the accident, attempted to
remedy the risk that caused the harm. . . .
(4) Whether the employer's conduct which
created the risk violated state or federal
work safety regulations.
. . . .
(5) Whether the defendant-employer
created a risk by failing to adhere to an
industry practice, even though there was no
violation of a state or federal safety
regulation.
(6) Whether the defendant-employer
offered training in the safe behavior
appropriate in the context of the risk causing
the harm.
Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 756-58, 513 S.E.2d
829, 832-33 (1999) (citations omitted). Here, plaintiffs presented
evidence of the existence of five out of these six factors by using
several depositions. Defendant responded by denying plaintiffs'
evidence and asking the court to measure plaintiffs' evidence
against similar post-Woodson claims. The trial court then granted
defendant's motion for summary judgment. A motion for summary judgment should only be granted if “there
is no genuine issue as to any material fact” and “any party is
entitled to judgment as a matter of law.” G.S. § 1A-1, Rule 56
(2001). Summary judgment should be used to “eliminate the
necessity of a formal trial where only questions of law are
involved and a fatal weakness in the claim . . . is exposed.” Hall
v. Post, 85 N.C. App. 610, 613, 355 S.E.2d 819, 822 (1987), rev'd
on other grounds, 323 N.C. 259, 372 S.E.2d 711 (1988)(quoting
Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 642, 281
S.E.2d 36, 40 (1981)). “Summary judgment is a drastic remedy and
should be exercised with caution.” Southern Watch Supply v. Regal
Chrysler-Plymouth, 69 N.C. App. 164, 165, 316 S.E.2d 318, 319,
disc. review denied, 312 N.C. 496, 322 S.E.2d 560 (1984), appeal
after remand, 82 N.C. App. 21, 345 S.E.2d 453 (1986). In a case
where “there is any question that can be resolved only by the
weight of the evidence, summary judgment should be denied.” In re
Will of McCauley, 356 N.C. 91, 101, 565 S.E.2d 88, 95 (2002)
(citing Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251
S.E.2d 419, 422 (1979)).
Summary judgment was improper here because this case involves
a question that can be resolved only by weighing the evidence
presented. Plaintiffs presented some evidence regarding defendant
employer's acting with “substantial certainty” of causing
plaintiff's decedent serious bodily injury, by offering proof of
the existence of most of the Wiggins factors. Plaintiffs'
affidavits and pleadings tended to show that the risk that caused decedent's death had existed for a relatively short but significant
amount of time. Conflicting deposition testimony places the defect
in existence at least three weeks before decedent's accident and
possibly as long as six months before the accident. Plaintiffs'
evidence showed that the defective instrumentality, in this case
equipment on Truck Number 84, created a risk with a high
probability of injuring a town employee in the same manner that
decedent was injured. The third factor of the Wiggins test was
satisfied by plaintiffs' claim that the Town's Public Works
Superintendent Braddy knew of the defect and did not attempt to
repair the defective Truck Number 84 in order to prevent injury.
Also, plaintiffs' evidence demonstrated that the employer's conduct
created the risk. The conduct creating the risk violated state and
federal workplace safety regulations and failed to adhere to
industry safety standards. Plaintiffs cite five serious violations
by defendant according to the OSHA report in addition to violations
of standards contained within the Accident Prevention Manual, which
is produced by the National Safety Council.
Evidence presented by defendant contradicted most of
plaintiffs' proffered evidence. Defendant argued that there had
been no similar accidents before the one that killed decedent, that
Braddy had no knowledge of the defective truck and did not refuse
to fix it, and that the OSHA citations were correctly denominated
as “serious” violations instead of “willful” violations.
The parties here have essentially disagreed on several issues
of material fact, most importantly, whether defendant employer,through its Public Works Superintendent Braddy, knew of the
defective condition of Truck Number 84 before decedent was killed
on the job. Even were we to find that all the factual matters were
resolved, in a case where a balancing of factors is necessary,
summary judgment is inappropriate. The question of whether
defendant acted with substantial certainty that its actions would
cause decedent's death must be resolved by weighing the facts
presented to the court. Accordingly, we conclude that the trial
court erred by granting defendant Town's motion for summary
judgment. Because we find error and reverse the trial court's
decision, we do not determine whether defendants Hasty and Braddy
may be sued in their individual capacities. Hasty and Braddy's
liability as individuals depends upon a factual finding by the
trial court that they are public employees who are not entitled to
governmental immunity for their actions. We reverse and remand to
the trial court for further proceedings consistent with this
opinion.
Reversed and remanded.
Judges TYSON and THOMAS concur.
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