1. Workers' Compensation_statutes of limitation--Woodson and
The trial court erred by dismissing Woodson and Pleasant toxic
mold claims under one-year statutes of limitation. Both are
subject to three-year statutes of limitation.
2. Workers' Compensation_toxic mold_co-employee liability--
Pleasant exception_allegations sufficient
Plaintiff's allegations that a co-employee responsible for
building maintenance ignored toxic mold were sufficient to
establish a Pleasant claim for co-employee liability, and the court
should not have granted a 12(b)(6) dismissal of the Pleasant claim
or related consortium and punitive damages claims.
3. Workers' Compensation_toxic mold_Woodson claim_allegations
Allegations about toxic mold in a workplace were not
sufficient to state a Woodson claim. Plaintiff's illness is not
relevant to an inquiry about defendant's knowledge prior to that
injury, and the allegations in the complaint do not set out the
types of symptoms, maladies, and illnesses that co-employees
supposedly complained of to defendants.
4. Landlord and Tenant_premises liability_toxic mold_corporate
lessee and lessor
The trial court erred by dismissing a premises liability claim
against defendant landlord based on toxic mold for failure to state
a claim where the landlord was a related but separate entity from
plaintiff's employer which leased the premises, and the ownership
allegations thus contained no insurmountable bar under workers'
compensation exclusivity provisions or landlord-tenant law.
5. Damages_punitive_dismissal of underlying claim
The trial court erred by dismissing a punitive damages claim
where it also erred by dismissing the underlying claims.
Appeal by plaintiffs from order entered 19 August 2002 by
Judge Narley L. Cashwell in Superior Court, Wake County. Heard in
the Court of Appeals 12 June 2003.
Hunton & Williams, by Steven B. Epstein, for plaintiffs-
Cranfill, Sumner & Hartzog, L.L.P., by Gloria Taft Becker, for
Tommy Davis Nathan Cameron (Mr. Cameron) and his wife Lisa
Cameron (Ms. Cameron) (collectively plaintiffs) filed a complaint
on 2 November 2001 alleging that they suffered injury from a toxic
workplace maintained by Merisel, Inc. (Merisel), Merisel
Properties, Inc. (Merisel Properties), Merisel Americas, Inc.
(Merisel Americas), and Brian Goldsworthy (Goldsworthy)
(collectively defendants). Specifically, plaintiffs alleged that
defendants knew that the workplace at which Mr. Cameron was
employed was contaminated with toxic molds. The complaint further
alleged that defendants knew that several of Mr. Cameron's co-
employees had suffered serious illnesses from toxic molds, but that
defendants failed to warn Mr. Cameron and other employees of the
molds or the dangers associated with the molds. Plaintiffs also
alleged that despite defendants' knowledge of the molds, defendants
failed to address the problem at the workplace premises.
Plaintiffs alleged that due to defendants' failure to warn or to
take action to correct the mold problem, Mr. Cameron sustained
debilitating, irreversible, and disabling injuries.
Plaintiffs alleged in their complaint that Mr. Cameron was
employed by Merisel Americas on 1 December 1998 at the company's
remote customer call center located in Cary, North Carolina (Cary
call center), which was operated by Merisel and Merisel Americas. Merisel or Merisel Americas had leased the entire building from its
owner and had used the building for a remote customer call center
since at least 1996. Goldsworthy was hired by Merisel or Merisel
Americas as director of security for the Cary call center around
1996. Goldsworthy's responsibilities included the maintenance and
upkeep of the workplace at the Cary call center.
Plaintiffs alleged that between 1996 and 1 December 1998
Merisel, Merisel Americas, and Goldsworthy became aware of the
existence of toxic molds in the workplace but took no action to
remove the molds. Merisel Properties purchased the Cary call
center building from its owner on 7 December 1998 and was aware of
the existence of the toxic molds at that time. Defendants took no
action to remove or alleviate the toxic molds in the Cary call
center between 1 December 1998 and 31 December 1999, and in fact
knowingly concealed their existence from the employees and
occupants of the Cary call center.
Plaintiffs alleged that between 1996 and December 1999,
numerous employees and occupants at the Cary call center complained
to defendants about a variety of symptoms, maladies, and serious
illnesses which defendants knew resulted from the complainants'
exposure to the toxic molds. Soon after Mr. Cameron began working
at the Cary call center he experienced dizziness. This dizziness
eventually became chronic and resulted in nausea, blackouts, and
falling spells. By the end of 1999, Mr. Cameron had been diagnosed
with complete loss of the balance function of both inner ears and
significant damage to the vestibular end organs of both ears.
Throughout Mr. Cameron's employment at the Cary call center,defendants repeatedly assured him that the workplace and premises
were safe and free from toxic molds. Based on these assurances,
Mr. Cameron continued to work at the Cary call center through April
2000, until he was diagnosed as being completely disabled and was
ordered by his doctors not to return to the Cary call center.
Based on these allegations, plaintiffs asserted the following
claims: (1) under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222
(1991), against Merisel and Merisel Americas for intentionally
exposing Mr. Cameron to toxic workplace conditions which they knew
were substantially certain to cause severe bodily injury or death;
(2) under Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244
(1985), against Goldsworthy for his willful, wanton, and gross
disregard for the safety of his fellow employees by failing to
maintain the Cary call center in a safe condition which resulted in
the development of an unsafe and toxic environment; (3) for
negligence against Merisel Properties for its failure to maintain
its premises in a reasonably safe condition and allowing defects to
exist; and (4) for punitive damages against all defendants. Ms.
Cameron also filed a loss of consortium claim against all
Defendants filed a motion to dismiss dated 21 February 2002,
pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1) and 12(b)(6).
Defendants argued that the complaint failed to state a claim under
any exception to the exclusivity provisions of the Workers'
Compensation Act and the trial court therefore had no jurisdiction
to hear plaintiffs' claims. Defendants argued that "because the
allegations [did] not amount to willful, wanton and recklessconduct, [resulting in] a constructive intent to injure [Mr.
Cameron]," the complaint failed to state a claim against
Goldsworthy under the exception created in Pleasant. Further,
defendants argued that the complaint failed to state a claim under
Woodson, "because the allegations [were] insufficient to show any
willful, wanton, reckless or intentional conduct by defendants that
[was] substantially certain to cause serious injury or death."
The trial court entered an order on 19 August 2002 dismissing
plaintiffs' claims pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(6) for failure to state a claim upon which relief could be
granted and because the claims were barred by the applicable
statute of limitations. Plaintiffs appeal.
 We first note the trial court erred in dismissing
plaintiffs' claims based on a one-year statute of limitations.
Court determined that a Woodson
claim is governed by the statute of
limitations for intentional torts, N.C. Gen. Stat. § 1-54(3).
Alford v. Catalytica Pharms., Inc.
, 150 N.C. App. 489, 491-92, 564
S.E.2d 267, 269 (2002) (Thomas, J., dissenting). However, our
Supreme Court reversed that decision per curiam
, and adopted Judge
Thomas' dissent that stated the catch-all three-year statute of
limitations, N.C. Gen. Stat. § 1-52(5), applied to Woodson
Alford v. Catalytica Pharms, Inc.
, 356 N.C. 654, 577 S.E.2d 293
Applying a three-year statute of limitations, plaintiffs'
claim is not time barred.
We also hold that plaintiffs' Pleasant
claim is not barred by
the statute of limitations. A claim brought pursuant to Pleasant
is a common law action for willful negligence, and thus subject to
the three-year statute of limitations in N.C. Gen. Stat. § 1-52
, 312 N.C. 710, 325 S.E.2d 244; see also
Pendergrass v. Card Care, Inc.
, 333 N.C. 233, 424 S.E.2d 391
The purpose of the Workers' Compensation Act is 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
exchange for these 'limited but assured benefits,' the employee is
generally barred from suing the employer for potentially larger
damages in civil negligence actions and is instead limited
exclusively to those remedies set forth in the Act." Whitaker v.
Town of Scotland Neck
357 N.C. 552, 556, 597 S.E.2d 665, 667
(2003) (quoting Pleasant v. Johnson
, 312 N.C. 710, 712, 325 S.E.2d
244, 246-47 (1985)). However, there are limited exceptions to this
general rule of exclusivity.
Our Supreme Court recognized an exception in Pleasant
the "Workers' Compensation Act does not insulate a co-employee from
the effects of his willful, wanton and reckless negligence."
312 N.C. at 717, 325 S.E.2d at 250.
The Court explained
[c]onstructive intent to injure exists where
conduct threatens the safety of others and isso reckless or manifestly indifferent to the
consequences that a finding of willfulness and
wantonness equivalent in spirit to actual
intent is justified. Wanton and reckless
negligence gives rise to constructive intent.
at 715, 325 S.E.2d at 248 (citation omitted).
A complaint must be dismissed pursuant to a motion under
N.C.G.S. § 1A-1, Rule 12(b)(6)
when one or more of the following three
conditions is satisfied: (1) when on its face
the complaint reveals no law supports
plaintiff's claim; (2) when on its face the
complaint reveals the absence of fact
sufficient to make a good claim; and (3) when
some fact disclosed in the complaint
necessarily defeats plaintiff's claim.
Johnson v. Bollinger
, 86 N.C. App. 1, 4, 356 S.E.2d 378, 380
(1987). "Thus, a complaint is sufficient 'where no "insurmountable
bar" to recovery appears on the face of the complaint and the
complaint's allegations give adequate notice of the nature and
extent of the claim.'" Pastva v. Naegele Outdoor Advertising
N.C. App. 656, 659, 468 S.E.2d 491, 493, disc. review denied
N.C. 308, 471 S.E.2d 74 (1996) (quoting Johnson
, 86 N.C. App. at 4,
356 S.E.2d at 380, (quoting Presnell v. Pell
, 298 N.C. 715, 719,
260 S.E.2d 611, 613 (1979)). "Notice of the nature and extent of
the claim is adequate if the complaint contains 'sufficient
information to outline the elements of [the] claim or to permit
inferences to be drawn that these elements exist.'" Pastva
N.C. App. at 659, 468 S.E.2d at 493 (citations omitted).
In the present case, the allegations in the complaint are
sufficient under this standard to support Mr. Cameron's claim for
co-employee liability under Pleasant
. The complaint sufficiently
alleges Mr. Cameron's co-employee, Goldsworthy, engaged in "conduct[that] threaten[ed] the safety of others and [was] so reckless or
manifestly indifferent to the consequences that a finding of
willfulness and wantonness equivalent in spirit to actual intent is
, 312 N.C.
at 715, 325 S.E.2d at 248. While
Mr. Cameron must present evidence of these allegations at trial, we
find the allegations in the complaint are sufficient to overcome a
motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) as to
Mr. Cameron's Pleasant
 Another exception to the exclusivity rule in workers'
compensation cases arose in Woodson
, 329 N.C. 330, 407 S.E.2d 222,
where the Supreme Court stated:
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
, 329 N.C. at 340-41, 407 S.E.2d at 228. Thus, when an
employer commits an action "tantamount to an intentional tort,"
employees' suits against their employer "are not barred by the
exclusivity provisions of the [Workers' Compensation] Act." Id.
341, 407 S.E.2d at 228. This is a stricter standard than that
announced in Pleasant
for co-employee liability. Pendergrass
333N.C. at 240, 424 S.E.2d at 395.
"The elements of a Woodson
claim are: (1) misconduct by the
employer; (2) intentionally engaged in; (3) with the knowledge that
the misconduct is substantially certain to cause serious injury or
death to an employee; and (4) that employee is injured as a
consequence of the misconduct." Pastva
, 121 N.C. App. at 659, 468
S.E.2d at 494.
As previously discussed, a plaintiff has sufficiently met his
burden to overcome a motion to dismiss under N.C.G.S. § 1A-1, Rule
12(b)(6) "'where no "insurmountable bar" to recovery appears on the
face of the complaint and the complaint's allegations give adequate
notice of the nature and extent of the claim.'" Pastva
, 121 N.C.
App. at 659, 468 S.E.2d at 493 (quoting Johnson
, 86 N.C. App. at 4,
356 S.E.2d at 380) "Notice of the nature and extent of the claim
is adequate if the complaint contains 'sufficient information to
outline the elements of [the] claim or to permit inferences to be
drawn that these elements exist.'" Pastva
, 121 N.C. App. at 659,
468 S.E.2d at 493 (citations omitted).
Defendants contend that the complaint does not sufficiently
allege knowledge by defendants of a substantial certainty of
serious injury. In Wiggins v. Pelikan, Inc.
, 132 N.C. App. 752,
513 S.E.2d 829 (1999) (citations omitted), our Court set forth
multiple factors to be considered in determining substantial
certainty of serious injury .
However, in Whitaker
, our Supreme
Court stated "we explicitly reject the Wiggins
test and rely solely
on the standard originally set out by this Court in Woodson v.
, 357 N.C. at 556, 597 S.E.2d at 667. Our Courts have focused on the "substantial certainty" aspect
of the inquiry
, not the "serious injury" aspect of the inquiry.
See Keith v. U.S. Airways
, 994 F. Supp. 692, 696 (M.D.N.C.
1998). As discussed in Keith
, our Courts have not defined the
meaning of "serious injury" under Woodson
. Black's Law
1371 (7th ed. 1999) defines "serious" as it relates to
injury, illness, or accident, as
"dangerous; potentially resulting
in death or other severe consequences <serious bodily harm>."
definition does not give us definitive guidance as to whether a
particular injury is "serious" in a particular case.
Cases previously determined by our Courts to involve risk of
"serious" injury have included a plaintiff being crushed by a cave-
, 329 N.C. at 334-36, 407 S.E.2d at 224-26; an
employee's body parts being crushed by industrial machines, Regan
v. Amerimark Building Products
, 118 N.C. App. 328, 454 S.E.2d 849,
disc. review denied
, 340 N.C. 359, 458 S.E.2d 189 (1995), cert.
, 342 N.C. 659, 467 S.E.2d 723 (1996) and Owens v. W. K. Deal
, 113 N.C. App. 324, 438 S.E.2d 440 (1994); and an
employee being injured from a fall while washing windows without
safety mechanisms, Arroyo v. Scottie's Professional Window
, 120 N.C. App. 154, 461 S.E.2d 13 (1995). In Keith
federal district court noted that the risk of neck ailments and
decreased range of motion did not qualify as "serious injury" for
the purposes of a Woodson
claim. 994 F. Supp. at 696-97. Although
we agree with the district court's reasoning, its decision merely
helps define the extremes of the continuum of injury and does not
allow us to sufficiently classify the alleged serious illnessesplaintiff cites. We agree with the reasoning in criminal assault
cases dealing with "serious injury" in which our Courts have
declined to precisely define the term and, instead, consider the
facts and circumstances of each case. See State v. Williams
N.C. App. 497, 502, 563 S.E.2d 616, 619 (2002).
In this case, allegations in the complaint that
several of Mr.
Cameron's co-employees "had contracted serious illnesses" and had
complained to all defendants of a variety of "symptoms, maladies,
and serious illnesses" are insufficient allegations that Merisel
and Merisel Americas had knowledge of a "substantial certainty" of
"serious injury." Allegations in the complaint do not set out the
types of symptoms, maladies, and illnesses that co-employees had
allegedly complained of to defendants. In fact, the allegations
themselves tend to indicate that the co-employees had different
reactions to the alleged toxic mold in the Cary call center. It is
insufficient for plaintiffs to simply make a conclusory statement
that some of these illnesses were "serious," as opposed to general
symptoms and maladies, without describing the illnesses or
indicating the number of co-employees who suffered "serious"
illnesses. See Keith
, 994 F. Supp. at 696-97 ("Although Plaintiff
alleges that Defendant knowingly risked 'Plaintiff being inflicted
with . . . severe impairing [physical] . . . conditions caused by
repetitive stress,' (Am. Compl.¶ 11), the facts she has pled do not
make out a Woodson
claim . . . ."). Further, Mr. Cameron's own
alleged specific illness, while it can be relevant for other
purposes, should not be included in this inquiry because the
inquiry focuses on what defendants knew prior to Mr. Cameron'sinjury. Therefore, plaintiffs cannot "bootstrap" Mr. Cameron's
claim by pointing to the specific illness he contracted to indicate
prior knowledge by defendants. Where the complaint simply alleges
defendants knew co-employees had varying reactions to an alleged
harm without any further description of those reactions, it is
insufficient to meet the standard under Woodson
. Therefore, we
affirm the trial court's dismissal of Mr. Cameron's Woodson
against Merisel and Merisel Americas.
 Plaintiffs also seek recovery under a premises liability
theory, alleging that:
15. On or about December 1, 1998, [Mr.
Cameron] became employed by Merisel Americas
at the remote customer call center operated by
Merisel and Merisel Americas at 305 Gregson
Drive in Cary, North Carolina . . . .
16. Upon information and belief, Merisel
and/or Merisel Americas had leased the
entirety of the Cary facility from its owner,
and had operated the remote customer call
center there, since at least 1996.
. . .
18. Upon information and belief, between 1996
and December 1, 1998, Merisel [and] Merisel
Americas . . . had become aware of the
existence of several toxic molds within the
workplace at the Cary facility.
19. Upon information and belief, between 1996
and December 1998, Merisel [and] Merisel
Americas . . . failed and/or refused to take
action to remediate these toxic molds.
. . .
21. Upon information and belief, Merisel
Properties purchased the Cary facility from
its existing owner on or about December 7,
22. Upon information and belief, Merisel
Properties became aware of the existence of
the toxic molds within the Cary facility on or
before December 7, 1998.
. . .
27. Upon information and belief, despite the
complaints of employees and occupants of the
building and [the] knowledge [of Merisel
Properties, Merisel, and Merisel Americas]
that the toxic molds were the source of their
complaints [of illness], [they] concealed
their knowledge of the existence of the toxic
molds, failed to warn employees and occupants
of the facility of their existence, and failed
and refused to take any action to remediate
Based on our standard of review for motions to dismiss, the
complaint does not reveal an absolute bar to plaintiffs' recovery
under a premises liability theory. Our Court held in Phillips v.
Stowe Mills, Inc.
5 N.C. App. 150, 154, 167 S.E.2d 817, 820
(1969), that the owner of a building, a parent corporation of the
tenant employer, could not invoke the exclusivity provisions of the
Workers' Compensation Act to bar recovery by an injured employee
simply because the employer was a wholly owned subsidiary of the
parent corporation. This Court concluded that, because the parent
corporation was not the employer of the plaintiff and the employer
corporation and parent corporation were separate entities, the
Workers' Compensation Act's exclusivity bar did not apply to the
parent corporation. Id
. The allegations in the present case do
not reveal that Merisel Properties is anything more than a related,
but separate entity, from Merisel and Merisel Americas, and thus
does not show at this point an absolute bar to recovery due to the
exclusivity provisions of the Workers' Compensation Act.
Our Supreme Court abolished the distinction between inviteesand licensees in Nelson v. Freeland
, 349 N.C. 615, 507 S.E.2d 882
(1998). An owner or occupier of land owes a "duty to exercise
reasonable care in the maintenance of their premises for the
protection of lawful visitors." Id
. at 632, 507 S.E.2d at 892.
Plaintiffs have alleged that Merisel Properties was the owner of
the building where the Cary call center was located. Plaintiffs
have further alleged that Merisel Properties knew of the alleged
toxic mold but did nothing to warn or protect Mr. Cameron and other
co-employees and occupants of the Cary call center from the dangers
of the toxic mold.
Merisel Properties, Inc. argues that it should be protected
under landlord tenant law because
"[o]rdinarily, the doctrine of caveat emptor
applies to the lessee[.] To avoid foreclosure
under this doctrine in an action for tortious
injury, he must show that there is a latent
defect known to the lessor, or which he should
have known, involving a menace or danger, and
a defect of which the lessee was unaware or
could not, by the exercise of ordinary
diligence, discover, the concealment of which
would be an act of bad faith on the part of
, 5 N.C. App. at 154, 167 S.E.2d at 820 (citations
omitted). A landlord therefore does not have a duty to warn a
tenant of a defect on the premises known to the tenant, and the
landlord ordinarily cannot be held liable to the tenant for a
defect the tenant knew about when the tenant leased the premises.
. Merisel Properties argues that under Phillips
Properties cannot be liable to the employees of a tenant if it
could not be liable to the tenant itself for injuries allegedly
arising from a defect known to the tenant. See id.
However, our Courts have recognized several exceptions,
including where: (1) a landlord leased the premises in a ruinous
condition, Vera v. Five Crow Promotions, Inc.
, 130 N.C. App. 645,
650-51, 503 S.E.2d 692, 696-97 (1998); (2) there was a contract
that obligated a landlord to repair the premises, Wellons v.
, 217 N.C. 534, 540, 8 S.E.2d 820, 823 (1940); (3) a
landlord authorized a wrong, id
.; and (4) somewhat similarly, where
a landlord exercised control over the premises despite the tenant's
occupancy, Martishius v. Carolco Studios, Inc.
355 N.C. 465, 478,
562 S.E.2d 887, 895 (2002).
In deciding a Rule 12(b)(6) motion to dismiss, we must
determine whether, on the basis of the allegations in the
complaint, an "'insurmountable bar' to recovery appears on the face
of the complaint and the complaint's allegations give adequate
notice of the nature and extent of the claim." Pastva
, 121 N.C.
App. at 659, 468 S.E.2d at 493 (citations omitted). We hold that
the allegations of the complaint in this case do not present such
an insurmountable bar and have put Merisel Properties on notice of
the nature and extent of plaintiffs' claim for premises liability.
 Having determined the trial court erred in dismissing
and premises liability claims, it was also
error to dismiss plaintiffs' claims for punitive damages as to
, 118 N.C. App. at 332, 454 S.E.2d at 852
("Plaintiff has alleged willful and wanton misconduct and has
specifically requested punitive damages. This gives defendants
adequate notice of plaintiff's claim for punitive damages.") It wasalso error for the trial court to dismiss Ms. Cameron's claim for
loss of consortium as to Goldsworthy and Merisel Properties. See
Sloan v. Miller Building Corp.
, 128 N.C. App. 37, 40-41, 493 S.E.2d
460, 462-63 (1997). However, as we have held that the trial court
did not err in dismissing plaintiffs' Woodson
claim against Merisel
and Merisel Americas, we affirm the dismissal of plaintiffs' claims
for punitive damages and also Ms. Cameron's claim for loss of
consortium against Merisel and Merisel Americas. We also affirm
the trial court's dismissal of the punitive damages claim against
Merisel Properties, since plaintiffs alleged only a premises
liability negligence claim as to Merisel Properties.
In summary, (1) plaintiffs' Woodson
not time barred; (2) we affirm the trial court's dismissal of
claim as to Merisel and Merisel Americas, as
well as the related claims for punitive damages and loss of
consortium as to those defendants; (3) we reverse the trial court's
dismissal of plaintiffs' Pleasant
claim against Goldsworthy and the
related loss of consortium and punitive damages claims; (4) we
reverse the trial court's dismissal of plaintiffs' premises
liability claim against Merisel Properties and the related loss of
consortium claim; and (5) we affirm the trial court's dismissal of
plaintiffs' punitive damages claim against Merisel Properties. We
remand plaintiffs' Pleasant
claim against Goldsworthy and the
corresponding loss of consortium and punitive damages claims, as
well as plaintiffs' premises liability claim against Merisel
Properties and the corresponding loss of consortium claim.
Affirmed in part; reversed and remanded in part. Judges BRYANT and GEER concur.
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