An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1114

NORTH CAROLINA COURT OF APPEALS

Filed: 1 August 2006

TRACY M. ELLIS,
    Plaintiff-Appellant,

v .                         Buncombe County
                            No. 02 CVS 5019
INTERNATIONAL HARVESTER
COMPANY (a Delaware Corp.)
NAVISTAR INTERNATIONAL
TRANSPORTATION CORPORATION
(a Delaware Corporation)
INTERNATIONAL TRUCK AND
ENGINE CORPORATION, formerly
INTERNATIONAL HARVESTER
CORPORATION, formerly
INTERNATIONAL HARVESTER COMPANY,
formerly NAVISTAR INTERNATIONAL
CORPORATION, formerly NAVISTAR
INTERNATIONAL TRANSPORTATION
CORPORATION, d/b/a and t/a
"INTERNATIONAL" d/b/a and t/a
NAVISTAR t/a and d/b/a
INTERNATIONAL from NAVISTAR KILE
INTERNATIONAL TRUCKS, INC. (a
Tennessee Corporation) GENERAL
CAR AND TRUCK LEASING SYSTEM, INC.,
(an Iowa Corporation) NASHVILLE
TRUCK COMPANY, INC. (a Tennessee
Corporation) SOFA CONNECTION, INC.
(a Tennessee Corporation),
        Defendants-Appellees.

    Appeal by plaintiff from orders entered 21 May 2004 and 26 May 2004 by Judge E. Penn Dameron, Jr. in Superior Court, Buncombe County. Heard in the Court of Appeals 11 May 2006.

    David R. Payne, P.A., by Peter U. Kanipe and David R. Payne; and Gary Dodd, for plaintiff-appellant.

    Ball, Barden & Bell, P.A., by Ervin L. Ball, Jr., for defendant-appellee Sofa Connection, Inc.

    Northup & McConnell, P.L.L.C., by Elizabeth E. McConnell, for defendant-appellee Nashville Truck Company, Inc.


    McGEE, Judge.

    Tracy M. Ellis (plaintiff) filed the present action against, inter alios, Sofa Connection, Inc. (Sofa Connection) and Nashville Truck Co., Inc. (Nashville Truck) (collectively defendants) on 1 November 2002. Plaintiff's cause of action against Sofa Connection was based on the exception to the exclusivity doctrine of the North Carolina Workers' Compensation Act as articulated by our Supreme Court in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Plaintiff's cause of action against Nashville Truck was based on allegations of negligence. Sofa Connection and Nashville Truck each filed a motion for summary judgment.
    Evidence at a hearing on defendants' motions tended to show that plaintiff was employed as a delivery person by Sofa Connection, a company that sold sofas and other furniture in the Asheville area. On the morning of 4 November 1999, plaintiff and a co-worker, Joe Logan (Logan), delivered furniture to a home in Biltmore Forest. Plaintiff backed the delivery truck down the home's driveway and parked the truck within five feet of the garage. Plaintiff walked to the rear of the truck to begin unloading furniture. While he stood at the rear of the truck, the truck rolled backwards and pinned plaintiff against the house. As a result of being pinned by the truck, plaintiff suffered severe injuries. Plaintiff claims his injuries were caused by the failure of the delivery truck's emergency brake.
    Immediately following plaintiff's accident, the delivery truckwas taken to Carolina Truck and Tractor, Inc. (service center), the service center authorized by Nashville Truck to perform maintenance on the truck. According to an invoice dated 4 November 1999, the service center checked all components of the truck relating to the parking brake system and adjusted the truck's hand brake cable. After the adjustment, the brakes functioned "properly" and the truck held itself on a hill.
    Sofa Connection began leasing the delivery truck from Nashville Truck on 10 January 1995. Under the terms of the lease, Sofa Connection was to notify Nashville Truck of any necessary repairs, which were to be made by Nashville Truck or a party authorized by Nashville Truck. Nashville Truck sold the delivery truck to General Car and Truck Leasing on 22 September 1999. Sofa Connection's lease was conveyed with the sale of the truck to General Car and Truck Leasing.     
    At the hearing on defendants' motions for summary judgment, plaintiff presented affidavits from plaintiff, Logan, and Sofa Connection warehouse manager Kevin Bruton stating that the delivery truck's emergency brake had failed on several prior occasions. Moreover, the affiants stated that plaintiff's supervisor, Monte Hunnicutt, was aware of the prior instances of brake failure, but instructed plaintiff to continue using the truck for deliveries. Sofa Connection presented an affidavit of Robert Peters, Executive Vice-President of Sofa Connection, stating that none of Sofa Connection's approximately two hundred drivers had ever experienced an accident similar to plaintiff's, and that Sofa Connection hadnever received an OSHA violation or had a workers' compensation claim involving any alleged failure of brakes or other mechanical problems. Plaintiff also presented his deposition, in which plaintiff stated that he personally took the delivery truck to the service center for maintenance approximately once a month from May 1999 through November 1999. Plaintiff also stated that on "[m]ore than five" occasions, he told the service center to check the truck's brakes.
    After reviewing the evidence and hearing oral arguments, the trial court granted defendants' motions for summary judgment. In orders entered 21 May 2004 and 26 May 2004, the trial court dismissed plaintiff's claims against Sofa Connection and Nashville Truck, respectively. Plaintiff filed a notice of appeal from those two orders with our Court on 2 June 2004.
    Plaintiff and Sofa Connection filed briefs with our Court on 1 October 2004. Nashville Truck did not file a brief, but instead filed a motion to dismiss plaintiff's appeal as interlocutory. Our Court granted the motion and dismissed plaintiff's appeal by order filed 1 November 2004. Plaintiff filed a motion for discretionary review with our Supreme Court. Nashville Truck filed a brief with our Supreme Court urging dismissal of plaintiff's appeal and briefly touching upon the merits of plaintiff's appeal. On discretionary review, our Supreme Court vacated the order of dismissal and remanded plaintiff's case to this Court for a decision on the merits. Ellis v. International Harvester Co., 360 N.C. 171, 622 S.E.2d 489 (2005).     Upon remand, Nashville Truck did not file a brief with our Court. Instead, two days prior to oral argument, Nashville Truck filed a motion with our Court requesting that we consider its brief previously filed with our Supreme Court. Nashville Truck also requested time to be heard, or to answer questions, during oral argument. Our Court heard oral arguments in Asheville on 11 May 2006. During arguments, plaintiff objected to Nashville Truck's presentation of an oral argument. We held plaintiff's objection open and permitted Nashville Truck's request to be heard briefly. Thereafter, plaintiff filed a motion to strike Nashville Truck's brief, on the grounds that the brief was filed after the applicable filing deadline and was improperly served on plaintiff following oral argument.
    Under Rule 13 of the North Carolina Rules of Appellate Procedure, an appellee must file and serve copies of the appellee's brief within thirty days after the appellant's brief has been served on the appellee. N.C.R. App. P. 13(a)(1). In the present case, Nashville Truck failed to file and serve its brief within the prescribed thirty-day period. For this reason, we allow plaintiff's motion to strike Nashville Truck's brief, which was untimely filed in violation of our Rules of Appellate Procedure.

______________________

    Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment asa matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). The moving party must establish that an essential part of the plaintiff's claim does not exist, or that the plaintiff cannot produce evidence to support an essential element thereof. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). A trial court must view all evidence presented in a summary judgment motion in a light most favorable to the non-moving party. Yates v. Haley, 103 N.C. App. 604, 606, 406 S.E.2d 659, 660 (1991). Our Court's standard of review of summary judgment is de novo. Stafford v. County of Bladen, 163 N.C. App. 149, 151, 592 S.E.2d 711, 713 (2004). For the reasons below, we affirm summary judgment as to both Sofa Connection and Nashville Truck.
I. Summary Judgment for Sofa Connection

    Generally, the Workers' Compensation Act provides the exclusive remedy for an employee injured in a workplace accident. Regan v. Amerimark Building Products, 118 N.C. App. 328, 330, 454 S.E.2d 849, 351, disc. review denied, 340 N.C. 359, 458 S.E.2d 189 (1995), cert. denied, 342 N.C. 659, 467 S.E.2d 723 (1996). However, our Supreme Court recognized an exception to the exclusivity rule of workers' compensation cases in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Our Court has articulated the elements of a Woodson claim as: "(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 asa consequence of the misconduct." Pastva v. Naegele Outdoor Advertising, 121 N.C. App. 656, 659, 468 S.E.2d 491, 494, disc. review denied, 343 N.C. 308, 471 S.E.2d 74 (1996).
    The element at issue in the present case is whether Sofa Connection acted with knowledge that its conduct was substantially certain to cause serious injury or death to an employee. Our Supreme Court has addressed the "substantial certainty" element in several opinions. In Regan, our Supreme Court stated that "'[s]ubstantial certainty' under Woodson is more than the 'mere possibility' or 'substantial probability' of serious injury or death. No one factor is determinative in evaluating whether a plaintiff has stated a valid Woodson claim; rather, all of the facts taken together must be considered." Regan, 118 N.C. App. at 331, 454 S.E.2d at 852 (quoting Woodson, 329 N.C. at 345, 407 S.E.2d at 231). After Regan, our Supreme Court re-emphasized the Woodson "substantial certainty" standard in Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206 (1995). In Mickles, a Duke Power employee fell to his death when a safety snap on his pole strap detached from a ring on his body belt. Id. at 106, 463 S.E.2d at 208. After the employee's fall, a North Carolina Department of Labor investigation found that the employer was aware of the "potential incompatibility of belts and straps made by different manufacturers," but the employer merely asked its employees to inspect their own equipment. Id. at 108, 463 S.E.2d at 210. Additional evidence showed that the employee's safety snaps and rings were incompatible and that his equipment was "'certain tofail under the conditions created using [the employer's] standard work procedures.'" Id. at 109, 463 S.E.2d at 210. Despite this evidence, the Mickles Court held that the employee had forecast "only that [the employer] was aware of the somewhat remote possibility that [the employee's] strap would become twisted, slack would be introduced into the strap, and [the employee] would then fail to check the connecting snaps and D-rings before leaning against those connections. [The evidence fell] short of establishing that [the employer] knew this was substantially certain to occur." Id. at 112, 463 S.E.2d at 212.
     Our Supreme Court most recently addressed the "substantial certainty" element of a Woodson claim in the case of Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665 (2003). In Whitaker, the employee died as a result of a defective latch on a garbage truck lifting mechanism. Id. at 554-55, 597 S.E.2d at 666. Although the evidence showed that the employee's supervisor knew of the defect, our Supreme Court upheld the trial court's summary judgment for the Town of Scotland Neck. Id. at 558, 597 S.E.2d at 669. In finding no Woodson claim, the Court in Whitaker clarified that "simply having knowledge of some possibility, or even probability, of injury or death is not the same as knowledge of a substantial certainty of injury or death." Id. at 558, 597 S.E.2d at 669. Our Supreme Court limited the application of Woodson by holding that a Woodson claim is a "narrow exception" to the general rule of exclusivity provided by the Workers' Compensation Act, and that the Woodson exception applies "only in the most egregiouscases of employer misconduct." Id. at 557, 597 S.E.2d at 668.
    Plaintiff argues that the facts of the present case are like those in Woodson, Regan, and Arroyo v. Scottie's Professional Window Cleaning, 120 N.C. App. 154, 461 S.E.2d 13 (1995). We find the present case distinguishable from those cases. In Regan, our Court found the employee sufficiently stated a valid Woodson claim where the employee alleged that the employer installed emergency cutoff switches to a paint machine, but then failed to inform the employee that the switches on the employee's machine were not functioning properly. Regan, 118 N.C. App. At 331, 454 S.E.2d at 852. In Arroyo, the injured employee's supervisor required the employee to work on a ledge without equipment to protect the employee from a fall and refused to allow a co-worker to anchor the employee. Arroyo, 120 N.C. App. at 159, 461 S.E.2d at 17. The employee alleged his employer knew of the supervisor's past record of ignoring safety requirements and that the employer had previously allowed the same cleaning job to be performed in what the Arroyo Court described as an "inherently dangerous manner[.]" Id. Under those facts, our Court found the plaintiff's allegation of the employer's conduct was sufficient to state a Woodson claim. Id. at 160, 461 S.E.2d at 17.     
    In the present case, although plaintiff presented evidence that a Sofa Connection supervisor had knowledge that the truck brakes were faulty, plaintiff has not presented evidence that Sofa Connection knew its conduct was substantially certain to cause serious injury or death. The evidence showed that plaintiff'ssupervisor knew the truck's brakes had failed on prior occasions, and that the truck had rolled freely upon brake failure. However, plaintiff has failed to present evidence sufficient to surpass the high standard set in Whitaker of an "egregious case[] of employer misconduct." Whitaker, 357 N.C. at 557, 597 S.E.2d at 668. Plaintiff suffered serious injuries in a tragic and painful accident, but plaintiff's accident falls within the scope of the exclusivity provision of the Workers' Compensation Act. Plaintiff filed a workers' compensation claim against Sofa Connection, which accepted plaintiff's claim as compensable. As of May 2003, Sofa Connection was paying workers' compensation benefits to and on behalf of plaintiff for injuries received in the accident. We affirm the trial court's ruling that plaintiff may not proceed with a Woodson claim for damages against Sofa Connection. This assignment of error is overruled.
    Plaintiff also attempts to argue in his brief that the trial court erred in granting summary judgment because there was a genuine issue of material fact as to whether Sofa Connection was liable to plaintiff on a theory of agency. However, this argument does not correspond to any of plaintiff's assignments of error. Because our review is limited to those assignments of error set out in the record on appeal, we do not address this argument. See N.C.R. App. P. 10(a).
II. Summary Judgment for Nashville Truck

    Plaintiff assigns error to the trial court's granting of summary judgment for Nashville Truck, arguing there was a genuineissue of material fact relating to Nashville Truck's negligence as owner and lessor of the delivery truck. Plaintiff first argues there was a genuine issue of material fact as to whether Nashville Truck, as owner of the truck, had the truck inspected, repaired, and maintained pursuant to North Carolina law. N.C. Gen. Stat. § 20-124(c) (2005) requires that
        every motor vehicle when operated on a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle and shall have all originally equipped brakes in good working order, including two separate means of applying the brakes.

Plaintiff argues that Nashville Truck did not present any evidence that it had complied with the brake requirements of N.C.G.S. § 20- 124(c). However, at the time of plaintiff's accident in November 1999, Nashville Truck no longer owned the truck in question. Nashville Truck sold the truck to General Car and Truck Leasing in September 1999.
    Citing Jones v. Chevrolet Co., 217 N.C. 693, 9 S.E.2d 395 (1940), plaintiff argues Nashville Truck cannot escape liability by virtue of the sale of the truck to General Car and Truck Leasing. However, Jones is distinguishable from the present case, in that the defendant in Jones was a car dealership. Id. at 694, 9 S.E.2d at 396. Nashville Truck, by plaintiff's own allegation in his complaint, is engaged in the business of leasing vehicles. This factual distinction is significant in light of the relevant case law. In Jones, our Supreme Court held that, where the plaintiff sought to introduce evidence that a salesman of the defendant cardealership represented to the buyer of the vehicle that the vehicle's brakes had been reconditioned and would work properly, the trial court erred in dismissing the plaintiff's case. Id. at 694, 9 S.E.2d at 396. In the present case, plaintiff presented no such evidence of a misrepresentation by Nashville Truck, which was in the business of leasing, and not selling, vehicles.
    Plaintiff relies on Hudson v. Drive It Yourself, Inc., 236 N.C. 503, 73 S.E.2d 4 (1952), to address Nashville Truck's liability as lessor of the delivery truck. In Hudson, our Supreme Court ruled that the plaintiff failed to present sufficient evidence that the defendant rental agency should have been charged with knowledge of defective brakes on a rental vehicle. Id. at 505, 73 S.E.2d at 6. Our Supreme Court noted that
        [a] bailor for hire . . . may be liable for personal injuries to the bailee or third persons proximately resulting from the defective condition of a rented automobile while being used by the bailee for the purpose known to be intended, if the bailor was aware of the defective condition or by reasonable care and inspection could have discovered it.

Id. at 504-05, 73 S.E.2d at 5. However, the Hudson Court held that, where the driver drove the vehicle for a period of forty-five minutes before he detected the faulty functioning of the brake, the defendant rental company was not charged with knowledge of the faulty brakes. Id. at 505, 73 S.E.2d at 6.
    Similarly, in the present case, plaintiff has presented no evidence that Nashville Truck was aware of a defective emergency brake, or that reasonable care and inspection by Nashville Truck would have revealed such a defect. The delivery truck was in thesole possession of Sofa Connection for three years and was, pursuant to the terms of the lease, subject to maintenance and repair as requested by Sofa Connection. According to plaintiff's deposition testimony, he personally took the truck to be serviced "whenever we felt like it needed to be serviced." Plaintiff has not forecast evidence sufficient to raise a question of material fact as to whether Nashville Truck was aware of, or should have been aware of, any defect in the truck's brake.
    Affirmed.    
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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