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.
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
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
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
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.
, 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
121 N.C. App. 656, 659, 468 S.E.2d 491, 494, disc.
, 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
, 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
"substantial certainty" standard in Mickles v. Duke Power
, 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
, 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
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
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
, and Arroyo v. Scottie's Professional
, 120 N.C. App. 154, 461 S.E.2d 13 (1995). We find
the present case distinguishable from those cases. In Regan
Court found the employee sufficiently stated a valid Woodson
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
, 120 N.C. App. at 159, 461 S.E.2d at 17.
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
Court described as an "inherently dangerous manner[.]"
Under those facts, our Court found the plaintiff's allegation
of the employer's conduct was sufficient to state a Woodson
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
, 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
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
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
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.
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.
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.
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
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.
at 504-05, 73 S.E.2d at 5. However,
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.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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