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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2007
JUSTIN H. LEWIS and
THOMAS E. HABER,
GOVERNORS CLUB, INC.,
TEXTRON, INC. and
TEXTRON FINANCIAL CORP.,
Appeal by plaintiffs from orders entered 23 December 2004 and
27 April 2006 by Judge James Clifford Spencer, Jr., and Judge
Judson D. DeRamus, Jr., respectively, in Orange County Superior
Court. Heard in the Court of Appeals 7 February 2007.
Northen Blue, LLP, by J. William Blue, Jr., for plaintiff
Patterson, Dilthey, Clay, Bryson & Anderson, LLP, by Ronald C.
Dilthey and Tobias S. Hampson, for Governors Club, Inc.
Young Moore and Henderson, P.A., by David M. Duke and Nathan
J. Taylor, for Textron, Inc. and Textron Financial Corp.
Plaintiffs appeal from orders granting defendants' motion to
dismiss and motion for summary judgment. We affirm.
On 17 May 2004, Justin H. Lewis (Lewis) and Thomas H. Haber
(Haber) filed a complaint in Orange County Superior Court whichmade the following allegations. Lewis and Haber were employees of
defendant Governors Club (Governors Club), who are in the
business of maintaining and operating a golf course. On 31 May
2003, following a golf tournament conducted by Governors Club,
Haber was operating a gasoline-powered utility cart, in which Lewis
was a passenger. They were told to use the cart to pick up
miscellaneous items that had been distributed around the golf
course in connection with the golf tournament. They loaded the cart
and were on their way back to the clubhouse when they had to
descend a hill. As they descended the hill, Lewis and Haber were
unable to slow the cart, and they ultimately were unable to control
the cart. It rolled over and caught on fire causing injuries to
Lewis and Haber.
Haber and Lewis, through their original complaint, asserted
claims against Governors Club and Textron. Their claim against
Governors Club asserted that certain duties were breached,
including: (1) failure to establish and follow appropriate
preventative maintenance and inspection schedules in connection
with the cart; (2) failure to conduct daily brake tests on the
vehicle; (3) failure to conduct training sessions for the employees
and other individuals who used the vehicle; (4) failure to perform
necessary repairs, including repair of the brake assembly; (5)
allowing the vehicle to be used on hilly terrain, with the
unrepaired brake assembly; (6) failure to place a particular cap on
the cart's gasoline tank; and (7) failure to warn of such dangerous
conditions. Their complaint against Textron, who was alleged to bethe manufacturer of the beverage cart, included: failure to inspect
the cart; failure to perform preventative maintenance; failure to
conduct brake tests; failure to perform necessary repairs; and
failure to provide a certain gasoline tank cap, or to instruct
Governors Club that one should be provided. On 23 December 2004,
the trial court granted Governors Club's motion to dismiss pursuant
to Rule 12(b)(6).
On 15 June 2005, Haber and Lewis filed an amended complaint
which included Textron Financial Corporation as a defendant.
Plaintiffs alleged in the amended complaint, among other things,
that Textron Financial Corporation was a subsidiary of Textron and
that it also failed to inspect the cart, failed to perform
preventative maintenance, failed to conduct brake tests, failed to
perform necessary repairs, and failed to provide a certain gasoline
tank cap, or to instruct Governors Club that one should be
provided. The amended complaint also restated the claim against
Textron that was articulated in the original complaint. On 27 April
2006, the trial court granted Textron and Textron Financial
Corporation's motion for summary judgment.
Haber and Lewis appeal.
Haber and Lewis contend the trial court erred in granting
Governors Club's motion to dismiss pursuant to Rule 12(b)(6)
because the complaint set forth a claim for relief as described in
Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). We
disagree. 'A motion to dismiss is the usual and proper method of
testing the legal sufficiency of the complaint. For the purpose of
the motion, the well-pleaded material allegations of the complaint
are taken as admitted; but conclusions of law or unwarranted
deductions of fact are not admitted.' Morris v. E.A. Morris
Charitable Found., 161 N.C. App. 673, 675, 589 S.E.2d 414, 416
(2003) (citation omitted), disc. review denied, 358 N.C. 235, 593
S.E.2d 592 (2004).
Dismissal of a complaint under Rule 12(b)(6)
is proper when one of the following three
conditions is satisfied: (1) when the
complaint on its face reveals that no law
supports plaintiff's claim; (2) when the
complaint on its face reveals the absence of
fact sufficient to make a good claim; (3) when
some fact disclosed in the complaint
necessarily defeats plaintiff's claim.
Id. (citation omitted).
[T]he North Carolina Workers' Compensation Act was created to
ensure that injured employees receive sure and certain recovery for
their work-related injuries without having to prove negligence on
the part of the employer or defend against charges of contributory
negligence. Whitaker v. Town of Scotland Neck, 357 N.C. 552, 556,
597 S.E.2d 665, 667 (2003), reh'g denied, 358 N.C. 159, 593 S.E.2d
591 (2004). 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. Id. (citations omitted). In Woodson, our Supreme Court
recognized an exception to the general rule and stated: [W]hen 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.
Woodson, 329 N.C. at 340-41, 407 S.E.2d at 228. Subsequently, the
The Woodson exception represents a narrow
holding in a fact-specific case, and its
guidelines stand by themselves. This exception
applies only in the most egregious cases of
employer misconduct. Such circumstances exist
where there is uncontroverted evidence of the
employer's intentional misconduct and where
such misconduct is substantially certain to
lead to the employee's serious injury or
Whitaker, 357 N.C. at 557, 597 S.E.2d at 668.
After reviewing many of the cases that followed Woodson, we
believe the material allegations contained in plaintiffs' complaint
were insufficient to assert a claim. For example, the complaint
states that Governors Club failed to follow preventative
maintenance and inspection schedules, failed to conduct daily brake
tests, failed to perform necessary repairs to the beverage cart,
and failed to warn plaintiffs of the dangerous conditions of the
vehicle. Also, the complaint alleges that Governors Club's
misconduct was in violation of standards, such as OSHA safety
standards, and that Governors Club knew that its acts were in
violation of those standards. However, the factual allegationscontained in the complaint do not illustrate that Governors Club
intentionally engaged in conduct knowing it would be substantially
certain to cause serious injury or death to its employees.
Accordingly, we disagree with plaintiffs' contention.
Haber and Lewis contend the trial court erred in granting
Textron's motion for summary judgment. We disagree.
Granting summary judgment is appropriate only 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 as a matter of law. N.C. Gen. Stat. § 1A-1,
Rule 56(c) (2005). There is no genuine issue of material fact
where a party demonstrates that the claimant cannot prove the
existence of an essential element of his claim or cannot surmount
an affirmative defense which would bar the claim. Harrison v.
City of Sanford
, ___ N.C. App. ___, ___, 627 S.E.2d 672, 675,
disc. review denied
, 361 N.C. 166, ___ S.E.2d ___ (2006). On
appeal from a grant of summary judgment, this Court reviews the
trial court's decision de novo
. Falk Integrated Tech., Inc. v.
, 132 N.C. App. 807, 809, 513 S.E.2d 572, 573-74 (1999).
In their complaint, plaintiffs allege that Textron's
negligence caused plaintiffs' injuries. It is well established
that in order to prevail in a negligence action, plaintiffs must
offer evidence of the essential elements of negligence: duty,
breach of duty, proximate cause, and damages. Camalier v.Jeffries
, 340 N.C. 699, 706, 460 S.E.2d 133, 136 (1995).
Plaintiffs' main contention is that Textron regularly performed
service and maintenance on the beverage cart and they negligently
performed that service and maintenance.
In the instant case, we conclude that the trial court did not
err in granting Textron's motion for summary judgment. Although
there is case law which illustrates that any person who engages in
an undertaking, even a voluntary undertaking, may be obligated to
use reasonable care in the prosecution of that undertaking, Hawkins
, 91 N.C. App. 266, 270, 371 S.E.2d 297, 299 (1988),
plaintiffs have not provided any competent evidence that Textron
engaged in such an undertaking that caused plaintiffs' injuries.
After reviewing the record, it appears that Textron was not
performing regular service and maintenance on the beverage cart,
but was only performing specific repairs on the beverage cart at
the request of Governors Club. Also, Governors Club stated in a
response to an interrogatory that [t]he only time that Textron,
Inc. would perform any work on the [beverage cart] ... is upon a
specific request for service by Governors Club, and this service
would be separately billed to Governors Club. In addition,
Governors Club stated in the same response that Textron, Inc.
would have no obligation to service the brake system or gas tank
unless specifically engaged to do so. Accordingly, we disagree
with plaintiffs' contention.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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