Baker v. Ivester

563 S.E.2d 245, 150 N.C. App. 406, 2002 N.C. App. LEXIS 489
CourtCourt of Appeals of North Carolina
DecidedMay 21, 2002
DocketNo. COA01-258
StatusPublished

This text of 563 S.E.2d 245 (Baker v. Ivester) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Ivester, 563 S.E.2d 245, 150 N.C. App. 406, 2002 N.C. App. LEXIS 489 (N.C. Ct. App. 2002).

Opinion

BIGGS, Judge.

Plaintiffs are former employees, and spouses of former employees, of Fieldcrest Cannon, Inc. (Fieldcrest). Defendant was employed by Fieldcrest as an industrial hygienist, from 1976 to 1997. In 1997, plaintiffs filed suit against defendant, four other Fieldcrest employees, and Fieldcrest, seeking damages for illness and injury caused by workplace exposure to asbestos. On 28 May 1998, the trial court divided the plaintiffs into four classes, designated A, B, C, and D. The present appeal involves only the Class C group: plaintiffs and spouses who (a) worked for Fieldcrest within ten years of filing the complaint, and (b) had claims only against the individual defendants, but not against Fieldcrest. On 1 July 1998, after the case was severed into four plaintiff classes, defendant, with the others who had been sued, moved for summary judgment. Prior to argument on the summary judgment motion, the plaintiffs entered a voluntary dismissal against all parties sued except Ivester, the defendant in the present appeal. The motion was heard on 7 April 2000, and on 1 September 2000, the trial court granted summary judgment in favor of defendant. Plaintiffs appeal from this order.

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 as a matter of law.” N.C.G.S. § 1A-1, 56(c) (2001). “An issue is material if the [408]*408facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). “Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts,, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000). However, “the party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted).

On appeal, this Court’s standard of review involves a two-step inquiry, to determine if (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted). Furthermore, “the evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).

In the instant case, plaintiffs have filed suit against defendant, who is their co-employee, for damages associated with exposure to asbestos while working at Fieldcrest. Plaintiffs do not contend that there is any issue of material fact, and acknowledge that “[t]he facts are not in dispute.” However, plaintiffs contend that the trial court erred by finding defendant entitled to judgment as a matter of law. Consequently, we first review the law governing claims by an employee against a co-employee.

“The Workmen’s Compensation Act . . . [bars] an employee subject to the Act whose injuries arise out of and in the course of his employment [from maintaining] a common law action against a negligent co-employee.” Strickland v. King and Sellers v. King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977). However, the North Carolina Supreme Court has recognized that the Workers’ Compensation Act does not prevent an employee from bringing a suit against a co-employee for intentional torts, “willful, wanton and reckless negligence,” or behavior that is “manifestly indifferent to the consequences.” Pleasant v. Johnson, 312 N.C. 710, 714, 715, 325 [409]*409S.E.2d 244, 248 (1985). The Court defined the relevant terms as follows:

‘[W]anton’ conduct [is] an act manifesting a reckless disregard for the rights and safety of others. The term ‘reckless’, as used in this context, appears to be merely a synonym for ‘wanton[.]\ . . . The term ‘willful negligence’ has been defined as the intentional failure to carry out some duty imposed by law or contract which is necessary to the safety of the person or property to which it is owed. A breach of duty may be willful while the resulting injury is still negligent. . . . Even in cases involving ‘willful injury,’ however, the intent to inflict injury need not be actual. Constructive intent to injure . . . exists where conduct threatens the safety of others and is so reckless or manifestly indifferent to the consequences that a finding of willfulness and wantonness equivalent in spirit to actual intent is justified.

Id. at 714-15, 325 S.E.2d at 248. The issue, therefore, is whether defendant’s conduct, viewed in the light most favorable to the plaintiff, was willful, wanton, or reckless, so as to fall within the Pleasant exception. A review of the case law since Pleasant suggests that, on the facts of this case, the exclusivity provision of the Workman’s Compensation Act precludes plaintiffs from maintaining a common law action against defendant.

In Echols v. Zarn, Inc., 116 N.C. App. 364, 448 S.E.2d 289 (1994), aff’d 342 N.C. 184, 463 S.E.2d 228 (1995), plaintiff was injured when she performed a machine operation in violation of company rules, on instructions from defendant, who was plaintiff’s supervisor, and in charge of enforcing safety rules. On these facts, the Court found the evidence insufficient to support “an inference that [defendant] intended that plaintiff be injured or that she was manifestly indifferent to the consequences of [plaintiff’s actions.]” Id. at 376, 448 S.E.2d at 296. See also Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993) (“[defendants] may have known certain dangerous parts of the machine were unguarded when they instructed [plaintiff] to work at the machine, [but] we do not believe this supports an inference that they intended that [plaintiff] be injured or that they were manifestly indifferent to the consequences of his doing so.”)

This Court recently addressed a situation similar to that of Pendergrass and Echols, in which the plaintiff, while under the influence of prescribed medication, was injured when she operated a machine at the direction of her supervisor, who (1) was in charge of

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pleasant v. Johnson
325 S.E.2d 244 (Supreme Court of North Carolina, 1985)
Pembee Mfg. Corp. v. Cape Fear Const. Co., Inc.
329 S.E.2d 350 (Supreme Court of North Carolina, 1985)
Von Viczay v. Thoms
545 S.E.2d 210 (Supreme Court of North Carolina, 2001)
Gaunt v. Pittaway
534 S.E.2d 660 (Court of Appeals of North Carolina, 2000)
Pendergrass v. Card Care, Inc.
424 S.E.2d 391 (Supreme Court of North Carolina, 1993)
MacKlin v. Dowler
281 S.E.2d 164 (Court of Appeals of North Carolina, 1981)
Brooks v. BCF Piping, Inc.
426 S.E.2d 282 (Court of Appeals of North Carolina, 1993)
Echols v. Zarn, Inc.
463 S.E.2d 228 (Supreme Court of North Carolina, 1995)
Bruce-Terminix Company v. Zurich Ins. Co.
504 S.E.2d 574 (Court of Appeals of North Carolina, 1998)
Von Viczay v. Thoms
538 S.E.2d 629 (Court of Appeals of North Carolina, 2000)
Echols v. Zarn, Inc.
448 S.E.2d 289 (Court of Appeals of North Carolina, 1994)
Koontz v. City of Winston-Salem
186 S.E.2d 897 (Supreme Court of North Carolina, 1972)
Strickland v. King
239 S.E.2d 243 (Supreme Court of North Carolina, 1977)
Bruno v. Concept Fabrics, Inc.
535 S.E.2d 408 (Court of Appeals of North Carolina, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
563 S.E.2d 245, 150 N.C. App. 406, 2002 N.C. App. LEXIS 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-ivester-ncctapp-2002.