Moreno v. Fla. Orange Gold LLC

Opinions

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-574

Filed 5 August 2026

Wake County, No. 23CV024026-910

CARLOS VARGAS MORENO, by his Guardian ad Litem JUAN ARREOLA, and DAYSI YAHAIRA ROMERO ARELLANO, Plaintiffs,

v.

FLORIDA ORANGE GOLD LLC, JOSE JAVIER GUTIERREZ, GILBERTO GUTIERREZ and HOWELL FARMING CO., INC., Defendants.

Appeal by Plaintiffs from Orders entered 20 December 2024 by Judge A.

Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 15

January 2026.

The Bricio Law Firm, P.L.L.C., by Francisco J. Bricio and Katherine N. Bricio, for Plaintiffs-Appellants.

Young Moore and Henderson, P.A., by Robert C. deRosset and Matthew C. Burke, for Defendants-Appellees Jose Javier Gutierrez and Gilberto Gutierrez.

Bailey & Dixon, LLP, by David S. Coats; and Maynard Nexsen PC, by R. Daniel Boyce, for Defendant-Appellee Florida Orange Gold LLC.

Pettey & Partrick, L.L.P., by Sean T. Partrick and Jonathan P. Wright, for Defendant-Appellee Howell Farming Co., Inc.

HAMPSON, Judge.

Opinion of the Court

Factual and Procedural Background

Carlos Vargas Moreno, through his Guardian ad litem, and his wife Daysi

Yahaira Romero Arellano (Plaintiffs), appeal from Orders granting summary

judgment in favor of Defendants Florida Orange Gold LLC, Jose Javier Gutierrez,

Gilberto Gutierrez, and Howell Farming Co., Inc. The Record before us tends to

reflect the following:

Florida Orange Gold LLC (FOG) is a limited liability company which primarily

employs individuals to perform agricultural work. Its president is Jose Javier

Gutierrez (Javier). Gilberto Gutierrez (Gilberto) is an FOG employee whose

responsibilities primarily include managing FOG’s day-to-day financial operations.

On 18 July 2020, an FOG employee died after suffering heat stroke while

working in a North Carolina field. The Occupational Safety and Health Division of

the North Carolina Department of Labor (OSHA) investigated the incident and issued

FOG a “serious” citation. The citation stated FOG had not furnished “to each of [its]

employees conditions of employment and a place of employment free from recognized

hazards that were causing or were likely to cause death or serious injury or serious

physical harm to employees in that employees were exposed to heat-related hazards

associated with working in a hot environment[.]” Specifically, FOG employees

worked outside in conditions with heat indices up to 108 degrees Fahrenheit, but

FOG “had not developed a heat stress prevention program to recognize and prevent

heat-related illnesses and hazards associated with working in a hot environment.”

-2-

OSHA recommended FOG “develop a heat stress prevention program.” On 13

April 2021, FOG signed a “Confirmation of Abatement,” attesting it would “fully

implement” a program. FOG’s heat stress prevention program specified it would,

among other things, train its employees on the risk factors for heat-related illness;

provide water and electrolytes for the workers; provide rest breaks; provide the

workers with a cool location where they could take their breaks; brief employees each

day on expected weather conditions; require workers to utilize a “buddy system”; and

adjust work schedules “whenever possible” if the heat index reached 91 degrees.

On 5 November 2021, OSHA conducted a follow-up inspection of FOG’s

operations. OSHA found the hazards had been abated and did not observe any

further violations.

However, in 2022, another FOG employee suffered a heat stroke while

working. On 19 July 2022, Moreno and his co-workers were brought to pull weeds in

a field belonging to Howell Farming. The workers were brought to the field on a bus

with no air-conditioning around 7:00 a.m. They worked throughout the day with an

hour break for lunch, a fifteen-minute break around 3:00 p.m., and another half-hour

break around 3:30 p.m. when they were transported to a different Howell Farming

field.

At approximately 5:54 p.m., Moreno collapsed from heat stroke. No supervisor

was present. A co-worker phoned Javier and told him Moreno was “unresponsive,

looked like he was having a stroke, a seizure.” Javier indicated he would be there in

-3-

ten minutes. The co-worker called Javier two more times after Moreno became

unresponsive. At no point did Javier did call 9-1-1 or instruct anyone else to call 9-1-

1.

Javier eventually arrived at the field in his personal vehicle. Javier had

Moreno placed in the bed of his pick-up truck, as opposed to the air-conditioned cab.

Moreno was unresponsive, covered in vomit, and had a body temperature of

109 degrees when he reached the hospital. He suffered severe injuries as a result of

hyperthermia,1 was hospitalized for just under a year, and today remains totally and

permanently disabled, requiring a wheelchair and assistance with everyday

functions. Moreno received Workers’ Compensation for his injury.

FOG did not report Moreno’s hospitalization to OSHA. OSHA did not receive

notice of the incident until one of Moreno’s attorneys notified OSHA on 31 August

2022. Thus, OSHA’s investigation was not initiated until 6 September 2022.

OSHA’s investigation found water had been provided to the workers and they

were allowed to take breaks as needed. However, all work was done in direct sunlight

without shade. The heat index on the day of Moreno’s injury ranged between 91 and

102.5 degrees.

1 Colloquially referred to as “heat stroke.”

-4-

Upon the conclusion of its investigation, OSHA determined FOG had not

“fully” implemented its heat stress prevention program. OSHA issued FOG a “repeat

serious” citation for its failure to ensure heat-safe practices.2

On 28 August 2023, Plaintiffs filed a Complaint against FOG, Javier, and

Gilberto, asserting claims for Moreno’s injury. Plaintiffs also asserted claims against

Howell Farming for Breach of Nondelegable Duty, Negligent Selection, and Negligent

Retention.3

On 10 October 2024, Howell Farming filed a Motion for Summary Judgment

asserting Plaintiffs could not establish a claim for Breach of Nondelegable Duty and,

alternatively, that the claim was barred because Moreno had been contributorily

negligent.

On 16 October 2024, FOG filed a Motion to Dismiss, asserting, among other

things, the exclusive remedy for Plaintiffs’ claim was within the North Carolina

Workers’ Compensation Act. On 8 November 2024, Javier and Gilberto filed an

amended Motion to Dismiss,4 also asserting Plaintiffs’ claims were barred by the

exclusivity provisions of the North Carolina Workers’ Compensation Act. Each of

these Defendants requested their Motions to Dismiss be treated as Motions for

2 OSHA also issued FOG two other citations for violations discovered during its investigation,

including one for FOG’s failure to report Moreno’s injury.

3 Plaintiffs voluntarily dismissed their claims against Howell Farming for Negligent Selection

and Negligent Retention on 20 September 2024.

4 The original, unamended Motion to Dismiss is not included in the Record.

-5-

Summary Judgment in the alternative. Plaintiffs submitted three proposed expert

affidavits in opposition to Defendants’ Motions.

The Motions came on for hearing on 19 November 2024. FOG moved to strike

Plaintiffs’ expert affidavits on the basis they, among other things, impermissibly

offered legal conclusions and were inadmissible under Rule 702 of the North Carolina

Rules of Evidence. Plaintiffs requested to supplement their affidavits with future

depositions of those experts, which the trial court denied.

Plaintiffs introduced evidence FOG had failed to enforce its heat stress

prevention program. Plaintiffs argued their evidence, particularly in light of the FOG

employee death from heat stroke in 2020, fell within the exception to the Workers’

Compensation Act’s exclusivity provisions, and therefore they could seek relief

through a civil action. Defendants, for their part, maintained their position Plaintiffs’

claims were barred by the Act’s exclusivity provisions.

After the conclusion of the hearing, Defendants submitted proposed orders

granting their Motions to the trial court via email. Plaintiffs responded with a

request that the trial court “make specific findings of fact for each of his Orders in

this case.”

On 20 December 2024, the trial court entered Orders granting summary

judgment in favor of Defendants as to all claims and dismissing the action for lack of

subject matter jurisdiction. In the Orders, the trial court also granted FOG’s request

-6-

to strike Plaintiffs’ three expert affidavits. Plaintiffs timely filed Notices of Appeal

on 3 January 2025.

Issues

The issues on appeal are whether the trial court: (I) failed to make required

Findings of Fact in its Orders; (II) denied Plaintiffs procedural due process when it

struck their expert affidavits; and (III) erred in granting summary judgment for

Defendants.

Analysis

I. Findings of Fact

As an initial matter, Plaintiffs argue the trial court erred by “fail[ing] to make

findings of fact” in its Orders.

“Findings of fact and conclusions of law are necessary on decisions of any

motion or order ex mero motu only when requested by a party and as provided by

Rule 41(b).”5 N.C. Gen. Stat. § 1A-1, Rule 52(a)(2) (2025). “[W]hen requested,

findings of fact and conclusions of law must be made even on rulings resting within

the trial court’s discretion.” Andrews v. Peters, 318 N.C. 133, 139, 347 S.E.2d 409,

413 (1986). Generally, however, “it is not proper to include findings of fact in an order

granting summary judgment.” Winston v. Livingstone College, Inc., 210 N.C. App.

486, 487, 707 S.E.2d 768, 769 (2011) (citations omitted).

5 Rule 41(b) pertains to involuntary dismissals and is not relevant to our discussion. See N.C.

Gen. Stat. § 1A-1, Rule 41 (2025).

-7-

On appeal, Plaintiffs argue the trial court was required to make findings as to

its ruling on Plaintiffs’ expert affidavits. However, Plaintiffs did not specify this in

their request to the trial court—they simply requested findings of fact be included in

the trial court’s summary judgment Orders. Thus, based off the vagueness of

Plaintiffs’ request, we are not convinced the trial court would have erred by not

including any findings of fact in its summary judgment Orders.

In any event, contrary to Plaintiffs’ assertions, the trial court’s Orders do

contain Findings of Fact bearing on the admissibility of Plaintiffs’ expert affidavits:

2. At the close of the November 19, 2024 hearing on HFCI’s Motion for Summary Judgment (heard after Defendants’ FOG, Jose Javier Gutierrez, and Gilberto Gutierrez (collectively “Gutierrez Defendants”) Motions to Dismiss), which collectively lasted over 4 hours, the Court considered the evidence closed for said Motion;

3. As part of the Hearing the Plaintiffs requested to supplement their experts’ affidavits with the future (not yet taken) depositions of their own experts and the Court denied that request at the Hearing;

4. The Court further finds that the Defendant HFCI’s oral Motion made during the Hearing to strike Plaintiffs’ experts’ affidavits submitted prior to the Hearing should be, and hereby is, allowed because the contents of the affidavits are not in compliance with Rule 702 and the applicable Daubert standards[.]

Therefore, presuming for our limited purposes that the trial court was required

to include said Findings, we conclude it sufficiently did so. Consequently, the trial

court did not err in the form of its Orders.

II. Admissibility of Expert Affidavits

-8-

Next, Plaintiffs raise what they characterize as a “procedural due process”

issue. Specifically, Plaintiffs argue the trial court denied them procedural due

process when it “sua sponte challenged the admissibility of the affidavits.”

In the instant case, Plaintiffs offered three expert affidavits in opposition to

Defendants’ Motions. FOG moved to strike the affidavits on the basis they

impermissibly offered legal conclusions and were inadmissible under Rule 702 of the

Rules of Evidence. Indeed, the trial court, reviewing the affidavits, expressed concern

the affidavits did not “even come close to complying with Rule 702”:

[Trial Court]: I mean, I look at their affidavits, and how can I find that they even come close to complying with Rule 702, in terms of what methods they used and how they apply those methods to the facts? I mean, I can’t tell whether their opinions comply with Daubert based off those affidavits.

[Plaintiffs’ Counsel]: Can I address the affidavits?

[Trial Court]: (Nonverbal response.)

[Plaintiffs’ Counsel]: So it – thanks for the Ipse Dixit reminder. There is content in the affidavit that says what their opinion – opinions are with regard to the failures; and then in terms of what they reviewed, that’s listed in the affidavit.

[Trial Court]: Yeah, but Daubert requires much more than that. One, you got to be able to reference – someone else has to come in and be able to replicate, and I can’t tell what standards they used, how they apply the facts to those standards to reach their ultimate opinions.

....

[Plaintiffs’ Counsel]: Okay. So my argument is that the opinions are contained in the affidavit, and they’re available for deposition.

-9-

Plaintiffs argue the trial court did not give them notice it would be challenging

the admissibility of their expert affidavits under Daubert/Rule 702. However, our

Rules of Evidence clearly provide: “Preliminary questions concerning the . . .

admissibility of evidence shall be determined by the court[.]” N.C. Gen. Stat. § 8C-1,

Rule 104(a) (emphasis added). Moreover, “[w]hen expert testimony is offered, . . . the

trial court will generally be ‘afforded wide latitude’ in determining whether the

proffered expert testimony will be admissible.’ ” Moore v. Proper, 366 N.C. 25, 30,

726 S.E.2d 812, 817 (2012) (quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d

370, 376 (1984)). Thus, any assertion by Plaintiffs that they were not on notice of a

potential Daubert challenge to their affidavits is without merit.

Further, “[t]he trial court has the discretion to determine ‘whether or when

special briefing or other proceedings are needed to investigate reliability [of expert

testimony].’ ” State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citing

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238

(1999)). Therefore, the trial court was entitled to decide the admissibility of Plaintiffs’

expert affidavits without allowing Plaintiffs additional time to brief the issue.

Simply put, there is no evidence the trial court denied Plaintiffs procedural due

process regarding the admission of their expert affidavits. Additionally, there is no

evidence the trial court abused its discretion in determining the affidavits were

inadmissible. Consequently, the trial court did not err in striking the affidavits.

- 10 -

III. Summary Judgment

Plaintiffs argue the trial court erred by granting summary judgment in favor

of Howell Farming on Plaintiffs’ claim for Breach of Nondelegable Duty and in favor

of FOG, Javier, and Gilberto on Plaintiffs’ claims under Woodson and Pleasant. We

address each in turn.

A. Standard of review

“Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows 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.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and

quotation marks omitted). “Under a de novo review, the court considers the matter

anew and freely substitutes its own judgment for that of the lower tribunal.” Craig

ex rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351,

354 (2009) (citation and quotation marks omitted).

“A party moving for summary judgment may prevail if it meets the burden (1)

of proving an essential element of the opposing party’s claim is nonexistent, or (2) of

showing through discovery that the opposing party cannot produce evidence to

support an essential element of his or her claim.” Lowe v. Bradford, 305 N.C. 366,

369, 289 S.E.2d 363, 366 (1982) (citations omitted). “If the moving party meets this

burden, the non-moving party must in turn either show that a genuine issue of

- 11 -

material fact exists for trial or must provide an excuse for not doing so.” Id. (citations

omitted).

“The non-moving party ‘may not rest upon the mere allegations of his

pleadings.’ ” Id. at 370, 289 S.E.2d at 366 (quoting N.C. Gen. Stat. § 1A-1, Rule 56(e)

(1981)). However, “[e]vidence presented by the parties is viewed in the light most

favorable to the non-movant.” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247,

249 (2003) (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)).

B. Breach of nondelegable duty

“Generally, one who employs an independent contractor is not liable for the

independent contractor’s negligence unless the employer retains the right to control

the manner in which the contractor performs his work.” Woodson v. Rowland, 329

N.C. 330, 350, 407 S.E.2d 222, 234 (1991) (citing Mack v. Marshall Field & Co., 218

N.C. 697, 12 S.E.2d 235 (1940)). However, “[o]ne who employs an independent

contractor to perform an inherently dangerous activity may not delegate to the

independent contractor the duty to provide for the safety of others[.]” Id. at 352, 407

S.E.2d at 235 (citing Evans v. Elliott, 220 N.C. 253, 259, 17 S.E.2d 125, 128-29 (1941)).

When the activity is inherently dangerous, “[t]he party that employs the independent

contractor has a continuing responsibility to ensure that adequate safety precautions

are taken.” Id. (citation omitted).

To establish a breach of the nondelegable duty, a plaintiff must show: (1) the activity causing the injury was, at the time of the injury, inherently dangerous, (2) the employer knew or should

- 12 -

have known, at the time of the injury, of the inherent dangerousness of the activity, (3) the employer failed to take reasonable precautions or ensure that such precautions were taken to avoid the injury, and (4) this negligence was a proximate cause of the plaintiff’s injuries.

Coastal Plains Utils., Inc. v. New Hanover Cnty., 166 N.C. App. 333, 348, 601 S.E.2d

915, 925 (2004) (citing O’Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 312, 511 S.E.2d

313, 317-18, disc. review denied, 350 N.C. 834, 538 S.E.2d 198 (1999)). Whether an

activity is an inherently dangerous one is assessed on a “case-by-case basis” and is

generally a question reserved for the jury. Woodson, 329 N.C. at 354, 407 S.E.2d at

236 (citation omitted).

Presuming, without deciding, a jury could find the activity in question here

was an inherently dangerous activity, then Howell Farming, if it knew of the

circumstances creating the danger, cannot escape liability by merely relying on the

legal ground FOG is an independent contractor. Id. at 356-57, 407 S.E.2d at 238.

However, we conclude on the Record before us, Plaintiffs’ forecast of evidence is

insufficient as to Howell Farming’s knowledge of the circumstances creating the

alleged danger.

In Woodson, the defendant-employer knew the trench in which the plaintiff

was working was unsafe “in that it was not being properly sloped, shored, or braced,

and that a trench box was not being used[,] [i]t knew these precautions were required

by OSHANC for the safety of the workers[,]” and the defendant-employer had not

- 13 -

acted to “ameliorate the dangers.” Id. at 357, 407 S.E.2d at 238. That evidence was

sufficient to survive summary judgment. Id.

By contrast, in Dunleavy v. Yates Construction Co., Inc., 114 N.C. App. 196,

442 S.E.2d 153 (1994), this Court held summary judgment was properly entered for

the company that hired the independent contractor because the company “did not

know and had no reason to know of the circumstances creating the danger . . . nor did

[it] have direct knowledge of the circumstances creating the danger.” Id. at 203, 442

S.E.2d at 56. There, the company hired an independent contractor to construct sewer

lines. Id. at 198, 442 S.E.2d at 53. The crew dug a trench which had not been “shored,

sloped, braced, or otherwise supported to prevent a collapse,” in violation of OSHA

standards, and a crew member was killed when a portion of the trench collapsed. Id.

at 198-99, 442 S.E.2d at 54. The injured crew member had not been provided with a

hard helmet, which also constituted an OSHA violation. Id. at 199, 442 S.E.2d at 54.

In affirming the grant of summary judgment for the company, the Dunleavy

Court noted the company was not “versed in the OSHA requirements” for trench

digging, and it did not know the independent contractor had commenced its work at

the site. Id. at 203, 442 S.E.2d at 56. Nor had the company been on notice of any

dangerous condition. Id. (citation omitted). And even though a corporate agent of

the company had been on site earlier that day, “he left [before the danger was

created], and was not at the site when the accident occurred.” Id.

- 14 -

Here, the Record shows Javier attested no-one at Howell Farming was aware

Moreno’s crew would be weeding in their fields on the day of the incident. Likewise,

two Howell Farming employees attested they did not know any FOG employees were

in their fields that day. Additionally, there is no evidence Howell Farming knew FOG

was not fully enforcing its heat stress prevention program on the day in question.

Rather, the Record shows FOG attested to OSHA in 2021 it would adopt the heat

stress prevention program, OSHA’s follow-up investigation confirmed this and found

no further violations, and, thus, Howell Farming had no reason to believe FOG was

not enforcing the program. Plaintiffs have not produced any evidence to the

contrary.6

Thus, taking “all reasonable inferences . . . in the light most favorable to the

non-moving party[,]” Plaintiffs have not shown Howell Farming had direct knowledge

of the circumstances creating the danger in the instant case. Woodson, 329 N.C. at

6 Plaintiffs argue the trial court failed to view the evidence of Howell Farming’s knowledge in

the light most favorable to Plaintiffs. Specifically, Plaintiffs argue there is evidence Javier had called Howell Farming multiple times on 19 July 2022, prior to Moreno’s collapse. At the hearing, Plaintiffs suggested this was evidence Howell Farming knew FOG’s employees were in its fields. The trial court suggested Javier and Howell Farming could have been “shar[ing] jokes.”

While we agree the trial court’s comment inappropriately viewed the evidence in a light more favorable to Howell Farming, our analysis remains unchanged. Even viewing this evidence in favor of Plaintiffs, it does not show Javier was in communication with Howell Farming about when or where Moreno’s weeding work was taking place. Nor does it show Howell Farming knew FOG had failed to enforce its heat stress prevention program. Thus, even presuming Howell Farming knew Moreno’s crew was in one of its fields, there is still insufficient evidence Howell Farming was “on notice of any dangerous condition.” Dunleavy, 114 N.C. App. at 203, 442 S.E.2d at 56 (citation omitted).

- 15 -

344, 407 S.E.2d at 231 (citation omitted). Therefore, the trial court properly entered

summary judgment in favor of Howell Farming.7

C. Woodson claims

“The North Carolina Workers’ Compensation Act . . . , located in Chapter 97 of

our General Statutes, 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.’ ”

Hidalgo v. Erosion Ctrl. Servs., Inc., 272 N.C. App. 468, 471, 847 S.E.2d 53, 56 (2020)

(quoting Whitaker v. Town of Scotland Neck, 357 N.C. 552, 556, 597 S.E.2d 665, 667

(2003)) (citing N.C. Gen. Stat. § 97-9 (2019)). “However, to balance competing

interests between employees and employers, the Act includes an exclusivity

provision, which ‘limits the amount of recovery available for work-related injuries

and removes the employee’s right to pursue potentially larger damage awards in civil

actions.’ ” Id. (quoting Woodson, 329 N.C. at 338, 407 S.E.2d at 227) (citing N.C. Gen.

Stat. § 97-10.1 (2019)).

In Woodson v. Rowland, our Supreme Court set out an exception to the Act’s

exclusivity provision, holding an employee who receives workers’ compensation under

the Act may also pursue a civil action against his employer when the employer

7 Because we conclude the trial court properly entered summary judgment in favor of Howell

Farming on Plaintiffs’ claim for Breach of Nondelegable Duty, we do not address Howell Farming’s arguments the claim is barred by Moreno’s contributory negligence.

- 16 -

“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[.]” 329 N.C. at 340-41, 407 S.E.2d at 228.

The Woodson exception is both “narrow,” Fagundes v. Ammons Dev. Grp., Inc.,

251 N.C. App. 735, 738, 796 S.E.2d 529, 532 (2017), and “exacting[,]” Hidalgo, 272

N.C. App. at 471, 847 S.E.2d at 56. See also Whitaker, 357 N.C. at 557, 597 S.E.2d at

668 (“[The Woodson] exception applies only in the most egregious cases of employer

misconduct.”). “The conduct must be so egregious as to be tantamount to an

intentional tort.” Shaw v. Goodyear Tire & Rubber Co., 225 N.C. App. 90, 101, 737

S.E.2d 168, 176 (citation omitted), disc. review denied, 367 N.C. 204, 748 S.E.2d 323

(2013).

Five years after Woodson was decided, this Court published its opinion in

Pastva v. Naegele Outdoor Advertising, Inc., 121 N.C. App. 656, 468 S.E.2d 491, disc.

review denied, 343 N.C. 308, 471 S.E.2d 74 (1996). There, we reversed the trial court’s

dismissal of the plaintiff’s Woodson claim for failure to state a claim under Rule

12(b)(6) of our Rules of Civil Procedure. In a concurring opinion, Judge Wynn noted,

in the five years since Woodson had been decided, “the Court has consistently pointed

out facts that do not establish a Woodson claim. However, it remains an uncertainty

as to what facts do allege a Woodson claim sufficient to overcome pretrial dismissal.”

Id. at 660, 468 S.E.2d at 494 (Wynn, J., concurring) (emphasis in original) (footnote

omitted).

- 17 -

Indeed, over twenty years after Judge Wynn made this observation in Pastva,

we still “have the Woodson facts and nothing else.” Id. We do not have much—if

any—more clarity as to what facts are necessary to, as it relates to this case, survive

summary judgment proceedings. In 2013, this Court noted it was “unaware of a

single litigant in any case which has been subject to appellate review who has

successfully pursued a Woodson claim since the exception to the exclusivity

provisions was set out in 1991.” Shaw, 225 N.C. App. at 102, 737 S.E.2d at 176

(citation omitted). Our review of the caselaw indicates the state of things has not

changed in the years since.

In Kolbinsky v. Paramount Homes, Inc., 126 N.C. App. 533, 485 S.E.2d 900

(1997), the employee of an independent contractor sued after he severed a portion of

his hand while cutting plywood with a circular saw. Id. at 534, 485 S.E.2d at 901.

The evidence showed the independent contractor was aware a guard had been

removed from the circular saw, which violated OSHA regulations; the independent

contractor nonetheless allowed the employee to use the saw; the independent

contractor may have been aware the employee was a minor; and employing a minor

to operate a circular saw was a violation of child labor regulations. Id. at 535, 485

S.E.2d at 902. The trial court granted summary judgment in favor of the independent

contractor and this Court affirmed, agreeing the evidence “failed to show that [the

independent contractor] engaged in intentional misconduct knowing that such

- 18 -

conduct was substantially certain to cause serious injury or death.” Id. at 534, 485

S.E.2d at 901-02 (citations omitted).

In reaching its decision, the Court in Kolbinsky discussed Pendergrass v. Card

Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993). In Pendergrass, the plaintiff “alleged

that he was injured when the employer directed him to work at a machine when it

knew that certain dangerous parts of the machine were unguarded, in violation of

OSHA regulations and industry standards.” Kolbinsky, 126 N.C. App. at 535, 485

S.E.2d at 902 (discussing Pendergrass). Our Supreme Court held:

Although [the employer] may have known certain dangerous parts of the machine were unguarded when they instructed [the employee] to work at the machine, we do not believe this supports an inference that they intended that [the employee] be injured or that they were manifestly indifferent to the consequences of his doing so.

Pendergrass, 333 N.C. at 238, 424 S.E.2d at 394 (concluding evidence was insufficient

to establish claims under both Woodson and Pleasant).

In Hidalgo, an employee was killed after he had been operating a tractor on a

steep slope when it started to roll, ejecting him from the tractor and causing fatal

injuries when the tractor rolled on top of him. 272 N.C. App. at 469, 847 S.E.2d at

54. The employer had previously replaced the tractor seat with one that did not have

a seatbelt, which was an OSHA violation. Id. at 473, 847 S.E.2d at 57. In reversing

the trial court’s denial of the employer’s motion for summary judgment, this Court

noted:

- 19 -

While the lack of a seatbelt created an unsafe condition and may well have made serious injury or death more likely or even probable in the event of an accident, in light of the high bar set by our Supreme Court in Woodson and Whitaker, this fact alone does not support Plaintiff’s argument the lack of seatbelt made it substantially certain death or serious injury would occur when operating the tractor.

Id. at 473-74, 847 S.E.2d at 57.

Here, taking all reasonable inferences in the light most favorable to Plaintiffs,

we, in light of our precedent, conclude the evidence is insufficient to demonstrate

FOG “intentionally engaged in misconduct knowing that it was substantially certain

to cause serious injury or death[.]” Whitaker, 357 N.C. at 557, 597 S.E.2d at 668. In

Woodson, for example, an “experienced construction worker with knowledge about

soil composition and the dangers associated with deep-ditch trenching” testified it

was substantially certain “a cave-in resulting in serious injury or death” would have

resulted from the employer’s failure to follow proper trenching safety protocols. 329

N.C. at 346, 407 S.E.2d at 231. No such evidence exists here. To the contrary, the

Record shows multiple other days where the crew was working under similar

conditions, yet there is no indication anyone suffered from heat-related illness in

those instances. See Hidalgo, 272 N.C. App. at 473-74, 847 S.E.2d at 57 (noting

tractor had been operated for over a year without proper seatbelt, but there was no

record of any safety incidents). As in Hidalgo, FOG’s failure to fully implement its

heat stress prevention plan may have been negligent, but we cannot say this failure

made it substantially certain death or serious injury would occur. See id.

- 20 -

Plaintiffs argue the facts of the present case are unique because: (1) FOG had

a prior OSHA citation and (2) previously had an employee death from an injury of the

same kind. However, “[n]o one factor is determinative in evaluating whether a

plaintiff has stated a valid Woodson claim[.]” Regan v. Amerimark Bldg. Prods., Inc.,

118 N.C. App. 328, 331, 454 S.E.2d 849, 852, 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).

It is true, in the instant case, Plaintiffs alleged facts which, if true, reveal

numerous, flagrant failures on the part of FOG in violation of its own policies: (1)

failing to monitor and brief its employees on the daily weather conditions; (2) allowing

Moreno and his coworkers to work the afternoon of 19 July 2022 while heat indices

ranged from 91 to 102.5 degrees; (3) failing to have a supervisor onsite; (4) failing to

call 9-1-1 after learning of Moreno’s condition; (5) failing to have an address for the

field in which the crew was working to provide to emergency responders, had they

been called; (6) leaving Moreno in the heat instead of moving him to an air-

conditioned environment when one became available; and (7) failing to use a buddy

system for workers to monitor each other. Each of these failures are in direct

contravention of FOG’s own heat stress prevention program.

Further, there is no question FOG knew of the dangers of heat stroke. It

received an OSHA violation after it had an employee die from heat-related illness

under a similar set of facts only two years earlier. Although FOG should have had a

heat-stress prevention program in place to begin with, it was ultimately put in place

- 21 -

in response to that employee’s death. And yet—just two years later—FOG’s failure

to enforce its program led to catastrophic injuries for another employee.

We are conscious these failures exposed Moreno and his fellow crew members

to recognized hazards associated with working in a hot environment. However, we

are constrained to conclude, as in Kolbinsky, Pendergrass, and Hidalgo, the evidence

does not support an inference FOG intended for Moreno to be injured or that FOG

was manifestly indifferent to the consequences of failing to fully implement its heat

stress prevention plan. Whitaker, 357 N.C. at 558, 597 S.E.2d at 668.

Thus, there is insufficient evidence from which a jury could find FOG’s conduct

was “so egregious as to be tantamount to an intentional tort.” Pendergrass, 333 N.C.

at 239, 424 S.E.2d at 395. Therefore, the trial court did not err in granting summary

judgment in favor of FOG on Plaintiffs’ Woodson claim.

Moreover, since Javier was at all material times FOG’s sole corporate agent,

any individual liability on his part must be based on the same standard as that

applied to FOG. See Woodson, 329 N.C. at 347, 407 S.E.2d at 232 (“A corporation can

act only through its agents, which include its corporate officers.” (citation omitted)).

Thus, Javier’s liability, “like that of the corporation, must be determined under the

substantial certainty standard.” Id. at 348, 407 S.E.2d at 232. Since Plaintiffs’

forecast of evidence is insufficient to survive FOG’s Motion for Summary Judgment,

it is, a fortiori insufficient to survive Javier’s Motion for Summary Judgment. Id. at

348, 407 S.E.2d at 233. Additionally, because the evidence shows Gilberto was an

- 22 -

FOG employee—as opposed to its corporate agent—and Plaintiffs have adduced no

evidence to the contrary, Gilberto cannot be held liable under Woodson. See id. at

347, 407 S.E.2d at 232. Consequently, the trial court also did not err in entering

summary judgment in favor of Javier and Gilberto on Plaintiffs’ Woodson claim.

D. Pleasant claim

Plaintiffs argue the trial court erred by entering summary judgment against

them as to their claim under Pleasant v. Johnson.8 In Pleasant v. Johnson, 312 N.C.

710, 325 S.E.2d 244 (1985), our Supreme Court held “the North Carolina Workers’

Compensation Act does not insulate a co-employee from the effects of his willful,

wanton and reckless negligence.” Id. at 717, 325 S.E.2d at 250. “An injured worker

in such situations may receive benefits under the Act and also maintain a common

law action against the co-employee.” Id.

“The concept of willful, reckless and wanton negligence inhabits a twilight zone

which exists somewhere between ordinary negligence and intentional injury.” Id. at

714, 325 S.E.2d at 247. “We have described ‘wanton’ conduct as an act manifesting a

reckless disregard for the rights and safety of others.” Id. at 714, 325 S.E.2d at 248

(citations omitted). “The term ‘reckless’, as used in this context, appears to be merely

8 In their Complaint, Plaintiffs alleged claims under Pleasant against both Gilberto and Javier.

However, on appeal, Plaintiffs have advanced this argument only as it relates to their claim against Gilberto and have made no arguments in support of their Pleasant claim against Javier. Accordingly, this issue is abandoned as it relates to Javier, and we express no opinion as to its merits. N.C. R. App. P. 28(a) (2026) (“Issues not presented and discussed in a party’s brief are deemed abandoned.”).

- 23 -

a synonym for ‘wanton’ and has been used in conjunction with it for many years.” Id.

(citing Bailey v. N.C. R.R. Co., 149 N.C. 169, 175, 62 S.E. 912, 914 (1908)).

“Mere negligence, even if conclusively established, does not suffice to establish

a Pleasant claim, as ‘even unquestionably negligent behavior rarely meets the high

standard of willful, wanton or reckless negligence.’ ” Estate of Baker v. Reinhardt,

288 N.C. App. 529, 537, 887 S.E.2d 437, 444 (2023) (internal quotation marks

omitted) (quoting Trivette v. Yount, 366 N.C. 303, 312, 735 S.E.2d 306, 312 (2012)).

Moreover, “[k]nowledge of a dangerous hazard, standing alone, does not establish a

viable claim under Pleasant.” Id. at 542, 887 S.E.2d at 447 (citing Echols v. Zarn,

Inc., 116 N.C. App. 364, 376, 448 S.E.2d 289, 296 (1994), abrogated on other grounds

by, Mickles v. Duke Power Co., 342 N.C. 103, 110, 463 S.E.2d 206, 211 (1995)).

Our caselaw demonstrates the burden of establishing a Pleasant claim,

although not as exacting as the standard set out in Woodson, is nonetheless

demanding. In Echols v. Zarn, Inc., the plaintiff’s hand was crushed in a machine,

which she allegedly had not been trained to operate. 116 N.C. App. at 367-68, 448

S.E.2d at 291. A supervisory co-employee who knew of the machine’s dangers and

was responsible for enforcing the company’s safety policies had directed the plaintiff

to reach her hand under the machine’s safety gate while it was in operation, resulting

in the plaintiff’s injuries. Id. at 375, 448 S.E.2d at 295-96. The trial court granted

summary judgment in favor of the co-employee and this Court affirmed, noting: “Even

if we assume that [the co-employee] knew that reaching under the safety gate could

- 24 -

be dangerous, we do not believe this supports an inference that [the co-employee]

intended that plaintiff be injured or that she was manifestly indifferent to the

consequences of plaintiff reaching under the safety gate.” Id. at 376, 448 S.E.2d at

296.

In Fagundes v. Ammons Development Group, Inc., we rejected the plaintiff’s

Pleasant claim even where OSHA had investigated the accident, which was the result

of a blasting operation; OSHA assessed five citations for “egregious” safety violations;

and there was evidence the plaintiff’s supervising co-employee was responsible. 251

N.C. App. at 740, 796 S.E.2d at 534. We held the evidence was insufficient to

establish a claim at summary judgment because, “before his accident, neither [the co-

employee] nor the company had ever been cited for any OSHA violations, nor had

anyone been injured as a result of the company’s blasting activities.” Id. By contrast,

in Estate of Vaughn v. Pike Electric, LLC, 230 N.C. App. 485, 751 S.E.2d 227 (2013),

we held the plaintiff’s estate successfully stated a Pleasant claim where the plaintiff

had been killed while working on a powerline and his employer had received at least

ten prior serious OSHA safety violations after other employees had been killed or

injured while also working on powerlines. Id. at 488-89, 751 S.E.2d at 230.

Here, the relevant evidence, taken in the light most favorable to Plaintiffs,

tends to show: an FOG employee had died from heat stroke two years prior, FOG

attested to OSHA it had subsequently implemented a heat stress prevention

program, and the practices outlined in FOG’s heat stress prevention program were

- 25 -

not being fully enforced when Moreno suffered his injury. While it is particularly

notable that an FOG employee had died from heat stroke only two years prior, the

facts at bar are less like those of Vaughn and more like those of Echols and Fagundes.

We cannot say the evidence, on the Record before us, is such that a jury could

find Gilberto’s actions were so willful, wanton, and recklessly negligent so as to be

“equivalent in spirit to actual intent.” 312 N.C. at 715, 325 S.E.2d at 248 (citing

Foster v. Hyman, 197 N.C. 189, 148 S.E. 36 (1929)). Thus, the trial court did not err

in granting summary judgment for Gilberto on Plaintiffs’ Pleasant claim.

Conclusion

Accordingly, for the foregoing reasons, we affirm the trial court’s Order.

AFFIRMED.

Chief Judge DILLON and Judge MURRY concur.

Report per Rule 30(e).

- 26 -