Tyson v. ELG Utica Alloys, Inc.

• Court: Court of Appeals of North Carolina
• Decided: June 18, 2025
• Docket: 24-740
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-740

Filed 18 June 2025

Union County, No. 22CVS000598-890

KAREN TYSON, as Administrator of the Estate of FRANKLIN SCOTT TYSON, Plaintiff,

v.

ELG UTICA ALLOYS, INC., ELG UTICA ALLOYS HOLDING CORP., ELG UTICA ALLOYS (HARTFORD), INC., and ELG UTICA ALLOYS (MONROE) LLC, d/b/a ABS ALLOYS & METALS USA, LLC, Defendants.

Appeal by defendants from order entered 23 April 2024 by Judge Jonathan

Perry in Union County Superior Court. Heard in the Court of Appeals 18 March 2025.

Comerford Chilson & Moser, LLP, by John A. Chilson, The Law Offices of William K. Goldfarb, by William K. Goldfarb, and Love & Hutaff, PLLC, by Richard R. Hutaff, for plaintiff-appellee.

Raynor Law Firm, PLLC, by Kenneth R. Raynor, for defendants-appellants.

ZACHARY, Judge.

This case concerns the Woodson exception to the exclusivity provision of the

North Carolina Workers’ Compensation Act (“the Act”). See N.C. Gen. Stat. § 97-10.1

(2023); Woodson v. Rowland, 329 N.C. 330, 340–41, 407 S.E.2d 222, 228 (1991). As

discussed in greater detail herein, a Woodson claim presents “an exception to the Act’s

exclusivity provision . . . for civil actions brought as a result of conduct that is

tantamount to an intentional tort.” Hidalgo v. Erosion Control Servs., Inc., 272 N.C. TYSON V. ELG UTICA ALLOYS, INC.

Opinion of the Court

App. 468, 471, 847 S.E.2d 53, 56 (2020) (cleaned up).

Plaintiff Karen Tyson, as the administratrix of the estate of her deceased

brother, Franklin Scott Tyson (“Decedent”), asserted a Woodson claim against

Defendants ELG Utica Alloys, Inc., ELG Utica Alloys Holding Corp., ELG Utica

Alloys (Hartford), Inc., and ELG Utica Alloys (Monroe) LLC, d/b/a ABS Alloys &

Metals USA, LLC.1 Defendants appeal from the trial court’s order denying their

motion for summary judgment. We conclude that Plaintiff’s forecast of evidence failed

to establish a Woodson claim, and therefore, the trial court erred in denying

Defendants’ motion for summary judgment. Accordingly, we reverse and remand.

I. Background

On 7 April 2020, Decedent was killed by an explosive fire while operating the

zirconium crusher at Defendants’ metal processing plant in Monroe, North Carolina.

Defendants’ Monroe facility recycled metal used in the aerospace industry, including

zirconium. Defendants processed zirconium turnings, which are spiral shavings of

the metal, using a crusher.

Prior to the fatal explosion, there had been a few inconsequential, slow-burning

zirconium fires at the Monroe facility—including at least one that could not be put

out by Class D fire extinguishers, which was resolved when Defendants’ employees

1 In Plaintiff’s amended complaint, she refers to Defendants collectively as “members of a

conglomerate,” including a parent company and subsidiaries. In that Defendants do not object to their treatment as a collective party, for the purposes of this appeal and for ease of reading, we refer to them collectively as “Defendants.”

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“pulled the materials involved in [the] fire outside the building to let it burn out.”

Defendants had also previously received citations from federal and state

authorities for various safety violations. Significantly, none of these citations

specifically related to zirconium. The federal Occupational Safety and Health

Administration (“OSHA”) cited Defendants’ facility in Hartford, Connecticut,

regarding its handling of combustible titanium dust. The Occupational Safety and

Health Division of the North Carolina Department of Labor (“NC OSHA”) cited

Defendants for multiple violations at the Monroe facility, including several related to

the safe handling of hazardous materials. Following the fatal incident, NC OSHA

issued several additional citations related to Defendants’ handling of zirconium and

the crusher.

Acting as the administratrix of Decedent’s estate, on 4 March 2022, Plaintiff

filed a complaint against Defendants in Union County Superior Court. Defendants

filed a motion to dismiss and answer on 9 May 2022. On 7 September 2022, Plaintiff

filed an amended complaint, asserting a Woodson claim as well as “all other available

claims not barred/excluded under [the Act].” Defendants filed their motion to dismiss

and answer on 31 October 2022.

After extensive discovery, Defendants filed a motion for summary judgment on

16 February 2024. On 27 February 2024, Plaintiff likewise filed a motion for

summary judgment. Both motions came on for hearing in Union County Superior

Court on 8 April 2024.

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On 23 April 2024, the trial court entered a pair of orders denying the parties’

respective motions for summary judgment. Defendants timely filed notice of appeal

from the order denying their motion for summary judgment.

II. Appellate Jurisdiction

Defendants acknowledge the interlocutory nature of the order from which they

appeal but nonetheless assert that this Court may properly exercise jurisdiction

because the trial court’s order affects a substantial right.

“Generally, a party has no right of appeal from an interlocutory order.”

Edwards v. GE Lighting Sys., Inc., 193 N.C. App. 578, 581, 668 S.E.2d 114, 116

(2008). “An interlocutory order is one made during the pendency of an action, which

does not dispose of the case, but leaves it for further action by the trial court in order

to settle and determine the entire controversy.” Hanesbrands Inc. v. Fowler, 369 N.C.

216, 218, 794 S.E.2d 497, 499 (2016) (citation omitted).

“An exception exists when the order will deprive the party of a substantial

right absent an immediate appeal.” Edwards, 193 N.C. App. at 581, 668 S.E.2d at

116; see N.C. Gen. Stat. §§ 1-277(a), 7A-27(b)(3)(a). “As a general rule, a moving party

may not appeal the denial of a motion for summary judgment because ordinarily such

an order does not affect a substantial right.” Bockweg v. Anderson, 333 N.C. 486, 490,

428 S.E.2d 157, 160 (1993) (cleaned up).

However, as Defendants note, it is well established that the denial of a motion

for summary judgment based upon the Act’s exclusivity provision affects a

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substantial right. See, e.g., Hidalgo, 272 N.C. App. at 470–71, 847 S.E.2d at 55

(exercising jurisdiction where the plaintiff appealed denial of a summary judgment

motion pursuant to the exclusivity provision of the Act); see also Edwards, 193 N.C.

App. at 581, 668 S.E.2d at 116. In that Defendants have sufficiently demonstrated

that the trial court’s interlocutory order denying their motion for summary judgment

affects a substantial right, this appeal is properly before us.

III. Discussion

On appeal, Defendants argue that the trial court erred by denying their motion

for summary judgment because “Plaintiff’s evidence in this case fails to meet the

conduct tantamount to an intentional tort required by Woodson.” (Italics added). We

agree.

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.” Hidalgo, 272 N.C. App. at 471, 847 S.E.2d at 55 (citation omitted). When

conducting de novo review, this Court “considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” Id. (citation omitted).

“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.”

Edwards, 193 N.C. App. at 582, 668 S.E.2d at 117 (cleaned up). “All inferences of fact

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from the proofs offered at the hearing must be drawn against the movant and in favor

of the party opposing the motion.” Id. (citation omitted).

B. The Woodson Exception

The Act is intended “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). “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.’ ”

Hidalgo, 272 N.C. App. at 471, 847 S.E.2d at 56 (quoting Woodson, 329 N.C. at 338,

407 S.E.2d at 227).

In Woodson, our Supreme Court recognized a limited exception to the Act’s

exclusivity provision:

[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.

329 N.C. at 340–41, 407 S.E.2d at 228.

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Woodson set forth “an exacting standard that plaintiffs must meet in order to

escape the exclusivity provision” of the Act. Hidalgo, 272 N.C. App. at 471, 847 S.E.2d

at 56. Since Woodson, our Supreme Court has clarified that plaintiffs must produce

“uncontroverted evidence of the employer’s intentional misconduct . . . where such

misconduct is substantially certain to lead to the employee’s serious injury or death.”

Whitaker, 357 N.C. at 557, 597 S.E.2d at 668. Thus, “[t]he 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.” Id.

C. Analysis

On appeal, Defendants argue that the trial court erred by denying their motion

for summary judgment because Plaintiff failed to meet the exacting standard

required by Woodson. Specifically, they contend that Plaintiff failed “to show that

there was evidence that . . . [Defendants] intended that [Decedent] would be injured

from working on the crusher to process zirconium or that they were manifestly

indifferent to the consequences of his doing so as required by the Woodson exception.”

This case illustrates the high bar established by our Supreme Court in

Woodson and reinforced by Whitaker. In fact, at the hearing below, Defendants noted

that Plaintiff’s interrogatory responses “summarize[d] a case for negligence, maybe

willful and wanton negligence” against Defendants, but maintained that Plaintiff had

not shown that any “misconduct [wa]s tantamount to an intentional tort” as required

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by Woodson and its progeny. Woodson, 329 N.C. at 341, 407 S.E.2d at 228; see also,

e.g., Pendergrass v. Card Care, Inc., 333 N.C. 233, 239, 424 S.E.2d 391, 395 (1993)

(recognizing that a Woodson claim requires “a higher degree of negligence than

willful, wanton and reckless negligence”).

Defendants rely on a series of cases from our appellate courts rejecting

Woodson claims in which there was a “lack of evidence of the defendant[-]employer’s

recognition of the immediacy of the hazard the injured employee [wa]s faced with and

thus there [wa]s no evidence that the employer intended the employee to be injured

or that they were manifestly indifferent to the consequence.” For example, in

Edwards, this Court reversed the denial of a defendant-employer’s motion for

summary judgment—notwithstanding the plaintiff’s presentation of “evidence

relating to the results of investigations following the [fatal gas leak], including expert

testimony regarding the likelihood of an accident”—where “there [wa]s no evidence

that [the employer] knew, prior to [the] decedent’s death, that a carbon monoxide leak

was substantially certain to occur.” 193 N.C. App. at 584, 668 S.E.2d at 118. Indeed,

“although the evidence tended to show that [the employer] did not adequately

maintain its equipment,” this Court nonetheless explained that “even a knowing

failure to provide adequate safety equipment in violation of [NC] OSHA regulations

does not give rise to liability under Woodson.” Id. (cleaned up).

As in Edwards, here, Plaintiff relies in part upon NC OSHA’s subsequent

investigation of the fatal fire and resulting citations for “Serious” and “Repeat

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Serious” violations arising from Defendants’ alleged failure “to protect [Decedent]

from recognized hazards likely to cause death or serious physical harm.” However, in

Edwards, although the “plaintiff presented evidence relating to the results of

investigations following the accident, including expert testimony regarding the

likelihood of an accident, there [wa]s no evidence that [the employer] knew, prior to

[the] decedent’s death, that [the accident] was substantially certain to occur.” Id.

(emphasis added). “As discussed in Woodson, 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.” Whitaker, 357 N.C. at 558, 597 S.E.2d at

668–69 (emphasis added).

In addition, Plaintiff maintains that Defendants were “aware of, but

repeatedly ignored, safety warnings associated with the grinding of zirconium.” But

as Defendants persuasively observe, the evidence shows that their employees

“thought that any fires resulting from the processing of zirconium would be slow

burning and easily capable of extinguishment.” Plaintiff points to prior zirconium

fires at the Monroe facility, one of which Defendants admitted could not be

extinguished with a Class D fire extinguisher; however, even that fire was not

remotely comparable to an explosion. Defendants’ employees simply “pulled the

materials involved in [the] fire outside the building to let it burn out.” The record

evidence suggests that, while zirconium fires were not unprecedented, Defendants

had no “knowledge of a substantial certainty” of a sudden conflagration with the

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sustained force and intensity of the one that tragically killed Decedent in this case.

Id. at 558, 597 S.E.2d at 669.

Plaintiff also repeatedly asserts that Defendants “purposefully placed

[Decedent] in an unprotected location, without safety gear, directly above known

sparks and fires emitting from an explosive metal being ground within a crusher.”

However, our Supreme Court in Pendergrass concluded that knowledge that “certain

dangerous parts of [a] machine were unguarded when [the employer] instructed [the

employee] to work at the machine” did not support “an inference that [the employer]

intended that [the employee] be injured or that they were manifestly indifferent to

the consequences of his doing so.” 333 N.C. at 238, 424 S.E.2d at 394.

Defendants candidly acknowledge that, when viewed in the light most

favorable to Plaintiff, there was evidence presented “from which a juror could find

that the management of [Defendants] should have or could have recognized that their

understanding of the risk of processing zirconium was flawed and that they should

have taken some additional actions, much like those identified by . . . Plaintiff’s

experts.” Yet as Defendants correctly note, although this evidence might support a

claim for negligence, it does not amount to misconduct “tantamount to an intentional

tort,” as is required for a successful Woodson claim. Woodson, 329 N.C. at 341, 407

S.E.2d at 228.

Ultimately, our careful review of the record in the light most favorable to

Plaintiff reveals that Defendants have “demonstrate[d] that [Plaintiff] cannot prove

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the existence of an essential element” of the asserted Woodson claim. Edwards, 193

N.C. App. at 582, 668 S.E.2d at 117 (citation omitted). “Although we are sensitive to

the facts of this case, we emphasize as did our Supreme Court in Whitaker, there

must be ‘uncontroverted evidence of the employer’s intentional misconduct . . . where

such misconduct is substantially certain to lead to the employee’s serious injury or

death.’ ” Hidalgo, 272 N.C. App. at 474, 847 S.E.2d at 57 (quoting Whitaker, 357 N.C.

at 557, 597 S.E.2d at 668).

We conclude that “Plaintiff has not forecast evidence of intentional misconduct

by Defendants substantially certain to lead to Decedent’s death so as to create a

genuine issue of material fact sufficient to survive summary judgment on Plaintiff’s

claims arising under Woodson.” Id. Accordingly, the trial court erred by denying

Defendants’ motion for summary judgment.

IV. Conclusion

For the foregoing reasons, the trial court’s order denying Defendants’ motion

for summary judgment is reversed, and this matter is remanded for entry of an order

granting Defendants’ motion for summary judgment. See id. at 474, 847 S.E.2d at 58.

REVERSED AND REMANDED.

Judges STROUD and COLLINS concur.

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