Barrino v. Radiator Specialty Co., 8326SC753
| Decision Date | 03 July 1984 |
| Docket Number | No. 8326SC753,8326SC753 |
| Citation | 69 N.C.App. 501,317 S.E.2d 51 |
| Court | North Carolina Court of Appeals |
| Parties | Earl J. BARRINO, Administrator of the Estate of Lora Ann Barrino v. RADIATOR SPECIALTY COMPANY. |
Chambers, Ferguson, Watt, Wallas, Adkins & Fuller by Melvin L. Watt, Charlotte, for plaintiff-appellant.
Golding, Crews, Meekins, Gordon & Gray by James P. Crews and Henry C. Byrum, Jr., and Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell by John J. Doyle, Jr., Charlotte, for defendant-appellee.
Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment in that defendant's conduct amounted to an intentional tort, which would enable plaintiff to seek a civil recovery in addition to the Workers' Compensation benefits previously awarded. We disagree with this contention and affirm the order of the trial court.
The North Carolina Workers' Compensation Act provides that:
If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death. G.S. 97-10.1.
Plaintiff argues, however, that where an employee is injured by the employer's intentional act the immunity from suit provided by G.S. 97-10.1 is not applicable. Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106 (1950). For plaintiff to recover legal damages against defendant, then, according to plaintiff, there must be a showing that decedent was intentionally injured by defendant.
Plaintiff contends that the acts of defendant were willful, wanton, malicious and intended, thereby justifying the application of the exception to the exclusivity clause of G.S. 97-10.1. The misconduct complained of, as alleged by plaintiff in his complaint, consisted of the following acts:
1. covering meters designed to detect dangerous gas and vapor levels in defendant's plant with plastic bags to render them inoperative;
2. turning off, on the day of the explosion, alarms designed to warn of dangerous gas and vapor levels in defendant's plant, and instructing employees to continue or to resume working despite the alarms;
3. installing and operating equipment used in storing and handling explosive gas without the inspections and approvals required by law;
4. using equipment which lacked explosion-proof safeguards to prevent sparks in an explosion-prone atmosphere in violation of the National Electrical Code and the Occupational Safety and Health Act of North Carolina; and
5. in general, failing to provide a safe work place.
Even when considered in the light most favorable to plaintiff, these allegations of misconduct do not establish an intentional act sufficient to remove the protection afforded defendant by G.S. 97-10.1. Although the allegations, which are denied by defendant, may, if true, demonstrate that defendant was grossly negligent with regard to the protection of its employees, there has been no showing of an "actual intent" to injure decedent. See Daniels v. Swofford, 55 N.C.App. 555, 286 S.E.2d 582 (1982).
Since there was no showing that defendant intended to injure decedent, we find no substance in plaintiff's attempt to avoid a claimed exclusivity provision of G.S. 97-10.1. Moreover, the case of Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6 (1951), seems indistinguishable from the case at bar. In Warner the plaintiff contended that although he had received compensation he should be able to sue the defendant because defendant was guilty of willful and wanton conduct. In that case our Supreme Court held that since it was admitted that plaintiff had applied for and received compensation under the Workmen's Compensation Act the acceptance of benefits under the Act "... forecloses the right of the employee to maintain a common law action, under the exception pointed out, against the employer...." Id. at 733, 69 S.E.2d at 10.
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Barrino v. Radiator Specialty Co.
...1983. The plaintiff-administrator appealed to the Court of Appeals which affirmed the summary judgment. Barrino v. Radiator Specialty Co., 69 N.C.App. 501, 317 S.E.2d 51 (1984). We first examine the question of whether, when compliance with and coverage under our Workers' Compensation Act e......