Estate of Vaughn v. Pike Elec., LLC

• Decision Date: 19 November 2013
• Docket Number: No. COA13–448.,COA13–448.
• Citation: 751 S.E.2d 227
• Parties: The ESTATE OF Gary VAUGHN, Tammy Vaughn, Administratrix, Plaintiff, v. PIKE ELECTRIC, LLC, Pike Electric, Inc., and Kenneth Shalako Penland, Defendants.
• Court: North Carolina Court of Appeals

751 S.E.2d 227

The ESTATE OF Gary VAUGHN, Tammy Vaughn, Administratrix, Plaintiff,

v.PIKE ELECTRIC, LLC, Pike Electric, Inc., and Kenneth ¹ Shalako Penland, Defendants.

No. COA13–448.

Court of Appeals of North Carolina.

Nov. 19, 2013.

Appeal by Defendants from order entered 25 February 2013 by Judge Gary M. Gavenus in Rutherford County Superior Court. Heard in the Court of Appeals 11 September 2013.

Podgorny Law, P.A., by George Podgorny, Jr., Research Triangle Park, and Price, Smith, Hargett, Petho & Anderson, Charlotte by Richard L. Anderson, for Plaintiff.

Roberts & Stevens, P.A., Asheville by F. Lachicotte Zemp, Jr. and Robin A. Seelbach, for Defendants Pike Electric, LLC and Pike Electric, Inc.

Bennett & Guthrie, P.L.L.C., Winston–Salem by Richard V. Bennett, Roberta King Latham, and Joshua H. Bennett, for Defendant Kineth Shalako Penland.

STEPHENS, Judge.

Factual and Procedural Background

This case arises from the death of Gary Vaughn (“Decedent”). He was electrocuted on 29 October 2009 while working as a groundman for Defendants Pike Electric, LLC and Pike Electric, Inc. (collectively, “Pike Electric”) and died as a result of that injury. Almost three years later, on 4 October 2012, Decedent's surviving spouse and the administratrix of his estate, Tammy Vaughn (“Plaintiff”), filed a negligence complaint against Pike Electric and Decedent's supervisor, Defendant Kineth Penland (“Penland”), in Rutherford County Superior Court.²

In her complaint, Plaintiff alleges the following:

10.... Decedent was employed by Pike Electric as a groundman. As a groundman, ... Decedent assisted foremen, linemen[,] and other employees of Pike Electric who worked on ... overhead distribution lines....

11. [Groundmen] ... were neither trained nor permitted to perform work on poles with energized lines ... due to the risk of electrocution and/or death inherent in such work.

...

13. On the morning of October 29, 2009, ... Decedent was employed as a groundman in a crew overseen by Penland[, which had been] instructed to retrofit transformers on overhead power lines....

14. As a groundman, the duties to be performed by ... Decedent during this work were prescribed and circumscribed by the Pike Electric [work methods and safety manuals]. These duties did not include working on power lines; especially work on energized power lines.

15. [At the time of his death, Decedent had been employed as a groundman for less than two months] and had not received any training or job assessment during that period of time. [Defendants] knew that ... Decedent had received no training to perform the work required of a lineman.

16. Defendants knew that ... Decedent had ... no previous experience with power line distribution and transmission and had worked as a truck driver prior to being employed by ... Pike Electric.

17. Defendants knew that ... Decedent had received no training as a lineman and ... was not [permitted to] climb[ ] poles or work[ ] on or near energized lines or equipment....

18. Retrofitting transformers is an inherently dangerous activity as it involves de-energizing the transformer by disconnecting the stinger from the primary line, replacing the lightning arrester, installing guy sticks, installing a fused cutout[,] and re-energizing the transformers.

19.... Defendants knew that undertaking such a task required specific training and experience and that instructing a novice groundman such as ... Decedent to performsuch work was certain to result in death or serious injury.

20.... Penland instructed ... Decedent to climb the Decedent utility pole [that] was supporting [the] overhead power lines ... and to begin the work of retrofitting the transformer.

21. The power lines that Penland instructed ... Decedent to work on were high voltage distribution lines. They were energized[,] uninsulated[,] and carried 7200 volts of electricity.

22. Defendants knew that [groundmen] such as Decedent were not qualified, nor permitted, to undertake any of those dangerous activities.

23. Nevertheless, ... Decedent was ... instructed to use a “shotgun” stick to de-energize the pole. This involved the dangerous step of removing the hotline clamp from the primary line which would leave the primary line exposed. This is a task reserved for [a] trained and experienced lineman.

24. Defendants knew that ... Decedent had neither the training nor experience to safely carry out such a task[,] yet instructed him to do so regardless.

25.... Decedent was not supervised nor provided with adequate personal protective equipment while undertaking the tasks assigned to him.

26. Shortly after ... Decedent climbed the utility pole, the remaining crewman heard a loud noise from the top of the pole and turned to see ... Decedent hanging limp from the utility pole.

27. The other members of ... Decedent's crew were then forced to perform a pole[ ]top rescue of ... Decedent.

28. Resuscitation efforts were attempted[,] but [Decedent] did not survive his injuries.

29. As the foreman and/or employee in charge on October 29, 2009, Penland's duties and responsibilities were prescribed by ... OSHA regulations and [the Pike Electric safety manual]. These duties included ... ensuring that all lines to be worked on were de-energized, ... all employees followed applicable safety rules, and ... all of the employees in the work crew possessed the necessary information and work skills ... to perform the work carefully.

30.... Defendants knew, or should have known, that groundmen and other untrained and inexperienced employees were ... instructed to perform the inherently dangerous activities reserved for trained linemen.

...

33.... OSHA determined that Defendant Pike Electric had previously been cited by North Carolina OSHA for violations ... in North Carolina as well as in other states where [it provides] similar services.

34.... Pike [Electric] ... was aware that employees such as ... Decedent were being placed in[ ] hazardous situations that were substantially certain to cause injury or death.

35.... [Pike Electric] was cited for [ten] serious safety violations in the [S]tate of Georgia in 2001 following the fatal electrocution of an employee while upgrading an electrical system.

...

37.... [Pike Electric] was cited for safety violations in the [S]tate of Florida in 2003 following [an employee injury] after [the injured employee] contact[ed] an energized power line.

38. Following [an] investigation [in this case], OSHA issued citations to [Pike Electric because]:

a. ... An employee classified as a groundman[, i.e., Decedent,] was allowed to perform work as a lineman for which he had not been trained[; and]

b. ... [Decedent] was working in close proximity to 7200 volts ... without wearing insulating gloves or ... sleeves.

Defendants Pike Electric and Penland moved to dismiss Plaintiff's complaint in December of 2012 under Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure and section 97–10.1 (“the exclusivity provision”) of the North Carolina Workers' Compensation Act (“the Act”). Pursuant to those rules, Defendants asserted that the trial court lacked subject matter jurisdiction to proceed with the case and that Plaintiff had failed to state a claim on which relief could be granted. The motions were heard on 18 February 2013 and, one week later, denied. Defendants appeal.

Discussion

Defendants appeal the trial court's order denying their motions to dismiss under Rules 12(b)(1) and 12(b)(6). On both motions, we reverse as to Pike Electric and affirm as to Penland.

I. Appellate Jurisdiction

Defendants' appeal is interlocutory. It is well settled that an order denying a motion to dismiss made pursuant to the exclusivity provision of the Act and either Rule 12(b)(6) or Rule 12(b)(1) is interlocutory. Trivette v. Yount, 217 N.C.App. 477, ––––, 720 S.E.2d 732, 734 (2011) ( “[T]he trial court's order denying Defendant's motion to dismiss pursuant to Rule 12(b)(1) ... is interlocutory.”) [hereinafter Trivette I ], affirmed in part, reversed in part on other grounds, and remanded,366 N.C. 303, 735 S.E.2d 306 (2012); Block v. Cnty. of Person, 141 N.C.App. 273, 276, 540 S.E.2d 415, 418 (2000) (“[A] denial of a motion pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) is an interlocutory order from which no appeal may be taken immediately.”) (citation, brackets, certain punctuation, and internal quotation marks omitted). “An order is interlocutory if it is made during the pendency of an action and does not dispose of the case[,] but requires further action by the trial court in order to finally determine the entire controversy.” Trivette I, 217 N.C.App. at ––––, 720 S.E.2d at 734. Generally, a party cannot immediately appeal from an interlocutory order. Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006). “The rationale behind [disallowing the immediate appeal of interlocutory orders] is that no final judgment is involved in such a denial and the movant is not deprived of any substantial right that cannot be protected by a timely appeal from a final judgment which resolves the controversy on its merits.” Block, 141 N.C.App. at 276–77, 540 S.E.2d at 418. Because the trial court's denial of Defendants' motions to dismiss did not finally dispose of Plaintiff's claims in this case, it is interlocutory and, therefore, not generally subject to immediate appellate review.

Nevertheless, an interlocutory order may be reviewed on appeal when either “(1) ... there has been a final determination as to one or more of the claims and the trial court certifies that there is no just reason to delay the appeal, [or] (2) ... delaying the appeal would prejudice a substantial right.” Milton v. Thompson, 170 N.C.App. 176, 178, 611 S.E.2d 474, 476 (2005). Because the trial court did not certify that there was no just reason to delay Defendants' appeal, review is proper only if the delay would affect a substantial right. We hold that it would.

A. Denial of Defendants' ...