Pastva v. Naegele Outdoor Advertising, Inc.

• Decision Date: 05 March 1996
• Docket Number: No. COA95-483,COA95-483
• Citation: Pastva v. Naegele Outdoor Advertising, Inc., 468 S.E.2d 491, 121 N.C.App. 656 (N.C. App. 1996)
• Parties: Kimberly J. PASTVA, Individually and as Administratrix of the Estate of David S. Pastva and Joseph W. Henzler, Plaintiff-Appellants, v. NAEGELE OUTDOOR ADVERTISING, INC. d/b/a Fairway Outdoor Advertising, Defendant-Appellee.
• Court: North Carolina Court of Appeals

Page 491

468 S.E.2d 491

121 N.C.App. 656

Kimberly J. PASTVA, Individually and as Administratrix of the Estate of David S. Pastva and Joseph W Henzler, Plaintiff-Appellants, v.NAEGELE OUTDOOR ADVERTISING, INC. d/b/a Fairway Outdoor Advertising, Defendant-Appellee.

No. COA95-483.

Court of Appeals of North Carolina.

March 5, 1996.

Donaldson & Horsley, P.A. by Jeffrey K. Peraldo, Greensboro, for plaintiff-appellants.

Pinto, Coates & Kyre, L.L.P. by Paul D. Coates and David L. Brown, Greensboro, for defendant-appellee.

GREENE, Judge.

Kimberly Pastva, individually and as administratrix of the estate of David Pastva, and Joseph Henzler(plaintiffs), appeal an order granting Naegele Outdoor Advertising Inc., d/b/a Fairway Outdoor Advertising (defendant), its motion to dismiss plaintiffs' complaint pursuant to N.C.Gen.Stat. § 1A-1,Rules 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

Plaintiffs allege that: (1)they were employees of the defendant; (2)they were instructed by the defendant to work on a particular billboard; (3) the billboard collapsed causing injuries to the plaintiffs; (4) the collapse was caused by a structural failure of critical components of the billboard; (5) the structural failure was caused in part by the defendant's use of improper components and in part by improperly moving the billboard; (6)the defendant did not perform any inspections on the billboard; (7)the defendant did not provide any training in workplace safety; (8)the defendant had actual knowledge that the billboard was unsafe and dangerous immediately before it collapsed; (9)defendant had been cited and fined numerous times by governmental authorities for workplace safety violations; (10) subsequent to the collapse of the billboard, the defendant was cited for failing to furnish a place of employment free of recognized hazards; (11) subsequent to the collapse, the defendant acknowledged that the collapse would not have occurred but for the defendant's "acts, conduct and omissions" with regard to the billboard; and (12)the acts and omissions of the defendant constituted "intentional conduct which [d]efendant knew was substantially certain to cause serious injury or death."

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The issue is whether plaintiffs' complaint sufficiently states a claim pursuant to Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222(1991).

Our legislature has provided that the Workers' Compensation Act provides the exclusive remedy for employees injured in a workplace accident.N.C.G.S. § 97-9;N.C.G.S. § 97-10.1(1991).There are four exceptions to this general rule: (1) an injured employee may maintain a tort action against a co-employee for intentional injury, Andrews v. Peters, 55 N.C.App. 124, 128, 284 S.E.2d 748, 750(1981), disc. rev. denied, 305 N.C. 395, 290 S.E.2d 364(1982);(2) an injured employee may maintain a tort action against his employer for intentional injury, Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 488, 340 S.E.2d 116, 120, disc. rev. denied, 317 N.C. 334, 346 S.E.2d 140(1986);(3) an injured employee may maintain a tort action against a co-employee for his "willful, wanton and reckless negligence,"Pleasant v. Johnson, 312 N.C. 710, 716, 325 S.E.2d 244, 249(1985); and (4) an injured employee may maintain a tort action against his employer if the "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."¹ Woodson, 329 N.C. at 340, 407 S.E.2d at 228."Substantial certainty""is more than the 'mere possibility' or 'substantial probability' of serious injury or death,"Arroyo v. Scottie's Professional Window Cleaning, 120 N.C.App. 154, 159, 461 S.E.2d 13, 16, disc. rev. allowed, 342 N.C. 190, 463 S.E.2d 231, quotingRegan v. Amerimark Bldg. Prods., 118 N.C.App. 328, 331, 454 S.E.2d 849, 852, disc. rev. denied, 340 N.C. 359, 458[121 N.C.App. 659] S.E.2d 189 (1995), but is something less than "actual certainty."Mickles v. Duke Power Co., 342 N.C. 103, 110, 463 S.E.2d 206, 211(1995).

A complaint must be dismissed pursuant to Rule 12(b)(6):

when one or more of the following three conditions is satisfied: (1) when on its face the complaint reveals no law supports plaintiff's claim; (2) when on its face the complaint reveals the absence of fact sufficient to make a good claim; and (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim.

Johnson v. Bollinger, 86 N.C.App. 1, 4, 356 S.E.2d 378, 380(1987).Thus, a complaint is sufficient "where no 'insurmountable bar' to recovery appears on the face of the complaint and the complaint's allegations give adequate notice of the nature and extent of the claim."Id.Notice of the nature and extent of the claim is adequate if the complaint contains "sufficient information to outline the elements of [the] claim or to permit inferences to be drawn that these elements exist."5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure§ 1357, at 340 (2d ed. 1990);Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 205, 367 S.E.2d 609, 612(1988)("complaint must ... state enough to give the substantive elements of a legally recognized claim"), appeal after remand, 101 N.C.App. 1, 398 S.E.2d 889(1990), rev'd on other grounds, 329 N.C. 646, 407 S.E.2d 178(1991);Bynum v. Fredrickson Motor Express Corp., 112 N.C.App. 125, 129, 434 S.E.2d 241, 243(1993)(not sufficient to merely allege elements of claim).The elements of a Woodson claim are: (1) misconduct by the employer; (2) intentionally engaged in; (3) with the knowledge that the misconduct is substantially certain to cause serious injury or death to an employee; and (4) that employee is injured as a consequence of the misconduct.Woodson, 329 N.C. at 340-41, 407 S.E.2d at 228.

The defendant argues that the complaint in this case does not allege sufficient facts to support a Woodson claim.We disagree.The complaint does not reveal an insurmountable bar to recovery and the allegations provide adequate notice of the nature and extent of the claim.The allegations of misconduct, particularly the directing of the plaintiffs to work on the billboard after notice of its dangerous condition, are sufficient to support a reasonable inference that each of the four elements of the Woodson claim exist.SeeRegan, 118 N.C.App. at 331, 454 S.E.2d at 852(reversing dismissal of Woodson claim).

Reversed and remanded.

MCGEE, J., concurs.

WYNN, J., concurs with separate opinion.

WYNN, Judge, concurring.

I agree with the majority that this matter should be returned to the trial court because the pleadings allege sufficient facts to overcome a 12(b)(6) motion.However, the opportunity should not be lost to point out the continuing dilemma faced by our trial judges and litigators in trying to assess what is needed to set forth a Woodson claim.

In all candor, plaintiff's victory may be short lived.In the four occasions that our Supreme Court has applied Woodson, the Court has not recognized a claim that would survive pretrial dismissal.In Pendergrass v. Card Care, Inc., 333 N.C. 233, 239, 424 S.E.2d 391, 395(1993), the Supreme Court upheld a Rule 12(b)(6) dismissal finding that plaintiff's allegations did not rise to the level of negligence defined in Woodson.Most recently in the trilogy of Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206(1995);Powell v. S & G Prestress Co., 342 N.C. 182, 463 S.E.2d 79(1995);and, Echols v. Zarn, Inc., 342 N.C. 184, 463 S.E.2d 228(1995), the Supreme Court found that the claimants had failed to forecast evidence sufficient to set forth a Woodson claim and thus concluded that summary judgment was properly allowed in each case.Significantly, our Supreme Court rejected the Restatement of Tort's bomb throwing example as an analogy for defining "substantial certainty," explicitly finding that example defined "actual certainty" which is not required for a successful claim under the Woodson exception.Mickles, 342 N.C. at 110, 463 S.E.2d at 211.

In short, since creating the Woodson exception, 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.¹

At this point, as candidly recognized by the counsels during...