Pleasant v. Johnson, 433A84

• Decision Date: 30 January 1985
• Docket Number: No. 433A84,433A84
• Citation: 312 N.C. 710,325 S.E.2d 244
• Parties: , 57 A.L.R.4th 873, 53 USLW 2400 William Gerald PLEASANT v. Victor Lee JOHNSON.
• Court: North Carolina Supreme Court

Page 244

325 S.E.2d 244

312 N.C. 710, 57 A.L.R.4th 873, 53 USLW 2400

William Gerald PLEASANT v. Victor Lee JOHNSON.

No. 433A84.

Supreme Court of North Carolina.

Jan. 30, 1985.

McCain & Essen by Grover C. McCain, Jr., and Jeff Erick Essen, Chapel Hill, for plaintiff-appellant.

Bryant, Drew, Crill & Patterson, P.A. by Lee A. Patterson, II, Durham, for defendant-appellee.

MITCHELL, Justice.

The pivotal issue in this case is whether the North Carolina Workers' Compensation Act provides the exclusive remedy when an employee is injured in the course of his employment by the willful, wanton and reckless conduct of a co-employee. We hold that it does not and that an employee may bring an action against the co-employee for injuries received as a result of such conduct. Accordingly, we reverse the decision of the Court of Appeals.

The facts in this case are not in dispute. The plaintiff and the defendant were employees of Electricon Incorporated. On May 13, 1980, the plaintiff returned from lunch to the construction site where he and the defendant were working. As the plaintiff walked across the parking lot toward the job site, a truck driven by the defendant struck the plaintiff, seriously injuring his right knee.

The plaintiff was awarded disability benefits under the Workers' Compensation Act. He then filed this action for damages, alleging in addition to simple negligence that:

Defendant was willfully, recklessly and wantonly negligent in that he was operating the motor vehicle in such a fashion so as to see how close he could operate the said motor vehicle to the plaintiff without actually striking him but, misjudging his ability to accomplish such a prank, actually struck the plaintiff with the motor vehicle he was operating.

During his case in chief, the plaintiff called the defendant to the stand. The defendant testified that he had been joking or "horse-playing" at the time of the accident. He stated that he had intended to scare the plaintiff by blowing the horn and by operating the truck close to him. At the close of the plaintiff's evidence the defendant moved for and was granted a directed verdict.

This case involves the North Carolina Workers' Compensation Act. Before turning to those sections of the Act which are directly applicable here, we briefly review the background of workers' compensation legislation.

A tragic by-product of the Industrial Revolution was the vast number of workers who were injured in factories, mills, and mines. Yet the majority of injured workers who brought negligence actions against their employers found their claims defeated by the employer's "unholy trinity" of defenses: contributory negligence, assumption of risk, and the fellow-servant rule. S. Horovitz, Injury and Death Under Workmen's Compensation Laws 2 (1944) (hereinafter cited as Horovitz ). Some courts attempted to reduce the harsh impact of these defenses by adopting doctrines such as the vice-principal exception to the fellow-servant rule. Most workers, however, remained without an adequate remedy for work-related injuries. Id., p. 3.

In the mid-1880's Germany responded to the problem by enacting the first workers' compensation legislation. The German plan was compulsory and relied in large part upon employee contributions. 1 A. Larson, The Law of Workmen's Compensation § 5.10 (1984) (hereinafter cited as Larson ). England established a workers' compensation plan in 1897. Horovitz, p. 5. In 1913 New York became the first state to enact workers' compensation legislation, ¹ and the remaining states followed over the next several years. Larson, § 5.20. North Carolina adopted its Workers' Compensation Act in 1929.

The social policy behind workers' compensation is that injured workers should be provided with dignified, efficient and certain benefits for work-related injuries and that the consumers of the product are the most appropriate group to bear the burden of the payments. Larson, § 2.20. The most important feature of the typical workers' compensation scheme is that the employee and his dependents give up their common law right to sue the employer for negligence in exchange for limited but assured benefits. Consequently the negligence and fault of the injured worker ordinarily is irrelevant. Id., § 1.10.

The provisions of the North Carolina Workers' Compensation Act with which we are primarily concerned here are N.C.G.S. 97-9 and 97-10.1. N.C.G.S. 97-9 provides:

Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified.

N.C.G.S. 97-10.1 states:

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.

We have held that these provisions bar a worker from maintaining a common law negligence action against his employer. See, e.g., Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966). We also have interpreted the Act as foreclosing a worker who is injured in the course of his employment from suing a co-employee whose negligence caused the injury. N.C.G.S. 97-9; N.C.G.S. 97-10.1 (and its predecessor 97-10); Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977); Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21 (1966); Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6 (1952). Provisions of the Act relative to an injured worker bringing an action against a third party for negligence causing injury have been held to apply only to third parties who were "strangers to the employment." Jackson v. Bobbitt, 253 N.C. 670, 117 S.E.2d 806 (1961); Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6 (1952).

We have recognized that, in cases involving intentional injury by the employer, the employee cannot be relegated to the limited recovery afforded by the Act, but may bring a common law tort action against the employer. See Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6 (1952); Essick v. Lexington, 232 N.C. 200, 60 S.E.2d 106 (1950). We also have said that an injured worker may maintain a tort action against a co-employee for intentional injury. See, e.g., Wesley v. Lea, 252 N.C. 540, 114 S.E.2d 350 (1960).

In a recent opinion by Judge (now Justice) Vaughn, our Court of Appeals expressly held that the Workers' Compensation Act does not preclude a suit against a co-employee for intentional torts. Andrews v. Peters, 55 N.C.App. 124, 284 S.E.2d 748 (1981), disc. rev. denied, 305 N.C. 395, 290 S.E.2d 364 (1982). This holding rested upon the common-sense conclusion that the legislature did not intend to insulate a co-employee from liability for intentional torts inflicted upon a fellow worker. Id., 55 N.C.App. at 127, 284 S.E.2d at 750. The Court of Appeals also noted that in many of the jurisdictions granting co-employee immunity, an exception for intentional acts causing injury had been either expressly set out in the statutes or judicially grafted upon them. Id.

In his complaint in the present case, the plaintiff alleged that his injury occurred because the defendant was "willfully, recklessly and wantonly negligent." The defendant contends that such allegations are insufficient to allege an intentional tort which would support the plaintiff's action. We disagree.

The concept of willful, reckless and wanton negligence inhabits a twilight zone which exists somewhere between ordinary negligence and intentional injury. The state of mind of the perpetrator of such conduct lies within the penumbra of what has been referred to as "quasi intent." W. Prosser and W. Keeton, The Law of Torts § 34 (5th ed. 1984). Though the terms "willful", "reckless" and "wanton" are often used in conjunction, we have endeavored in prior cases to differentiate between them.

We have described "wanton" conduct as an act manifesting a reckless disregard for the rights and safety of others. Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971); Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530 (1968); Wagoner v. R.R., 238 N.C. 162, 77 S.E.2d 701 (1953); Foster v. Hyman, 197 N.C. 189, 148 S.E. 36 (1929). The term "reckless", as used in this context, appears to be merely a synonym for "wanton" and has been used in conjunction with it for many years. See Bailey v. R.R., 149 N.C. 169, 62 S.E. 912 (1908).

Defining "willful negligence" has been more difficult. At first glance the phrase appears to be a contradiction in terms. The term "willful negligence" has been defined as the intentional failure to carry out some duty imposed by law or contract which is necessary to the safety of the person or property to which it is owed. Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971); Foster v. Hyman, 197 N.C. 189, 148 S.E. 36 (1929); Bailey v. R.R., 149 N.C. 169, 62 S.E. 912 (1908). A breach of duty may be willful while the resulting injury is still negligent. Only when the injury is intentional does the concept of negligence cease to play a part. Foster v. Hyman, 197 N.C. 189, 148 S.E. 36 (1929); Ballew v. R.R., 186 N.C. 704, 120 S.E. 334 (1923). We have noted the distinction between the willfulness which refers to a breach of duty and the willfulness which refers to the injury. In the former only the negligence is willful, while in the latter the injury is intentional. Foster v. Hyman, 197 N.C. 189, 148 S.E. 36 (1929).

Even in cases involving "willful injury", however, the intent to inflict injury need not be actual. Constructive intent to injure may also provide the mental state necessary for an...