Smallwood v. Eason

• Court: North Carolina Court of Appeals
• Writing for the Court: SMITH; LEWIS; GREENE; GREENE
• Citation: Smallwood v. Eason, 474 S.E.2d 411, 123 N.C.App. 661 (N.C. App. 1996)
• Decision Date: 03 September 1996
• Docket Number: No. COA95-713,COA95-713
• Parties: Peggy SMALLWOOD and Craig Morning, Plaintiffs, v. Curtis Anthony EASON, Perdue Farms, Inc., Dwayne Morning and Laura Ann Grant, Defendants.

Page 411

474 S.E.2d 411

123 N.C.App. 661

Peggy SMALLWOOD and Craig Morning, Plaintiffs, v. Curtis Anthony EASON, Perdue Farms, Inc., Dwayne Morning and Laura Ann Grant, Defendants.

No. COA95-713.

Court of Appeals of North Carolina.

Sept. 3, 1996.

Gray, Newell and Johnson, L.L.P. by Angela Newell Gray and Mark V.L. Gray, Greensboro, for plaintiff appellants.

Haynsworth, Baldwin, Johnson and Greaves, P.A. by Charles P. Roberts, III and Brian M. Freeman, Greensboro, for defendant appellees.

SMITH, Judge.

Before addressing any of the substantive issues posed by this appeal, we first contend with plaintiff appellants' failure to compile a record on appeal in accordance with N.C.R.App. P. 9 (1996). It is appellants' duty and responsibility to see that the record is in proper form and complete. See State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983); Tucker v. General Tel. Co. of the Southeast, 50 N.C.App. 112, 118, 272 S.E.2d 911, 915 (1980). Plaintiffs have failed in this duty.

The record has been styled incorrectly, in that the index page lists Guilford County as the county in which the judgment appealed from took place. Rendition of the directed verdict appealed from occurred in the Superior Court of Bertie County--not Guilford County. This incorrect listing of the county not only violates N.C.R.App. P. 9(a)(1)(b), but also directs this Court to issue its mandate to an incorrect court. See N.C.R.App. P. 32. The record is not paginated in the manner prescribed by N.C.R.App. P. 9(b)(4), causing this Court to waste its time in its review of the record, and in searching for information referenced in the briefs. Appellant has also included trial memoranda in the record which address issues arising from defendant Perdue's motion for summary judgment prior to trial. These materials are not relevant to the assignments of error addressed to this Court on appeal (although they address similar issues), and to some extent, they reduce the appellate briefs to redundancy. See N.C.R.App. P. 9(b)(2). Due to these errors, appellants' counsel will be personally taxed with the costs of printing the memoranda of law filed in the trial court and included in the record on appeal. Id.

Plaintiffs assign error to the trial court's grant of defendants' motion for a directed verdict at trial, and to the admission of evidence concerning plaintiffs' health insurance coverage with the employer-defendant. We reach only the first issue. Because the trial court lacked subject matter jurisdiction under the exclusivity provisions of the North Carolina Workers' Compensation Act, we affirm. See N.C. Gen.Stat. § 97-9 (1991) and § 97-10.1 (1991).

The question presented by defendants' motion for a directed verdict is whether all the evidence supporting plaintiffs' claim, taken as true, considered in the light most favorable to plaintiffs, and given the benefit of every reasonable inference in plaintiffs' favor is sufficient for submission to the jury. Tripp v. Pate, 49 N.C.App. 329, 332-33, 271 S.E.2d 407, 409 (1980). If there is more than a scintilla of evidence supporting each element of a plaintiff's claim, the motion should be denied. Broyhill v. Coppage, 79 N.C.App. 221, 226, 339 S.E.2d 32, 36 (1986).

Keeping this standard of review in mind, plaintiffs' evidence tended to show the following facts. Craig Morning, Peggy Smallwood, Dwayne Morning and Curtis Eason were employees of defendant Perdue Farms, Inc. (Perdue) at all times relevant to this dispute. Defendant Eason's actions were all within his function as an employee of defendant Perdue, and for purposes of our analysis here, his actions are imputed to his employer. See generally, B.B. Walker Co. v. Burns International Security Services, 108 N.C.App. 562, 565, 424 S.E.2d 172, 174, disc. review denied, 333 N.C. 536, 429 S.E.2d 552 (1993) (discussing the doctrine of respondeat superior ). On 23 March 1990 at approximately 2:30 a.m., plaintiffs Peggy Smallwood and Craig Morning were picked up after their shift at Perdue Farms maintenance garage by plaintiff Morning's brother, defendant Dwayne Morning. Dwayne Morning was driving an automobile owned by Laura Grant. (Upon motion of plaintiffs pursuant to N.C. Gen.Stat. § 1A-1, Rule 41(a)(2) (1990), claims against defendants Dwayne Morning and Laura Grant have been dismissed without prejudice by the trial court.)

At about the same time, a forklift driven by defendant Curtis Eason stalled in the road adjacent to the Perdue facilities. Eason was unable to move the forklift totally out of the road, thus leaving a portion of the forklift obstructing the roadway. This road is the only means of ingress and egress from the Perdue facility. Though open to the general public, no homes or businesses other than Perdue front the road. Generally speaking, this road is primarily used to move Perdue equipment from one portion of the facility to another and to provide employee access to the Perdue facility.

Shortly after leaving the Perdue garage, the car in which plaintiffs and Dwayne Morning were riding struck the stalled forklift. Trial testimony indicated that the stalled forklift would have been difficult to see in the dark, due to the poor lighting conditions on the road and lack of lights or reflectors on the forklift. Neither the driver of the car Dwayne Morning, nor the passenger-plaintiffs saw the forklift prior to impact. On 9 March 1993, plaintiffs filed their complaint in Guilford County Superior Court, seeking to recover damages from defendants Curtis Eason, Perdue Farms, Dwayne Morning, and Laura Grant (the owner of the automobile) as a result of alleged negligence.

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I. Plaintiffs' Scope of Employment

The threshold question presented by this appeal is whether plaintiffs were still within the scope of their employment at the time the collision with the Perdue forklift occurred. If the injuries suffered by plaintiffs arose out of and in the course of their employment, the appropriate remedial avenue was through North Carolina's Workers' Compensation Act (Act) under N.C. Gen.Stat. § 97.10.1, not the common law of negligence. See McAllister v. Cone Mills Corp., 88 N.C.App. 577, 580, 364 S.E.2d 186, 188 (1988); Freeman v. SCM Corporation, 311 N.C. 294, 295-96, 316 S.E.2d 81, 82 (1984) (per curiam ). If the Act is indeed applicable to the injuries suffered by plaintiffs, then the trial court lacked subject matter jurisdiction over plaintiffs' claims and the proper forum was the Industrial Commission. Id.

A determination of whether an injured party is within the scope of her employment for workers' compensation purposes is a mixed question of law and fact. Culpepper v. Fairfield Sapphire Valley, 93 N.C.App. 242, 247, 377 S.E.2d 777, 780, aff'd, 325 N.C. 702, 386 S.E.2d 174 (1989) (per curiam ). An injury is solely compensable under the Act if it "arise[s] out of and in the course of the employment." Roberts v. Burlington Industries, Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988); N.C. Gen.Stat. §§ 97.2(6) and 97.10.1. The concepts "arising out of the employment" and "in the course of employment" are indisputedly intertwined, but are nonetheless distinct requirements. Roberts, 321 N.C. at 354, 364 S.E.2d at 420. "Arising out of" refers to "the origin or cause of the accidental injury," whereas "course of the employment" is a question oriented to the "time, place, and circumstances under which an accidental injury occurs." Id.

In Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962), our Supreme Court adopted the position that,

"[i]f the employee be injured while passing ... over [the premises] of another in such proximity and relation as to be in practical effect a part of the employer's premises, the injury is one arising out of and in the course of the employment ... the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer."

Id. at 232-33, 128 S.E.2d at 575 (emphasis added) (citation omitted). We find Bass instructive as to the instant scope of employment question on two fronts.

Plaintiffs' injuries occurred just moments after their shift as part of Perdue's "chicken catching crew" ended. Defendant Morning was in the process of transporting plaintiffs out of Perdue's maintenance garage area, to an after work destination, when the accident occurred. Plaintiffs were present in Perdue's maintenance garage and left via the road adjacent to Perdue, because this was the normal and necessary manner to exit the worksite on the date in question. Plaintiffs had no other means of ingress and egress to and from the plant area, other than via the adjacent road. This same road also served the entire population of the Perdue plant as a means to transport equipment and employees in and among the facility.

The general rule is that, "[w]here any reasonable relationship to the employment exists, or employment is a contributory cause, the court is justified in upholding the award as 'arising out of employment.' " Harless v. Flynn, 1 N.C.App. 448, 455, 162 S.E.2d 47, 52 (1968) (quoting Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960)). In the instant situation, the employee-plaintiffs were where they were because of their employment. The Perdue access road, while ostensibly public, was nevertheless the exclusive way for plaintiffs to get to, and leave, work. The peril faced by plaintiffs, i.e., the disabled forklift, was also in the road due to the adjacent presence of the Perdue plant. In sum, all of these facts point to a proximate and reasonable relation between plaintiffs and their employer at the time of the accident. The injuries suffered by plaintiffs thus arose out of their employment with Perdue.

Analysis of whether plaintiffs' injuries occurred in the course of their employment is determined by reference to (1) the time, (2) place, and (3) circumstances surrounding the...