Trivette v. Yount

• Decision Date: 14 December 2012
• Docket Number: No. 32A12.,32A12.
• Parties: Joan F. TRIVETTE and Terry Trivette, husband and wife v. Peter Edward YOUNT.
• Court: North Carolina Supreme Court

735 S.E.2d 306

Joan F. TRIVETTE and Terry Trivette, husband and wife

v.Peter Edward YOUNT.

No. 32A12.

Supreme Court of North Carolina.

Dec. 14, 2012.

Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 720 S.E.2d 732 (2011), affirming an order denying defendant's motions to dismiss and for summary judgment entered on 16 November 2010 by Judge Richard D. Boner in Superior Court, Catawba County. On 8 March 2012, the Supreme Court allowed defendant's petition for discretionary review of additional issues. Heard in the Supreme Court on 4 September 2012.

Law Offices of Amos & Kapral, LLP, Hickory, by Stephen M. Kapral, Jr. and T. Dean Amos, Hickory, for plaintiff-appellees.

Doughton & Rich PLLC, Winston–Salem, by Thomas J. Doughton and Amy L. Rich, for defendant-appellant.

EDMUNDS, Justice.

In this case, we consider the nature of the working relationship between Peter Edward Yount (defendant), the principal of William Lenoir Middle School, and Joan F. Trivette (plaintiff), who was a part-time secretary and office assistant at the school. Plaintiff claimed that she was injured on the job as a result of defendant's negligence. Although we find that plaintiff and defendant were co-employees, allowing plaintiff to sue defendant personally under the exception to the Workers' Compensation Act's exclusivity provision established in Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), we nevertheless conclude that plaintiff has failed to present sufficient evidence to survive defendant's motion for summary judgment. Accordingly, we affirm the decision of the Court of Appeals affirming the trial court's denial of defendant's motion to dismiss, but reverse the decision of the Court of Appeals affirming the trial court's denial of defendant's motion for summary judgment.

On 24 October 2008, plaintiff was sprayed “about her head and upper body” when a fire extinguisher defendant was handling abruptly discharged. Following the incident, plaintiff filed a complaint against defendant, alleging gross negligence and loss of consortium on the part of plaintiff's husband, who is also a plaintiff in this case.¹ In her complaint, plaintiff alleged that defendant “willfully and wantonly engag[ed] in reckless behavior” when he was “joking and horse playing around with the fire extinguisher,” causing it to spray her. Plaintiff further alleged that the spraying aggravated a preexisting medical condition that had been in remission.

Defendant denied plaintiff's claim. On 8 October 2010, defendant filed a motion to dismiss under Rule of Civil Procedure 12(b)(1) in which he contended that the trial court lacked subject matter jurisdiction because the North Carolina Workers' Compensation Act (“the Act”) provides the exclusive remedy for plaintiff's claim. In this motion, defendant also sought summary judgment, arguing that “the conduct alleged by the [p]laintiffs does not rise to the level of willful, wanton and reckless.” The trial court denied both motions on 15 November 2010, and defendant appealed to the Court of Appeals.

In a divided opinion, the Court of Appeals majority first determined that defendant's interlocutory appeal affects a substantial right, allowing the court to consider defendant's arguments. Trivette v. Yount, –––N.C.App. ––––, ––––, 720 S.E.2d 732, 734–35 (2011). The majority then turned to the merits of defendant's motions and noted that, in most instances, the Act, N.C.G.S. §§ 97.1 to –101.1 (2011), is the exclusive remedy for an employee injured on the job. SeeN.C.G.S. §§ 97–9, –10.1 (together, “the exclusivity provision”). As a result of the exclusivity provision, “ ‘[a]n employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the Act with respect to compensable injuries.’ ” Trivette, ––– N.C.App. at ––––, 720 S.E.2d at 736 (quoting McAllister v. Cone Mills Corp., 88 N.C.App. 577, 580, 364 S.E.2d 186, 188 (1988)).

The majority in Trivette correctly noted that this Court has recognized two exceptions to the exclusivity provision of the Act. Id. at ––––, 720 S.E.2d at 736. The first exception arises when a co-employee acts in a willful, wanton, and reckless manner, allowing an injured plaintiff to seek recovery from the co-employee in a common law action. Pleasant, 312 N.C. at 716–17, 325 S.E.2d at 249–50. Under the second exception, if an employer “intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death” and that conductcauses injury or death, a plaintiff can pursue a civil action against his or her employer. Woodson v. Rowland, 329 N.C. 330, 340, 407 S.E.2d 222, 228 (1991). Because plaintiff did not allege a Woodson claim, the Court of Appeals considered only the applicability of the Pleasant exception to the facts at bar. See Trivette, ––– N.C.App. at ––––, 720 S.E.2d at 736. This inquiry required the Court of Appeals to determine whether defendant was plaintiff's co-employee, in which case Pleasant could apply, or plaintiff's employer, in which case the exclusivity provision of the Act would foreclose plaintiff's suit. Id. at ––––, 720 S.E.2d at 736.

The majority observed that, although a school principal is statutorily classified as the “ ‘executive head of the school,’ ” N.C.G.S. § 115C–5(7) (2011), “executive” and “employer” are not synonymous terms. Trivette, ––– N.C.App. at ––––, 720 S.E.2d at 736. After reviewing several statutes relating to school administration and school administrators, the majority determined that a principal acts as the supervisor of the school, with duties that include overseeing office assistants such as plaintiff. Id. at ––––, 720 S.E.2d at 736. The majority also noted that both defendant and plaintiff were paid by the local school board and were considered employees of the school board. Id. at ––––, 720 S.E.2d at 736–37.

These factors led the majority to conclude that defendant “is more properly classified as [plaintiff's] ‘immediate supervisor’ ” than as her employer, and thus defendant is plaintiff's co-employee for purposes of the Act. Id. at ––––, 720 S.E.2d at 737. Concluding that the Pleasant exception applies, allowing plaintiff to pursue her negligence claim against defendant, the majority affirmed the trial court's denial of defendant's motion to dismiss. Id. at ––––, 720 S.E.2d at 737.

The dissent disagreed with the majority's characterization of defendant as a “co-employee” and argued that the classification of a school principal should be similar to that of a superintendent because both are public officers who are agents of the school board. Id. at ––––, 720 S.E.2d at 738–39 (Elmore, J., dissenting). The dissent would have held that, as an agent, the principal is an “ ‘alter-ego’ of the school board” and thus should be considered plaintiff's employer. Id. at ––––, 720 S.E.2d at 739. As plaintiff's employer, defendant would fall within the exclusivity provision of the Act. Id. at ––––, 720 S.E.2d at 739.

Defendant appealed on the basis of the dissent, and we allowed his petition for discretionary review of additional issues. For the reasons that follow, we affirm in part and reverse in part.

Because this appeal is from the trial court's denial both of defendant's motion to dismiss under Rule 12(b)(1) and of defendant's motion for summary judgment, we review de novo. Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, ––– N.C. ––––, ––––, 723 S.E.2d 744, 747 (2012); Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007). We begin by considering defendant's argument that, as an agent of the local school board, he was plaintiff's employer. The parties agreed at oral argument that defendant was an agent of the board. See also Abell v. Nash Cnty. Bd. of Educ., 71 N.C.App. 48, 53, 321 S.E.2d 502, 506 (1984) (“By statute and under traditional common-law principles, then, the superintendent and principal are agents of the board.”), disc. rev. denied,313 N.C. 506, 329 S.E.2d 389 (1985). However, defendant's status as an agent of the local school board is not dispositive of the question whether he was plaintiff's employer or plaintiff's co-worker for purposes of determining whether plaintiff may bring a Pleasant claim.

In the past, this Court has held that an agent of the employer fell within the Act's exclusivity provision. For instance, in McNair v. Ward, the plaintiff employee brought suit against his employer, the Locker Company, and Lorenz, the company's general manager. 240 N.C. 330, 330–331, 82 S.E.2d 85, 85–86 (1954). We noted that the Locker Company ran its business “through the agency of” the individual defendant Lorenz and found that, because Lorenz was “conducting [the Locker Company's] business,” the Act's exclusivity provision prevented a suit against Lorenz. Id. at 331, 82 S.E.2d at 85–86. Similarly, in Essick v. City of Lexington, plaintiff's intestate was killed while working as an employee of defendant Dixie Furniture Company. 232 N.C. 200, 200–01, 60 S.E.2d 106, 107 (1950). The plaintiff administratrix sued the City of Lexington and the Lexington Utility Commission, which successfully moved to have Dixie Furniture Company and Dixie employees Link and Taylor added as defendants. Id. at 205, 60 S.E.2d at 110. We found that Link, who was Dixie's treasurer, and Taylor, who was Dixie's plant superintendent, fell within the Act's exclusivity provision because they were conducting Dixie's business and, as a result, were entitled to immunity under the Act. Id. at 209–11, 60 S.E.2d at 113–14.

However, after these cases were decided, this Court created the Pleasant exception to the exclusivity provision. See Pleasant, 312 N.C. at 716–17, 325 S.E.2d at 249–50. In Pleasant, this Court, after observing that an injured worker may sue a co-employee for intentional injuries, concluded that “injury to another resulting from willful, wanton and reckless negligence should...