Woodson v. Rowland

• Decision Date: 14 August 1991
• Docket Number: No. 584A88,584A88
• Citation: 407 S.E.2d 222,329 N.C. 330
• Parties: Susie Mae WOODSON, Administrator of the Estate of Thomas Alfred Sprouse, Deceased v. Neal Morris ROWLAND; Morris Rowland Utility, Inc.; Davidson & Jones, Inc.; and Pinnacle One Associates, a North Carolina Partnership.
• Court: North Carolina Supreme Court

Page 222

407 S.E.2d 222

329 N.C. 330

Susie Mae WOODSON, Administrator of the Estate of Thomas Alfred Sprouse, Deceased v. Neal Morris ROWLAND; Morris Rowland Utility, Inc. Davidson & Jones, Inc.; and Pinnacle One Associates, a North Carolina Partnership.

No. 584A88.

Supreme Court of North Carolina.

Aug. 14, 1991.

Appeal pursuant to N.C.G.S. § 7A-30 from a decision by a divided panel of the Court of Appeals, 92 N.C.App. 38, 373 S.E.2d 674 (1988), affirming summary judgments entered in favor of all defendants by Barnette, J., on 14 September 1987, 16 September 1987, 9 November 1987, and 9 December 1987, in Superior Court, Durham County. Plaintiff's petition for discretionary review pursuant to N.C.G.S. § 7A-31 as to issues not addressed in Judge Phillips' dissent was allowed 9 February 1989. Heard in the Supreme Court 12 September 1989.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith and Bryan E. Lessley; and John T. Manning, Greensboro, for plaintiff-appellant.

Poe, Hoof & Reinhardt by J. Bruce Hoof, Durham, and Poyner & Spruill by John L. Shaw, Raleigh, for defendants-appellees Neal Morris Rowland and Morris Rowland Utility, Inc.

Smith Helms Mulliss & Moore by J. Donald Cowan, Jr., and L.D. Simmons, II, Charlotte, for defendant-appellee Davidson & Jones, Inc.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by David H. Batten, Raleigh, for defendant-appellee Pinnacle One Associates.

EXUM, Chief Justice.

This is a wrongful death action arising from a work-related trench cave-in which killed Thomas Alfred Sprouse on Sunday, 4 August 1985. Plaintiff is the administrator of Sprouse's estate. The principal question is whether the exclusivity provisions of the Workers' Compensation Act limit plaintiff's remedies to those provided by the Act. The courts below concluded plaintiff was so limited in her choice of remedies. We disagree. Other issues in the case concern the viability of certain theories of liability plaintiff asserts: the nondelegability of duties of safety owed to plaintiff's intestate and the negligent hiring and retention of a subcontractor.

I.

Defendant Pinnacle One Associates ("Pinnacle One") was the developer on a construction project for IBM in Research Triangle Park. It retained defendant Davidson & Jones, Inc. ("Davidson & Jones") as general contractor. One aspect of the project required construction of a sanitary sewer line on Chin Page Road in Durham County. Davidson & Jones hired defendant Morris Rowland Utility, Inc. ("Rowland Utility" or "employer") to dig the line. Defendant Neal Morris Rowland ("Morris Rowland") has at all relevant times been the president and sole shareholder of Rowland Utility. Decedent Thomas Sprouse was Rowland Utility's employee.

On defendants' motions for summary judgment, plaintiff's forecast of evidence tends to show the following:

On Saturday, 3 August 1985, workers from both Rowland Utility and Davidson & Jones were digging trenches to lay sewer lines. The Chin Page Road project required two separate trenches. Although Rowland Utility was hired to dig both, in the interest of time a Davidson & Jones crew provided men to work in one of the trench sites.

Because the trenches were not sloped, shored, or braced, and did not have a trench box, Lynn Craig, the Davidson & Jones foreman, refused to let his men work in them. The Occupational Safety and Health Act of North Carolina ("OSHANC") and the rules promulgated thereunder required such safety precautions for the trenches in question. N.C.G.S. § 95-136(g); 13 N.C.Admin.Code 7E.1400 et seq; cf. 29 C.F.R. § 1926.650-.653. Because of the soil conditions and geography, Craig believed that a trench box was the best means of ensuring his workers' safety. Morris Rowland procured a trench box for Craig and the Davidson & Jones crew, which commenced work inside the trench after receiving the safety device on the morning of Saturday, 3 August. Morris Rowland did not acquire a trench box for his own crew.

Charles Greene, a member of the Davidson & Jones crew, was operating a backhoe at the Rowland Utility site that Saturday. Craig checked on the site's progress several times. Morris Rowland asked Craig if he could put a Rowland Utility man on the job because he believed that Greene was not operating the backhoe fast enough. Several times Craig denied these requests. Once, Craig operated the machinery himself for a few minutes and concluded that Greene's progress had been adequate. In his deposition, Craig testified that by the end of the day the sides of the Rowland Utility trench were not being adequately sloped, and that it "could have been a little safer." At that point, the trench construction violated OSHANC regulations. ¹

On Sunday, 4 August, the Davidson & Jones crew did not work, and its trench box lay idle. However, the Rowland Utility crew reported to the site to continue digging its trench. A Rowland Utility man, rather than Greene, was now operating the backhoe. Morris Rowland and project supervisor, Elmer Fry, discussed whether to use the trench box in their ditch. They decided not to use it, indicating in deposition that they had believed the soil was packed hard enough so the trench would not cave in.

A backhoe worked in front of of decedent Sprouse and his coworkers, who were laying pipe inside the freshly dug trench. A piece of heavy machinery called a front-end loader drove along the edge of the ditch and followed their progress, dumping loads of gravel onto the newly laid pipe. Workers tamped the gravel using a device similar to a jackhammer. Sprouse was the closest person in the trench to the front-end loader.

At about 9:30 a.m. one side of the trench collapsed, completely burying Sprouse and burying the man closest to him up to his armpits. The partially buried man was Alan Fry, son of project supervisor Elmer Fry. The workers pulled Alan Fry out of the trench, and Morris Rowland took him to the hospital.

Morris Rowland did not return to the site for several hours after the cave-in. The remaining workers continued to dig Sprouse out. They refused several offers of help given by Jennifer Spencer, a security guard for another company, who was then on duty and who volunteered to call a rescue squad. By the time the workers had finished digging Sprouse out, he was dead.

The trench was approximately fourteen feet deep and four feet wide with vertical sides at the point of the cave-in. Craig, who saw the site later and commented on a photograph of it at his deposition, stated that the trench was being sloped less than it had been at the end of the previous day's work. He characterized it as "unsafe" and stated that he "would never put a man in it."

Pursuant to N.C.G.S. § 28A-18-2, plaintiff filed civil suits against Rowland Utility; Morris Rowland in his individual capacity; Davidson & Jones; and Pinnacle One Associates. In July 1987, plaintiff filed a Workers' Compensation claim to meet the filing deadline for compensation claims. In order to avoid a judicial ruling that she had elected a workers' compensation remedy inconsistent with the civil remedies she presently seeks, plaintiff specifically requested that the Industrial Commission not hear her case until completion of this action. The Commission has complied with her request, and plaintiff has received no benefits under the Workers' Compensation Act.

In the civil actions before us, the trial court granted all defendants' motions for summary judgment; and the Court of Appeals affirmed, with Judge Phillips concurring in part and dissenting in part. Plaintiff appealed of right on the basis of Judge Phillips' dissent, and we granted her petition for discretionary review as to additional issues. We now affirm in part and reverse in part.

II.

We first decide whether the forecast of evidence is sufficient to survive Rowland Utility's and Morris Rowland's motions for summary judgment, which are based on the ground that Sprouse's death was caused only by "accident" under the Workers' Compensation Act ("the Act"). If the death can only be considered accidental, defendants' summary judgment motions were properly allowed because Sprouse's death would fall within the Act's exclusive coverage, and no other remedies than those provided in the Act are available to plaintiff either against his employer, Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966), or a co-worker, Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977). On the other hand, if the forecast of evidence is sufficient to show that Sprouse's death was the result of an intentional tort committed by his employer, then summary judgment was improperly allowed on the ground stated, because the employer's intentional tort will support a civil action. See Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), and cases cited therein.

We conclude, for reasons given below, that the forecast of evidence is sufficient for plaintiff to survive defendants' motions for summary judgment because: (1) it tends to show that Sprouse's death was the result of intentional conduct by his employer which the employer knew was substantially certain to cause serious injury or death; and (2) this conduct is tantamount to an intentional tort committed by the employer. We conclude, further, that plaintiff may pursue simultaneously her workers' compensation claim and her civil action without being required to elect between them because the forecast of evidence tends to show that: (1) Sprouse's death was the result of both an "accident" under the Act and an intentional tort; and (2) the Act's exclusivity provision does not shield the employer from civil liability for an intentional tort. Plaintiff is, of course, entitled to but one recovery.

A.

Section 97-9 of the Workers' Compensation Act provides Every employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter...