Regan v. Amerimark Building Products, Inc. , 127 N.C. App. 225 ( 1997 )

WALKER, Judge.

Plaintiff was employed by defendant Amerimark Building Products, Inc. (Amerimark) and worked on “paint line No. 2” operating the “coater.” As part of his job, plaintiff was required to clean a steel drum that was part of the coater. To clean the drum, plaintiff would scrape the drum with a piece of scrap metal while the paint line continued operating. On 7 April 1993, plaintiff was scraping the drum when his hand got caught and he was pulled into the coater. Plaintiff attempted to stop the paint line by using the two emergency cut-off switches; however, the switches failed to operate and did not stop the line. As a result of being pulled into the coater, plaintiff suffered severe and disabling injuries. At the time he was injured, plaintiff was under the supervision of defendants Wlock and Fox.

The coater was designed to have a “doctor blade” attached to it which guarded the coater’s ingoing nip points and prevented an employee from having to manually scrape the blade. Although the coater originally had a “doctor blade,” at some point prior to the injury in question it was removed and at the time of injury it lay on the floor beside the machine.

On 4 January 1993, Amerimark was issued citations for several serious violations of the Occupational Safety and Health Act (OSHA), including the failure to provide “[m] achine guarding ... to protect operator(s) and other employees from hazards created by ... ingoing nip points” on “paint line No. 2.” The citations required Amerimark to abate or correct the violations on or before 11 January 1993. Amerimark sought an extension of time in which to abate the violations. With respect to the hazard created by the “ingoing nip points” on “paint line No. 2,” Amerimark was given until 12 July 1993 to make the correction. Amerimark began efforts to abate other violations immediately; however, plaintiff was injured prior to the abatement of the OSHA violation relating to the coater which plaintiff was operating.

On 13 October 1993, plaintiff filed a complaint against Amerimark and co-employees Mock and Fox alleging that the coater used by him lacked safety guards which would prevent him from having to place his hands into the machine. Further, he alleged that defendants knew that the emergency cut-off switches were not functioning properly at the time of the accident and failed to warn him. On 25 February 1994, the trial court granted defendants’ motion to dismiss under Rule 12 (b)(6) for failure to state a claim upon which relief can be granted. This Court reversed the order dismissing the case. Thereafter, defendants moved for summary judgment which was granted by the trial court.

“Summary judgment is proper where the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law.” Silvers v. Horace Mann Ins. Co., 90 N.C. App. 1, 4, 367 S.E.2d 372, 374 (1988), modified, 324 N.C. 289, 378 S.E.2d 21 (1989). We must determine whether the plaintiffs forecast of evidence raises issues of fact regarding defendant Amerimark’s liability under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). See also, Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206 (1995); and regarding the liability of defendants Mock and Fox under Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985).

As a general rule, the Workers’ Compensation Act provides the exclusive remedy for employees injured in a workplace accident. N.C. Gen. Stat. § 97-9, -10.1 (1991). However, in Woodson, our Supreme Court carved a narrow exception to the general rule when it held that when an “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,” an employee may maintain a tort action against the employer. Woodson, 329 N.C. at 340-41, 407 S.E.2d at 228. Substantial certainty is more than a possibility or substantial probability of serious injury but is less than actual certainty. Pastva v. Naegele Outdoor Advertising, 121 N.C. App. 656, 658-59, 468 S.E.2d 491, 493 (1996). See also, Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206 (1995). The elements of a Woodson claim are: (1) employer misconduct; (2) intentionally engaged in; (3) knowledge that the conduct is substantially certain to cause serious injury or death to an employee; and (4) that employee is injured due to the misconduct. Id. at 659, 468 S.E.2d at 206.

la Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993), a case with facts very similar to the case at hand, our Supreme Court concluded the evidence was insufficient to establish a Woodson claim. In Pendergrass, the plaintiff was injured when his employer instructed him to work at a machine knowing that certain dangerous parts were unguarded, in violation of OSHA regulations and industry standards. Id. at 238, 424 S.E.2d at 394. Our Supreme Court noted that “[although [the employer] may have known certain dangerous parts of the machine were unguarded when they instructed Mr. Pendergrass to work at the machine, we do not believe this supports an inference that they intended that Mr. Pendergrass be iryured or that they were manifestly indifferent to the consequences of his doing so.” Id. See also, Kolbinsky v. Paramount Homes, Inc., 126 N.C. 533, 485 S.E.2d 900 (1997).

In the instant case, the evidence considered in the light most favorable to the plaintiff shows that the employer was aware that the coater was unguarded; the unguarded coater was in violation of OSHA regulations; the employer was in fact cited with an OSHA violation for having no guard on the coater; and the unguarded coater required that the plaintiff clean it manually.

There was also evidence that Amerimark was working to satisfy OSHA requirements, and that OSHA had given permission for Amerimark to continue plant operations as well as permission to remedy the area in question beyond the date of injury. Moreover, there was no evidence of any serious injury prior to the injury to plaintiff while operating the coater in the same manner as plaintiff. In fact, plaintiff himself testified that he had previously cleaned the coater ten to twenty times per shift and that he was working seven days a week. There was no evidence that the cut-off switches were not working properly or that they were redesigned or rewired after this accident.

In sum, the plaintiff failed to present evidence that Amerimark knew that its action of requiring plaintiff to operate the coater without a guard was substantially certain to cause serious injury or death. Therefore, plaintiff has failed to produce evidence of an essential element of a Woodson claim. Accordingly, the trial court’s granting of summary judgment in favor of defendant Amerimark was proper.

We must next examine whether the trial court’s grant of summary judgment in favor of defendants Wlock and Fox was proper. In Pleasant v. Johnson, 312 N.C. 710, 714, 325 S.E.2d 244 (1985), our Supreme Court carved another exception to the exclusive remedy doctrine in the context of conduct of a co-employee. In Pleasant, the co-employee defendant drove a truck in a company parking lot with the intention of getting as close to the plaintiff as possible without hitting him. The plaintiff was struck by the truck. The Court said that defendant’s actions constituted willful, wanton and reckless negligence and although plaintiff was allowed to recover compensation benefits, he could also pursue a civil action against the defendant supervisor. Id. at 717, 325 S.E.2d at 249. Further, in defining such negligence the Court noted that when the conduct of the defendant is manifestly indifferent to the consequences of the act a constructive intent to injure may be inferred. Id. at 715, 325 S.E.2d at 248.

In Pendergrass, the plaintiff also brought a negligence claim against his supervisors. The Supreme Court upheld the dismissal of the claim on the basis that even if they instructed the plaintiff to work on a machine they knew was unguarded, this conduct did not support an inference that the supervisors were manifestly indifferent to the consequences of plaintiff working at the machine. Pendergrass, 333 N.C. at 238, 424 S.E.2d at 394.

Likewise, even though the evidence here shows that both Wlock and Fox were aware that the coater was unguarded and required plaintiff to manually clean the coater, there was no evidence from which a trier of fact could conclude that Wlock and Fox engaged in conduct that was willful, wanton or reckless or that they were manifestly indifferent to the consequences of requiring plaintiff to manually scrape the coater. Thus, the trial court’s granting of summary judgment in favor of defendants Wlock and Fox was proper.

Affirmed.

Judge GREENE dissents. Judge JOHN concurs.