Opinion
No. COA95-483
Filed 5 March 1996
Workers' Compensation § 62 (NCI4th) — Woodson v. Rowland claim — sufficiency of complaint Plaintiffs' complaint was sufficient to state a claim under Woodson v. Rowland, 329 N.C. 330, where it alleged that plaintiffs were employees of defendant who were instructed by defendant to work on a particular billboard which collapsed causing them injury; the collapse was caused by a structural failure of critical components of the billboard; the structural failure was caused in part by defendant's use of improper components and in part by improperly moving the billboard; defendant did not perform any inspections on the billboard and did not provide any training in workplace safety; defendant had actual knowledge that the billboard was unsafe and dangerous immediately before it collapsed; defendant had been cited and fined numerous times by governmental authorities for workplace safety violations; subsequent to the collapse, defendant was cited for failing to furnish a place of employment free of recognized hazards; subsequent to the collapse defendant acknowledged that the collapse would not have occurred but for defendant's acts, conduct and omissions with regard to the billboard; and the acts and omissions of defendant constituted intentional conduct which defendant knew was substantially certain to cause serious injury or death.
Am Jur 2d, Workers' Compensation §§ 75-80.
What conduct is willful, intentional, or deliberate within workmen's compensation act provision authorizing tort action for such conduct. 96 ALR3d 1064.
Employer's tort liability to worker for concealing workplace hazard or nature or extent of injury. 9 ALR4th 778.
Appeal by plaintiffs from order entered 8 March 1995 in Guilford County Superior Court by Judge James E. Ragan. Heard in the Court of Appeals 1 February 1996.
Donaldson Horsley, P.A., by Jeffrey K. Peraldo, for plaintiff-appellants.
Pinto, Coates Kyre, L.L.P., by Paul D. Coates and David L. Brown, for defendant-appellee.
Judge WYNN concurring.
Kimberly Pastva, individually and as administratrix of the estate of David Pastva, and Joseph Henzler (plaintiffs), appeal an order granting Naegele Outdoor Advertising Inc., d/b/a Fairway Outdoor Advertising (defendant), its motion to dismiss plaintiffs' complaint pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
Plaintiffs allege that: (1) they were employees of the defendant; (2) they were instructed by the defendant to work on a particular billboard; (3) the billboard collapsed causing injuries to the plaintiffs; (4) the collapse was caused by a structural failure of critical components of the billboard; (5) the structural failure was caused in part by the defendant's use of improper components and in part by improperly moving the billboard; (6) the defendant did not perform any inspections on the billboard; (7) the defendant did not provide any training in workplace safety; (8) the defendant had actual knowledge that the billboard was unsafe and dangerous immediately before it collapsed; (9) defendant had been cited and fined numerous times by governmental authorities for workplace safety violations; (10) subsequent to the collapse of the billboard, the defendant was cited for failing to furnish a place of employment free of recognized hazards; (11) subsequent to the collapse, the defendant acknowledged that the collapse would not have occurred but for the defendant's "acts, conduct and omissions" with regard to the billboard; and (12) the acts and omissions of the defendant constituted "intentional conduct which [d]efendant knew was substantially certain to cause serious injury or death."
The issue is whether plaintiffs' complaint sufficiently states a claim pursuant to Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).
Our legislature has provided that the Workers' Compensation Act provides the exclusive remedy for employees injured in a workplace accident. N.C.G.S. § 97-9; N.C.G.S. § 97-10.1 (1991). There are four exceptions to this general rule: (1) an injured employee may maintain a tort action against a co-employee for intentional injury, Andrews v. Peters, 55 N.C. App. 124, 128, 284 S.E.2d 748, 750 (1981), disc. rev. denied, 305 N.C. 395, 290 S.E.2d 364 (1982); (2) an injured employee may maintain a tort action against his employer for intentional injury, Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 488, 340 S.E.2d 116, 120, disc. rev. denied, 317 N.C. 334, 346 S.E.2d 140 (1986); (3) an injured employee may maintain a tort action against a co-employee for his "willful, wanton and reckless negligence," Pleasant v. Johnson, 312 N.C. 710, 716, 325 S.E.2d 244, 249 (1985); and (4) an injured employee may maintain a tort action against his employer if the "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." Woodson, 329 N.C. at 340, 407 S.E.2d at 228. "Substantial certainty" "is more than the `mere possibility' or `substantial probability' of serious injury or death," Arroyo v. Scottie's Professional Window Cleaning, 120 N.C. App. 154, 159, 461 S.E.2d 13, 16, disc. rev. allowed, 342 N.C. 190, 463 S.E.2d 231, quoting Regan v. Amerimark Bldg. Prods., 118 N.C. App. 328, 331, 454 S.E.2d 849, 852, disc. rev. denied, 340 N.C. 359, 458 S.E.2d 189 (1995), but is something less than "actual certainty." Mickles v. Duke Power Co., 342 N.C. 103, 110, 463 S.E.2d 206, 211 (1995).
The Supreme Court has justified treating tort actions against co-employees different from tort actions against employers on the grounds that co-employees "do not finance or otherwise directly participate in workers' compensation programs; employers, on the other hand, do." Woodson, 329 N.C. at 342, 407 S.E.2d at 229.
A complaint must be dismissed pursuant to Rule 12(b)(6):
when one or more of the following three conditions is satisfied: (1) when on its face the complaint reveals no law supports plaintiff's claim; (2) when on its face the complaint reveals the absence of fact sufficient to make a good claim; and (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim.
Johnson v. Bollinger, 86 N.C. App. 1, 4, 356 S.E.2d 378, 380 (1987). Thus, a complaint is sufficient "where no `insurmountable bar' to recovery appears on the face of the complaint and the complaint's allegations give adequate notice of the nature and extent of the claim." Id. Notice of the nature and extent of the claim is adequate if the complaint contains "sufficient information to outline the elements of [the] claim or to permit inferences to be drawn that these elements exist." 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 340 (2d ed. 1990); Raritan River Steel Co. v. Cherry, Bekaert Holland, 322 N.C. 200, 205, 367 S.E.2d 609, 612 (1988) ("complaint must . . . state enough to give the substantive elements of a legally recognized claim"), appeal after remand, 101 N.C. App. 1, 398 S.E.2d 889 (1990), rev'd on other grounds, 329 N.C. 646, 407 S.E.2d 178 (1991); Bynum v. Fredrickson Motor Express Corp., 112 N.C. App. 125, 129, 434 S.E.2d 241, 243 (1993) (not sufficient to merely allege elements of claim). The elements of a Woodson claim are: (1) misconduct by the employer; (2) intentionally engaged in; (3) with the knowledge that the misconduct is substantially certain to cause serious injury or death to an employee; and (4) that employee is injured as a consequence of the misconduct. Woodson, 329 N.C. at 340-41, 407 S.E.2d at 228.
The defendant argues that the complaint in this case does not allege sufficient facts to support a Woodson claim. We disagree. The complaint does not reveal an insurmountable bar to recovery and the allegations provide adequate notice of the nature and extent of the claim. The allegations of misconduct, particularly the directing of the plaintiffs to work on the billboard after notice of its dangerous condition, are sufficient to support a reasonable inference that each of the four elements of the Woodson claim exist. See Regan, 118 N.C. App. at 331, 454 S.E.2d at 852 (reversing dismissal of Woodson claim).
Reversed and remanded.
Judge McGEE concurs.
Judge WYNN concurs with separate opinion.