Opinion
No. COA09-782.
Filed February 16, 2010.
Wake County No. 04CVS14711.
Appeal by defendants from order entered 12 November 2008 by Judge Orlando F. Hudson, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 8 December 2009.
Kennedy, Kennedy, Kennedy Kennedy, L.L.P., by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff-appellee. Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons and Oliver G. Wheeler, IV, for defendants-appellants.
This case raises the sole question of whether Defendant Department of Corrections can claim sovereign immunity to defeat a Woodson claim. Because the State of North Carolina has not waived sovereign immunity with regard to such claims, we now hold that Plaintiff's claim is barred by Defendant's sovereign immunity.
On 21 October 2004, Plaintiff filed a complaint against the North Carolina Department of Correction ("DOC"); David Mitchell, the Warden of Mountain View Correctional Institution ("the Institution") in Avery County, N.C.; and three officials at the Institution: Richard Terry, Mark Edwards, and Cherry Huskins. Defendants were sued in both their official and individual capacities. Plaintiff alleged that on or about 23 October 2001, Plaintiff was an inmate at the Institution, and for several weeks he was ordered to paint the inside of the Institution, using paint provided by the Institution. Plaintiff alleged that he was considered to be an employee of the Institution at all times while he was engaged in painting the facility. Plaintiff contended that the prison officials had removed the labels from the paint cans so that he would not learn of the hazards of the paint solution.
Plaintiff alleged that the paint cans contained Kem-Kromik Universal Alkyd Metal Primer, which contained toxic chemicals, and that the labels (removed by prison officials) warned that over-exposure to the paint, its vapors and fumes, could result in respiratory damage, unconsciousness, and death. Plaintiff alleged that Defendants intentionally removed the labels and ordered Plaintiff to use the paint with the intent, knowledge, and expectation that Plaintiff would be exposed to the vapors and fumes, which would be substantially certain to cause serious injury or death.
Plaintiff further alleged that he was directed to work 16-21 hours a day and 7 days per week; and that he was never provided with a respirator, protective gloves, face/nose mask or proper ventilation, as required by the paint manufacturer. Plaintiff said he began to feel the physical effects of the fumes and requested protective materials, but the request was denied. He contended that he was extremely over-exposed to paint fumes and vapors, became ill, and fell on the prison floor. The prison nurse gave Plaintiff a form specifying he was not to work for the rest of the day, but Defendant Terry tore up the form and ordered Plaintiff to return to work. Plaintiff contended that he developed pneumonia from exposure to paint vapors and fumes, and that Defendants refused to allow him to be hospitalized. Plaintiff contended that he suffered lung damage, disease, and sores on his body as well as mental and emotional distress as a result of his exposure to Kem-Kromik.
Prior to filing this action, Plaintiff filed two negligence claims in the Industrial Commission based on the same facts as stated above. Commissioner Bernardine Ballance dismissed Plaintiff's first negligence claim with prejudice, holding that Plaintiff's work-related injury fell under the Workers' Compensation Act, not the Tort Claims Act. Plaintiff took a voluntary dismissal of the second negligence claim.
Plaintiff then brought action against Defendant DOC for employer misconduct substantially certain to cause death or serious injury to an employee (a Woodson claim) and negligence claims against DOC employees Mitchell, Terry, Edwards, and Huskins. Defendant DOC's answer pleaded the affirmative defense of sovereign immunity. On 29 February 2008, Defendants filed a Motion for Summary Judgment.
On 9 June 2008, the trial court granted in part and denied in part Defendants' Motion for Summary Judgment. The trial court granted summary judgment as to the negligence claims against Defendants Mitchell, Terry, Edwards, and Huskins. The trial court relied on the outcome of Plaintiff's prior federal civil rights action, Puckett v. Mitchell, No. 1:03CVS286-03-MU, 2005 WL 2234595 (W.D.N.C. Sept. 13, 2005), naming the same individual Defendants and based on the same facts as stated above. The federal trial court had granted Defendants summary judgment because Plaintiff failed to show exposure to the paint caused his lung disease. Id. at *4. Plaintiff did not appeal that decision. The state trial court concluded that Plaintiff's claims against the individual Defendants were barred by the doctrine of collateral estoppel.
The trial court denied summary judgment as to Plaintiff's claims against Defendant DOC. On 8 July 2008, DOC moved to dismiss the sole remaining claim of employer misconduct on the basis of sovereign immunity. On 3 October 2008, Plaintiff filed a written Objection to Hearing Defendant's motion to dismiss. On 12 November 2008, the trial court struck Plaintiff's Objection to Hearing the motion and denied Defendant DOC's motion to dismiss. Defendant now appeals the trial court's denial of that motion.
I. Plaintiff's Motion to Dismiss Defendant's Appeal
As a preliminary matter, we address Plaintiff's motion to dismiss Defendant's appeal. Plaintiff observes that the sovereign immunity issue was first raised in Defendant's motion for summary judgment. Once that motion was denied, Plaintiff argues, Defendant could not raise the issue in a subsequent motion. Plaintiff contends that Defendant raised the issue a second time in its later motion to dismiss, and that this requires us to dismiss Defendant's appeal. This argument misconstrues the basis of our precedent.
In Carr v. Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374 (1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981), this Court applied the rule that "one superior court judge may not overrule the judgment of another superior court judge previously made in the same case on the same legal issue." Id. at 632-33, 272 S.E.2d at 376. Carr thus deals with the authority of one trial court to undermine the pronouncements of another. It does not establish any rule of appellate procedure, nor does it prescribe the remedy for one.
It is true that Carr stated, "[t]he aggrieved party may not seek relief by identical motion before another superior court judge." Id. at 634, 272 S.E.2d at 376. However, this language was stated in the context of instructing the court below. Carr and its progeny involve the authority of trial courts, not the rights of litigants. We have found no case that relies upon Carr to dismiss an appeal to this Court as a sanction for filing redundant motions below.
In the present case, there were no inconsistent orders of trial courts below. In fact, both courts that ruled on the issue denied Defendant's assertion of sovereign immunity. We do not find Carr applicable to these facts. Plaintiff's motion to dismiss Defendant's appeal is denied.
II. Defendant's Appeal
Since the order appealed from does not resolve all claims arising out of this case, Defendant DOC's appeal is interlocutory. Interlocutory appeals are generally not immediately appealable to this Court. Hudson-Cole Dev. Corp. v. Beerner, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). An exception to this rule exists, however, where the challenged order affects a substantial right that would be lost without immediate review. Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 261 (2001). We have elsewhere stated that the denial of a motion to dismiss based on sovereign immunity affects just such a right. Petroleum Traders Corp. v. State, 190 N.C. App. 542, 545, 660 S.E.2d 662, 664 (2008). Thus, the matter is properly before this Court. A trial court's denial of a motion to dismiss is reviewed de novo. Id. at 546, 660 S.E.2d at 664.
"Sovereign immunity protects the State and its agencies from suit absent waiver or consent." Wood v. N.C. State Univ., 147 N.C. App. 336, 338, 556 S.E.2d 38, 40 (2001), appeal dismissed and disc. review denied, 355 N.C. 292, 561 S.E.2d 887 (2002). Sovereign immunity may be waived by statute, but such statutes are to be strictly construed. Id. "The Department of Correction is a state agency created for the performance of essentially governmental functions, and a suit against this department is a suit against the State." Harwood v. Johnson, 326 N.C. 231, 238, 388 S.E.2d 439, 443 (1990).
Our Supreme Court has stated that the exclusive source of remedy for a prisoner injured while working is through the Workers' Compensation Act. Richardson v. N.C. Dept. of Correction, 345 N.C. 128, 137, 478 S.E.2d 501, 507 (1996). It follows that the Workers' Compensation Act provides a statutory waiver of sovereign immunity to the extent that a prisoner may recover under the Act. Id.; See also Helsius v. Robertson, 174 N.C. App. 507, 510, 621 S.E.2d 263, 266 (2005) (concluding that county government had waived sovereign immunity "[b]ased upon the fact that county governments are subject to the Workers' Compensation Act"), appeal dismissed and disc. review denied, 360 N.C. 363, 629 S.E.2d 851 (2006).
Intentional tort actions against the State of North Carolina are barred by the doctrine of sovereign immunity. See Mazzucco v. Board of Medical Examiners, 31 N.C. App. 47, 49, 228 S.E.2d 529, 531, appeal dismissed and disc. review denied, 291 N.C. 323, 230 S.E.2d 676 (1976). The state may waive sovereign immunity by statute, but the Tort Claims Act does not waive the sovereign immunity of the State and state agencies for intentional torts. Kawai Am. Corp. v. University of N.C. at Chapel Hill, 152 N.C. App. 163, 167, 567 S.E.2d 215, 218 (2002).
The Supreme Court created the " Woodson claim" in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). In that case, a general contractor hired a utility company to dig a trench as part of a large construction project. Id. at 334, 407 S.E.2d at 225. The utility company ignored safety regulations which required use of a trench box. Id. at 335, 407 S.E.2d at 225. The deep, unshored trench collapsed, causing the death of one utility company employee, Thomas Sprouse. Id. at 336, 407 S.E.2d at 225-26. The utility company had been previously cited for violating regulations on trenching safety. Id. at 335 n. 1, 407 S.E.2d at 225 n. 1.
Our Supreme Court was asked to determine whether the Workers' Compensation Act provided the exclusive remedy for the accidental death of an employee that was arguably also the result of an employer's intentional tort. The Supreme Court held that the employee's estate could pursue a civil action as well as a Workers' Compensation claim:
We hold 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, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the [Workers' Compensation] Act.
Id. at 340-341, 407 S.E.2d at 228. Obviously, there were no issues of sovereign immunity involved in Woodson.
Defendant relies on Woodson for the proposition that all Woodson claims involve intentional torts. In addition to the language in Woodson, Defendant directs us to other cases that have drawn on the "intentional tort" language of Woodson. In Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, (2003), the Supreme Court clarified its prior holding:
The Woodson exception represents a narrow holding in a fact-specific case, and its guidelines stand by themselves. This exception [to the general exclusivity provisions of the North Carolina Workers' Compensation Act] applies only in the most egregious cases of employer misconduct. Such circumstances exist where there is uncontroverted evidence of the employer's intentional misconduct and where such misconduct is substantially certain to lead to the employee's serious injury or death.
Id. at 557, 597 S.E.2d at 668. In Hamby v. Profile Products, L.L.C., this Court stated that "[t]he burden of establishing a Woodson claim is akin to a showing of culpability required to establish an intentional tort." ___ N.C. App. ___, ___, 676 S.E.2d 594, 599 (2009). Defendant argues that Woodson claims most resemble intentional tort claims, and should therefore be barred by sovereign immunity just as intentional tort claims are.
Plaintiff replies that Richardson v. N.C. Dept. of Correction permits his claim against DOC. In Richardson, the plaintiff-inmate was operating a tractor at the Caledonia Correctional Institution. Richardson, 345 N.C. at 129, 478 S.E.2d at 502. While he was operating the machine, plaintiff's legs got caught in the silage cutter. Id. His right leg was almost completely severed and had to be amputated; his left leg was permanently and severely injured. Id.
Plaintiff in Richardson filed a claim with the Industrial Commission under the Tort Claims Act, alleging negligence. Id. at 130, 478 S.E.2d at 502-03. Defendant's answer included a motion to dismiss the tort claim on the ground that workers' compensation was an exclusive remedy. Id. at 130, 478 S.E.2d at 503. The Industrial Commission granted defendant's motion to dismiss, and plaintiff appealed all the way to the North Carolina Supreme Court. Id. The Supreme Court affirmed this Court, and the Industrial Commission, denying plaintiff's claim under the Tort Claims Act. "[W]e conclude that the exclusive source of remedy for a prisoner injured while working is through the Workers' Compensation Act, and accordingly we affirm the Court of Appeals." Id. at 137, 478 S.E.2d at 507.
Plaintiff relies on the following paragraph of Richardson for the proposition that his claim may not be defeated by sovereign immunity.
Finally, plaintiff asserts that the exclusivity provisions of the Workers' Compensation Act in sections 97-13(c) and 97-10.1 contravene sound public policy by lowering the incentive for prisons to provide safe working conditions for prisoners. We disagree with this view. All other workers are restricted to workers' compensation remedies, and there is no evidence that this leads to more dangerous working conditions. . . . Moreover, under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), prisoners still have the right to sue the Department of Correction directly if misconduct rises to the level of generating a substantial certainty of injury to the worker. This provides protection against, and incentive not to create, dangerous working conditions for prisoners.
Id. at 136-37, 478 S.E.2d at 507 (emphasis added). Plaintiff contends that this language from Richardson makes it clear that prisoners' Woodson claims may not be defeated by sovereign immunity. Plaintiff argues that Defendant is actually urging this Court to overrule Richardson, which (plaintiff asserts) would be the result of barring his claim. Finally, Plaintiff argues that to deny his claim would contravene public policy by encouraging and sanctioning lawlessness.
Several cases both before and since Richardson have held State agencies and municipalities immune from Woodson claims on the basis of sovereign immunity.
In Lyles v. City of Charlotte, 344 N.C. 676, 477 S.E.2d 150 (1996), plaintiff's intestate was killed while on duty as a Charlotte police officer. Id. at 677, 477 S.E.2d at 151. He was shot to death by a prisoner who had managed to obtain control of a pistol while decedent was transporting the prisoner in an automobile. Id. at 677-78, 477 S.E.2d at 151-52. Plaintiff claimed that Defendant city had intentionally instructed decedent to use his radio in a way that was substantially certain to result in his death or serious injury. Id. at 678, 477 S.E.2d at 152. Plaintiff brought a Woodson claim. Id. at 681, 477 S.E.2d at 154. The issue on appeal was whether the City of Charlotte had waived its sovereign immunity either by purchasing liability insurance or by participating in a local government risk pool. Id. at 679, 477 S.E.2d at 152. Our Supreme Court reversed this Court to hold that the City had not waived its sovereign immunity. Id. at 682, 477 S.E.2d at 154. In dissent, Justice Frye argued that defendant city had waived its sovereign immunity, and therefore plaintiff's claim should not be barred. Id. at 686, 477 S.E.2d at 156. Thus, a unanimous Supreme Court implicitly recognized that a Woodson claim could succeed only by first demonstrating a separate and independent waiver of sovereign immunity.
In Seymour v. Lenoir Cty., 152 N.C. App. 464, 567 S.E.2d 799 (2002), appeal dismissed, 357 N.C. 63, 579 S.E.2d 397 (2003), this Court held that a fire department retained sovereign immunity against plaintiff's Woodson claim. In Seymour, plaintiff was employed as a volunteer firefighter with defendant fire department. Id. at 465, 567 S.E.2d at 801. Plaintiff was severely injured during a training exercise when he was ordered to enter a burning building to conduct a search and rescue operation. Id. Plaintiff filed a Woodson claim, and defendant asserted that the claim was barred by sovereign immunity. Id. at 466, 567 S.E.2d at 801. This Court held that defendant fire department had not waived sovereign immunity by purchasing an insurance policy which did not cover plaintiff's claim. Id. at 468, 567 S.E.2d at 802.
Again, in Greene v. Barrick, ___ N.C. App. ___, 680 S.E.2d 727 (2009), this Court held that a sheriff's office, and a sheriff in his official capacity, were protected by sovereign immunity from a Woodson claim. In Greene, plaintiff's decedent was a deputy sheriff with the Franklin County Sheriff's office. Id. at ___, 680 S.E.2d at 729. He was killed in a helicopter crash while conducting a drug eradication flight. Id. Plaintiff, decedent's wife and administratrix of his estate, filed several complaints, including a Woodson claim, against various defendants, including the helicopter operator, the sheriff in his official capacity, and the sheriff's office. Id. This Court affirmed the trial court's dismissal of claims against the helicopter operator on the basis of sovereign immunity, except insofar as that immunity was waived by surety bond. Id. at ___, 680 S.E.2d at 732. The Woodson claim against the sheriff and the sheriff's office were properly dismissed for the same reason. Id. In sum, we held that:
[The helicopter operator] in his official capacity is protected by governmental immunity to the extent of coverage pursuant to the sheriff's surety bond. Similarly, the sheriff's office and Sheriff Jones are protected against her Woodson claim, which has no merit in any event. All other claims brought forward in this appeal are excluded by the Workers' Compensation Act. Therefore, the trial court did not err in granting summary judgment as to those remaining claims.
Id.
"Language in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby." Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985). In the present case, Plaintiff seizes on a single line of Richardson, properly termed dicta, to assert that Woodson claims, simply by virtue of being Woodson claims, can defeat sovereign immunity when defendant is the Department of Corrections. Plaintiff does not explain why the shield of sovereign immunity should be any more porous in the case of Defendant DOC than any other defendant claiming sovereign immunity.
Plaintiff's argument is not supported by existing precedent. Rather, our Courts have assumed that in order for a Woodson claim to succeed there must be some preliminary showing that sovereign immunity has been waived. There has been no such showing in the present case. Defendant is therefore entitled to the protection afforded by sovereign immunity against Plaintiff's claim.
Reversed.
Judge CALABRIA and Judge BEASLEY concur.
Report per Rule 30(e).