Larrimore v. Dillard, Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1317
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
T. VAN LARRIMORE, Employee,
Plaintiff
v. North Carolina
Industrial Commission
I.C. No. 458055
DILLARD, INC., Employer, ESIS,
Carrier,
Defendants.
Appeal by Defendants from opinion and award entered 26 June
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 10 April 2014.
Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by John F.
Ayers, III, of Counsel, for Plaintiff.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Paul C.
Lawrence, M. Duane Jones, and Adebola V. Lamikanra, for
Defendants.
DILLON, Judge.
Defendants Dillard, Inc. (Dillard) and ESIS appeal from an
opinion and award of the North Carolina Industrial Commission
(Commission) in which, pursuant to N.C. Gen. Stat. § 97-12, the
Commission increased T. Van Larrimore’s (Plaintiff’s) workers’
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compensation benefits by ten percent, for a previously
determined compensable injury, due to Dillard’s “willful
failure” to comply with various statutory safety regulations.
For the following reasons, we reverse.
I. Factual & Procedural Background
The record evidence as presented before the Commission
tended to show the following. Plaintiff was employed as a
clothing salesman at the Dillard’s retail location in Pineville,
North Carolina. The store’s escalators were generally
inoperative prior to the time the store opened to the public;
until that time, Plaintiff and other Dillard employees simply
walked up and down the stairs of the immobile escalators.
On 20 August 2004, Plaintiff arrived at work at
approximately 8:40 a.m., prior to the store’s scheduled opening
that day at 10:00 a.m. On that particular morning, a pit cover
had been removed from the bottom of one of the escalators,
exposing a hole that spanned the width of an escalator stair and
was more than four feet deep. Dillard had not notified its
employees that maintenance work was being performed in that
area; nor were there any safety barriers, cones, or warning
signs to demarcate the exposed pit. When Plaintiff descended
the aforementioned escalator, he failed to notice the exposed
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pit, fell into it, and was knocked unconscious. Plaintiff
resultantly sustained serious injury to his left leg, ribs, and
elbow. Security camera footage later revealed that a nearby
maintenance worker was present on the scene, but had turned his
back to speak with another individual and thus failed to warn
Plaintiff of the exposed pit.
Defendants conceded the compensability of Plaintiff’s
injuries, and Plaintiff has been receiving temporary total
disability benefits since 27 July 2006. Plaintiff has
experienced increasing medical and psychological problems and
has not worked at all since 2 May 2007. On 29 July 2011,
Plaintiff filed a request for a “10% penalty on [his] claim due
to [Dillard’s] failure to provide safety barriers around the
escalator shaft that [he] fell into.” By opinion and award
entered 26 June 2013, the Commission awarded Plaintiff “a ten
percent increase on [Plaintiff’s] weekly temporary total
disability compensation” pursuant to N.C. Gen. Stat. § 97-12 in
light of its determination that Dillard had “willfully” failed
to comply with a number of Occupational Safety and Health
Administration (OSHA) regulations. From this opinion and award,
Defendants appeal.
II. Analysis
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In accordance with our standard of review, we must
determine whether competence evidence supports the Commission’s
findings of fact and whether such findings, in turn, are
sufficient to support the Commission’s conclusions of law.
Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442, 640
S.E.2d 744, 748 (2007). Findings supported by competent
evidence are binding on appeal, “even if the evidence might also
support contrary findings. The Commission’s conclusions of law
are reviewable de novo.” Id. at 442-43, 640 S.E.2d at 748(citations omitted).
Defendants contend that the Commission erred in increasing
Plaintiff’s workers’ compensation benefits by ten percent
pursuant to N.C. Gen. Stat. § 97-12. We agree.
N.C. Gen. Stat. § 97-12 provides for a ten percent increase
in workers’ compensation benefits where, inter alia, the
claimant can prove that his injury was “caused by the willful
failure of the employer to comply with any statutory requirement
. . . .” N.C. Gen. Stat. § 97-12 (2011) (emphasis added). “An
act is considered willful when there exists a deliberate purpose
not to discharge some duty necessary to the safety of the person
or property of another, a duty assumed by contract or imposed by
law[,]” Jenkins v. Easco Aluminum, 165 N.C. App. 86, 97, 598
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S.E.2d 252, 259 (2004) (citations and quotation marks omitted),
and OSHA regulations constitute “statutory requirements” for
purposes of N.C. Gen. Stat. § 97-12, Brown v. Kroger Co., 169
N.C. App. 312, 317-18, 610 S.E.2d 447, 451 (2005) (“[B]y virtue
of N.C. Gen. Stat. § 95–131(a), the requirements of 29 C.F.R.
1910.22(b)(1) are a ‘statutory requirement’ that brings [an
employee’s] injury and [an employer’s subsequent] citation
within the scope of N.C. Gen. Stat. § 97–12.”).
Here, the Commission concluded, in pertinent part, as
follows:
4. There are multiple relevant [OSHA] safety
regulations that apply to this claim under
29 C.F.R. § 1910.23(a), including the
following sections:
1910.23(a)(1)
Every stairway floor opening shall be
guarded by a standard railing constructed in
accordance with paragraph e . . . and shall
be provided on all exposed sides (except at
entrance to stairway).
1910.23(a)(3)
Every hatchway and chute floor opening shall
be guarded by one of the following:
1910.23(a)(3)(i)
Hinged floor opening cover of standard
strength and construction equipped with
standard railings or permanently
attached which leave only one side
exposed. When the opening is not in
use, the cover shall be closed or the
exposed side shall be guarded.
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1910.23(a)(5)
Every pit and trap door floor opening,
infrequently used, shall be guarded by a
floor opening cover of standard strength and
construction. While the cover is not in
place, the pit or trap opening shall be
constantly attended by someone or shall be
protected on all exposed sides by removable
standard railings.
1910.23(a)(6)
Every manhole floor opening shall be guarded
by standard manhole cover which need not be
hinged in place. While the cover is not in
place, the manhole opening shall be
constantly attended by someone or shall be
protected by removable standard railings.
1910.23(a)(7)
Every temporary floor opening shall have
standard railings, or shall be constantly
attended by someone.
1910.23(a)(8)
Every floor hole into which persons can
accidentally walk shall be guarded by
either:
1910.23(a)(8)(i)
A standard railing with standard toe
board on all exposed sides, or
1910.23(a)(8)(ii)
A floor hole cover of standard strength
and construction. While the cover is
not in place, the floor hole shall be
constantly attended by someone or shall
be protected by a removable standard
railing.
The escalator pit into which Plaintiff fell
meets the definition of “[f]loor opening.”
29 C.F.R. §1910.21(a)(2). Several of the 29
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C.F.R. §1910.23(a) safety regulations were
violated by [Dillard] on August 20, 2004[.]
. . . .
7. . . . [Dillard’s] failure to erect
warning barricades around and/or have an
employee constantly attend to a severely
hazardous open pit, in clear violation of 29
C.F.R. §1910.23(a), amounted to a deliberate
purpose not to discharge their statutory
duties and was therefore willful. That
[Dillard] in the case at hand, during every
other episode of escalator or elevator
maintenance had erected yellow safety
barriers that are four feet tall blocking
the escalator entrances, which barriers
would have physically prevented plaintiff
from entering the escalator at all, further
establishes willfulness in this case, as in
Jenkins, because at the time of the accident
there existed known safety measures that
would have prevented the accident.
Furthermore, the evidence . . . establishes
that the unprotected, unmarked, and
unguarded nature of the severe hazard was
noticeable by many employees working in that
area of the first floor of [Dillard’s] store
on the morning of 20 August 2004, yet was
not corrected prior to plaintiff’s fall.
Finally, [Dillard’s] incident report
indicated that the accident was caused by
“inadequate safety” measures, and, according
to the testimony of Mr. Chamochumbi [(a
long-time Dillard employee)], the erection
of barriers during the escalator maintenance
has continued to be a mandatory procedure.
. . . [P]laintiff has established the
willful failure of [Dillard] to comply with
applicable OSHA regulations, and that this
willful failure was the proximate cause of
plaintiff’s injuries on 20 August 2004.
Plaintiff is therefore entitled to a 10%
increase in the compensation paid and
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payable to him in this case under the Act.
(Citations omitted).
Defendants admit that OSHA violations occurred and that
such violations resulted in Plaintiff’s injuries. Defendants
contend, however, that the OSHA violations were, at most, due to
negligence, and were not “willful” in nature. In Jenkins, 165
N.C. App. 86, 598 S.E.2d 252, a case upon which the Commission
relied in support of its decision, the plaintiff’s fingers were
crushed by a brake press machine that lacked the proper metal
guards. Id. at 88, 598 S.E.2d at 254. This Court upheld the
Commission’s determination that the defendant-employer had
willfully violated OSHA regulations – thereby warranting penalty
under N.C. Gen. Stat. § 97-12 – where the evidence supported the
Commission’s findings that the employer had failed to bring the
brake press machine into compliance with the relevant OSHA
standards “even though [the employer] had been informed by at
least one employee of problems with the [brake press] machine”
and further found that the employer “had knowledge through its
employees . . . that some [of the brake press] machines were
inadequately guarded.” Id. at 97-98, 598 S.E.2d at 259(emphasis added).
Here, the Commission determined that the evidence
“establishe[d] that the unprotected, unmarked, and unguarded
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nature of the severe hazard was noticeable by many employees
working in that area of the first floor of [Dillard’s] store on
the morning [of Plaintiff’s injury], yet was not corrected prior
to Plaintiff’s fall”; that “there existed known safety measures
that would have prevented the accident”; and that, aside from
the morning in question, Dillard had consistently implemented
safeguards to protect against such accidents. These
circumstances stand in stark contrast to those presented in
Jenkins, where the employer knew that its equipment was not in
compliance with the OSHA standards, but failed to take
appropriate steps to correct such deficiencies. In the present
case, the Commission found that Dillard had stationed a
maintenance worker at the exposed pit, thus meeting OSHA’s
standard that the opening “shall be constantly attended by
someone.” 29 C.F.R. § 1910.23(a)(7). The Commission found that
the maintenance worker had failed to warn Plaintiff of the
exposed pit, as he had diverted his attention away from the pit
to speak with another individual at the precise time that
Plaintiff was descending the escalator stairs. These findings
do not support a conclusion that Plaintiff’s injuries were
caused by a willful failure on Dillard’s part to comply with the
relevant OSHA regulations; rather, these findings indicate that
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Plaintiff’s injuries resulted from the negligence of the
maintenance worker tasked with attending the hazardous area, a
duty which, if properly discharged, would have brought Dillard
into conformity with the OSHA regulations. Accordingly, we hold
that the Commission’s conclusion that Dillard’s OSHA violations
were willful is unsupported by the Commission’s findings and,
therefore, that the Commission erred in penalizing Defendants
pursuant to N.C. Gen. Stat. § 97-12.
In light of the foregoing, the Commission’s 26 June 2013
opinion and award is hereby
REVERSED.
Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).