Fagundes v. Ammons Dev. Grp. , 261 N.C. App. 138 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1427
Filed: 4 September 2018
Wake County, No. 15 CVS 1191
FRANCISCO FAGUNDES and DESIREE FAGUNDES, Plaintiffs,
v.
AMMONS DEVELOPMENT GROUP, INC.; EAST COAST DRILLING &
BLASTING, INC.; SCOTT CARLE; and JUAN ALBINO, Defendants.
Appeal by Plaintiff from order entered 9 October 2017 by Judge A. Graham
Shirley, II in Superior Court, Wake County. Heard in the Court of Appeals 4 June
2018.
The Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Anthony L. Lucas,
for Plaintiff-Appellant Francisco Fagundes.
Ragsdale Liggett PLLC, by Amie C. Sivon and John M. Nunnally, for
Defendant-Appellee Ammons Development Group, Inc.
McGEE, Chief Judge.
Francisco Fagundes (“Plaintiff”) appeals an order entered 9 October 2017
granting summary judgment in favor of defendant East Coast Drilling & Blasting,
Inc., defendant Scott Carle, and defendant Juan Albino (collectively, “the other
defendants”). Plaintiff appeals the 9 October 2017 order for the sole purpose of
appealing an order entered 8 December 2015 granting a motion to dismiss in favor of
defendant Ammons Development Group, Inc. (“Defendant”). Plaintiff has no
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Opinion of the Court
outstanding claims against the other defendants.1 For the reasons discussed below,
we reverse the trial court’s 8 December 2015 order.
I. Factual and Procedural Background
Defendant was the developer of Heritage East (“Heritage East” or “the
construction site”), a planned residential subdivision in Wake Forest, North Carolina.
Defendant hired East Coast Drilling & Blasting, Inc., (“East Coast”) to provide the
services of onsite drilling, blasting, and crushing of rock during the construction of
Heritage East. Plaintiff was employed by East Coast as a heavy equipment operator
in East Coast’s rock crushing division.
Members of East Coast’s blasting crew were blasting a certain area within the
construction site on or about 25 June 2013. Plaintiff was also working at the
construction site that day. According to both Plaintiff and Defendant, Juan Albino
(“Albino”), a blaster employed by East Coast, misinformed Plaintiff that Plaintiff was
“located in a position that would be safe from flying debris and flyrock [that would be
dislodged as a result of an imminent blast].” When Albino subsequently conducted
the blast, flyrock and debris flew from the blast site with tremendous force. A heavy
piece of rock struck Plaintiff’s left leg, causing injuries.
1 Plaintiff Desiree Fagundes filed a voluntary dismissal in this action on 13 October 2015.
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Plaintiff filed a complaint against Defendant, East Coast, Albino, and Scott
Carle, an East Coast executive officer, on 29 January 2015. In addition to various
claims asserted against the other defendants, Plaintiff alleged Defendant was
“strictly liable for the damages sustained by Plaintiff . . . that were proximately
caused by the ultrahazardous activity of blasting.” Defendant filed an answer and
motion to dismiss Plaintiff’s complaint on 20 April 2015. Citing N.C. Gen. Stat. § 1A-
1, Rule 12(b)(6), Defendant first asserted that Plaintiff failed to state a valid claim
for relief. Among its additional defenses, Defendant further asserted that “[t]he
doctrine of strict liability . . . does not apply to cases where injury results to those who
have reason to know of the risk which makes the undertaking ultrahazardous and
bring themselves within the area which will be endangered by its miscarriage.”
Defendant alleged that
[a]s an employee working in the field of blasting, Plaintiff
[] consented to the dangers and risks associated with the
field of blasting and cannot recover against Defendant [] on
a claim of strict liability. Plaintiff[] knowingly put himself
at risk and was an active participant. Further, Plaintiff[]
was warned about the risks associated with blasting and
was trained regarding the risks associated with blasting.
The trial court granted Defendant’s motion to dismiss on 8 December 2015. Plaintiff
appealed the dismissal of his strict liability claim against Defendant, but this Court
dismissed that appeal as interlocutory because Plaintiff “continue[d] to assert
unadjudicated claims against [the other] defendants[,]” and Plaintiff did not
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specifically contend the interlocutory appeal affected a substantial right that would
be lost absent immediate review. See Fagundes v. Ammons Development Group, Inc.,
___ N.C. App. ___, ___, 791 S.E.2d 876, ___ (2016) (unpublished).
The trial court subsequently denied summary judgment on Plaintiff’s strict
liability claim against the other defendants and Plaintiff’s willful, wanton, and
reckless negligence claim against Albino. On appeal, this Court reversed. See
Fagundes v. Ammons Development Group, Inc., ___ N.C. App. ___, 796 S.E.2d 529
(2017) (“Fagundes I”). We concluded that “because [Plaintiff] was injured in a work-
related accident, the [North Carolina] Workers’ Compensation Act provide[d] the
exclusive remedy for his injuries, and the trial court lacked jurisdiction to adjudicate
his strict liability claims against his employer.” Id. at ___, 796 S.E.2d at 533. This
Court also concluded the trial court erroneously denied summary judgment with
respect to Plaintiff’s claim against Albino for willful, wanton, and reckless negligence.
Id. at ___, 796 S.E.2d at 533. On remand, the trial court entered an order on 9 October
2017 granting summary judgment for the other defendants on Plaintiff’s strict
liability claim, and granting summary judgment for Albino on Plaintiff’s claim for
willful, wanton, and reckless negligence. Consequently, Plaintiff concedes the other
defendants “are no longer aggrieved parties.” Plaintiff now appeals from the 9
October 2017 order for the purpose of appealing the 8 December 2015 order
dismissing Plaintiff’s strict liability claim against Defendant.
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II. Motion to Dismiss
A. Standard of Review
A motion to dismiss under [N.C. Gen. Stat. § 1A-1,
Rule] 12(b)(6) is the usual and proper method of testing the
legal sufficiency of [a] complaint. In reviewing a trial
court’s Rule 12(b)(6) dismissal, the appellate court must
inquire whether, as a matter of law, the allegations of the
complaint, treated as true, are sufficient to state a claim
upon which relief may be granted under some legal theory.
Newberne v. Department of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618
S.E.2d 201, 203 (2005) (citations and internal quotation marks omitted). “A
complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the
claim made, if sufficient facts to make out a good claim are absent, or if facts are
disclosed which will necessarily defeat the claim.” Fussell v. N.C. Farm Bureau Mut.
Ins. Co., 364 N.C. 222, 225, 695 S.E.2d 437, 440 (2010) (citation and quotation marks
omitted). “The complaint must be liberally construed, and [a] court should not
dismiss the complaint unless it appears beyond a doubt that the plaintiff could not
prove any set of facts to support his claim which would entitle him to relief.” Hunter
v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 480, 593 S.E.2d 595, 598 (2004)
(citation and quotation marks omitted) (emphases added). See also Burgin v. Owen,
181 N.C. App. 511, 512, 640 S.E.2d 427, 428 (2007) (“The standard of review of an
order granting a 12(b)(6) motion is whether the complaint states a claim for which
relief can be granted under some legal theory when . . . all the allegations included
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therein are taken as true.” (citation omitted) (emphasis added)); Acosta v. Byrum, 180
N.C. App. 562, 567, 638 S.E.2d 246, 250 (2006) (“When analyzing a 12(b)(6) motion,
the court . . . is concerned with the law of the claim, not the accuracy of the facts that
support [the] [] motion.” (citation omitted)). “This Court must conduct a de novo
review of the pleadings to determine their legal sufficiency and to determine whether
the trial court’s ruling on the motion to dismiss was correct.” Leary v. N.C. Forest
Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003).
B. Analysis
A Rule 12(b)(6) motion to dismiss “is addressed to whether the facts alleged in
the complaint, when viewed in the light most favorable to the plaintiff[], give rise to
a claim for relief on any theory.” Ford v. Peaches Entertainment Corp., 83 N.C. App.
155, 156, 349 S.E.2d 82, 83 (1986) (citation omitted). Importantly, “[t]he issue is not
whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer
evidence to support the claim.” S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC,
189 N.C. App. 601, 607, 659 S.E.2d 442, 448 (2008).
In the present case, Plaintiff’s complaint alleged the following in support of his
strict liability claim against Defendant:
58. Blasting is an ultrahazardous activity.
59. Defendant [] knew that blasting is an ultrahazardous
activity.
60. Defendant [] hired [d]efendant East Coast to perform
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the ultrahazardous activity of blasting at the Heritage East
development site, including the area in question.
61. In hiring [d]efendant East Coast to perform the
ultrahazardous activity of blasting, Defendant [] ha[d] a
non-delegable duty for the safety of Plaintiff [].
62. Defendant [] is strictly liable for the damages sustained
by Plaintiff [] that were proximately caused by the
ultrahazardous activity of blasting.
63. As a direct and proximate result of the ultrahazardous
activity of blasting by Defendant [] as described herein,
Plaintiff [] suffered the injuries and sustained the damages
set forth above, and is entitled to compensatory damages[.]
In a memorandum of law filed by Defendant in support of its motion to dismiss,
Defendant contended Plaintiff’s complaint “disclosed facts which necessarily defeat
Plaintiff’s claim against [Defendant].” Defendant argued certain facts alleged in the
complaint made it “clear that Plaintiff assumed the risk of being injured by a blast
and as such Plaintiff has not stated a claim for which relief can be granted.”
(emphasis added). Defendant argued that Plaintiff “voluntarily exposed himself to
danger both generally (by accepting employment with a blasting company[]) and
specifically (by being at the blast [that occurred on [25 June] 2013[]).”
On appeal, Defendant asserts that an employee of a blasting company has no
legally cognizable strict liability claim – against any third party – for blasting-related
injuries sustained while at work. According to Defendant, in this context,
“assumption of risk” is implicit in the contract of employment and bars recovery on
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the basis of strict liability as a matter of law. Thus, Defendant submits that, in the
present case, “Plaintiff, an employee of a blasting company, has no recognized strict
liability claim against the developer [] which hired [Plaintiff’s] [employer].”
Defendant further argues that, even if Plaintiff is entitled to assert a strict liability
claim in this context, the affirmative defense of assumption of risk applies to
Plaintiff’s claim and, based on the allegations in Plaintiff’s complaint, bars recovery
as a matter of law. We disagree.
Ordinarily, “one who employs an independent contractor is not liable for the
independent contractor’s acts.” Reynoso v. Mallard Oil Co., 223 N.C. App. 58, 61, 732
S.E.2d 609, 611 (2012) (citation omitted). “However, if the work to be performed by
[an] independent contractor is either (1) ultrahazardous or (2) inherently dangerous,
and the employer either knows or should have known that the work is of that type,
liability may attach despite the independent contractor status.” Kinsey v. Spann, 139
N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000) (emphasis added).
“Blasting is ultrahazardous because high explosives are used and it is
impossible to predict with certainty the extent or severity of its consequences.”
Guilford Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 74, 131 S.E.2d 900, 904
(1963) (citation and quotation marks omitted). In Guilford, our Supreme Court held
that, as a result of the unpredictable and unpreventable dangers associated with
blasting, “[b]lasting operations . . . must pay their own way. . . . The principle of strict
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or absolute liability for extrahazardous [sic] activity thus is the only sound
rationalization.” Id. (citation and quotation marks omitted). The Court subsequently
described strict liability for blasting as
[t]he rule . . . that one who is lawfully engaged in blasting
operations is liable without regard to whether he has been
negligent, if by reason of the blasting he causes direct
injury to neighboring property or premises by casting rocks
or debris thereon or by concussion or vibrations set in
motion by the blasting.
Trull v. Well Co., 264 N.C. 687, 691, 142 S.E.2d 622, 624 (1965) (emphasis added).
“To date, blasting is the only activity recognized in North Carolina as ultrahazardous.
Consequently, those responsible are held strictly liable for damages, mainly because
the risk of serious harm cannot be eliminated with reasonable care.” Jones v.
Willamette Industries, Inc., 120 N.C. App. 591, 596, 463 S.E.2d 294, 298 (1995)
(citation omitted).
Our appellate courts have distinguished between ultrahazardous activities,
which give rise to strict liability, and “inherently dangerous activities,” which are
governed by principles of negligence. “Unlike ultrahazardous activities, inherently
dangerous activities are susceptible to effective risk control through the use of
adequate safety precautions.” Woodson v. Rowland, 329 N.C. 330, 351, 407 S.E.2d
222, 234 (1991) (citation omitted). “[T]aking the necessary safety precautions can
demonstrate reasonable care protecting the responsible party from liability under a
negligence standard.” Id. This Court stated in Kinsey that, in contrast to inherently
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dangerous activity claims, in cases involving ultrahazardous activities, “the employer
is strictly liable for any harm that proximately results [from the ultrahazardous
activity]. In other words, he is liable even if due care was exercised in the
performance of the activity.” Kinsey, 139 N.C. App. at 374, 533 S.E.2d at 491
(citations omitted) (emphasis in original).
Generally, the [North Carolina] Workers’
Compensation Act provides the exclusive remedy for an
employee injured in a workplace accident. However, in
Woodson, [] our Supreme Court created an exception
allowing an employee to assert a [civil] claim against an
employer for damages when the employer intentionally
engages in misconduct knowing it is substantially certain
to cause serious injury or death to employees[.]
Arroyo v. Scottie’s Professional Window Cleaning, 120 N.C. App. 154, 158-59, 461
S.E.2d 13, 16 (1995) (citations and internal quotation marks omitted); see also
Pendergrass v. Card Care, Inc., 333 N.C. 233, 239-40, 424 S.E.2d 391, 395 (1993). The
“Woodson exception” applies not only to an employee’s direct employer but also to
“[o]ne who employs an independent contractor to perform an inherently dangerous
activity[,] [and the principal hiring entity] may not delegate to the independent
contractor the duty to provide for the safety of others[.]” Woodson, 329 N.C. at 352,
407 S.E.2d at 235. “The party that employs the independent contractor has a
continuing responsibility to ensure that adequate safety precautions are taken.” Id.
Accordingly, under Woodson, a party that hires an independent contractor to perform
an inherently dangerous activity, and “[knows] of the circumstances creating the
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danger,” is liable to employees of the independent contractor if the principal employer
fails to “exercise due care to see that [the employees] [are] provided a safe place in
which to work and proper safeguards against any dangers as might be incident to the
work.” Id. at 356-57, 407 S.E.2d at 238.
We note that Woodson involved an employee who was killed while constructing
a trench, an activity that may or may not be deemed inherently dangerous depending
“on the particular trench being dug and the pertinent circumstances surrounding the
digging.” Id. at 356, 407 S.E.2d at 237; see also O’Carroll v. Texasgulf, Inc., 132 N.C.
App. 307, 313, 511 S.E.2d 313, 318 (1999) (“Although the determination of whether
an activity is inherently dangerous is often a question of law, whether a particular
trenching situation constitutes an inherently dangerous activity usually presents a
question of fact and should be addressed on a case by case basis[.]” (citations omitted)
(emphases in original)). Although Woodson involved an inherently dangerous activity
claim, our Supreme Court stated in its opinion that
[p]arties whose blasting proximately causes injury are held
strictly liable for damages, largely because reasonable care
cannot eliminate the risk of serious harm. Because these
activities are extremely dangerous, they must “pay their
own way,” and the parties who are responsible must bear
the cost regardless of whether they have been negligent.
Id. at 350-51, 407 S.E.2d at 234 (citations omitted). In the present case, Plaintiff
contends this language in Woodson supports his strict liability claim against
Defendant. See also id. at 352, 407 S.E.2d at 235 (“The rule imposing liability on one
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who employs an independent contractor [to perform an inherently dangerous activity]
applies whether [the activity] involves an appreciable and foreseeable danger to the
workers employed or to the public generally.” (citation and internal quotation marks
omitted) (second alteration in original) (emphasis added)). Defendant responds that
Woodson “did not address whether the employees of independent contractors [are]
included within the protection of strict liability claims” or “whether a strict liability
claim can be brought by an employee of a company engaged in ultrahazardous
activities against the entity who hired the company.” Defendant observes that “[n]o
North Carolina court has found that [a] hiring entity is strictly liable for an injury to
an employee of the company who conducted an ultrahazardous activity.” We observe,
however, that Defendant also has not cited any North Carolina case law concluding
a hiring entity cannot, as a matter of law, be strictly liable to employees of its
independent contractor for blasting-related injuries.
In cases predating the North Carolina Workers’ Compensation Act (“WCA”),
see N.C. Gen. Stat. § 97-1 et seq., our Supreme Court repeatedly held that parties
responsible for blasting operations could not avoid liability for harms associated with
blasting merely by employing an independent contractor to do the work. See Watson
v. R.R., 164 N.C. 176, 182, 80 S.E. 175, 177 (1913); Arthur v. Henry, 157 N.C. 393,
402, 73 S.E.2d 206, 209-10 (1911); Hunter v. R.R., 152 N.C. 682, 687-89, 68 S.E. 237,
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239-40 (1910). With respect to employees of an independent contractor, our Supreme
Court stated in Greer v. Construction Co., 190 N.C. 632, 130 S.E. 739 (1925):
The rule exempting an owner or contractor from liability
for the negligence of an independent contractor to a
stranger or third person does not necessarily exempt such
owner or contractor from liability to the servant or
employee of the independent contractor who is injured
while engaged in work for the ultimate benefit of such
owner or contractor. There is a relationship between the
owner or contractor and the servant or employee of the
independent contractor which may impose upon the former
duties which the law does not impose upon him with
respect to strangers or third persons. The law would not
be just to itself or to those who have a right to rely upon it
for protection, if an owner or contractor could, in all cases,
by committing the work in which he is interested to an
independent contractor, secure absolute exemption from
all liability to those who by their labor and by methods and
under circumstances contemplated when the original
contract was made, contribute to its full performance.
Greer, 190 N.C. at 636, 130 S.E. at 742. Recognizing that “certain exceptions must
be made to the general rule exempting owners or contractors from liability for the
negligence of an independent contractor[,]” the Court further observed that
[w]here the thing contracted to be done is necessarily
attended with danger, however skillfully and carefully
performed, or is intrinsically dangerous, it is held that the
party who lets the contract to do the act cannot thereby
escape responsibility for any injury resulting from its
execution, although the act to be performed may be lawful.
Id. (citation and quotation marks omitted).
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Defendant dismisses Hunter, Arthur, Watson, and Greer as “inapplicable” to
the present case because they preceded both the WCA and the adoption of strict
liability for blasting in Guilford. Regardless, we find these cases useful for their
discussions about the relationship between the employer of an independent
contractor and third parties, including employees of the independent contractor,
when the work of the independent contractor is “necessarily attended with danger,
however skillfully and carefully performed[.]” Greer, 190 N.C. at 636, 130 S.E. at 742;
see also Watson, 164 N.C. at 182, 80 S.E. at 177 (“[T]he doctrine is well established
and is applicable here that the work at which the plaintiff [employee] was engaged[,
blasting,] is so intrinsically dangerous that protection from liability will not be
afforded by an independent contract[.]”); Arthur, 157 N.C. at 402, 73 S.E.2d at 210
(“[W]e must hold that the work to be done[, blasting,] was of such character that the
defendant [quarry owner] could not protect himself by the lease he made, and that he
is liable for the acts of the [independent contractor] in the prosecution of the work.”).
Since Guilford – which did not involve personal injury or an employment-
related claim – few cases in our State have applied the principle of strict liability for
blasting. References to strict liability for blasting most often appear in dicta in cases
involving inherently dangerous activity claims. In mentioning strict liability for
blasting, however, our appellate courts have consistently indicated that a party
“responsible for,” or “engaged in,” the ultrahazardous activity is strictly liable for
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harm caused by the blasting. See, e.g., Woodson, 329 N.C. at 350-51, 407 S.E.2d at
234 (“Parties whose blasting proximately causes injury are held strictly liable for
damages, largely because reasonable care cannot eliminate the risk of serious harm.
Because these activities are extremely dangerous, they must ‘pay their own way,’ and
the parties who are responsible must bear the cost regardless of whether they have
been negligent.” (citations omitted) (emphasis added)); Trull, 264 N.C. at 691, 142
S.E.2d at 624 (“The rule . . . is that one who is lawfully engaged in blasting operations
is liable without regard to whether he has been negligent, if by reason of the blasting
he causes direct injury to neighboring property or premises[.]” (emphasis added));
Jones, 120 N.C. App. at 596, 463 S.E.2d at 298 (“To date, blasting is the only activity
recognized in North Carolina as ultrahazardous. Consequently, those responsible are
held strictly liable for damages, mainly because the risk of serious harm cannot be
eliminated with reasonable care.” (emphasis added)). Our Supreme Court stated in
Trull that “the rule of liability without allegation and proof of negligence . . . casts
the risk of the venture [of blasting] on the person who introduces the peril in the
community.” Trull, 264 N.C. at 691, 142 S.E.2d at 624 (emphasis added). Our limited
precedent on strict liability for blasting thus suggests that strict liability may attach
to any person or entity found “responsible for” blasting, and our pre-WCA case law
suggests that parties “responsible for” blasting may include one that hires an
independent contractor to conduct blasting operations.
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Our case law also requires an element of proximate causation between the
blasting operations at issue and the injury or damages alleged. See, e.g., Trull, 264
N.C. at 691, 142 S.E.2d at 624 (holding “that one who is lawfully engaged in blasting
operations is [strictly] liable . . . if by reason of the blasting he causes direct injury[.]”
(emphasis added)); Kinsey, 139 N.C. App. at 374, 533 S.E.2d at 491 (noting an
employer engaged in blasting “is strictly liable for any harm that proximately results.”
(citation omitted) (second emphasis added)); Cody v. Dept. of Transportation, 45 N.C.
App. 471, 474, 263 S.E.2d 334, 335-36 (1980) (“Because of the inherently dangerous
or ultrahazardous nature of blasting, when a contractor employed by the Department
of Transportation uses explosives in the performance of his work, he is primarily and
strictly liable for any damages proximately resulting therefrom.” (citation and
internal quotation marks omitted) (emphasis added)).
Here, Plaintiff’s complaint specifically alleged that Defendant “hired [] East
Coast to perform the ultrahazardous activity of blasting at the Heritage East
development site, including the area in [which Plaintiff was injured].” (emphasis
added). Plaintiff’s complaint also alleged that “[a]s a direct and proximate result of
the ultrahazardous activity of blasting by Defendant . . . , Plaintiff . . . suffered the
injuries and sustained the damages set forth [in the complaint][.]” (emphasis added).
We conclude that, under existing North Carolina law, Plaintiff has “allege[d] the
substantive elements of a valid claim[]” for strict liability for blasting. See Acosta,
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180 N.C. App. at 566-67, 638 S.E.2d at 250. Whether Plaintiff can successfully prove
Defendant was or should be considered “responsible for” the blast that injured
Plaintiff remains to be determined, but for purposes of Rule 12(b)(6), we find it
sufficient that Plaintiff alleged Defendant directly solicited East Coast’s blasting
services, and that a blast conducted pursuant to Defendant’s contract with East Coast
proximately caused Plaintiff’s injuries.
Recently, in a separate appeal by the other defendants in this matter, this
Court determined that the WCA provides the exclusive remedy for an employee of a
blasting company who is injured by blasting and seeks to recover against his
employer, i.e., the blasting company. See Fagundes I, ___ N.C. App. at ___, 796
S.E.2d at 532-33; see also Whitaker v. Town of Scotland Neck, 357 N.C. 552, 556, 597
S.E.2d 665, 667 (2003) (“As this Court has often discussed, the [WCA] was created to
ensure that injured employees receive sure and certain recovery for their work-
related injuries without having to prove negligence on the part of the employer or
defend against charges of contributory negligence. In exchange for these limited but
assured benefits, the employee is generally barred from suing the employer for
potentially larger damages in civil negligence actions and is instead limited
exclusively to those remedies set forth in the [WCA].” (citations and internal
quotation marks omitted)). After observing in Fagundes I that “the workers’
compensation system [itself] imposes strict liability on employers[,]” this Court
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expressly declined to “create a new exception to the [WCA] because of the high risk
of serious injury in these types of ultrahazardous jobs and the robust common law
remedies that were available to workers injured in these types of jobs before our
General Assembly created the workers’ compensation system.” Fagundes I, ___ N.C.
App. at ___, 796 S.E.2d at 533. We concluded that, notwithstanding the
ultrahazardous nature of blasting, “because [Plaintiff] was injured in a work-related
accident, the [WCA] provide[d] the exclusive remedy for his injuries, and the trial
court lacked jurisdiction to adjudicate his strict-liability claims against his employer.”
Id. at ___, 796 S.E.2d at 533 (emphasis added). In the present case, Defendant urges
us to “reject Plaintiff’s additional attempt to expand strict liability” by recognizing a
strict liability claim against an entity that hires an independent contractor to provide
blasting services by an employee of the independent contractor injured by blasting.
Fagundes I involved Plaintiff’s strict liability claim against his direct employer
and co-employee only. See Estate of Gary Vaughn v. Pike Electric, LLC, 230 N.C. App.
485, 494, 751 S.E.2d 227, 233 (2013) (“Under the [WCA’s] exclusivity provision, a
worker is generally barred from bringing an action in our courts of general
jurisdiction against either his employer or a co-employee. Instead, the worker must
pursue his or her action before the North Carolina Industrial Commission.” (internal
citation omitted) (emphasis added)). This Court explicitly characterized the issue on
appeal in Fagundes I as being “whether employees injured while working in
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‘ultrahazardous’ jobs may sue their employers in the court system despite the
provisions of the [WCA] requiring those claims to be pursued [before] the Industrial
Commission.” Id. at ___, 796 S.E.2d at 531 (emphasis added). While this Court
suggested our analysis in Fagundes I encompassed employee claims “stemming from
workplace injuries[,]” we also acknowledged language in Woodson that “discussed
how a general contractor could be held strictly liable for injuries caused by a
subcontractor engaged in an ultrahazardous activity, such as blasting.” Id. at ___,
796 S.E.2d at 532 (citation omitted). In requiring Plaintiff to bring his claims against
East Coast before the Industrial Commission, we stressed that “the workers’
compensation system [already] imposes strict liability on employers.” Id. at ___, 796
S.E.2d at 533 (emphasis added).
“To be entitled to maintain a proceeding for workers’ compensation, the
claimant must be, in fact and in law, an employee of the party from whom
compensation is claimed.” Youngblood v. North State Ford Truck Sales, 321 N.C. 380,
383, 364 S.E.2d 433, 437 (1988) (citations omitted) (emphasis added). “It is well
established that in order for a claimant to recover under the Workers’ Compensation
Act, the employer-employee relationship must exist at the time of the claimant’s
injury.” Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 343, 374 S.E.2d 472, 473
(1988); see also Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 689, 606 S.E.2d
379, 382 (2005) (“The claimant has the burden of proving that an employer-employee
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relationship existed at the time that the injury by accident occurred.” (citation
omitted)). “The question as to whether an employer-employee relationship existed at
the time of injury is a question of jurisdictional fact . . . [that] is reviewable by this
Court on appeal.” Durham v. McLamb, 59 N.C. App. 165, 168, 296 S.E.2d 3, 5 (1982)
(noting that, on appeal, “it is incumbent on this Court to review and consider all of
the evidence of record and make an independent finding [as to the existence of an
employer-employee relationship].” (citations omitted) (emphasis added)); see also
Postell v. B&D Const. Co., 105 N.C. App. 1, 10, 411 S.E.2d 413, 418 (1992) (listing
“several factors that are indicative of an employee/employer relationship.”). “[T]he
Industrial Commission has no jurisdiction to apply the [WCA] to a person who is not
subject to its provisions.” Youngblood, 321 N.C. at 383, 364 S.E.2d at 437; see also
Spencer v. Johnson & Johnson Seafood, 99 N.C. App. 510, 516, 393 S.E.2d 291, 294
(1990) (concluding that, because plaintiff was not an employee of defendant,
Industrial Commission “was without jurisdiction to render an award under the
[WCA].”).
In the present case, nothing in Plaintiff’s complaint suggests Plaintiff and
Defendant had an employer-employee relationship at the time of Plaintiff’s blasting-
related injuries. See McCraw v. Mills, Inc., 233 N.C. 524, 530, 64 S.E.2d 658, 662
(1951) (holding employee of independent contractor was not an employee of party that
hired the independent contractor). Assuming arguendo that (1) Defendant may be
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Opinion of the Court
subject to strict liability for Plaintiff’s injuries if Defendant was “responsible for” its
contractor’s blasting operations, and (2) no employer-employee relationship existed
between Plaintiff and Defendant when Plaintiff was injured, Plaintiff’s only avenue
for pursuing a strict liability claim against Defendant would be a civil action. As
discussed above, it remains to be determined whether Defendant was “responsible
for” the blast that injured Plaintiff. Moreover, Plaintiff’s complaint does not show on
its face that an employer-employee relationship existed between Plaintiff and
Defendant. We therefore find it premature to determine whether this Court’s
reasoning in Fagundes I regarding the WCA’s exclusivity provisions necessarily
defeats Plaintiff’s strict liability claim against Defendant.2
2
We also note that the defendants in Fagundes I appealed the denial of their motions for
summary judgment, not an order granting or denying a motion to dismiss.
The distinction between a Rule 12(b)(6) motion to dismiss and a motion
for summary judgment is more than a mere technicality. When
considering a 12(b)(6) motion to dismiss, the trial court need only look
to the face of the complaint to determine whether it reveals an
insurmountable bar to [the] plaintiff’s recovery. By contrast, when
considering a summary judgment motion, the trial court must look at
more than the pleadings; it must also consider additional matters such
as affidavits, depositions and other specified matter outside the
pleadings. Summary judgment is proper only when there are no
genuine issues of material fact and one party is entitled to judgment
as a matter of law.
Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (citations
omitted) (emphasis in original). “[T]he Rule 12(b)(6) motion is addressed solely to the sufficiency of
the complaint and does not prevent summary judgment from subsequently being granted based on
material outside the complaint.” Industries, Inc. v. Construction Co., 42 N.C. App. 259, 263, 257 S.E.2d
50, 53-54 (1979) (emphasis added).
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Defendant offers various arguments why “[t]his Court should find[,] like courts
in other states, and as laid out in American Jurisprudence, that employees of a
blasting company cannot bring a strict liability claim against the entity who hired
their company to do the work.” (emphasis added). Defendant argues Plaintiff, as an
employee of a blasting company, does not “fall within the scope of persons designed
to be protected by strict liability.” Citing case law from other jurisdictions, Defendant
contends “no employee of a blasting company, no matter his position, should be
entitled to bring a strict liability claim against a developer when the employee is at a
blasting site in the course and scope of employment and injured by a blast caused by
his employer.” (emphasis added). According to Defendant, the mere fact that Plaintiff
worked for a blasting company shows Plaintiff knew or should have known of the
risks of blasting. Defendant also characterizes Plaintiff as a “participant” in the 25
June 2013 blast, rather than an “innocent bystander[][,]” because, inter alia,
“[Plaintiff’s] work in the rock crushing division involved him being on site when
blasting occurred” and “[Plaintiff] was in the course and scope of his employment
when the [25 June 2013] blast occurred.” Defendant speculates that “employees
involved in ultrahazardous activities directly benefit from the dangerous work
performed by their company and presumably their compensation reflects the danger
of the work.” Defendant further submits it should not be liable to employees of its
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Opinion of the Court
independent contractor because “[a] developer has a different role in a project than
a[] [land]owner or a general contractor.”
Whatever the factual accuracy of Defendant’s contentions, we find them
inappropriate bases for dismissing Plaintiff’s complaint pursuant to Rule 12(b)(6).
We are not persuaded that the mere fact of Plaintiff’s employment by East Coast, or
Plaintiff’s mere presence “on site” at the time of the blast that injured him,
demonstrate “to a certainty that [] [P]laintiff is entitled to no relief under any state
[sic] of facts which could be proved in support of [his] claim.” See Ferguson v.
Williams, 92 N.C. App. 336, 339, 374 S.E.2d 438, 439 (1988) (emphasis added). Even
assuming that an employee whose job involves blasting cannot bring a strict liability
claim for employment-related blasting injuries, Plaintiff’s complaint does not
establish as a matter of law that his job with East Coast involved blasting or that, as
Defendant contends, Plaintiff was not an “innocent party” under the circumstances
surrounding his injuries.
Plaintiff’s complaint does not establish on its face that Plaintiff, who did not
work in East Coast’s blasting division, was “involved,” “engaged,” or “a participant”
in the ultrahazardous activity of blasting. Plaintiff alleged he was employed at all
relevant times as a heavy equipment operator in East Coast’s rock crushing division,
and, on the date of the blast that caused his injuries, he “was working in the course
and scope of his employment as a heavy equipment operator in the rock crushing
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Opinion of the Court
division of [] East Coast.” (emphasis added). According to Plaintiff’s complaint, the
Heritage East development comprised approximately 2,000 acres of land, and
“substantial portions . . . were under construction at all times relevant[.]” The
complaint does not indicate where, within the larger construction site, Plaintiff
typically worked; how long, prior to 25 June 2013, he was employed by East Coast; or
whether and to what extent Plaintiff’s job in the rock crushing division required him
to work with blasters or around blasting. The complaint alleged that, immediately
before the 25 June 2013 blast, East Coast’s blaster-in-charge “misinformed Plaintiff
. . . that Plaintiff . . . was located in a position that would be safe from flying debris
and flyrock.” We are unable to determine whether Plaintiff knew, or should have
known, he was at risk of serious injury despite being (as he believed) “outside the
blasting area.” Additionally, because Plaintiff’s complaint reveals no information
about Plaintiff’s salary or other employment benefits, we are unable to determine at
this stage whether, as Defendant suggests, Plaintiff’s compensation may have
reflected the ultrahazardous nature of blasting. See Klingstubbins SE., Inc. v. 301
Hillsborough St. Partners, LLC, 218 N.C. App. 256, 262, 721 S.E.2d 749, 753 (2012)
(noting “questions of . . . material facts [] cannot be resolved under Rule 12(b)(6).”).
Given our limited case law on strict liability for blasting, we cannot conclude
as a matter of law that Plaintiff falls outside “the scope of persons designed to be
protected by strict liability[]” in this context. This Court’s holding in Boston v. Webb,
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73 N.C. App. 457, 326 S.E.2d 104 (1985), is instructive. In Boston, the plaintiff sued
a city official for issuing a press release containing allegedly defamatory information
about the plaintiff. The defendant successfully moved to dismiss the plaintiff’s
complaint under Rule 12(b)(6) on the basis that the plaintiff’s complaint showed the
defendant was acting within the scope of his authority as a public official when he
issued the press release, and that the official’s communications were therefore
absolutely privileged. This Court reversed, finding it was
too early in the plaintiff’s action for us to say to a certainty
that the plaintiff is entitled to no relief under any set of
facts he might prove in support of his claim. We are unable
to determine at this point whether [the defendant] was
acting within the scope of his authority as [c]ity [m]anager
when he published [the] news release. Similarly, from only
the facts as found in the complaint, we cannot say whether
all of the matter contained in the news release was
privileged. . . . [Further], the defense of privilege is based
upon the premise that some information, although
defamatory, is of sufficient public or social interest to
entitle the individual disseminating the information to
protection against an action for liable. Whether such
communications will be protected generally has been
determined by the amount of public interest in the matter
communicated.
Boston, 73 N.C. App. at 460-61, 326 S.E.2d at 106. This Court concluded the
defendant’s motion to dismiss was improperly granted “precisely because the public’s
interest in the matter and [the defendant’s] right to relay it as he did remain[ed] to
be determined.” Id. at 461, 326 S.E.2d at 106. In the present case, we similarly find
it too soon to determine whether the totality of the circumstances surrounding
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Plaintiff’s injuries removed him from the ambit of strict liability protection that
generally applies to third parties injured by blasting.
Defendant argues in the alternative that the defense of assumption of risk
should apply to strict liability claims for ultrahazardous activities and, in this case,
requires dismissal of Plaintiff’s complaint. See Skinner v. E.F. Hutton & Co., 314
N.C. 267, 270, 333 S.E.2d 236, 238 (1985) (“When [a] complaint states a valid claim
but also discloses an unconditional affirmative defense which defeats the asserted
claim, [] the [12(b)(6)] motion will be granted and the action dismissed.” (citation
omitted)). As Defendant acknowledges, “[n]o North Carolina cases directly address
the point of how assumption of the risk relates to a claim based on [a] defendant’s
strict liability for damages arising from an ultra[]hazardous activity.” Vecellio &
Grogan, Inc. v. Piedmont Drilling & Blasting, Inc., 183 N.C. App. 66, 70, 644 S.E.2d
16, 19 (2007) (declining to address availability of assumption of risk defense for strict
liability claims arising from ultrahazardous activities, where it was unclear “whether
the evidence presented at trial on remand [would] even present a factual issue of
assumption of risk[.]”).
“The two elements of the common law defense of assumption of risk are: (1)
actual or constructive knowledge of the risk, and (2) consent by the plaintiff to assume
that risk.” Allred v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 287, 669
S.E.2d 777, 781 (2008) (citation omitted); see also Batton v. R.R., 212 N.C. 256, 268,
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193 S.E. 674, 684 (1937) (“Assumption of risk is founded upon knowledge of [an]
employee, either actual or constructive, of the risks and hazards to be encountered in
the performance of his duties and his consent to take the chance of injury therefrom.”
(citation and quotation marks omitted)). The defense of assumption of risk “[is]
affirmative and require[s] a showing on the part of the defendant to be considered at
all; and to prevail as a matter of law, . . . it must plainly appear from the evidence
that a reasonable mind could draw no other inference.” Bruce v. Flying Service, 231
N.C. 181, 188, 56 S.E.2d 560, 564 (1949). This Court has held that, before an
employee will be treated as having assumed the risks of his employment, he “must
(or reasonably should) have been aware of the dangers involved and, in addition, must
(or reasonably should) have appreciated the danger and risk connected with the []
conditions leading to his injury; and [] in case of any doubt the question is ordinarily
one for the jury.” May v. Mitchell, 9 N.C. App. 298, 303-04, 176 S.E.2d 3, 7 (1970)
(citation and quotation marks omitted) (emphasis in original).
Here, Defendant’s arguments in support of the assumption of risk defense are
not materially distinguishable from its arguments concerning Plaintiff’s ability to
state a claim for relief. Defendant argues it is entitled to prevail based on the defense
of assumption of risk because Plaintiff “took part in the blasting activity as an
employee of the blasting company . . . performing work at the [construction] site[]”
and because “Plaintiff[]’s scope of work included him being in proximity to blasts.”
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Again, Defendant does not cite any North Carolina case law in support of its
argument that Plaintiff’s complaint “makes it clear that Plaintiff[] assumed the risk
associated with blasting and therefore he cannot bring a strict liability claim against
[Defendant].”
As in Vecellio, we find it unnecessary to reach the question of whether, as a
general matter, assumption of risk is available as a defense to a strict liability claim
arising from an ultrahazardous activity. The mere facts that Plaintiff was employed
by a company whose services included blasting, and that he came “within [] range of
the blasting activity” on the date of his injuries, are insufficient to establish as a
matter of law that Plaintiff “assumed the risks” of blasting. According to Plaintiff’s
complaint, Plaintiff was not employed as a blaster and, immediately prior to the blast
that caused his injuries, he believed he was located at a safe distance from the blast.
Based on the facts alleged in Plaintiff’s complaint, we cannot say whether proximity
to blasting was within Plaintiff’s “scope of work;” whether Plaintiff “took part” in the
blast that resulted in his injuries; or whether it was reasonable for Plaintiff to rely
upon the assurances of the blaster-in-charge about being at a safe distance from the
blast. Even assuming arguendo that the defense of assumption of risk can apply to
strict liability claims for blasting, we are not persuaded that Plaintiff’s complaint
clearly shows Plaintiff had actual or constructive knowledge of the risks of blasting,
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Opinion of the Court
or that he consented to assume those risks.3 See Andrews v. Elliot, 109 N.C. App.
271, 275, 426 S.E.2d 430, 432 (1993) (reversing 12(b)(6) dismissal of plaintiff’s
complaint, where “plaintiff adequately alleged the essential elements of a claim for
defamation per se,” and “plaintiff’s complaint on its face [did not] disclose[] in
defendant’s favor the affirmative defense of absolute or qualified privilege.”); cf.
Holleman v. Aiken, 193 N.C. App. 484, 497, 668 S.E.2d 579, 588 (2008) (affirming
12(b)(6) dismissal of plaintiff’s libel claim based on the defense of truthfulness,
because “from plaintiff’s own complaint it [was] clear that some of the alleged
defamatory statements [were] true.”).
“We emphasize that our holding addresses the pleading stage only. We cannot
predict whether a developed record will support [Plaintiff’s] allegations[.]” Fussell,
364 N.C. at 228, 695 S.E.2d at 441. We hold only that Plaintiff’s complaint, construed
liberally, states a strict liability claim for blasting-related injuries “sufficient to
withstand a motion to dismiss filed pursuant to Rule 12(b)(6).” Id. at 228, 695 S.E.2d
at 442. In Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970), our Supreme Court
discussed the concept of foreseeable risk as a limit on a defendant’s liability for
3 We observe our Supreme Court has held that “assumption of risk is not available as a defense
to one not in a contractual relationship to the plaintiff.” McWilliams v. Parham, 269 N.C. 162, 166,
152 S.E.2d 117, 120 (1967); see also Clark v. Freight Carriers, 247 N.C. 705, 709, 102 S.E.2d 252, 255
(1958) (finding that, where there was “no allegation in the pleadings tending to show any contractual
relationship between the plaintiff and the [] defendants, the doctrine of assumption of risk [was] not
available as a defense.” (citations omitted)).
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negligence. The Sutton Court concluded that, although the plaintiff’s complaint
alleged facts that seemed to suggest the absence of foreseeable risk on the part of the
defendants, the Court
[could not] say on the basis of the ‘bare bones pleadings’
that [the] plaintiff cannot prove otherwise, or that he can
prove no facts which would entitle him to recover from [the]
defendants . . . for the damages resulting from the [incident
alleged]. To dismiss the action now would be “to go too fast
too soon.” This case is not yet ripe for a determination that
there can be no liability as a matter of law.
277 N.C. at 108, 176 S.E.2d at 169 (citations omitted). In the present case, we
likewise find it “too early in [] [P]laintiff’s action for us to say to a certainty that []
[P]laintiff is entitled to no relief under any set of facts he might prove in support of
his claim.” Boston, 73 N.C. App. at 460, 326 S.E.2d at 106.
III. Conclusion
Considering our limited precedent on strict liability for blasting and the lack
of North Carolina case law involving the specific factual circumstances presented
here, we cannot say “it appears beyond doubt that [] [P]laintiff can prove no set of
facts in support of his claim which would entitle him to relief.” See Hull v. Floyd S.
Pike Electrical Contractor, 64 N.C. App. 379, 380, 307 S.E.2d 404, 406 (1983) (citation
omitted) (emphasis added). Accordingly, we conclude the trial court improperly
dismissed Plaintiff’s strict liability claim against Defendant. We therefore reverse
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the trial court’s order granting Defendant’s motion to dismiss and remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Judge STROUD concurs.
Judge MURPHY concurs in result only.
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