Hidalgo v. Erosion Control Servs. ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 19-756
Filed: 21 July 2020
Mecklenburg County, No. 18 CVS 13881
GUADALUPE HIDALGO, ADMINISTRATRIX OF THE ESTATE OF JESUS
ENRIQUE HIDALGO, Plaintiff
v.
EROSION CONTROL SERVICES, INCORPORATED, JAMES BERNARD,
JEFFREY BYRUM, AND DALLAS GLOVER, Defendants
Appeal by Defendants from Order entered 15 April 2019 by Judge George Bell
in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 March 2020.
Butler, Quinn & Hochman, PLLC, by Brian R. Hochman and Ian A. McIntyre,
for plaintiff-appellee.
McAngus, Goudelock & Courie, PLLC, by Heather G. Connor and Christopher
J. Campbell, for defendant-appellant Erosion Control Services, Inc.
Dean & Gibson, PLLC, by Michael G. Gibson, for defendant-appellant Dallas
Glover.
HAMPSON, Judge.
Factual and Procedural Background
Erosion Control Services, Inc. (ECS) and Dallas Glover (collectively,
Defendants) appeal from an Order entered 15 April 2019 denying in part and
granting in part Defendants’ Motions for Summary Judgment. The Record reflects
the following relevant facts:
HIDALGO V. EROSION CONTROL SERVS., INC.
Opinion of the Court
On 20 July 2016, Jesus Enrique Hidalgo (Decedent) was the victim of a fatal
workplace accident. Decedent was employed by ECS, a provider of soil and sediment
control services for construction projects. On the date of the accident, Decedent was
operating a M8200 Kubota Tractor at a construction site in Mecklenburg County,
North Carolina. Decedent was driving the tractor on a slope in an area of the project
known as Basin Two when the tractor started to roll. Decedent was ejected from the
tractor and fatally injured when the tractor rolled on top of him.
Decedent’s mother, Guadalupe Hidalgo (Plaintiff), filed a complaint as
Administratrix of Decedent’s estate on 17 July 2018 and an amended complaint1
(Complaint) on 14 January 2019. Plaintiff’s Complaint alleged wrongful death due
to Defendants’ negligence. Plaintiff specifically alleged Defendants ECS, as
Decedent’s employer, and Bernard, Byrum, and Glover, as owners and officers of
ECS, were negligent and grossly negligent by: “replacing the seat of the tractor with
one that did not have a seatbelt”; “allowing the tractor to be operated without a
seatbelt”; failing to implement safety procedures that would have prevented Decedent
from operating the tractor “on a slope where it was certain to roll over”; directing
Decedent to operate the tractor on a slope where it was certain to roll over; and failing
to provide proper training for Decedent, as an operator, to appreciate the risks of
operating the tractor on a slope. Plaintiff contended the alleged actions were
1 Plaintiff amended her complaint to allege only claims under the theory of wrongful death.
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Opinion of the Court
intentional and “substantially certain to cause serious injury or death and
proximately caused the death of [Decedent].” Defendants answered Plaintiff’s
Complaint denying negligence on their behalf and moved to dismiss Plaintiff’s
Complaint. Defendants also filed Motions for Summary Judgment pursuant to Rule
56 of the North Carolina Rules of Civil Procedure.
Subsequent discovery revealed in April 2015, ECS shop manager David White
(White) procured a replacement seat for the tractor in question from eBay after the
manufacturer was unable to directly provide one. The replacement seat did not
include a seatbelt. However, White averred he was unaware of the lack of seatbelt
upon purchasing the seat and, further, he was not present when the site crew
unpacked and installed the seat in the tractor. Moreover, at the time of the accident
on 20 July 2016, Decedent was operating the tractor outside of the designated project
area (Basin Three), on a slope in Basin Two, where there was “no reason for him to
be driving on the slope if [ECS] w[as] not actively working the slope at the time” and
where no other ECS crew members were working. Following the accident, ECS was
cited by the Occupational Safety and Health Administration (OSHA) for four
workplace safety violations pertaining to the lack of seatbelt and safety measures for
the tractor. No evidence was entered into the Record indicating Decedent was
specifically directed by ECS or its agents to work in or enter Basin Two at the time
of the accident.
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HIDALGO V. EROSION CONTROL SERVS., INC.
Opinion of the Court
The trial court held a hearing on Defendants’ Motions for Summary Judgment
on 4 April 2019. Defendants argued the exclusive remedy for Plaintiff’s claim was
within the North Carolina Workers’ Compensation Act before the Industrial
Commission and therefore that the trial court lacked subject-matter jurisdiction to
hear Plaintiff’s claims. Plaintiff contended Defendants’ negligence was so egregious
it fell within the exception to the Workers’ Compensation Act’s exclusivity provision
as articulated by the North Carolina Supreme Court in Woodson v. Rowland and
therefore Plaintiff could seek relief through a civil action.
On 15 April 2019, the trial court filed its Order Denying in Part and Granting
in Part Defendants’ Motion for Summary Judgment. The trial court granted
summary judgment in favor of individual Defendants Bernard and Byrum. The trial
court denied Defendants Glover and ECS’s Motions for Summary Judgment on their
arguments “based upon lack of subject matter jurisdiction due to the exclusivity
provisions of the North Carolina Workers’ Compensation Act.” Defendants Glover
and ECS timely appealed on 29 April 2019. Plaintiff did not appeal the trial court’s
entry of summary judgment in favor of individual Defendants Bernard and Byrum.
Issue
The dispositive issue on appeal is whether Plaintiff forecast sufficient evidence
to establish Plaintiff’s claims fell outside the exclusivity provisions of the North
Carolina Workers’ Compensation Act under our Supreme Court’s decision in Woodson
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HIDALGO V. EROSION CONTROL SERVS., INC.
Opinion of the Court
v. Rowland, 329 N.C. 330, 341, 407 S.E.2d 222, 228 (1991), to withstand Defendants’
Motions for Summary Judgment.
Analysis
A. Standard of Review
The denial of a motion for summary judgment is usually considered
interlocutory; however, “[t]his Court has appellate jurisdiction because the denial of
a motion concerning the exclusivity provision of the Workers’ Compensation Act
affects a substantial right and thus is immediately appealable.” Fagundes v. Ammons
Dev. Grp., Inc., 251 N.C. App. 735, 737, 796 S.E.2d 529, 532 (2017) (citation omitted).
“Our standard of review of an appeal from summary judgment is de novo; such
judgment is appropriate only when the record shows that there is no genuine issue
as to any material fact and that any party is entitled to a judgment as a matter of
law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and
quotation marks omitted). “Under a de novo review, the court considers the matter
anew and freely substitutes its own judgment for that of the lower tribunal.” Craig
v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009)
(citation and quotation marks omitted).
B. Plaintiff’s Woodson Claim
The North Carolina Workers’ Compensation Act (the Act), located in Chapter
97 of our General Statutes, was created to “ensure that injured employees receive
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Opinion of the Court
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.” Whitaker v. Town of Scotland Neck, 357 N.C. 552, 556, 597 S.E.2d 665,
667 (2003); see N.C. Gen. Stat. § 97-9 (2019). However, to balance competing interests
between employees and employers, the Act includes an exclusivity provision, which
“limits the amount of recovery available for work-related injuries and removes the
employee’s right to pursue potentially larger damage awards in civil actions.”
Woodson, 329 N.C. at 338, 407 S.E.2d at 227 (citation omitted); see N.C. Gen. Stat. §
97-10.1 (2019).
Our Supreme Court carved out an exception to the Act’s exclusivity provision
in Woodson for civil actions brought as a result of conduct that is “tantamount to an
intentional tort.” 329 N.C. at 341, 407 S.E.2d at 228. Our Supreme Court laid out
an exacting standard that plaintiffs must meet in order to escape the exclusivity
provision:
[W]hen 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.
Id. at 340-41, 407 S.E.2d at 228. “Such circumstances exist where there is
uncontroverted evidence of the employer’s intentional misconduct and where such
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HIDALGO V. EROSION CONTROL SERVS., INC.
Opinion of the Court
misconduct is substantially certain to lead to the employee’s serious injury or death.”
Whitaker, 357 N.C. at 557, 597 S.E.2d at 668.
In Woodson, the decedent was killed in a tragic workplace accident when the
fourteen-foot-deep trench he was working in collapsed on top of him. 329 N.C. at 336,
407 S.E.2d at 226. The facts in Woodson demonstrated the defendants, including the
defendant-employer and president, blatantly disregarded the safety of the decedent
in expressly directing him to work in a trench that was “substantially certain to fail.”
Id. at 345, 407 S.E.2d at 231. The defendant-president, who was present on site at
the time of the fatal accident, had a career in “excavating different kinds of soil.” Id.
The defendant-employer “had been cited at least four times in six and one-half years
immediately preceding th[e] incident for violating multiple safety regulations
governing trenching procedures.” Id. (emphasis added). The defendant-president
was not only “aware of safety regulations designed to protect trench diggers from
serious injury or death[,]” but he “knew he was not following th[ose] regulations in
digging the trench in question.” Id.; see also Whitaker, 357 N.C. at 556, 597 S.E.2d
at 668 (noting in Woodson “[t]he hazard of a cave-in was so obvious that the foreman
of another construction crew working on the project had emphatically refused to send
his men into the trench until it was properly shored”). On those facts, the Supreme
Court held the plaintiff was not limited by the exclusivity provision of the Act,
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Opinion of the Court
although she was entitled to only one recovery. Woodson, 329 N.C. at 348, 407 S.E.2d
at 233.
In Whitaker, our Supreme Court reaffirmed the Woodson exception, reiterating
it “represents a narrow holding in a fact-specific case” and “applies only in the most
egregious cases of employer misconduct.” Whitaker, 357 N.C. at 557, 597 S.E.2d at
668. In Whitaker, the Court reversed this Court and reinstated the trial court’s grant
of summary judgment in favor of the defendants. Id. at 558, 597 S.E.2d at 669. The
Court in Whitaker determined there was “insufficient evidence to reasonably support
plaintiffs’ contention that defendants intentionally engaged in misconduct knowing
that it was substantially certain to cause serious injury or death to decedent.” Id. at
557, 597 S.E.2d at 668. Namely, there was “no similar evidence that defendants were
manifestly indifferent to the health and safety of their employees”; there was “no
evidence of record that the [defendant] had been previously cited for multiple,
significant violations of safety regulations”; “[o]n the day of the accident, none of the
[defendant’s] supervisors were on-site to monitor or oversee the workers’ activities”;
and the “[d]ecedent was not expressly instructed to proceed into an obviously
hazardous situation . . . .” Id. at 558, 597 S.E.2d at 668.
Here, taking “all reasonable inferences . . . in the light most favorable to the
non-moving party[,]” Woodson, 329 N.C. at 344, 407 S.E.2d at 231, we conclude on
the Record before us, the facts of the case at hand are more akin to those in Whitaker
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HIDALGO V. EROSION CONTROL SERVS., INC.
Opinion of the Court
than in Woodson, and thus Plaintiff has not demonstrated Defendants “intentionally
engaged in misconduct knowing that it was substantially certain to cause serious
injury or death to decedent.” Whitaker, 357 N.C. at 557, 597 S.E.2d at 668.
First, the Record is devoid of any indication Decedent was expressly directed
by Defendants to drive his tractor into Basin Two and onto the slope that resulted in
the fatal rollover. In fact, the Record reflects no ECS work was occurring in Basin
Two at the time of the accident and no other ECS employees were present in Basin
Two to witness the accident. ECS was cited for four OSHA violations after the
accident from which Plaintiff’s case arose. However, unlike the defendant-employer
in Woodson who had received multiple citations for OSHA violations pertaining to
unsafe trenching, no evidence in the Record shows a history or pattern of OSHA
violations by ECS pertaining to tractor safety prior to the incident in question.
Plaintiff contends Defendant Glover had knowledge the replacement seat for
the tractor lacked a seatbelt or, at the very least, that it is a question of fact defeating
Defendants’ Motions for Summary Judgment; however, that fact, even taken as true,
would not meet the high threshold set out by our Supreme Court in Woodson. “On a
number of occasions, North Carolina courts have rejected Woodson claims despite the
presence of evidence in the record demonstrating that the workplace at issue was
unsafe at the time of the accident.” Blue v. Mountaire Farms, Inc., 247 N.C. App. 489,
504, 786 S.E.2d 393, 403 (2016) (citations omitted). Furthermore, “[a]s discussed in
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HIDALGO V. EROSION CONTROL SERVS., INC.
Opinion of the Court
Woodson, simply having knowledge of some possibility, or even probability, of injury
or death is not the same as knowledge of a substantial certainty of injury or death.”
Whitaker, 357 N.C. at 558, 597 S.E.2d at 668-69.
The Record before us indicates the tractor seat was replaced in April 2015, over
a year before Decedent’s accident. There is no question the lack of seatbelt on the
tractor seat was a violation of OSHA safety regulations, and ECS did not contest that
fact. However, the tractor was operated for over a year without the proper seatbelt,
and the Record reflects no prior safety incidents. While the lack of a seatbelt created
an unsafe condition and may well have made serious injury or death more likely or
even probable in the event of an accident, in light of the high bar set by our Supreme
Court in Woodson and Whitaker, this fact alone does not support Plaintiff’s argument
the lack of seatbelt made it substantially certain death or serious injury would occur
when operating the tractor. Even assuming arguendo for purposes of Defendants’
Motions for Summary Judgment that Defendants’ replacement of the seat without a
seatbelt was intentional misconduct, Plaintiff has not forecasted such misconduct
was substantially certain to lead to Decedent’s serious injury or death.
Although we are sensitive to the facts of this case, we emphasize as did our
Supreme Court in Whitaker, there must be “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
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HIDALGO V. EROSION CONTROL SERVS., INC.
Opinion of the Court
668. We conclude, on the Record before us, that without more Plaintiff has not
forecast evidence of intentional misconduct by Defendants substantially certain to
lead to Decedent’s death so as to create a genuine issue of material fact sufficient to
survive summary judgment on Plaintiff’s claims arising under Woodson. Thus, the
trial court erred in denying Defendants’ Motions for Summary Judgment.
Consequently, the trial court should have also entered summary judgment in favor of
Defendants Glover and ECS.
Conclusion
Accordingly, for the foregoing reasons, we reverse the part of the trial court’s
Order denying Defendants’ Motions for Summary Judgment “based upon lack of
subject matter jurisdiction due to the exclusivity provisions of the North Carolina
Workers’ Compensation Act.”2 We further remand this matter for the trial court to
enter Judgment in favor of Defendants.
REVERSED AND REMANDED.
Judges DIETZ and TYSON concur.
2 Plaintiff did not appeal the trial court’s grant of summary judgment to the individual
Defendants Bernard and Byrum, and those two individual Defendants are not parties to this appeal.
Consequently, the portion of the trial court’s Order granting summary judgment to Bernard and
Byrum is not before us and stands undisturbed.
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