NO. COA13-620
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
JANET MAY and CURTIS HILL, Co-
Administrators of the Estate Of
Mark Curtis Hill,
Plaintiffs,
v. Wayne County
No. 10 CVS 2651
MELROSE SOUTH PYROTECHNICS, INC.,
and OCRACOKE CIVIC & BUSINESS
ASSOCIATION d/b/a OCRACOKE ISLAND
CIVIC AND BUSINESS ASSOCIATION,
Defendants.
JUDY B. GRAY, Administrator of the
Estate of Melissa Annette Simmons,
Plaintiff,
v. Wayne County
11 CVS 1376
EAST COAST PYROTECHNICS, INC.,
formerly known as MELROSE SOUTH
PYROTECHNICS, INC.,
Defendant.
KEVIN F. MACQUEEN, Administrator
of the Estate of Charles Nathaniel
Kirkland, Jr.,
Plaintiff,
v.
Wayne County
EAST COAST PYROTECHNICS, INC., 11 CVS 1377
formerly known as MELROSE SOUTH
PYROTECHNICS, INC.,
Defendant.
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MARTEZ HOLLAND,
Plaintiff,
v. Wayne County
11 CVS 1379
EAST COAST PYROTECHNICS, INC.,
formerly known as MELROSE SOUTH
PYROTECHNICS, INC.,
Defendant.
Appeal by Defendants from order entered 1 October 2012 by
Judge Arnold O. Jones, II in Superior Court, Wayne County.
Heard in the Court of Appeals 7 January 2014.
Farris & Farris, PA, by Robert A. Farris, Jr. and Rhyan A.
Breen, and Thomas & Farris, PA, by Albert S. Thomas, Jr.,
for Plaintiffs-Appellees Janet May and Curtis Hill, Co-
Administrators of the Estate of Mark Curtis Hill; Donald E.
Clark, Jr., PLLC, by Donald E. Clark, Jr., and The Wright
Law Firm, by Paul M. Wright for Plaintiff-Appellee Judy B.
Gray, Administrator of the Estate of Melissa Annette
Simmons; Riddle & Brantley, LLP, by Gene A. Riddle and
Jonathan M. Smith, for Plaintiff-Appellee Kevin F.
MacQueen, Administrator of the Estate of Charles Nathaniel
Kirkland, Jr.; and Jerry Braswell for Plaintiff-Appellee
Martez Holland.
Cranfill Sumner Hartzog LLP, by Daniel G. Katzenbach and M.
Denisse Gonzalez, for Defendants-Appellants.
McGEE, Judge.
This case is before us on remand from the North Carolina
Supreme Court. Our Court originally dismissed the appeal in
this matter as interlocutory on 8 August 2013. Melrose South
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Pyrotechnics, Inc. (“Melrose”) and East Coast Pyrotechnics, Inc.
petitioned our Supreme Court for writ of certiorari, and the
Supreme Court, in an order entered 3 October 2013, allowed the
petition “for the limited purpose of remanding to the Court of
Appeals for consideration of the merits.” This Court therefore
reviews the merits of Defendants’ appeal.
This action arises out of a fireworks explosion in which
several people were killed or seriously injured. Janet May
(“May”) and Curtis Hill (“Hill”), co-administrators of the
estate of Mark Curtis Hill, filed a complaint on 2 December 2010
against Melrose and Ocracoke Civic & Business Association d/b/a
Ocracoke Island Civic and Business Association (“Ocracoke”)
(together, “Defendants”), alleging negligent hiring, gross
negligence, and strict liability.
May and Hill alleged that Melrose was “in the business of
providing fireworks displays[;]” that Terry Holland “had been a
part-time employee of . . . Melrose since 2000;” that Ocracoke
“contracted with . . . Melrose to provide a fireworks
display[;]” that Terry Holland “received some training
from . . . Melrose as ‘Chief Pyrotechnician’ to work on its
behalf conducting fireworks displays in North Carolina;” and
that Terry Holland “was advanced sums of money to retain the
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independent services of a crew to assist him in performing
fireworks displays” by Melrose.
Judy B. Gray (“Gray”), as administrator of the estate of
Melissa Annette Simmons, and Kevin F. MacQueen (“MacQueen”), as
administrator of the estate of Charles Nathaniel Kirkland, Jr.,
filed separate complaints on 1 July 2011 against East Coast
Pyrotechnics, Inc., formerly known as Melrose, alleging
negligence, gross negligence, strict liability, and, in the
alternative, a Woodson claim. Martez Holland filed a complaint
on 1 July 2011 against Melrose, alleging negligent hiring, gross
negligence, and strict liability.
The trial court, in an order entered 15 November 2011,
consolidated the actions of May and Hill, Gray, MacQueen, and
Martez Holland (together, “Plaintiffs”). Defendants filed a
motion for summary judgment on 24 August 2012. The trial court
denied Defendants’ motion for summary judgment in an order
entered 1 October 2012 because “there do exist genuine issues of
fact[.]”
I. Standard of Review
“We review a trial court’s order granting or denying
summary judgment de novo. Under a de novo review, the court
considers the matter anew and freely substitutes its own
judgment” for that of the trial court. D.G. II, LLC v. Nix, 213
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N.C. App. 220, 229, 713 S.E.2d 140, 147 (2011) (internal
quotation marks omitted).
II. Rule
A trial court should grant a motion for summary judgment
only “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show 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.”
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013); see also D.G. II, 213
N.C. App. at 228, 713 S.E.2d at 147.
The purpose of N.C.G.S. § 1A-1, Rule 56 “is to eliminate
formal trials where only questions of law are involved.” Lowe
v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). “An
issue is ‘genuine’ if it can be proven by substantial evidence
and a fact is ‘material’ if it would constitute or irrevocably
establish any material element of a claim or a defense.” Id.
III. Relationship Between Plaintiffs and Defendants
Defendants first argue the trial court erred in denying
their motion for summary judgment because “[t]he issue of
whether Plaintiffs are employees or independent contractors can
be decided as a matter of law.” We disagree.
As stated above, summary judgment requires that (1) “the
pleadings, depositions, answers to interrogatories, and
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admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact” and
(2) “any party is entitled to a judgment as a matter of law.”
N.C.G.S. § 1A-1, Rule 56(c). In the present case, there remain
several genuine issues of fact that are material to determining
the nature of the relationship between Plaintiffs and
Defendants.
Defendants contend there are some undisputed facts that
“show conclusively that Plaintiffs were employees” of Melrose.
Defendants cite Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d
137 (1944), for support of their argument. However, in Hayes,
there was “no substantial controversy as to the facts.” Id. at
15, 29 S.E.2d at 139. By contrast, in the present case, there
is substantial controversy as to the facts, as will be shown in
this section. We therefore cannot determine the nature of the
relationship between Plaintiffs and Defendants at this stage in
the proceedings.
In their complaint, May and Hill alleged that Terry Holland
“had been a part-time employee of . . . Melrose since 2000[.]”
They further alleged that the “crew members selected by [Terry]
Holland were not employees of . . . Melrose but were contracted
by [Terry] Holland for . . . Melrose on a job by job basis[.]”
Melrose denied this allegation in its answer.
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Similarly, in her complaint, Gray alleged that “Simmons and
the other crew members were not employees of Defendant but were
contracted by [Melrose] by and through its employee, [Terry]
Holland, to work on the July 4, 2009, fireworks display for”
Ocracoke. Melrose denied this allegation in its answer.
Likewise, in his complaint, MacQueen alleged that Charles
Nathaniel Kirkland, Jr. “and the other crew members were not
employees of Defendant but were independent contractors retained
by Defendant by and through its employee, [Terry] Holland, to
work on the July 4, 2009, fireworks display for” Ocracoke.
Melrose denied this allegation in its answer.
In his complaint, Martez Holland alleged that the “crew
members selected by [Terry] Holland were not employees of
[Melrose] but were contracted by [Terry] Holland for [Melrose]
on a job by job basis[.]” Melrose denied this allegation in its
answer.
To determine “whether the relationship of employer-
employee, or that of independent contractor, exists, our Supreme
Court has stated, ‘The vital test is to be found in the fact
that the employer has or has not retained the right of control
or superintendence over the contractor or employee as to
details.’” Morales-Rodriguez v. Carolina Quality Exteriors,
Inc., 205 N.C. App. 712, 714, 698 S.E.2d 91, 93-94 (2010).
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Factors to consider in determining whether the relationship of
employer-employee exists include that the person employed:
(a) is engaged in an independent business,
calling, or occupation; (b) is to have the
independent use of his special skill,
knowledge, or training in the execution of
the work; (c) is doing a specified piece of
work at a fixed price or for a lump sum or
upon a quantitative basis; (d) is not
subject to discharge because he adopts one
method of doing the work rather than
another; (e) is not in the regular employ of
the other contracting party; (f) is free to
use such assistants as he may think proper;
(g) has full control over such assistants;
and (h) selects his own time.
Id. at 714, 698 S.E.2d at 94.
Thomas Thompson, president of Melrose, testified in a
deposition that the lead technician is paid ten percent of the
value of the show and has the “choice to decide how he wants to
split that up” among his crew. However, May stated in an
affidavit that at no time “did Mark [Curtis] Hill ever represent
to [her] that he was working for Melrose[.]” May further stated
that Melrose “never issued any compensation for the work
performed by Mark [Curtis] Hill.” Furthermore, Ronnie Tessenner
(“Tessenner”), who worked for Melrose in 2009, testified that
Mark Curtis Hill, in his past work experience, had repaired
items in homes. Tessenner also testified that Charles Nathaniel
Kirkland, Jr. was an electrician and that “it would be helpful
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to have an assistant that had some electrical experience” in a
fireworks display.
The pleadings and depositions show that there is
substantial controversy as to the facts that define the nature
of the relationship between Plaintiffs and Defendants. Because
there is a substantial controversy as to the facts, at this
stage in the proceedings, we cannot determine the nature of the
relationship. Defendants have not shown that the trial court
erred in denying Defendants’ motion for summary judgment on this
basis.
IV. Negligence, Gross Negligence, Strict Liability, and
Negligent Hiring
Defendants also argue the trial court erred in denying
Defendants’ motion for summary judgment “as to Plaintiffs’
claims for negligence, gross negligence, strict liability, and
negligent hiring because no issues of fact exist to support any
of those claims.” We disagree.
Defendants contend that “[e]ven if Plaintiffs are found to
be independent contractors, they fail to set forth evidence to
support any recognized exception to the ‘no liability’ rule for
general contractors.” However, Defendants’ argument overlooks
the fact, discussed in the previous section, that genuine issues
of material fact remain as to the nature of the relationship
between Plaintiffs and Defendants.
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“Negligence claims are rarely susceptible of summary
adjudication, and should ordinarily be resolved by trial of the
issues.” Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302
S.E.2d 868, 871 (1983); see also Goodman v. Wenco Foods, Inc.,
333 N.C. 1, 27, 423 S.E.2d 444, 457 (1992) (“Summary judgment
‘is a drastic measure, and it should be used with caution.’”).
Because genuine issues of material fact remain to be determined
in the trial court as to the nature of the relationship between
Plaintiffs and Defendants, the trial court did not err in
denying Defendants’ motion for summary judgment.
V. Woodson Claims
Defendants also argue the trial court erred in denying
Defendants’ motion for summary judgment as to the alternative
Woodson claims “because no issue of fact exists to support the
higher standard required for such a claim.”
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.” Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d
222, 228 (1991).
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Defendants argue on appeal that Plaintiffs failed to allege
certain elements of a Woodson claim. However, as stated above,
the issue on a motion for summary judgment is whether the
“pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
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.”
N.C.G.S. § 1A-1, Rule 56(c).
As in the previous section, because genuine issues of
material fact remain to be determined in the trial court
regarding the nature of the relationship between Plaintiffs and
Defendants, Defendants have not shown that the trial court erred
in denying Defendants’ motion for summary judgment.
Affirmed.
Judges HUNTER, Robert C. and ELMORE concur.