Maraman v. Cooper Steel Fabricators

TYSON, Judge,

dissenting.

I respectfully dissent from the majority’s opinion and would affirm the trial court’s orders granting a directed verdict for defendants Cooper Steel and Gray. The evidence presented by plaintiffs at trial, allowing all inferences of fact in favor of the plaintiffs, was clearly insufficient to support a Woodson claim as to both defendants Cooper Steel and Gray.

I. Defendant Cooper Steel

The Workers’ Compensation Act generally provides the exclusive remedy for employees injured in a workplace accident. N.C. Gen. Stat. § 97-9, 97-10.1 (1999). However, in Woodson, our Supreme Court created a narrow exception to the general rule when it held that if 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,” an employee may maintain a tort action against the employer. Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991). Substantial certainty is *635more than a possibility or substantial probability of serious injury or death but is less than actual certainty. Pastva v. Naegele Outdoor Advertising, 121 N.C. App. 656, 658-59, 468 S.E.2d 491, 493 (1996).

The elements of a Woodson claim are: (1) employer misconduct; (2) intentionally engaged in; (3) knowledge that the conduct is substantially certain to cause serious injury or death to an employee; and (4) that employee is injured due to the misconduct. Id. at 659, 468 S.E.2d at 494. Plaintiffs fail to show that defendant Cooper Steel intentionally engaged in misconduct, knowing that its misconduct was substantially certain to cause death or serious injury and was so egregious as tantamount to an intentional tort.

The record establishes that defendant Cooper Steel maintained a safety policy requiring 100% tie-off when employees were working at heights over six feet, exceeding the OSHA requirement of tie-off at heights of twenty-five to thirty feet. Marlowe ordered the safety lines moved from the back bays where construction was complete to the front bays where construction was continuing. Defendant Cooper Steel furnished a safety manual, safety orientation, safety seminars, and held a safety “tool box” meeting at least once a week.

Plaintiffs’ decedent had worked in steel erection for approximately seven years. Decedent was aware of the “tie-off’ requirement and could have tied-off to the steel girder he was standing on. Though not tied-off, decedent knowingly continued to work.

The record shows no evidence that defendant Cooper Steel had prior OSHA violations or prior similar accidents. Mr. Francis, the OSHA investigator, stated that defendant Cooper Steel had a good commitment to safety. Defendant Cooper Steel was cited for two serious OSHA violations after the accident, which were reduced by OSHA. Mr. Francis testified that OSHA has both a “willful serious” and a “serious” violation, neither of which was found in this case.

Woodson is a narrow exception based on extreme facts. Dunleavy v. Yates Constr. Co., 114 N.C. App. 196, 201, 442 S.E.2d 53, 55 (1994). The fact which clearly distinguishes this case from Woodson, and those cases finding a Woodson claim, is that defendant Cooper Steel did not instruct plaintiffs’ decedent to work without being attached to a safety line. See Woodson, 329 N.C. 330, 407 S.E.2d 222 (employee killed when a trench collapsed, employer had four previous OSHA violations, knew the trench would fail, and knowingly refused to *636allow worker to use a trench box); Arroyo v. Scottie’s Prof. Window Cleaning, 120 N.C. App. 154, 461 S.E.2d 13 (1995) (employee injured while washing windows, employer had been previously cited for OSHA violations, provided no safety training, ordered employee to lean outward from a small ledge without fall protection equipment, and refused to allow a fellow employee to anchor); Pastva, 121 N.C. App. 656, 468 S.E.2d 491 (employee was injured when a billboard collapsed, employer had been cited and fined for numerous safety violations, did not provide safety training, and employer knowingly ordered employee to work on the billboard); Cf. Regan v. Amerimark Building Products, Inc., 127 N.C. App. 225, 489 S.E.2d 421 (1997) (employer was aware paint machine was unguarded, that emergency switch was not working and did not advise employee, held not sufficient to prove that employer knew its action requiring employee to operate the machine was substantially certain to cause serious injury); Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993) (employee injured when employer instructed him to work at a machine knowing that dangerous parts were unguarded, held insufficient to establish a Woodson claim).

The majority’s opinion refers to the installation of a safety line and tampering with the memory of the crane, by defendant Cooper Steel’s employees the night after the accident, as indicative of intent and knowledge on the part of defendant Cooper Steel. These facts do not show an intent, by defendant Cooper Steel, to engage in misconduct, prior to the accident, with knowledge that the misconduct was substantially certain to cause serious injury or death to an employee. Mr. Francis testified that even if there had been no safety line present when he investigated the job site, he would not have changed the citation given to defendant Cooper Steel.

The evidence clearly does not support the inference that defendant Cooper Steel intended to injure plaintiffs’ decedent or was manifestly indifferent to the consequences of its actions. I would affirm the trial court’s granting of a directed verdict in favor of defendant Cooper Steel.

II. Defendant Gray

North Carolina has long recognized that a general contractor is not liable for injuries sustained by a subcontractor’s employee. Woodson, 329 N.C. at 350, 407 S.E.2d at 234. A general contractor does not have a duty to furnish a subcontractor or the subcontractor’s employees with a safe place to work. Hooper v. Pizzagalli Constr. *637Co., 112 N.C. App. 400, 403-4, 436 S.E.2d 145, 148 (1993) (citing Brown v. Texas Co., 237 N.C. 738, 76 S.E.2d 45 (1953)). North Carolina does recognize a few exceptions to the general rule of no liability: (1) situations where the contractor retains control over the manner and method of the subcontractor’s substantive work, (2) situations where the work is deemed to be inherently dangerous, and (3) situations involving negligent hiring and/or retention of the subcontractor by the general contractor. Id. at 404, 436 S.E.2d at 148 (citing Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991)). Plaintiffs argue that this case falls within the first and second exceptions.

A. Sufficient control over the subcontractor’s work

The record conclusively establishes that defendant Gray did not retain the right to control the method and manner in which the subcontractor, defendant Cooper Steel, performed its job. The contract between Gray and Cooper Steel provided: (1) that Gray contracted with Cooper Steel as an independent contractor to perform steel fabrication and erection work under the general direction of Gray, and (2) that Cooper Steel shall take reasonable safety precautions and comply with safety measures or requirements initiated by Gray. Judge John’s opinion states that Gray maintained a supervisory trailer on the job site, that a Gray employee was “sometimes” in the area, and that Gray required “a safety session” before the subcontractor’s employees were allowed on the job site. Judge John would hold that this evidence tended to show that defendant Gray “interfered with Cooper Steel’s work or some part of its work.” To the contrary, the uncontroverted facts indicate that defendant Gray maintained a supervisory role only, was not present on the job site the day of the accident, and played no role in the events leading up to this accident, or Cooper Steel’s conduct after the accident.

As this Court stated in Hooper, this evidence shows only that Gray had a general supervisory role, and does not support the proposition that Gray interfered with or retained control over the work performed by Cooper Steel and its employees. See Hooper, 112 N.C. App. at 404-05, 436 S.E.2d at 148-49 (while general contractor maintained a supervisory role, the subcontractor was expected to comply with the plans and was free to perform its job according to its own independent skill, knowledge, training, and experience); Denny v. City of Burlington, 155 N.C. 33, 70 S.E. 1085 (1911) (merely taking steps to see that the contractor carries out his agreement does not make the employer liable); Rivenbark v. Atlantic States Constr. Co., 14 N.C. *638App. 609, 188 S.E.2d 747 (1972) (if the negligence which caused the injury was that of the injured person’s own employer and his employer was an independent contractor, the general contractor is not liable unless he participated in the negligent act).

The evidence shows that defendant Gray did not retain any right to control the method and manner in which defendant Cooper Steel performed the work. A directed verdict in favor of defendant Gray was proper as to the first exception.

B. Inherently dangerous work

Judge John states in his opinion that erection of eighty-five foot steel joists at thirty-one feet above the ground is an inherently dangerous activity. An inherently dangerous activity has been defined as “work to be done from which mischievous consequences will arise unless preventative measures are adopted.” Greer v. Callahan Constr. Co., 190 N.C. 632, 637, 130 S.E. 739, 743 (1925). Our Supreme Court more recently described an inherently dangerous activity as that which has “a recognizable and substantial danger inherent in the work, as distinguished from a danger collaterally created by the independent negligence of the contractor, which latter might take place on a job itself involving no inherent danger.” Woodson, 329 N.C. at 351, 407 S.E.2d at 235. When an activity is inherently dangerous, there is a non-delegable duty on the party that employs the independent contractor to ensure that adequate safety precautions are taken. Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 497, 521 S.E.2d 137, 139 (1999) (citing Woodson v. Rowland, 329 N.C. 330, 351-53, 407 S.E.2d 222, 234-35 (1991)), disc. review denied, 351 N.C. 357, 542 S.E.2d 212 (2000).

In a case factually analogous, our Supreme Court found that steel and iron work, conducted on the fourth floor of a building and using planks across girders for footing, was not “intrinsically dangerous” work. Vogh v. F. C. Greer Co., 171 N.C. 672, 748, 88 S.E. 874, 876 (1916). In Woodson, our Supreme Court stated that whether an activity is inherently dangerous is determined by the pertinent circumstances surrounding the activity. Woodson, 329 N.C. at 356, 407 S.E.2d at 237. The Court further stated that certain activities that result in injury are not inherently dangerous, including generally, building construction. Id. at 353, 407 S.E.2d at 236 (citing Vogh v. F.C. Greer Co., 171 N.C. 672, 88 S.E. 874 (1916)). Similarly, this Court has held that plumbing work, conducted on the seventh floor of a building and using scaffolding thirteen feet off of the ground, was *639not an “inherently dangerous” activity. Hooper, 112 N.C. App. at 405-06, 436 S.E.2d at 149.

The facts in the case at bar cannot be distinguished from Vogh and Hooper. The steel construction work here was not inherently dangerous work. If steel erection was presumed to be an inherently dangerous activity, plaintiffs must still satisfy four elements in order to substantiate an inherently dangerous activity claim: (1) the activity must be inherently dangerous; (2) at the time of the injury, defendant Gray must either know or should have known that the activity was inherently dangerous; (3) defendant Gray failed to take the necessary precautions to control the attendant risks; and (4) the failure by defendant Gray proximately caused the injury to plaintiffs. O’Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 312, 511 S.E.2d 313, 317-18 (1999), disc. review denied, 350 N.C. 834, 538 S.E.2d 198 (2000). Plaintiffs cannot satisfy any of these requirements.

The record clearly establishes that defendant Cooper Steel was required to take reasonable safety precautions, to comply with safety measures initiated by Gray, and to comply with occupational safety laws. Defendant Gray also required that all of the subcontractor’s employees submit to a safety session before entering the job site. Defendant Gray enforced the tie-off requirement on those occasions where it identified violations of this requirement, conducted regular safety meetings, and counseled workers on the use of safety measures.

The record further establishes that Robert Marlowe, “senior man” for defendant Cooper Steel, ordered the safety lines dropped and moved on the day of the accident. Plaintiffs’ decedent had worked in steel erection for approximately seven years. Decedent was aware of the “tie-off’ requirement and could have tied-off to the steel girder where he was standing. Though not tied-off, decedent knowingly continued to work by reaching out to position the joist without being attached to a safety line or the girder.

Judge John relies on earlier decisions for the proposition that any negligence by the independent contractor shall be imputed to the employer, general contractor. See Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 63, 159 S.E.2d 362, 366 (1968) (“But the cases of ‘non-dele-gable duty’. . . hold the employer liable for the negligence of the contractor, although he has himself done everything that could reasonably be required of him.”); see also Deitz v. Jackson, 57 N.C. App. 275, 279, 291 S.E.2d 282, 285 (1982) (“This rule imposes liability on an *640employer for the negligent torts of independent contractors performing, for the employer, an activity which would result in harmful consequences unless proper precautions are taken....''), abrogated by, Kinsey v. Spann, 139 N.C. App. 370, 533 S.E.2d 487 (2000). These cases suggest the employer’s liability is vicarious in nature. Hendricks, 273 N.C. at 62, 159 S.E.2d at 366.

This Court recently addressed the issue of negligence claims based upon inherently dangerous activities. We held that it is the negligence of the employer, not the independent contractor, that must be considered; liability is direct, not vicarious, in nature. Kinsey v. Spann, 139 N.C. App. 370, 375, 533 S.E.2d 487, 491 (2000) (citing Woodson v. Rowland, 329 N.C. 330, 352, 407 S.E.2d 222, 235 (1991) (“The party that employs an independent contractor has a continuing responsibility to ensure that adequate safety precautions are taken.... The employer’s liability for breach of this duty ‘is direct and not derivative....’ ”)); see also Lane, 135 N.C. App. at 497, 521 S.E.2d at 139; O’Carroll, 132 N.C. App. at 312, 511 S.E.2d at 317-18; Dunleavy, 106 N.C. App. at 153, 416 S.E.2d at 197. “Thus, liability will attach only if the employer failed to take the necessary precautions to control the risks associated with the activity.” Kinsey, 139 N.C. App. at 375, 533 S.E.2d at 492 (citing Woodson v. Rowland, 329 N.C. 330, 352, 407 S.E.2d 222, 235 (1991)) (emphasis original). Any negligence on the part of defendant Cooper Steel, with respect to safety precautions, cannot be imputed to defendant Gray, the general contractor and employer. Id.

The evidence establishes that defendant Gray: (1) took the necessary precautions to control the attendant risks, and (2) was not present on the day of the accident, and (3) was not aware that defendant Cooper Steel had dropped the safety lines, and (4) did not proximately cause the injury to plaintiffs’ decedent. The trial court’s order granting a directed verdict in favor of defendant Gray should be affirmed.

III. Summary

Since plaintiffs fail to establish a Woodson claim as to either defendant, I would hold that the trial court properly granted a directed verdict in favor of both defendants Cooper Steel and Gray.