Rachel JONES, Administrator of the Estate of Carl Lee Jones, Plaintiff/Appellant,
v.
WILLAMETTE INDUSTRIES, INC.; Allen Carter, Individually; Jedd Lewis, Individually; Jim Mullins, Individually; Bill Whiteman, Individually; Mike Ramsey, Individually; and Doug Dunn, Individually, Defendants/Appellees.
No. COA94-1448.
Court of Appeals of North Carolina.
November 7, 1995.*296 Lewis & Daggett, P.A. by Michael Lewis, and Lore & McClearen, Winston-Salem by R. James Lore, Raleigh, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P. by Robert W. Sumner, David H. Batten, and Edward C. LeCarpentier, III, Raleigh, for defendants-appellees.
ARNOLD, Chief Judge.
Plaintiff alleges the trial court erred in granting summary judgment for defendants. She first contends the trial court committed reversible error in granting summary judgment on the Woodson claim. We disagree.
In Woodson, the Court held that "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 ... may pursue a civil action against the employer." Woodson, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228. "The conduct must be so egregious as to be tantamount to an intentional tort." Pendergrass v. Card Care, Inc., 333 N.C. 233, 239, *297 424 S.E.2d 391, 395 (1993) (affirming dismissal of Woodson claim where employer instructed employee to work at an unguarded machine in a textile factory). Intent may be actual or constructive. Woodson, 329 N.C. 330, 407 S.E.2d 222. For the latter, intent will extend to "`those [consequences] which the actor believes are substantially certain to follow from what the actor does.'" Id. at 341, 407 S.E.2d at 229 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 8, at 35 (5th ed. 1984)).
Willamette had not been cited for any safety violations of this nature in the past. See Vaughan v. J.P. Taylor Co., 114 N.C.App. 651, 442 S.E.2d 538, disc. review denied, 336 N.C. 615, 447 S.E.2d 413 (1994) (noting that plaintiff's employer had no prior OSHA citations for safety violations). In addition, evidence showed that after the 1990 incident, in the only other similar incident, the employees involved did not inform their supervisors. As noted above, however, defendant Mullins did become aware of the incident several months later. One employee who was in the vessel when the slag collapsed stated that, "We just didn't figurewe just didn't figure the darn wall was going to let go because of being cooled down. It was just one of them things we just didn't figure." The cleaning procedure used by Jones and the other employees was the same procedure used, without incident, by Willamette's predecessor in ownership. Plaintiff has failed to show that Willamette engaged in misconduct knowing it was substantially certain to cause death or serious injury. See Powell v. S & G Prestress Co., 114 N.C.App. 319, 442 S.E.2d 143 (1994).
Plaintiff urges that summary judgment was improper because she presented affidavits from two experts who stated that there was a substantial certainty of death or serious injury under the conditions in place at the plant. We do not agree. A Woodson claim cannot be made out or saved from summary judgment simply because a nonlegal expert states that Woodson's test has been met. See Yates v. J.W. Campbell Electrical Corp., 95 N.C.App. 354, 382 S.E.2d 860 (1989). While much more might have been done to ensure workers' safety, the evidence does not show that Willamette engaged in misconduct knowing it was substantially certain to cause death or serious injury. Summary judgment for defendant Willamette was not error.
Next, plaintiff contends the trial court erred by dismissing her Pleasant claims brought against the individual defendants. Again, we disagree.
In Pleasant, the Court recognized that the Workers' Compensation Act does not bar suit against a co-employee for intentional torts, and stated that "injury to another resulting from willful, wanton and reckless negligence should also be treated as an intentional injury for purposes of our Workers' Compensation Act." Pleasant, 312 N.C. 710, 715, 325 S.E.2d 244, 248. The Court then held that "the Workers' Compensation Act does not shield a co-employee from common law liability for willful, wanton and reckless negligence." Id. at 716, 325 S.E.2d at 249. The willful, wanton and reckless negligence standard is less demanding than Woodson's substantial certainty, and a "constructive intent to injure may be inferred when the conduct of the defendant is manifestly indifferent to the consequences of the act." Pendergrass, 333 N.C. 233, 238, 424 S.E.2d 391, 394 (holding that co-employees who instructed employee to work at unguarded machine were not manifestly indifferent to the consequences of his doing so).
The individual defendants in this case comprise the supervisory hierarchy at Willamette and are properly classified as co-employees. Dunleavy v. Yates Construction Co., 106 N.C.App. 146, 416 S.E.2d 193, disc. review denied, 332 N.C. 343, 421 S.E.2d 146 (1992). The evidence showed that the cleaning procedures had been used by Willamette and its predecessor without, for the most part, injury or incident. It also showed that most of the supervisors were not aware of the 1990 incident, in part because the employees did not report it. Moreover, no one had been injured using these procedures. An OSHA report concluded that "[s]ince there had been no reportable illness or accident related to this process, management felt the process was safe." Therefore, although supervisory personnel at Willamette should have ensured *298 that adequate and appropriate safety measures were in place, and being used, including a confined space program, this does not support an inference that they intended for Jones to be injured, nor does it support an inference that they were manifestly indifferent to the consequences. See Pendergrass, 333 N.C. 233, 424 S.E.2d 391.
Finally, plaintiff contends that Willamette is strictly liable for this "ultrahazardous activity." She argues that "cleaning out the boiler under the conditions created by Willamette could not be done safely, and was therefore ultra-hazardous." We do not agree with plaintiff's characterization of this activity.
To date, blasting is the only activity recognized in North Carolina as ultrahazardous. Woodson, 329 N.C. 330, 407 S.E.2d 222. Consequently, those responsible are held strictly liable for damages, mainly because the risk of serious harm cannot be eliminated with reasonable care. Id. The evidence here shows that the risk of serious harm can be eliminated by, among other things, implementing a confined space program, increasing the number of major cleanings per year, adding safety harnesses and lifelines, and training employees responsible for cleaning on the hazards involved and the precautions to be taken. Therefore, this activity cannot be properly characterized as ultrahazardous, and the trial court did not err by granting summary judgement on this claim.
The trial court's order is
Affirmed.
GREENE and SMITH, JJ., concur.