Fagundes v. Ammons Dev. Grp., Inc.
Fagundes v. Ammons Dev. Grp., Inc.
Opinion
*736 The central issue in this appeal is whether employees injured while working in "ultrahazardous" jobs may sue their employers in the court system despite the provisions of the Workers' Compensation Act requiring those claims to be pursued at the Industrial Commission.
Plaintiff Francisco "Frank" Fagundes, who seeks to sue his employer for injuries suffered during a blasting accident, acknowledges that this is a novel argument. But he contends that his position is simply a logical extension of our Supreme Court's decision in
Woodson v. Rowland
,
We disagree. The portion of
Woodson
addressing jurisdiction under the Workers' Compensation Act does not depend on the inherent danger of the occupation.
Woodson
permits injured workers to sue in court if their employer engaged in "misconduct knowing it is substantially certain to cause serious injury or death," regardless of whether the job, ordinarily, is a dangerous one.
Put another way, what Fagundes wants is not for this Court to extend the reasoning of Woodson to a closely analogous set of facts, but to rewrite the Workers' Compensation Act to create an exception that he believes serves important policy purposes. That is not what courts do. When the General Assembly established the exclusive jurisdiction of the workers' compensation system, it chose not to create the exception that Fagundes seeks from the courts. We have no authority to override that legislative decision.
Accordingly, as explained in more detail below, we reverse the trial court's denial of Defendants' motions for summary judgment and remand for entry of an appropriate order and judgment consistent with this opinion.
Facts and Procedural History
Defendant East Coast Drilling & Blasting, Inc. is a company that provides construction services, including drilling, blasting, and crushing rock. Defendant Scott Carle is the company's president and CEO. Defendant Juan Albino is a blaster for the company.
*737 On 25 July 2013, Plaintiff Frank Fagundes was performing rock crushing services for the company when debris ejected from a blasting operation that Albino was supervising struck and seriously injured Fagundes. On 29 January 2015, Fagundes sued the company, Carle, and Albino. Among other claims, Fagundes asserted a strict liability claim against all three defendants and a willful, wanton, or reckless negligence claim against Albino.
Defendants moved for summary judgment on 17 December 2015. Among other grounds, Defendants argued that Fagundes failed to forecast sufficient evidence to overcome the exclusivity provision in the Workers' Compensation Act, which severely limits the types of workplace injury claims that can
*532
be pursued in the court system.
1
On 8 March 2016, the trial court entered an order partially granting the motion, but denying the motion with respect to Fagundes's strict liability claim and his willful, wanton, or reckless negligence claim against Albino. Defendants timely appealed. This 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.
Blue v. Mountaire Farms, Inc.
, --- N.C. App. ----, ----,
Analysis
I. Strict liability claim for injury during an ultrahazardous activity
Defendants first argue that Fagundes's claims are barred because he was injured on the job. Thus, Defendants argue, the Industrial Commission has exclusive jurisdiction over his claims. Fagundes contends that, because he worked in an ultrahazardous occupation (involving blasting), he should be permitted to sue in the courts. Fagundes concedes that this is a novel argument but asserts that it is a logical extension of our Supreme Court's holding in
Woodson v. Rowland
,
In general, the provisions of the Workers' Compensation Act "are the exclusive remedy in the event of [an] employee's injury by accident in connection with [his or her] employment."
Reece v. Forga
,
In
Woodson
, our Supreme Court created a narrow exception to the exclusivity provision of the Act.
See
Fagundes argues that this Court should extend
Woodson
to recognize "that an employer who engages in blasting ... is not protected by the exclusivity provision" and may be held strictly liable for injuries in a court proceeding. This proposed holding does not follow from
Woodson
's reasoning-indeed, it runs counter to
Woodson
's core premise. To be sure, a separate portion of the
Woodson
opinion discussed how a general contractor could be held strictly liable for injuries caused by a subcontractor engaged in an ultrahazardous activity, such as blasting.
Fagundes also focuses on the fact that his job (involving blasting) is the only type of job that our State's courts have found to be "ultrahazardous."
See generally
Kinsey v. Spann
,
The obvious flaw in this argument is that the workers' compensation system also imposes strict liability on employers.
See
We must reject this argument. This Court is "an error-correcting body, not a policy-making or law-making one."
Times News Pub. Co. v. Alamance-Burlington Bd. of Educ
., --- N.C. App. ----, ----,
In sum, because Fagundes was injured in a work-related accident, the Workers' Compensation Act provides the exclusive remedy for his injuries, and the trial court lacked jurisdiction to adjudicate his strict-liability claims against his employer.
See
Bowden v. Young
,
*740 II. Pleasant claim against Fagundes's co-employee
Defendant Juan Albino also challenges the trial court's denial of his motion for summary judgment on Fagundes's claim against him under
Pleasant v. Johnson
,
"[A] defendant, as the moving party, may meet its burden on summary judgment by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim."
Camalier v. Jeffries
,
In Pleasant , our Supreme Court held that the Workers' Compensation Act "does not shield a co-employee from common law liability for willful, wanton and reckless negligence."
*534
The only evidence on which Fagundes relies to support his Pleasant claim is five citations for OSHA safety violations stemming from the accident that injured him. He offers proof that Albino was responsible for these five safety violations. But Fagundes concedes that, before his accident, neither Albino nor the company had ever been cited for any OSHA violations, nor had anyone been injured as a result of the company's blasting activities. His argument turns entirely on the fact that the State Department of Labor characterized the safety violations as "egregious."
We hold that these safety violations, while troubling, are insufficient to survive a motion for summary judgment under
Pleasant
. In
Pendergrass v. Card Care, Inc
., our Supreme Court rejected a
Pleasant
claim against two co-employees who ordered the injured worker "to
*741
work at the final inspection machine when they knew that certain dangerous parts of the machine were unguarded, in violation of OSHA regulations and industry standards."
Although [the co-employees] may have known certain dangerous parts of the machine were unguarded when they instructed [the injured employee] to work at the machine, we do not believe this supports an inference that they intended that [the employee] be injured or that they were manifestly indifferent to the consequences of his doing so.
Id .
We are unable to distinguish this case from Pendergrass . Indeed, the facts in this case arguably are weaker than the facts in Pendergrass because Fagundes has not forecast any evidence that Albino knowingly violated these safety regulations. In short, after an opportunity to fully engage in discovery, Fagundes remains unable to forecast any evidence for trial that would prove Albino was willfully, wantonly, or recklessly negligent. Accordingly, the trial court should have entered summary judgment in favor of Albino on this claim.
Conclusion
The trial court erred in denying Defendants' motion for summary judgment. We reverse the trial court's order and remand for entry of an order and judgment consistent with this opinion.
REVERSED AND REMANDED.
Judges CALABRIA and ZACHARY concur.
Defendants first raised this argument in a 14 April 2015 motion to dismiss. But based on the appellate record, it appears the trial court never ruled on that motion.
True enough, there were robust remedies at common law. But there were also robust defenses. Even in strict liability cases, for example, defendants could assert assumption of the risk as a defense.
See
Pleasant v. Johnson
,
Fagundes also argues that this Court is bound by our decision in
Hargrove v. Billings & Garrett, Inc.
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.