{ "id": 5313813, "name": "RACHEL DUNLEAVY and JOHNNY GLENN COBB, Administrators of the Estate of Johnny Glenn Cobb II, Deceased, Plaintiffs v. YATES CONSTRUCTION COMPANY, INC.; SPRINGFIELD PROPERTIES, INC.; ROBERT G. YATES; DOUGLAS B. YATES; and DONALD BAYNES, Defendants", "name_abbreviation": "Dunleavy v. Yates Construction Co.", "decision_date": "1992-05-05", "docket_number": "No. 9018SC333", "first_page": "146", "last_page": "156", "citations": [ { "type": "official", "cite": "106 N.C. App. 146" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "363 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "204" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358281 ], "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0382-01" ] }, { "cite": "394 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493281, 2493859, 2497351, 2500047, 2494608 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0137-03", "/nc/327/0137-05", "/nc/327/0137-04", "/nc/327/0137-02", "/nc/327/0137-01" ] }, { "cite": "390 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8522144 ], "year": 1990, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0255-01" ] }, { "cite": "325 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "247" }, { "page": "248" }, { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749409 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0710-01" ] }, { "cite": "362 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "561-62", "parenthetical": "supervisor of injured employee classified as co-employee" }, { "page": "562", "parenthetical": "dock worker injured by ordinary negligence of co-employees, one of whom was a supervisor" } ], "opinion_index": 0 }, { "cite": "321 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569579 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "240-41", "parenthetical": "supervisor of injured employee classified as co-employee" }, { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0236-01" ] }, { "cite": "310 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "310" } ], "opinion_index": 0 }, { "cite": "310 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2394579 ], "year": 1984, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0061-01" ] }, { "cite": "258 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "338" } ], "opinion_index": 0 }, { "cite": "298 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569878 ], "year": 1979, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0246-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "167", "parenthetical": "under N.C.G.S. \u00a7 1A-1, Rule 8(a)(1), pleading must give sufficient notice of events or transactions which produced claim" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "104-05", "parenthetical": "under N.C.G.S. \u00a7 1A-1, Rule 8(a)(1), pleading must give sufficient notice of events or transactions which produced claim" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "410 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509606 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0439-01" ] }, { "cite": "401 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "128-29" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521936 ], "year": 1991, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0059-01" ] }, { "cite": "403 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "471" }, { "page": "471" }, { "page": "471" } ], "opinion_index": 0 }, { "cite": "328 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541726 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "692" }, { "page": "692" }, { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0689-01" ] }, { "cite": "413 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "927" }, { "page": "927" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524060 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "517" }, { "page": "517-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0509-01" ] }, { "cite": "152 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "499", "parenthetical": "specifically requiring prospective application of holding" } ], "opinion_index": 0 }, { "cite": "269 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561701 ], "year": 1967, "pin_cites": [ { "page": "21", "parenthetical": "specifically requiring prospective application of holding" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0001-01" ] }, { "cite": "115 L.Ed.2d 481", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1107892 ], "year": 1991, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/us/501/0529-01" ] }, { "cite": "284 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "324" }, { "page": "324" }, { "page": "324" } ], "opinion_index": 0 }, { "cite": "304 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569583 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "573" }, { "page": "573" }, { "page": "573-74" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0571-01" ] }, { "cite": "261 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "870" }, { "page": "870" } ], "opinion_index": 0 }, { "cite": "299 N.C. 385", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575159 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "390" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0385-01" ] }, { "cite": "412 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513350, 2513001, 2508749, 2508658, 2508990 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0194-02", "/nc/330/0194-03", "/nc/330/0194-01", "/nc/330/0194-05", "/nc/330/0194-04" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "407 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "103 N.C. App. 804", "category": "reporters:state", "reporter": "N.C. App.", "year": 1991, "opinion_index": 0 }, { "cite": "377 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488648, 2482763, 2484198, 2486047 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0117-04", "/nc/324/0117-03", "/nc/324/0117-01", "/nc/324/0117-02" ] }, { "cite": "373 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 38", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526326 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0038-01" ] }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 3, "pin_cites": [ { "page": "357" }, { "page": "342-46" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] } ], "analysis": { "cardinality": 885, "char_count": 23261, "ocr_confidence": 0.765, "pagerank": { "raw": 4.5711205172576946e-07, "percentile": 0.9250921578825638 }, "sha256": "c2950336c42d92d4bf58afb1695c43df242247348fe4f0c2f50966a25d2ddc10", "simhash": "1:116954da262f2c92", "word_count": 3786 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and WALKER concur." ], "parties": [ "RACHEL DUNLEAVY and JOHNNY GLENN COBB, Administrators of the Estate of Johnny Glenn Cobb II, Deceased, Plaintiffs v. YATES CONSTRUCTION COMPANY, INC.; SPRINGFIELD PROPERTIES, INC.; ROBERT G. YATES; DOUGLAS B. YATES; and DONALD BAYNES, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiffs appeal from an order entered 8 November 1989 granting summary judgment for Yates Construction Company (Company), Robert Y\u00e1tes, Douglas Yates, and Donald Baynes (Baynes). Plaintiffs also appeal from an order entered 9 November 1989 dismissing the plaintiffs\u2019 complaint as to Springfield Properties (Springfield) for failure to state a claim upon which relief can be granted.\nIn October, 1985, Company, an independent contractor, contracted with Springfield to construct, among other things, sewer lines within the Raven Ridge Subdivision located in Guilford County, North Carolina. Springfield owned the property on which the subdivision was being built. At this time, Johnny Glenn Cobb, II (Cobb) worked for Company as a member of a \u201cnew and inexperienced pipe crew.\u201d Cobb had no prior experience on a pipe crew. On 17 October 1985, Cobb and the other members of the crew arrived with their equipment\u2018at the Raven Ridge work site to begin installing the sewer lines. Before 17 October 1985, the pipe crew had been digging trenches to lay water lines at a location different than the Raven Ridge work site. They did not begin any trench work that day because Baynes, the crew foreman, did not plan to make much progress with such a new and inexperienced crew.\nOn the morning of 18 October 1985, the pipe crew began the first leg of the trench work at the Raven Ridge work site. The soil at the work site was \u201cfirm and stable.\u201d At no time that morning did the depth of the trench exceed five feet. Douglas Yates, vice president of Company, \u201crequested that trench boxes owned by the company be transferred from another construction site for use during the progress of the construction work at the Raven Ridge subdivision . . . .\u201d By the afternoon, the pipe crew had begun the second leg of the trench work. In the early stages of this second leg, the trench was not to exceed five feet in depth. Baynes was called away to another side of the project, and while he was gone, the operator of the backhoe made more progress than Baynes had expected. In fact, the operator of the backhoe was digging well ahead on the pipe laying crew. When Baynes left, the trench did not exceed five feet in depth. While Baynes was gone, however, the digging increased at such a rate that before Baynes could return to the trench, the trench exceeded five feet in depth in certain parts. According to Robert Yates, president of Company, \u201cit was the policy of the Company to use trench boxes or slope the sides of a trench when conditions warranted such action, including whenever the depth of a trench exceeded five feet . . . .\u201d It is undisputed that Occupational Safety and Health Act (OSHA) regulations in effect at the time required trenches of more than five feet in depth to be properly supported. This trench, however, was approximately 150 feet long, the walls of the trench were vertical and had not been shored, sloped, braced, or otherwise supported to prevent a collapse, and the trench boxes which Douglas Yates had requested had not yet arrived. While Cobb was in a portion of the trench where the depth exceeded five feet, a small portion of one side of the trench collapsed and struck Cobb in the head resulting in his death. Cobb, contrary to OSHA regulations, had not been provided a hard helmet and consequently was not wearing such protective equipment at the time of his death. Baynes was not present when the trench collapsed.\nThe plaintiffs, in addition to filing a claim for workers\u2019 compensation benefits, filed a complaint against Company, Robert Yates, Douglas Yates, Baynes, and Springfield. As to Company, Robert Yates, Douglas Yates, and Baynes, the plaintiffs alleged that Cobb\u2019s death was the result of a deliberate and intentional assault and willful, wanton, and reckless negligence. As against Springfield, the plaintiffs alleged that Springfield was liable to the plaintiffs on the theories of inherently dangerous activity, negligent selection of Company, and negligent retention of Company. On 17 July 1989, Springfield filed a motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) (Rule 12(b)(6)). On 27 July 1989, the remaining defendants jointly filed an answer, and on 18 August 1989, they filed a motion to dismiss under Rule 12(b)(6), and in the alternative, for summary judgment under N.C.G.S. \u00a7 1A-1, Rule 56 (Rule 56). On 26 October 1989, the plaintiffs made a motion to stay all proceedings pending the North Carolina Supreme Court\u2019s resolution of Woodson v. Rowland, 92 N.C. App. 38, 373 S.E.2d 674 (1988), disc. rev. allowed, 324 N.C. 117, 377 S.E.2d 247 (1989). On 8 November 1989, the trial court denied the plaintiffs\u2019 motion to stay and granted summary judgment for Company, Robert Yates, Douglas Yates, and Baynes. The next day, the trial court granted Springfield\u2019s motion to dismiss the plaintiffs\u2019 complaint. The plaintiffs appealed to this Court which, in an unpublished opinion, affirmed the trial court\u2019s orders based on Woodson, 92 N.C. App. 38, 373 S.E.2d 674. Dunleavy v. Yates Constr. Co., 103 N.C. App. 804, 407 S.E.2d 905 (1991). The plaintiffs then petitioned the North Carolina Supreme Court for discretionary review of this Court\u2019s decision, and on 6 November 1991, the North Carolina Supreme Court allowed the plaintiffs\u2019 petition for discretionary review \u201cfor the limited purpose of entering the following order: the case is remanded to the Court of Appeals for reconsideration in light of\u201d Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Dunleavy v. Yates Constr. Co., 330 N.C. 194, 412 S.E.2d 54 (1991).\nThe issues are whether (I) the North Carolina Supreme Court\u2019s decision in Woodson operates retroactively; (II) (A) the plaintiffs sufficiently alleged a cause of action for breach of the nondelegable duty of care arising from an alleged inherently dangerous activity, and (B) North Carolina law recognizes claims of an injured employee of an independent contractor for negligent selection and retention of the independent contractor; and (III) (A) this Court should remand the trial court\u2019s order of summary judgment for Company, Robert Yates, and Douglas Yates, and (B) Baynes\u2019 conduct towards Cobb was willful, wanton, and reckless.\nI\nThe plaintiffs argue, and Springfield disagrees, that this Court should apply the North Carolina Supreme Court\u2019s decision in Woodson retroactively to cases like this one arising before 14 August 1991, the date Woodson was filed.\nUnder the well-established judicial policy in North Carolina, decisions of the North Carolina Supreme Court \u201care generally presumed to operate retroactively.\u201d State v. Rivens, 299 N.C. 385, 390, 261 S.E.2d 867, 870 (1980). Furthermore, decisions of the North Carolina Supreme Court overruling former decisions are also presumed to operate retroactively. Cox v. Haworth, 304 N.C. 571, 573, 284 S.E.2d 322, 324 (1981). These rules of judicial policy are based upon the \u201c \u2018Blackstonian Doctrine\u2019 of judicial decision-making,\u201d id., also known as the \u201cdeclaratory theory of law,\u201d James B. Beam Distilling Co. v. Georgia, 501 U.S. \u2014, \u2014, 115 L.Ed.2d 481, 488 (1991), which provides that courts do not make the law, they merely discover and announce it. Cox, 304 N.C. at 573, 284 S.E.2d at 324. Compelling reasons must exist, however, before courts will apply an overruling decision of a court of supreme jurisdiction in a purely prospective manner. Cox, 304 N.C. at 573-74, 284 S.E.2d at 324; Rivens, 299 N.C. at 390, 261 S.E.2d at 870. We need not decide whether compelling reasons exist which would require a purely prospective application of Woodson. Although the Woodson Court was silent on whether its decision was to operate retroactively, the Court did not require its decision to operate purely prospectively. See Rabon v. Rowan Mem. Hosp., Inc., 269 N.C. 1, 21, 152 S.E.2d 485, 499 (1967) (specifically requiring prospective application of holding). Furthermore, implicit in the North Carolina Supreme Court\u2019s order directing this Court to reconsider Dunleavy in light of Woodson is the directive that the Woodson decision apply retroactively, a directive that this Court has recently followed in Cook v. Morrison, 105 N.C. App. 509, 413 S.E.2d 922 (1992). Accordingly, this Court will continue to apply all aspects of the Woodson decision retroactively.\nII\nThe plaintiffs argue that the trial court erred in granting Springfield\u2019s Rule 12(b)(6) motion to dismiss the plaintiffs\u2019 complaint for breach of the nondelegable duty of care arising from an inherently dangerous activity and for negligent selection and retention of Company.\n(A) Nondelegable Duty\nA motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by presenting \u201cthe question whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some [recognized] legal theory.\u201d Lynn v. Overlook Dev., 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991). Under Rule 12(b)(6), a plaintiff is required to allege sufficient facts in the complaint to support the substantive elements of the claim, otherwise, the complaint is subject to dismissal. Metric Constructors, Inc. v. Industrial Risk Insurers, 102 N.C. App. 59, 63, 401 S.E.2d 126, 128-29, aff\u2019d per curiam, 330 N.C. 439, 410 S.E.2d 392 (1991); see also Sutton v. Duke, 277 N.C. 94, 104-05, 176 S.E.2d 161, 167 (1970) (under N.C.G.S. \u00a7 1A-1, Rule 8(a)(1), pleading must give sufficient notice of events or transactions which produced claim). When deciding a Rule 12(b)(6) motion, the court must read the complaint as a whole and view it \u201cbroadly and liberally in conformity with the mandate in [N.C.G.S. \u00a7 1A-1,] Rule 8(f).\u201d 5A C. Wright & A. Miller, Federal Practice and Procedure \u00a7 1363 (2d ed. 1990); Lynn, 328 N.C. at 692, 403 S.E.2d at 471.\nWhere a landowner hires an independent contractor to perform an inherently dangerous activity, and the owner knows or should know of the circumstances creating the danger, the owner \u201chas the nondelegable duty to the independent contractor\u2019s employees \u2018to exercise due care to see that. . . [these employees are] provided a safe place in which to work and proper safeguards against any dangers as might be incident to the work [are taken].\u2019 \u201d Cook, 105 N.C. App. at 517, 413 S.E.2d at 927 (quoting Woodson, 329 N.C. at 357, 407 S.E.2d at 238). Read as a whole and viewed liberally, the plaintiffs\u2019 complaint alleges sufficient facts to support the substantive elements of their claim against Springfield for breach of this nondelegable duty. The plaintiffs alleged that Springfield hired Company, an independent contractor, to perform an inherently dangerous activity, i.e., digging a trench without required shoring, bracing, or other supportive devices, and that Springfield \u201chad direct knowledge\u201d of the circumstances creating the danger. Furthermore, the plaintiffs alleged that Springfield breached this duty and that the breach proximately caused their damages. Because the plaintiffs\u2019 allegations are sufficient to state a claim upon which relief can be granted, the trial court erred in granting Springfield\u2019s Rule 12(b)(6) motion on this cause of action.\n(B) Negligent Selection and Retention\nNorth Carolina law, however, does not currently recognize claims of an injured employee of an incompetent or unqualified independent contractor against a party for its negligent selection or retention of the independent contractor. Cook, 105 N.C. App. at 517-18, 413 S.E.2d at 927. Accordingly, because our law does not recognize such claims, the trial court properly granted Springfield\u2019s Rule 12(b)(6) motion on the claims of negligent selection and retention of Company. Lynn, 328 N.C. at 692, 403 S.E.2d at 471.\nIll\nThe plaintiffs argue that in light of Woodson's new \u201csubstantial certainty\u201d standard for potential civil liability of employers, this Court should remand this case to the trial court for a de novo hearing on the Rule 56 motions for summary judgment by Company, Robert Yates, Douglas Yates, and Baynes.\n(A) Company, Robert Yates, and Douglas Yates\nWe agree that the \u201csubstantial certainty\u201d standard applies to Company as Cobb\u2019s corporate employer. Woodson, 329 N.C. at 342-46, 407 S.E.2d at 229-32. This standard also applies to Robert Yates and Douglas Yates in their individual capacities if, at the time of the trenching, these corporate officers were \u201cacting in furtherance of corporate business . . . .\u201d Id. at 347-48, 407 S.E.2d at 232-33. Accordingly, the plaintiffs are entitled to a new hearing on the summary judgment motions of Company, Robert Yates, and Douglas Yates. This is true because \u201c[w]here a ruling is based upon a misapprehension of the applicable law, the cause will be remanded in order that the matter may be considered in its true legal light.\u201d Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246, 252, 258 S.E.2d 334, 338 (1979); see also State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984). Accordingly, we remand the trial court\u2019s order of summary judgment with regard to Company, Robert Yates, and Douglas Yates for a de novo hearing in light of Woodson.\n(B) Baynes\nBaynes, unlike the above-mentioned defendants, was not Cobb\u2019s \u201cemployer in person nor a person who is realistically the alter ego of the\u201d Company, but was merely a foreman and as such was Cobb\u2019s co-employee. 2A A. Larson, The Law of Workmen\u2019s Compensation \u00a7 68.21 (1990) (drawing distinction between employers and supervisory employees such as foremen); see Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 240-41, 362 S.E.2d 559, 561-62 (1987) (supervisor of injured employee classified as co-employee). The Woodson decision, therefore, does not entitle the plaintiffs to a de novo hearing with regard to Baynes whose potential liability to the plaintiffs as a co-employee of Cobb is governed by the \u201cwillful, wanton, and reckless negligence\u201d standard of Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985). The Pleasant decision explained that although the Workers\u2019 Compensation Act (Act) bars an employee \u201cwho is injured in the course of his employment from suing a co-employee whose negligence caused the injury,\u201d id. at 713, 325 S.E.2d at 247, the Act does not bar such an employee from suing a co-employee for intentional torts. Id. Because the Act does not bar an employee from suing a co-employee for injuries caused by intentional torts, and because willful, wanton, and reckless negligence is \u201cequated\u201d with intentional injury for purposes of the Act, the Court concluded that the Act does not bar an employee from suing a co-employee for injuries caused by willful, wanton, and reckless negligence. Id. at 715, 325 S.E.2d at 248. The Woodson decision does not alter this standard for co-employee civil liability.\nBecause Baynes moved for summary judgment, Baynes had the burden of showing that (1) an essential element of the plaintiffs\u2019 claim did not exist, (2) the plaintiffs could not produce evidence to support an essential element of their claim, or (3) the plaintiffs could not surmount an affirmative defense which would bar their claim. Clark v. Brown, 99 N.C. App. 255, 260, 393 S.E.2d 134, 136-37, disc. rev. denied, 327 N.C. 426, 395 S.E.2d 675 (1990). Baynes submitted his affidavit which shows that an essential element of the plaintiffs\u2019 claim does not exist, namely, that Baynes\u2019 conduct was willful, wanton, and reckless.\n\u201cWanton\u201d and \u201creckless\u201d conduct is such conduct \u201cmanifesting a reckless disregard for the rights and safety of others.\u201d Pleasant, 312 N.C. at 714, 325 S.E.2d at 248. \u201cWillful negligence\u201d is \u201cthe intentional failure to carry out some duty imposed by law or contract which is necessary to the safety of the person or property to which it is owed.\u201d Id. Baynes\u2019 evidence tends to show that he was the pipe crew foreman in charg\u00e9 of an inexperienced pipe crew of which Cobb was a member. During the afternoon of 18 October 1985, the crew was beginning the second leg of the trench work when Baynes was called away to another part of the work site. At this point, the trench had not exceeded five feet in depth and was not to exceed five feet during the second leg of the work, and no one in the crew was working in any part of the trench that exceeded a depth of five feet. While Baynes was gone, however, the backhoe operator made more progress than had been expected and began digging the trench deeper than five feet. Some time later, Cobb was killed when a small portion of the trench where the depth exceeded five feet collapsed. This evidence shows that Baynes\u2019 conduct, although arguably negligent, was not willful, wanton, and reckless. Baynes\u2019 conduct did not manifest reckless disregard for the rights and safety of the pipe crew, nor did it amount to the intentional failure to carry out a duty of care owed to the crew. See Abernathy, 321 N.C. at 241, 362 S.E.2d at 562 (dock worker injured by ordinary negligence of co-employees, one of whom was a supervisor). Because Baynes met his burden on his summary judgment motion, the burden shifted to the plaintiffs to refute Baynes\u2019 showing. Cheek v. Poole, 98 N.C. App. 158, 162, 390 S.E.2d 455, 458, disc. rev. denied, 327 N.C. 137, 394 S.E.2d 169 (1990). The plaintiffs did not produce any evidence in response to Baynes\u2019 affidavit. Accordingly, the trial court properly entered summary judgment for Baynes. White v. Hunsinger, 88 N.C. App. 382, 383, 363 S.E.2d 203, 204 (1988).\nIn summary, we affirm the trial court\u2019s order granting Springfield\u2019s motion to dismiss the plaintiffs\u2019 claims for negligent selection and retention. We also affirm the trial court\u2019s order granting Baynes\u2019 motion for summary judgment. We reverse and remand, however, the trial court\u2019s order granting Springfield\u2019s motion to dismiss the plaintiffs\u2019 claim for breach of a nondelegable duty, and we remand the trial court\u2019s order granting summary judgment for Company, Robert Yates, and Douglas Yates for a de novo hearing in light of Woodson.\nAffirmed in part, reversed in part, and remanded.\nJudges ORR and WALKER concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Smith, Patterson, Foll\u00edn, Curtis, James, Harkavy & Lawrence, by Norman B. Smith and Bryan E. Lessley, and Smith, Foll\u00edn & James, by J. David James, for plaintiff-appellants.", "Henson Henson Bayliss & Sue, by Jack B. Bayliss, Jr., A. Robinson Hassell, and Daniel L. Deuterman, for defendant-appellees Yates Construction Company, Inc., Robert G. Yates, Douglas B. Yates and Donald Baynes.", "Adams Kleemeier Hagan Hannah & Fonts, by J. Alexander S. Barrett and Edward L. Bleynat, Jr., for defendant-appellee Springfield Properties, Inc." ], "corrections": "", "head_matter": "RACHEL DUNLEAVY and JOHNNY GLENN COBB, Administrators of the Estate of Johnny Glenn Cobb II, Deceased, Plaintiffs v. YATES CONSTRUCTION COMPANY, INC.; SPRINGFIELD PROPERTIES, INC.; ROBERT G. YATES; DOUGLAS B. YATES; and DONALD BAYNES, Defendants\nNo. 9018SC333\n(Filed 5 May 1992)\n1. Master and Servant \u00a7 87 (NCI3d)\u2014 Woodson v. Rowland \u2014 retroactivity\nThe decision in Woodson v. Rowland, 329 N.C. 330, will be applied retroactively by the Court of Appeals.\nAm Jur 2d, Master and Servant \u00a7 139.\n2. Master and Servant \u00a7 19 (NCI3d)\u2014 independent contractor\u2019s employee \u2014 death in trench cave-in \u2014 liability of landowner \u2014 nondelegable duty of care\nIn an action to recover for the death of an independent contractor\u2019s employee in a trench cave-in, plaintiffs\u2019 complaint was sufficient to state a claim against defendant landowner for breach of a nondelegable duty of care arising from an inherently dangerous activity where plaintiffs alleged that the landowner hired the independent contractor to perform an inherently dangerous activity, i.e., digging a trench without required shoring, bracing or other supportive devices; that defendant \u201chad direct knowledge\u201d of the circumstances creating the danger; and that defendant breached its duty to the employee and this breach was a proximate cause of plaintiffs\u2019 damages.\nAm Jur 2d, Premises Liability \u00a7 457.\n3. Master and Servant \u00a7 21 (NCI3d)\u2014 injury to independent contractor\u2019s employee \u2014 no liability for negligent selection or retention of contractor\nNorth Carolina law does not recognize claims of an injured employee of an incompetent or unqualified independent contractor against a party for its negligent selection or retention of the independent contractor.\nAm Jur 2d, Premises Liability \u00a7 457.\n4. Master and Servant \u00a7 87 (NCI3d)\u2014 employee\u2019s death from trench cave-in \u2014 action against employer and officers \u2014\u201csubstantial certainty\u201d test \u2014new summary judgment hearing\nIn an action to recover for the death of a corporate contractor\u2019s employee in a trench cave-in, the \u201csubstantial certainty\u201d test set forth in Woodson v. Rowland, 329 N.C. 330, applies to the corporate employer. This standard also applies to the president and vice president of the corporate employer in their individual capacities if, at the time of the trenching, these corporate officers were acting in furtherance of the corporate business. Accordingly, plaintiffs are entitled to a new hearing on the summary judgment motions of the corporate employer and its two officers where the court\u2019s entry of summary judgment for these defendants was based upon a misapprehension of the applicable law.\nAm Jur 2d, Master and Servant \u00a7 139.\n5. Master and Servant \u00a7 89.1 (NCI3d) \u2014 employee\u2019s death in trench cave-in \u2014 liability of foreman as co-employee \u2014 willful, wanton or reckless negligence standard\nThe potential liability of the foreman of an employee killed in a trench cave-in was as a co-employee and was governed by the willful, wanton and reckless negligence standard.\nAm Jur 2d, Master and Servant \u00a7 398.\n6. Master and Servant \u00a7 89.1 (NCI3d) \u2014 employee\u2019s death in trench cave-in \u2014summary judgment for foreman\nIn an action to recover for an employee\u2019s death in a trench cave-in, defendant foreman\u2019s forecast of evidence was sufficient to show'that his conduct was not willful, wanton and reckless, and summary judgment was properly entered for defendant where plaintiffs did not produce any evidence to refute defendant\u2019s evidence, and defendant\u2019s affidavit tended to show that he was the pipe crew foreman in charge of an inexperienced pipe crew of which the deceased employee was a member; during the afternoon the employee was killed, the crew was beginning the second leg of the trench work when the foreman was called away to another part of the work site; at this point the trench had not exceeded five feet, the depth at which trenches were required to be supported, and was not to exceed five feet during the second leg of the work; no one in the crew was working in any part of the trench that exceeded a depth of five feet; while the foreman was gone, however, the backhoe operator made more progress than had been expected and began digging the trench deeper than five feet; and the employee was killed some time later when a small portion of the trench where the depth exceeded five feet collapsed.\nAm Jur 2d, Master and Servant \u00a7 398.\nAppeal by plaintiffs from judgment entered 8 November 1989 and order entered 9 November 1989 in GUILFORD County Superior Court by Judge Howard R. Greeson, Jr. Heard in the Court of Appeals 16 November 1990. Heard in the Court of Appeals on remand from the Supreme Court on 18 March 1992.\nSmith, Patterson, Foll\u00edn, Curtis, James, Harkavy & Lawrence, by Norman B. Smith and Bryan E. Lessley, and Smith, Foll\u00edn & James, by J. David James, for plaintiff-appellants.\nHenson Henson Bayliss & Sue, by Jack B. Bayliss, Jr., A. Robinson Hassell, and Daniel L. Deuterman, for defendant-appellees Yates Construction Company, Inc., Robert G. Yates, Douglas B. Yates and Donald Baynes.\nAdams Kleemeier Hagan Hannah & Fonts, by J. Alexander S. Barrett and Edward L. Bleynat, Jr., for defendant-appellee Springfield Properties, Inc." }, "file_name": "0146-01", "first_page_order": 176, "last_page_order": 186 }