{ "id": 8522087, "name": "VALLEREE L. OWENS, Plaintiff v. W. K. DEAL PRINTING, INC., Defendant", "name_abbreviation": "Owens v. W. K. Deal Printing, Inc.", "decision_date": "1994-01-18", "docket_number": "No. 9227SC845", "first_page": "324", "last_page": "332", "citations": [ { "type": "official", "cite": "113 N.C. App. 324" } ], "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": "179 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555455 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0696-01" ] }, { "cite": "421 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503554, 2505549, 2506449, 2504725, 2507263 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0343-03", "/nc/332/0343-05", "/nc/332/0343-02", "/nc/332/0343-01", "/nc/332/0343-04" ] }, { "cite": "416 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "106 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313813 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0146-01" ] }, { "cite": "246 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "295 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563912, 8563948, 8563931, 8563986, 8563963 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/295/0467-01", "/nc/295/0467-03", "/nc/295/0467-02", "/nc/295/0467-05", "/nc/295/0467-04" ] }, { "cite": "243 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "147" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 109", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551364 ], "year": 1979, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0109-01" ] }, { "cite": "340 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523153 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0688-01" ] }, { "cite": "322 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756490, 4751086, 4754065, 4759031, 4755005 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0495-01", "/nc/312/0495-03", "/nc/312/0495-05", "/nc/312/0495-04", "/nc/312/0495-02" ] }, { "cite": "318 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "70 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520365 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0076-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1991, "pin_cites": [ { "page": "226" }, { "page": "233" }, { "page": "226" }, { "page": "226" } ], "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 7, "year": 1991, "pin_cites": [ { "page": "337" }, { "page": "349" }, { "page": "337" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "433 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "111 N.C. App. 900", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524676 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0900-01" ] }, { "cite": "94 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 1 }, { "cite": "244 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219472 ], "year": 1956, "opinion_index": 1, "case_paths": [ "/nc/244/0560-01" ] }, { "cite": "210 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 1 }, { "cite": "24 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549724 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/nc-app/24/0204-01" ] }, { "cite": "213 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 1 }, { "cite": "25 N.C. App. 325", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553684, 8553749 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/nc-app/25/0325-01", "/nc-app/25/0325-02" ] }, { "cite": "269 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "48 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550270 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc-app/48/0297-01" ] }, { "cite": "124 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "110-11" }, { "page": "110" } ], "opinion_index": 1 }, { "cite": "256 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573005 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "428" }, { "page": "428" } ], "opinion_index": 1, "case_paths": [ "/nc/256/0427-01" ] }, { "cite": "424 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 1 }, { "cite": "333 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548756 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/nc/333/0233-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "136 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "223" } ], "opinion_index": 1 }, { "cite": "262 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565059 ], "year": 1964, "pin_cites": [ { "page": "8" } ], "opinion_index": 1, "case_paths": [ "/nc/262/0001-01" ] }, { "cite": "379 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "324 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486400, 2484576, 2488423, 2488682, 2487325 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc/324/0433-01", "/nc/324/0433-04", "/nc/324/0433-02", "/nc/324/0433-05", "/nc/324/0433-03" ] }, { "cite": "375 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "92 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527564 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc-app/92/0708-01" ] }, { "cite": "435 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "542" } ], "opinion_index": 1 }, { "cite": "112 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521339 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "301" } ], "opinion_index": 1, "case_paths": [ "/nc-app/112/0295-01" ] }, { "cite": "268 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "300 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564216 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/300/0631-01" ] }, { "cite": "316 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "311 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685695 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/311/0205-01" ] }, { "cite": "293 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "306 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571111 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/306/0435-01" ] }, { "cite": "421 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "Summary judgment properly entered for the defendant when his forecast of evidence revealed his conduct did not manifest reckless disregard for the safety of the plaintiff nor did it amount to the intentional failure to carry out a duty of care owed to the plaintiff" } ], "opinion_index": 1 }, { "cite": "332 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503554, 2505549, 2506449, 2504725, 2507263 ], "year": 1992, "pin_cites": [ { "parenthetical": "Summary judgment properly entered for the defendant when his forecast of evidence revealed his conduct did not manifest reckless disregard for the safety of the plaintiff nor did it amount to the intentional failure to carry out a duty of care owed to the plaintiff" } ], "opinion_index": 1, "case_paths": [ "/nc/332/0343-03", "/nc/332/0343-05", "/nc/332/0343-02", "/nc/332/0343-01", "/nc/332/0343-04" ] }, { "cite": "416 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "106 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313813 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/nc-app/106/0146-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "228" }, { "page": "233" }, { "page": "233" } ], "opinion_index": 1 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "341" }, { "page": "348" }, { "page": "349" } ], "opinion_index": 1, "case_paths": [ "/nc/329/0330-01" ] } ], "analysis": { "cardinality": 785, "char_count": 18560, "ocr_confidence": 0.739, "pagerank": { "raw": 1.1619320283896213e-07, "percentile": 0.5842340615225058 }, "sha256": "cee26c637c1044404375ba80200a064d09c6701aafbb89ea0534e2e56dc4d1c1", "simhash": "1:1332dac0cc3d2c1e", "word_count": 3012 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs.", "Judge WYNN dissents." ], "parties": [ "VALLEREE L. OWENS, Plaintiff v. W. K. DEAL PRINTING, INC., Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nThis court filed its decision in Owens v. W. K. Deal Printing, Inc., 111 N.C. App. 900, 433 S.E.2d 793 (1993) on 7 September 1993. Plaintiff timely petitioned for rehearing on the matter and we granted this petition.\nWe now revisit the pertinent facts: On 15 December 1988, plaintiff Valleree L. Owens, suffered an injury when her hand was crushed in a hydraulic press at her place of employment, W. K. Deal Printing, Inc. Plaintiff suffered 60% permanent disability to the right hand. As a result, plaintiff filed a claim for workers\u2019 compensation benefits with the North Carolina Industrial Commission (hereafter Industrial Commission) and on 20 August 1991, plaintiff signed an agreement for \u201cfinal compromise settlement and release,\u201d a clincher agreement.\nPlaintiff submitted the clincher agreement to the Industrial Commission who approved the agreement on 26 August 1991. After plaintiff had entered into an agreement with the Industrial Commission, plaintiff filed a claim for personal injury against defendant employer on 13 December 1991 pursuant to a case decided by the Supreme Court of North Carolina on 14 August 1991, Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).\nDefendant filed an answer 21 January 1992 pleading the clincher agreement as a bar to plaintiffs cause of action. The motion was heard on 11 May 1992 by Judge Caviness who granted defendant\u2019s motion for summary judgment as a matter of law. Plaintiff gave timely notice of appeal.\nThe dispositive issue before this Court is whether the trial judge erred by granting summary judgment as a matter of law against plaintiff.\nSummary judgment is appropriately granted only where no disputed issues of genuine fact have been presented and the undisputed facts show that a party is entitled to judgment as a matter of law. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, disc. review denied, 312 N.C. 495, 322 S.E.2d 558 (1984). A defending party is entitled to summary judgment if the defendant can show that the claimant cannot prove the existence of an essential element of the claim or cannot surmount an affirmative defense which would bar the claim. Little v. National Service Industries, Inc., 79 N.C. App. 688, 340 S.E.2d 510 (1986).\nHere, the trial judge made findings of fact in this case and concluded as a matter of law that the release agreement signed by plaintiff barred an additional monetary recovery from defendant. \u201cA trial judge is not required to make findings of fact and conclusions of law in determining a motion for summary judgment, and if he does make some, they are disregarded on appeal.\u201d Mosley v. Finance Co., 36 N.C. App. 109, 111, 243 S.E.2d 145, 147, disc. review denied, 295 N.C. 467, 246 S.E.2d 9 (1979). Therefore, upon review of this case, we will consider only the pleadings, affidavits and supporting materials of the parties in our determination of whether a genuine issue of fact has been presented by plaintiff.\nPlaintiff in this action filed a complaint alleging rights as set out in Woodson, 329 N.C. 330, 407 S.E.2d 222. In order to fully understand plaintiff\u2019s allegations, we consider the Woodson holding.\nWoodson, 329 N.C. 330, 407 S.E.2d 222, involved a wrongful death action arising from a work-related cave-in which killed Thomas Alfred Sprouse. The plaintiff in the case was the administrator of Sprouse\u2019s estate. The plaintiff in Woodson filed a workers\u2019 compensation claim with the North Carolina Industrial Commission and civil claims against the employer and general contractor, simultaneously. The defendants filed a summary judgment motion on the theory that the Workers\u2019 Compensation Act shielded the employer from civil liability for intentional tort. On appeal, the Court of Appeals affirmed the decision of the trial court. Upon review of the matter, the Supreme Court opined that:\n[i]f Sprouse\u2019s death can only be considered accidental, defendants\u2019 summary judgment motions were properly allowed because Sprouse\u2019s death would fall within the Act\u2019s exclusive coverage, and no other remedies than those provided in the Act are available to plaintiff either against his employer or a co-worker. On the other hand, if the forecast of evidence is sufficient to show that Sprouse\u2019s death was the result of an intentional tort committed by his employer, then summary judgment was improperly allowed on the ground stated, because the employer\u2019s intentional tort will support a civil action. (Citations omitted.)\nWoodson, 329 N.C. at 337, 407 S.E.2d at 226.\nFrom the outset we note that plaintiff\u2019s injury occurred before Woodson was filed; however, Woodson is to be applied retroactively. 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). Therefore, we will consider this case according to the standard as set out in Woodson.\nThe Court in Woodson reasoned that:\n[f]rom the standpoint of the injured party, ... an injury caused by the same conduct... [may be] both the result of an accident, giving rise to the remedies provided by the [Workers\u2019 Compensation] Act, and an intentional tort, making the exclusivity provision of the Act unavailable to bar a civil action. (Citations omitted.)\nWoodson, 329 N.C. at 349, 407 S.E.2d at 233.\nIn the instant case, defendant, through his pleadings and supporting materials, showed that the injury to plaintiff was solely accidental. On 21 January 1992, defendant moved for dismissal of the case and supported his motion with his answer and a release agreement. Defendant stated in his answer that \u201cplaintiff was operating the machine [sic] that she was not operating the machine pursuant to the instructions that were given her, or that she was not operating the machine in a safe and prudent manner; . . . and that plaintiff was operating the machine under the influence of prescription medication, and that these acts constitute a bar to recovery.\u201d In addition, the agreement stated that plaintiff suffered an injury by accident when she accidently applied a hydraulic weight before removing her hand. Based on defendant\u2019s answer and the clincher agreement which stated that the injury was accidental, the burden\u2019then shifted to plaintiff to present a forecast of evidence to support her claim that the injury was also the result of an intentional tort committed by defendant employer. Plaintiff failed to produce supporting affidavits or any supporting materials as evidence to support her claim that her injury resulted from tortious conduct by defendant employer. If the defendant moving for summary judgment successfully carries his/her burden of proof, the plaintiff may not rely upon the bare allegations of his/her complaint to establish a triable issue of fact. Haithcock v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865 (1971). Considering the materials submitted to the court, we find that plaintiff has failed to present a genuine issue of fact sufficient to support a civil action against the employer for an intentional tort.\nWe note at this point that this case does not stand for the proposition that once a plaintiff signs a release agreement to settle a workers\u2019 compensation claim that plaintiff is automatically precluded from recovering pursuant to Woodson or that plaintiff is automatically admitting the injury was solely accidental to the exclusion of a claim against an employer for tortious conduct. Instead, we hold that if defendant uses his/her pleadings and supporting materials to negate an essential element of a Woodson claim, i.e., that the injury was solely accidental, Id., 329 N.C. at 337, 407 S.E.2d at 226, then the burden shifts to plaintiff and plaintiff will be required to produce a forecast of evidence to show that the injury is also due to the tortious conduct of the employer. Dunleavy v. Yates, 106 N.C. App. 146, 416 S.E.2d 193. These principles are basic principles of law pursuant to North Carolina General Statutes \u00a7 1A-1, Rule 56 (1991).\nSince plaintiff\u2019s injury, based upon defendant\u2019s pleadings and supporting materials, can only be considered accidental, defendant\u2019s summary judgment motion was properly allowed and no other remedies other than those provided in the Act are available to plaintiff against her employer. Woodson, 329 N.C. at 337, 407 S.E.2d at 226. Consequently, plaintiff is limited to the amount received pursuant to the release agreement.\nAccordingly, the decision of the trial court is affirmed.\nJudge JOHN concurs.\nJudge WYNN dissents.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge WYNN\ndissenting.\nI respectfully dissent from the majority\u2019s holding that the trial court properly granted defendant\u2019s motion for summary judgment. I instead conclude that the release signed by plaintiff, by its own terms, does not bar her from pursuing her Woodson claim and that the trial court erred by entering summary judgment against plaintiff.\nIn her complaint, plaintiff alleged that in the course of her employment with defendant she was injured by defendant\u2019s hydraulic drill press and that defendant knew the machine was unsafe and dangerous but still ordered plaintiff to operate it. Defendant moved for summary judgment pleading the \u201cAgreement for Final Compromise Settlement and Release,\u201d which plaintiff signed, as a bar to plaintiff\u2019s action.\nIn order to prevail on a summary judgment motion, the moving party must meet the burden of establishing the lack of a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party meets this burden by (1) proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party (2) cannot produce evidence to support an essential element of his or her claim, or (3) cannot surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). If the moving party fails to carry this burden, the opposing party does not have to respond and summary judgment should be denied. Brown v. Fulford, 311 N.C. 205, 316 S.E.2d 220 (1984); Steel Creek Development Corp. v. James, 300 N.C. 631, 268 S.E.2d 205 (1980).\nA release executed by an injured party based on valuable consideration is generally a complete defense to an action for damages for such injuries. Miller v. Nationwide Mut. Ins. Co., 112 N.C. App. 295, 435 S.E.2d 537 (1993). What a release means depends upon the executing parties\u2019 intent which is determined from the language used, the parties\u2019 situation and the objectives they sought to accomplish. McGladrey, Hendrickson & Pullen v. Syntek Finance Corp., 92 N.C. App. 708, 375 S.E.2d 689, disc. rev. denied, 324 N.C. 433, 379 S.E.2d 243 (1989). When the circumstances surrounding the execution of the release are not in dispute and its terms are free from ambiguity, its meaning is for the court to determine. Miller, 112 N.C. App. at 301, 435 S.E.2d at 542. \u201cWhere a written agreement is explicit, the court must so declare, irrespective of what either party thought the effect of the contract to be.\u201d McNair v. Goodwin, 262 N.C. 1, 8, 136 S.E.2d 218, 223 (1964).\nIn the instant case, the release states in pertinent part:\nNow, THEREFORE, Loretta Owens, for and in consideration of the compensation payment herein recited and the medical benefits which shall be paid upon approval of the North Carolina Industrial Commission, the receipt of which is hereby acknowledged, does hereby remise, release and forever discharge the said W. K. Deal Printing, Inc. and Liberty Mutual Insurance Company of and from any and all and every manner of action and actions, cause or causes of action, suits, debts, dues and sums of money, judgments, demands and claims whatsoever, which against W. K. Deal Printing, Inc. and Liberty Mutual Insurance Company she ever had or may now have, or which her heirs, next of kin or personal representatives, or any other person whomsoever, hereafter can, shall or may have by reason of or growing out of the terms and provisions of the North Carolina Workers\u2019 Compensation Act on account of the alleged injury, which gives rise to this claim for compensation, and for any other disability or medical expenses sustained by her.\n(Emphasis added).\nBy its own terms, the release only bars plaintiff from pursuing any action under the terms of the Workers\u2019 Compensation Act, N.C. Gen. Stat. \u00a7 97. The release does not bar plaintiff from pursuing a tort action. Woodson v. Rowland held that when an employer intentionally engages in conduct which the employer knew was substantially certain to cause injury, the employee may pursue a civil action against the employer. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). This conduct must be so egregious as to be tantamount to an intentional tort. Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993). The employee may also pursue any workers\u2019 compensation claims which arise from the same accident but is only entitled to one recovery. Woodson, 329 N.C. at 341, 407 S.E.2d at 228.\nThe release signed by plaintiff only addresses her claims under the Workers\u2019 Compensation Act and does not bar her from pursuing a Woodson tort action. Defendant thus failed to establish that it is entitled to judgment as a matter of law. Therefore the trial court erred in granting defendant\u2019s motion for summary judgment and this case must be reversed.\nThe majority\u2019s analysis is contrary to the Supreme Court\u2019s holding in Woodson. The majority reasons that because the release agreement states that plaintiff\u2019s injury was accidental, defendant has met its burden of proof and is entitled to summary judgment unless the plaintiff produces evidence her injury resulted from defendant\u2019s tortious conduct. In Woodson, however, the Supreme Court held that \u201caccident\u201d under the Workers\u2019 Compensation Act means \u201c \u2018(1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause.\u2019 \u201d Woodson, 329 N.C. at 348, 407 S.E.2d at 233 (quoting Harding v. Thomas & Howard Co., 256 N.C. 427, 428, 124 S.E.2d 109, 110-11 (1962)). The Court in Woodson then reasoned:\nFrom the standpoint of the injured party, an injury intentionally inflicted by another can nonetheless at the same time be an \u201cunlooked for and untoward event . . . not expected or designed by the injured employee.\u201d Harding, 256 N.C. at 428, 124 S.E.2d at 110. It is, therefore, not inherently inconsistent to assert that an injury caused by the same conduct was both the result of an accident, giving rise to the remedies provided by the [Workers\u2019 Compensation] Act, and an intentional tort, making the exclusivity provision of the Act unavailable to bar a civil action.\nWoodson, 329 N.C. at 349, 407 S.E.2d at 233.\nWoodson clearly holds that a plaintiffs injury can be both an accident for the purposes of workers\u2019 compensation and the result of an intentional tort committed by the defendant employer. In the instant case, in order for defendant to prevail on its motion for summary judgment, it must negate plaintiff\u2019s allegation that its conduct was substantially certain to cause injury. See Dunleavy v. Yates Construction Co., Inc., 106 N.C. App. 146, 416 S.E.2d 193, disc. rev. denied, 332 N.C. 343, 421 S.E.2d 146 (1992) (Summary judgment properly entered for the defendant when his forecast of evidence revealed his conduct did not manifest reckless disregard for the safety of the plaintiff nor did it amount to the intentional failure to carry out a duty of care owed to the plaintiff). Merely pleading the release signed by plaintiff is insufficient, since the release does not bar plaintiff from pursuing a tort action.\nThe majority concludes, however, that based upon the release and defendant\u2019s answer which alleged that plaintiff did not operate the hydraulic press properly, defendant had shifted the burden to plaintiff to produce evidence that her injury was the result of an intentional tort. Defendant\u2019s allegation stated:\n[A]t the time the Plaintiff was operating the machine that she was not operating the machine pursuant to the instructions that were given to her, or that she was not operating the machine in a safe and prudent manner; that in addition thereto, it is alleged upon information and belief that the Plaintiff was operating the machine under the influence of prescription medication, and that these acts constitute a bar to any recovery.\nThe nonmoving party does not bear the burden of coming forward with evidence in support of his claim, however, until the moving party has offered evidence which negates that claim. Mace v. Bryant Constr. Corp., 48 N.C. App. 297, 269 S.E.2d 191 (1980); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571 (1975); Whitely v. Cubberly, 24 N.C. App. 204, 210 S.E.2d 289 (1974). Defendant\u2019s unverified allegation, upon which the majority relies, is an allegation of contributory negligence. Contributory negligence is not a defense to an intentional tort. Jenkins v. North Carolina Dept. of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577 (1956). Therefore, I conclude that defendant did not shift the burden over to plaintiff to supply evidence in support of her claim and that the trial court\u2019s entry of summary judgment against plaintiff should be reversed. I respectfully dissent.", "type": "dissent", "author": "Judge WYNN" } ], "attorneys": [ "Frederick R. Stann for plaintiff-appellant.", "Alala, Mullen, Holland & Cooper, P. A., by H. Randolph Sumner and Jesse V. Bone, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "VALLEREE L. OWENS, Plaintiff v. W. K. DEAL PRINTING, INC., Defendant\nNo. 9227SC845\n(Filed 18 January 1994)\nMaster and Servant \u00a7 87 (NCI3d) \u2014 workers\u2019 compensation \u2014 compensable accident \u2014employer\u2019s showing of accidental injury \u2014burden on injured employee to show tortious conduct\nIf defendant uses its pleadings and supporting materials to negate an essential element of a Woodson claim, i.e., to show that the injury was solely accidental, then the burden shifts to plaintiff and plaintiff will be required to produce a forecast of evidence to show that the injury is also due to the tortious conduct of the employer. In this case, plaintiff failed to produce supporting affidavits or any supporting materials as evidence to support her claim that her injury resulted from tortious conduct by defendant employer, and summary judgment was therefore properly entered for defendant.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 566, 569, 593, 709.\nJudge WYNN dissenting.\nAppeal by plaintiff from judgment entered 13 May 1992 by Judge Loto Caviness in Gaston County Superior Court. Heard in the Court of Appeals 17 June 1993.\nFrederick R. Stann for plaintiff-appellant.\nAlala, Mullen, Holland & Cooper, P. A., by H. Randolph Sumner and Jesse V. Bone, Jr., for defendant-appellee." }, "file_name": "0324-01", "first_page_order": 354, "last_page_order": 362 }