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  "name": "LANDON W. SLOAN, JR. and wife, PHYLLIS FAY SLOAN, Plaintiffs v. MILLER BUILDING CORPORATION, Defendant",
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    "judges": [
      "Judges JOHNSON and JOHN concur."
    ],
    "parties": [
      "LANDON W. SLOAN, JR. and wife, PHYLLIS FAY SLOAN, Plaintiffs v. MILLER BUILDING CORPORATION, Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, MARK D., Judge.\nThe sole issue presented by the parties is whether the trial court erred by finding evidence of defendant\u2019s willful or wanton negligence insufficient to overcome the bar of contributory negligence and granting defendant\u2019s motion for summary judgment. We reverse.\nOn 21 October 1985 plaintiff Landon W. Sloan, Jr. (Sloan) was injured when he fell three stories to the ground from the Campus Edge Phase II Condominium Project (project) in Wilmington, North Carolina. Defendant was the general contractor for the project.\nDefendant hired F & F Construction Company (F & F) to perform carpentry services. F & F hired Sloan as a carpenter. Defendant hired Sloan and two other employees of F & F to complete the exterior trim carpentry work. Sloan worked in this capacity for approximately one week before the accident.\nOn the third floor where Sloan worked there were no standard railings or the equivalent around the perimeter of the floor as required by OSHA standard 29 CFR 1926.500(d)(1). More than one month prior to Sloan\u2019s fall defendant noted in its inspection records that standard railings or the equivalent were needed, but did not erect them. Also, F & F asked defendant to provide standard railings or the equivalent for protection of persons on the floor. Instead, defendant tied ropes which it knew did not satisfy OSHA standard 29 CFR 1926.500(d)(1) to each post around the perimeter of the third floor.\nOn Saturday, 19 October 1985, the ropes in place to provide safety protection to third floor workers were removed. The ropes were not replaced and no comparable protective device was substituted.\nOn the morning of 21 October 1985 Sloan arrived at work and noticed the third floor ropes were missing and the posts were painted. Sloan assumed the ropes had been removed over the weekend by the painting contractor for the project and reported to work on the third floor. He made no effort to replace the ropes or ask the general contractor to replace them.\nOn 21 October 1985 the atmosphere on the third floor was hectic. Sloan worked as the lead carpenter toward the middle of the third floor cutting materials for co-workers. At approximately 2:00 p.m. he walked to the end of the building to discuss work with other carpenters. Other workers were in the hallway carrying material. As Sloan tried to discuss work with the other carpenters he kept moving to let others pass by. He tried to get out of the way by stepping back and down on some scaffolding. As Sloan sat on the scaffolding it gave way. He reached for the safety rope, which had been removed, and dropped three stories to the ground.\nDuring the course of this project, defendant did not have anyone on site responsible for safety and compliance with either company policy or OSHA regulations. Defendant designated Bob Becher \u201csupervisor\u201d of the construction site, but instead of supervising the site, he worked a crew of men. Becher apparently never performed any type of inspections, never held any safety meetings, and never mentioned safety on the site. Defendant\u2019s failure to do these things violated internal company policy.\nFrom 13 May 1981 until the date of Sloan\u2019s fall, defendant was cited for thirty-nine OSHA violations. (Eight serious violations and thirty-one non-serious violations). Five of the serious violations and three of the non-serious violations involved defendant\u2019s failure to provide standard railings or the equivalent on open-sided floors. On 17 May 1984 defendant was cited for OSHA violations at the Campus Edge Phase I Condominium Project, the job site involved in the present case, including a serious violation for its failure to have standard railings or the equivalent on the open-sided second and third floors.\nOn 23 May 1984 defendant was cited for serious violations, including failure to provide standard railings or the equivalent on open-sided floors, at the Harbor Inn condominiums/hotel construction project at Wrightsville Beach, North Carolina. An OSHA safety officer questioned Mr. Deal, general superintendent of the Harbor Inn condominiums/hotel construction project and employee of defendant for 35 years, regarding the 23 May 1984 OSHA violations. The safety officer reported Mr. Deal stated, \u201cif. . . (OSHA) knew anything about construction [it] would know that these conditions (cited) were not hazards,\u201d and \u201chis employees knew better that [sic] to get to [sic] close to open sided floors,... the job could be completed by the time he complied with all the standards.\u201d An OSHA safety officer questioned Mr. Henry Miller, Sr., Chairman of the Board and Safety Director of Miller Building Corporation, regarding the 23 May 1984 violations. The safety officer reported Mr. Miller indicated, \u201cMr. Deal has worked for him for 35 years and knows the requirement [OSHA standards], but... is the type of superintendent that will wait until an OSHA inspection before correcting hazardous conditions.\u201d\nThere is evidence another employee was injured prior to Sloan during construction of phase I of the Campus Edge project in a fall from an open-sided floor without the required standard railings or the equivalent.\nSloan filed this action on 11 June 1986 seeking damages for injuries he sustained as a result of the 21 October 1985 fall. On 10 October 1988 he took a voluntary dismissal without prejudice pursuant to Rule 41 of the North Carolina Rules of Civil Procedure. On 6 October 1989 Sloan refiled his claim. His wife, Phyllis Fay Sloan, also filed a claim for loss of consortium. On 17 June 1991 plaintiffs filed an amended complaint. On 9 July 1991 defendant filed its answer and, on 8 December 1993, moved for summary judgment based on the contributory negligence of Sloan. On 10 January 1994 the trial court granted defendant\u2019s motion for summary judgment.\nThe United States Supreme Court explained the role of the trial court when considering a motion for summary judgment in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202 (1986):\nThe judge\u2019s inquiry, therefore, unavoidably asks whether reasonable iurors could find bv a preponderance of the evidence that the n1a.irit.iff is entitled to a verdict \u2014 \u201cwhether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.\u201d\nId. at 252, 91 L. Ed. 2d at 214 (citation omitted) (emphasis added).\nWithin the context of negligence claims, \u201c[although there may be no question of fact, when the facts are such that reasonable men could differ on the issue of negligence courts have generally considered summary judgment improper.\u201d Willis v. Power Co., 42 N.C. App. 582, 591, 257 S.E.2d 471, 477 (1979); See Dettor v. BHI Property Co. No. 101, 324 N.C. 518, 522, 379 S.E.2d 851, 853 (1989). Rather, such questions must be resolved by the jury. 324 N.C. at 523, 379 S.E.2d at 853.\nOn appeal plaintiffs contend the trial court erred by finding evidence of defendant\u2019s alleged willful or wanton negligence insufficient, as a matter of law, to overcome the bar of Sloan\u2019s contributory negligence and granting summary judgment to the defendant.\nPursuant to the regulatory adoption procedure in N.C. Gen. Stat. \u00a7 95-131(a), all federal occupational safety and health standards constitute the regulatory standard in North Carolina, unless alternative regulations are promulgated by the North Carolina Commissioner of Labor. \u201cA statute or ordinance designed for the protection of the public is a \u2018safety\u2019 enactment and its violation constitutes negligence per se . . . .\u201d Jackson v. Housing Authority of High Point, 73 N.C. App. 363, 368, 326 S.E.2d 295, 298 (1985), aff\u2019d, 316 N.C. 259, 341 S.E.2d 523 (1986). The parties agree 29 CFR 1926.500(d) is the relevant safety statute at issue:\nGuarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(l)(i) of this section, on all open sides .... The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling material could create a hazard.\n29 CFR 1926.500(d) (1994). 29 CFR 1926.500(f)(1) sets forth standard specifications for standard railings as follows:\nA standard railing shall consist of a top rail, intermediate rail, toe-board and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway or ramp level.\n29 CFR 1926.500(f)(1) (1994). The placement of ropes around the perimeter of an open-sided floor, as installed by the defendant, is not listed as an alternative to standard railings anywhere in section (f) of CFR 1926.500. At oral argument counsel for defendant admitted defendant knew the ropes placed around the perimeter of the open-sided third floor did not comply with 29 CFR 1926.500.\nDefendant noted in its inspection records that standard railings or the equivalent were needed, and F & F specifically requested that defendant provide standard railings or the equivalent for protection of workers on the third floor. Defendant apparently elected, for whatever reason, not to comply with OSHA standard 29 CFR 1926.500. Instead, defendant tied ropes to each post around the perimeter of the third floor knowing the ropes did not meet the requirements of OSHA standard 29 CFR 1926.500(d)(1).\nThe question presented by this appeal is whether reasonable jurors could find, by a preponderance of the evidence, that the cumulative effect of defendant\u2019s actions constituted reckless disregard for the rights and safety of Sloan or, alternatively, constituted intentional failure to follow safety regulations necessary to ensure his safety.\nIt is well settled that the contributory negligence of a plaintiff does not preclude recovery when defendant\u2019s conduct amounts to willful or wanton negligence and is a proximate cause of plaintiff\u2019s injuries. Lewis v. Brunston, 78 N.C. App. 678, 685, 338 S.E.2d 595, 600 (1986). Wanton negligence has been defined as \u201can act manifesting a reckless disregard for the rights and safety of others.\u201d Pleasant v. Johnson, 312 N.C. 710, 714, 325 S.E.2d 244, 248 (1985) (citations omitted). Willful negligence has been defined as \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. (citations omitted). Willful negligence requires only constructive intent. 312 N.C. at 715, 325 S.E.2d at 248. \u201cConstructive intent to injure exists where conduct threatens the safety of others and is so reckless or manifestly indifferent to the consequences that a finding of willfulness and wantonness equivalent in spirit to actual intent is justified. Wanton and reckless negligence gives rise to constructive intent.\u201d Id. (citations omitted).\nPlaintiffs contend evidence of defendant\u2019s conduct at the time of the fall and evidence of defendant\u2019s history of noncompliance with OSHA standards are relevant to the question of whether defendant\u2019s conduct rose to the level of willful or wanton negligence. We agree.\nWe conclude the cumulative effect of defendant\u2019s negligence in three different areas creates a genuine issue of material fact sufficient to foreclose the entry of summary judgment. The three areas are: (1) general safety procedures on the project; (2) defendant\u2019s failure to comply with OSHA standard 29 CFR 1926.500(d)(1) in the present case; and (3) defendant\u2019s history of non-compliance with OSHA standards, including OSHA standard 29 CFR 1926.500(d)(1).\nFirst, plaintiffs\u2019 forecast of evidence indicates defendant had little regard for workplace safety. Defendant did not have anyone on site responsible for safety and compliance with either company policy or OSHA regulations. Although defendant designated Bob Becher \u201csupervisor\u201d of the construction site, he apparently worked a crew of men rather than supervise the site. Notably, Becher apparently never performed any type of inspections or held safety meetings, all in violation of company policy.\nSecond, evidence exists from which a jury could reasonably infer that defendant knew it was in violation of 29 CFR 1926.500. Not only had defendant noted in its inspection records more than one month prior to Sloan\u2019s fall that standard railings or their equivalent were needed, but F & F had also asked the defendant to provide standard railings or their equivalent for protection of workers on the third floor. Despite this specific request from its subcontractor, it appears defendant refused to remedy this safety violation. Instead, defendant tied ropes to each post around the perimeter of the third floor which it knew did not satisfy the requirements of OSHA standard 29 CFR 1926.500(d)(1). Plaintiffs\u2019 forecast of evidence indicates that defendant\u2019s failure to provide standard railings or their equivalent caused F & F to walk off the job.\nThird, plaintiffs\u2019 forecast of evidence supports the reasonable inference that defendant\u2019s indifference to the regulations contributing to Sloan\u2019s injuries constituted a pattern of noncompliance and conscious disregard of OSHA standards, including OSHA standard 29 CFR 1926.500(d)(1). Although defendant\u2019s disregard of OSHA standards on this and other projects, standing alone, is not tantamount to a finding of wilful or wanton negligence, we believe it remains a relevant factor for the jury to consider giving due regard to the frequency of alleged violations and the nature and scope of defendant\u2019s operations at the time of the infractions. Indeed, apart from the evidence of noncompliance with OSHA regulations and the apparent hostile attitude of company officials regarding their obligation to observe basic safety procedures, plaintiffs have presented evidence that defendant had been cited for failure to install satisfactory standard rails or their equivalent in other projects and, in addition, that another employee was injured during construction of phase I of the same project when he fell from an open-sided floor which lacked the required standard railings or their equivalent.\nBased upon plaintiffs\u2019 forecast of evidence, we conclude reasonable jurors could differ on the question of whether the conduct of defendant in the present case constituted willful or wanton misconduct sufficient to overcome the bar of Sloan\u2019s contributory negligence. Accordingly, we hold summary judgment was improperly granted.\nReversed and remanded.\nJudges JOHNSON and JOHN concur.",
        "type": "majority",
        "author": "MARTIN, MARK D., Judge."
      }
    ],
    "attorneys": [
      "Armstrong & Armstrong, P.A., by Emery D. Ashley, for plaintiff-appellants.",
      "Marshall, Williams & Gorham, L.L.P., by Ronald, H. Woodruff, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "LANDON W. SLOAN, JR. and wife, PHYLLIS FAY SLOAN, Plaintiffs v. MILLER BUILDING CORPORATION, Defendant\nNo. 945SC330\n(Filed 6 June 1995)\nLabor and Employment \u00a7 196 (NCI4th)\u2014 workplace injury\u2014 employer\u2019s misconduct willful and wanton \u2014 sufficiency of evidence\nIn plaintiffs action to recover for injuries sustained in a workplace fall, reasonable jurors could find that the conduct of defendant general contractor in the present case constituted willful or wanton misconduct sufficient to overcome the bar of plaintiff\u2019s contributory negligence where the evidence tended to show that defendant had little regard for workplace safety; defendant knew it was in violation of an OSHA standard requiring railings around the perimeter of an open floor; and defendant\u2019s indifference to the regulations contributing to plaintiffs injuries on this and other projects constituted a pattern of noncompliance and conscious disregard of OSHA standards.\nAm Jur 2d, Master and Servant \u00a7\u00a7 121, 361 et seq., 372 et seq.\nAppeal by plaintiff from order entered 10 January 1994 by Judge Napoleon B. Barefoot in New Hanover County Superior Court. Heard in the Court of Appeals 31 January 1995.\nArmstrong & Armstrong, P.A., by Emery D. Ashley, for plaintiff-appellants.\nMarshall, Williams & Gorham, L.L.P., by Ronald, H. Woodruff, for defendant-appellee."
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