{ "id": 11916902, "name": "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", "name_abbreviation": "Jones v. Willamette Industries, Inc.", "decision_date": "1995-11-07", "docket_number": "No. COA94-1448", "first_page": "591", "last_page": "596", "citations": [ { "type": "official", "cite": "120 N.C. App. 591" } ], "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": "325 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "312 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749409 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc/312/0710-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": -1 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "year": 1991, "opinion_index": -1, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "96 ALR3d 1064", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "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", "year": 1992, "opinion_index": 0 }, { "cite": "106 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313813 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0146-01" ] }, { "cite": "382 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "95 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520748 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/95/0354-01" ] }, { "cite": "442 S.E.2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "114 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527535 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/114/0319-01" ] }, { "cite": "447 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "noting that plaintiff's employer had no prior OSHA citations for safety violations" } ], "opinion_index": 0 }, { "cite": "336 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538080, 2538689, 2537376, 2537868, 2537009 ], "year": 1994, "pin_cites": [ { "parenthetical": "noting that plaintiff's employer had no prior OSHA citations for safety violations" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0615-05", "/nc/336/0615-01", "/nc/336/0615-04", "/nc/336/0615-02", "/nc/336/0615-03" ] }, { "cite": "442 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "noting that plaintiff's employer had no prior OSHA citations for safety violations" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527914 ], "year": 1994, "pin_cites": [ { "parenthetical": "noting that plaintiff's employer had no prior OSHA citations for safety violations" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0651-01" ] }, { "cite": "424 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "395", "parenthetical": "affirming dismissal of Woodson claim where employer instructed employee to work at an unguarded machine in a textile factory" }, { "page": "394" } ], "opinion_index": 0 }, { "cite": "333 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548756 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "239", "parenthetical": "affirming dismissal of Woodson claim where employer instructed employee to work at an unguarded machine in a textile factory" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0233-01" ] }, { "cite": "325 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "248" }, { "page": "249" } ], "opinion_index": 0 }, { "cite": "312 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749409 ], "year": 1985, "pin_cites": [ { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0710-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "228", "parenthetical": "affirming dismissal of Woodson claim where employer instructed employee to work at an unguarded machine in a textile factory" }, { "page": "341" }, { "page": "229" } ], "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "340-41" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] } ], "analysis": { "cardinality": 724, "char_count": 13693, "ocr_confidence": 0.728, "pagerank": { "raw": 2.7657579543158346e-07, "percentile": 0.8339385809751843 }, "sha256": "2171f2e11cec3d84a25feba4110a8c278d41b95bc45898b975c77a62e0e8a4e5", "simhash": "1:8361a60e8d3d175f", "word_count": 2147 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and SMITH concur." ], "parties": [ "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" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nPlaintiff 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.\nIn Woodson, the Court held that \u201cwhen 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.\u201d Woodson, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228. \u201cThe conduct must be so egregious as to be tantamount to an intentional tort.\u201d Pendergrass v. Card Care, Inc., 333 N.C. 233, 239, 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 \u201c \u2018those [consequences] which the actor believes axe substantially certain to follow from what the actor does.\u2019 \u201d Id. at 341, 407 S.E.2d at 229 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts \u00a7 8, at 35 (5th ed. 1984)).\nWillamette had not been cited for any safety violations of this nature in the past. See Vaughn 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\u2019s 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, \u201cWe just didn\u2019t figure \u2014 we just didn\u2019t figure the darn wall was going to let go because of being cooled down. It was just one of them things we just didn\u2019t figure.\u201d The cleaning procedure used by Jones and the other employees was the same procedure used, without incident, by Willamette\u2019s 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).\nPlaintiff 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\u2019 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.\nNext, plaintiff contends the trial court erred by dismissing her Pleasant claims brought against the individual defendants. Again, we disagree.\nIn Pleasant, the Court recognized that the Workers\u2019 Compensation Act does not bar suit against a co-employee for intentional torts, and stated that \u201cinjury to another resulting from willful, wanton and reckless negligence should also be treated as an intentional injury for purposes of our Workers\u2019 Compensation Act.\u201d Pleasant, 312 N.C. 710, 715, 325 S.E.2d 244, 248. The Court then held that \u201cthe Workers\u2019 Compensation Act does not shield a co-employee from common law liability for willful, wanton and reckless negligence.\u201d 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 \u201cconstructive intent to injure may be inferred when the conduct of the defendant is manifestly indifferent to the consequences of the act.\u201d 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).\nThe 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 \u201c[sjince there had been no reportable illness or accident related to this process, management felt the process was safe.\u201d Therefore, although supervisory personnel at Willamette should have ensured 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.\nFinally, plaintiff contends that Willamette is strictly liable for this \u201cultrahazardous activity.\u201d She argues that \u201ccleaning out the boiler under the conditions created by Willamette could not be done safely, and was therefore ultra-hazardous.\u201d We do not agree with plaintiffs characterization of this activity.\nTo 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 judgment on this claim.\nThe trial court\u2019s order is\nAffirmed.\nJudges GREENE and SMITH concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Lewis & Daggett, PA., by Michael Lewis, and Lore & McClearen, by R. James Lore, for plaintiff appellant.", "Cranfill, Sumner & Hartzog, L.L.P., by Robert W. Sumner, David H. Batten, and Edward C. LeCarpentier, III, for defendant appellees." ], "corrections": "", "head_matter": "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\nNo. COA94-1448\n(Filed 7 November 1995)\n1. Workers\u2019 Compensation \u00a7 62 (NCI4th)\u2014 wrongful death claim \u2014 no evidence that employer knew misconduct was substantially certain to cause death or serious injury\nIn a wrongful death action against defendant employer where the evidence tended to show that the employee died while cleaning the inside of a boiler used for disposing of waste from manufacturing plywood sheeting, the trial court properly entered summary judgment for defendant where the evidence, though indicating that much more might have been done to ensure workers\u2019 safety, did not show that defendant engaged in misconduct knowing it was substantially certain to cause death or serious injury.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 79.\nWhat conduct is willful, intentional, or deliberate within workmen\u2019s compensation act provision authorizing tort action for such conduct. 96 ALR3d 1064.\n2. Workers\u2019 Compensation \u00a7 69 (NCI4th)\u2014 intentional tort claim against co-employees \u2014 insufficiency of evidence\nPlaintiff\u2019s claim against her husband\u2019s co-employees for intentional torts were properly dismissed where the evidence that defendants instructed the employee to clean the inside of a boiler without ensuring that adequate safety measures were in place and being used did not support inferences that they intended for the employee to be injured or that they were manifestly indifferent to the consequences.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 100.\nWhat conduct is willful, intentional, or deliberate within workmen\u2019s compensation act provision authorizing tort action for such conduct. 96 ALR3d 1064.\n3. Labor and Employment \u00a7 192 (NCI4th)\u2014 cleaning boiler\u2014 no ultrahazardous activity\nCleaning a boiler was not an \u201cultrahazardous activity\u201d for which defendant employer was strictly liable, since the risk of serious harm could be eliminated by taking appropriate safety measures.\nAm Jur 2d, Negligence \u00a7 403.\nAppeal by plaintiff from judgment entered 16 September 1994 by Judge James C. Spencer, Jr., in Chatham County Superior Court. Heard in the Court of Appeals 4 October 1995.\nDefendant Willamette Industries, Incorporated, (Willamette) manufactures plywood sheeting. The manufacturing process operates on a boiler system, the heart of which is a fluid flame burner. The burner is an approximately fifty foot high by twenty-five foot wide cylindrical vessel. The bottom of the vessel is covered with nozzles that blow, air and sand up into the vessel to mix with wood and other waste products that are put into the vessel. This process generates heat and steam for the plant, and the boiler system must be in operation during the manufacturing process.\nIn 1990 Willamette, which bought the plant in 1988, disposed of manufacturing waste by burning it in an open pit outside its facility. After receiving notification in 1990 from North Carolina\u2019s Department of Environment, Health and Natural Resources to discontinue that practice, Willamette began burning waste in the vessel.\nPlaintiff alleges that Willamette burned waste glue and glue resin in the vessel, and that this allegedly improper practice contributed to the buildup of residue known as slag. At times the slag was soft and granular, while at others it was hard and glassy. When it built up the plant would have to shut down to allow the employees to clean the vessel. Willamette\u2019s predecessor in ownership scheduled three or four major cleanings per year in addition to unscheduled forty-eight hour cleanings as needed. Willamette reduced the scheduled cleanings to one or two per year, but conducted more frequent forty-eight hour cleanings.\nDuring cleanings, Willamette\u2019s employees had to wait for the vessel to cool. Even then, temperatures inside the vessel hovered around one hundred degrees or more. The only entrance to the vessel was a two foot manhole that the employees had to climb through. No official cleaning or safety policy existed for cleaning the vessel. Typically, two or three employees would enter the vessel at a time. Because the floor was covered with nozzles, the employees put plywood down so they could stand inside the vessel. While one employee held an extension ladder, another stood on it and began chipping away the slag built up on the walls. When the slag fell to the ground, a third employee broke up the pieces, known as \u201cclinkers,\u201d into bits small enough to pass through the vessel floor.\nSometimes the slag was minimal, while other times it was several feet thick. In 1990, two Willamette employees were on a scaffold chipping off slag when a two foot thick, doughnut shaped piece broke free and fell to the ground. Although neither employee was injured, they were frightened. They did not report the incident to management, but evidence indicates that at least one supervisor became aware of it several months later. In discovery documents, the remaining supervisors denied knowledge of the 1990 incident.\nIn 1992 plaintiffs decedent Carl Jones, Willamette\u2019s lead boiler, operator, and two others entered the vessel to clean it. The slag was the worst it had ever been and appeared to be approximately three feet thick. As one employee held the ladder, another began chipping the slag from the walls. Jones worked on the floor breaking up clinkers. Suddenly, a fifteen foot sheet of slag fell from the wall and landed on Jones, crushing him. He died six days later.\nAn Occupational Safety and Health Administration (OSHA) investigation following the accident found Willamette in \u201cserious\u201d violation. OSHA found that Willamette did not have a confined space program in place, and described Jones\u2019 death as a \u201cpreventable accident.\u201d OSHA also noted that Willamette had no prior citations against it.\nPlaintiff filed this wrongful death action against Willamette and the individual defendants; alleging claims under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), and Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985). Specifically, plaintiff alleged Willamette\u2019s willful, wanton, and gross negligence because of (1) a lack of training regarding the hazards involved, (2) an absence of safety or rescue equipment, (3) an absence of safety training, advice, or assistance, and (4) a failure to allow adequate maintenance. She alleged that Willamette and the individual defendants were jointly and severally liable because they encouraged ignorance to save money, failed to supervise properly, and failed to take remedial actions.\nDefendants moved for summary judgment. On 16 September 1994 the trial court allowed defendants\u2019 motion and dismissed plaintiffs claims. Plaintiff appeals.\nLewis & Daggett, PA., by Michael Lewis, and Lore & McClearen, by R. James Lore, for plaintiff appellant.\nCranfill, Sumner & Hartzog, L.L.P., by Robert W. Sumner, David H. Batten, and Edward C. LeCarpentier, III, for defendant appellees." }, "file_name": "0591-01", "first_page_order": 625, "last_page_order": 630 }