{ "id": 11241126, "name": "DAVID A. ANDERSON, Ancillary Administrator of the Estate of GARY R. ANDERSON, Plaintiff v. DEMOLITION DYNAMICS, INC., Defendant", "name_abbreviation": "Anderson v. Demolition Dynamics, Inc.", "decision_date": "2000-02-16", "docket_number": "No. COA98-1350", "first_page": "603", "last_page": "611", "citations": [ { "type": "official", "cite": "136 N.C. App. 603" } ], "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": "463 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796106, 796012, 796081, 795953, 796029 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0191-02", "/nc/342/0191-03", "/nc/342/0191-05", "/nc/342/0191-01", "/nc/342/0191-04" ] }, { "cite": "460 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "360-61" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917546 ], "pin_cites": [ { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0753-01" ] }, { "cite": "29 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "140", "parenthetical": "\"[t]he vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details\"" } ], "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "year": 1944, "pin_cites": [ { "page": "15", "parenthetical": "\"[t]he vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details\"" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "206 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565767, 8565735, 8565818, 8565691, 8565791 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0589-03", "/nc/285/0589-02", "/nc/285/0589-05", "/nc/285/0589-01", "/nc/285/0589-04" ] }, { "cite": "204 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1974, "pin_cites": [ { "page": "876" }, { "page": "876" }, { "page": "876" }, { "page": "877" }, { "page": "876" }, { "page": "876-77" }, { "page": "877" }, { "page": "877-78", "parenthetical": "merely telling plaintiff track driver where to make delivery and furnishing directions did not rise to level of supervision and control necessary to establish employment relationship" }, { "page": "878" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556526 ], "weight": 8, "year": 1974, "pin_cites": [ { "page": "458" }, { "page": "459" }, { "page": "460" }, { "page": "459" }, { "page": "459" }, { "page": "460" }, { "page": "461" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0455-01" ] }, { "cite": "448 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "281" }, { "page": "281" }, { "page": "281" }, { "page": "281" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136994 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "583" }, { "page": "583" }, { "page": "583" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0581-01" ] }, { "cite": "477 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867561 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0676-01" ] }, { "cite": "461 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "350" }, { "page": "350" }, { "page": "350" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914135 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "99" }, { "page": "99" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0096-01" ] }, { "cite": "494 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551331, 551217, 551062, 551126, 551135 ], "year": 1997, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0410-01", "/nc/347/0410-04", "/nc/347/0410-05", "/nc/347/0410-02", "/nc/347/0410-03" ] }, { "cite": "487 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "793", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11791839 ], "year": 1997, "pin_cites": [ { "page": "40", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0033-01" ] } ], "analysis": { "cardinality": 821, "char_count": 16760, "ocr_confidence": 0.762, "pagerank": { "raw": 2.568869401540872e-07, "percentile": 0.816060125513109 }, "sha256": "d787eb2998c23229a971555b25879d35c1735007541c54574566c6fd4f528c18", "simhash": "1:0be5dd3705af2e46", "word_count": 2694 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and EDMUNDS concur." ], "parties": [ "DAVID A. ANDERSON, Ancillary Administrator of the Estate of GARY R. ANDERSON, Plaintiff v. DEMOLITION DYNAMICS, INC., Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff David A. Anderson, ancillary administrator of the estate of Gary R. Anderson (decedent), appeals the trial court\u2019s grant of defendant Demolition Dynamics, Inc.\u2019s motion for summary judgment. For the reasons stated below, we reverse and remand to the trial court for further proceedings.\nPertinent facts and procedural history include the following: Plaintiff initiated the instant wrongful death suit 22 August 1996. Decedent died 19 August 1995 as a result of injuries suffered when he fell from an abandoned conveyor structure in a quarry. At the time, decedent and several employees of defendant were preparing the structure for demolition by means of explosives.\nIn his complaint, plaintiff alleged, inter alia, that defendant, through its agents and employees,\n[negligently and wantonly undermined the structural integrity of the conveyor system while Plaintiff\u2019s decedent Gary R. Anderson was working on the bridge conveyor frame,\nand that such negligence was the proximate cause of decedent\u2019s death. Included in defendant\u2019s answer was the defense that\n[a]t the time of the incident that forms the subject matter of Plaintiff\u2019s complaint, [decedent] was in the employ of [defendant] and was covered by the provisions of the North Carolina Workers\u2019 Compensation Act, which provides the sole and exclusive remedy to Plaintiff.\nOn the basis of the foregoing, defendant subsequently moved to dismiss for lack of subject matter jurisdiction, or alternatively for summary judgment. Following a hearing, the trial court entered summary judgment in favor of defendant 2 July 1998. Plaintiff timely appealed.\nThe Workers\u2019 Compensation Act (the Act), N.C.G.S. \u00a7 97-10.1 (1991), provides:\nIf the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.\nIn addition, this Court has stated that\nan employee\u2019s remedies are exclusive as against the employer where the injury is caused by an accident arising out of and in the course of employment. Thus, the exclusivity provision of the Act precludes a claim for ordinary negligence, even when the employer\u2019s conduct constitutes willful or wanton negligence.\nWake County Hosp. Sys. v. Safety Nat. Casualty Corp., 127 N.C. App. 33, 40, 487 S.E.2d 789, 793, disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997) (citation omitted).\nSummary judgment is appropriately granted when\nthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\nN.C.G.S. \u00a7 1A-1, Rule 56(c) (1990). A summary judgment movant bears the burden of showing either that (1) an essential element of the non-movant\u2019s claim is nonexistent; (2) the non-movant is unable to produce evidence which supports an essential element of its claim; or, (3) the non-movant cannot overcome affirmative defenses raised in contravention of its claims. Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev\u2019d on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, accepting the latter\u2019s asserted facts as true, and drawing all reasonable inferences in its favor. Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994).\nPlaintiff contends the record reflects a genuine factual issue as to whether decedent was an employee of defendant. We agree.\nIt is undisputed that decedent was employed by a separate but related company, D.H. Griffin Wrecking Company (Griffin Wrecking). D.H. Griffin, Sr., (Mr. Griffin), his son, and Steve Pettigrew (Pettigrew), a former co-worker of decedent, formed defendant company to provide Griffin Wrecking with explosive demolition capabilities. The two companies often worked together on demolition projects, and decedent likewise was regularly involved with such projects.\nDefendant maintains decedent, at the time of his death, was an employee of both Griffin Wrecking and defendant and that plaintiff\u2019s claim alleging negligence by defendant is barred by the exclusivity provisions of the Act. However, plaintiff contends decedent was solely an employee of Griffin Wrecking and that plaintiff\u2019s wrongful death action against defendant may therefore proceed.\n[Situations may exist under which an employee may properly be considered to be in the joint employment of two employers so that both become jointly responsible to pay compensation if the employee is injured by accident arising out of and in the course of such employment.\nCollins v. Edwards, 21 N.C. App. 455, 458, 204 S.E.2d 873, 876, cert. denied, 285 N.C. 589, 206 S.E.2d 862 (1974). Our courts utilize the following three-prong \u201cspecial employer\u201d test to determine whether an employee may be deemed to have joint employers for purposes of the Act. See id. at 459, 204 S.E.2d at 876.\nWhen a general employer lends an employee to a special employer, the special employer becomes liable for workmen\u2019s compensation only if:\n(a) the employee has made a contract of hire, express or implied, with the special employer;\n(b) the work being done is essentially that of the special employer; and\n(c) the special employer has the right to control the details of the work.\nWhen all three of the above conditions are satisfied in relation to both employers, both employers are liable for worker\u2019s compensation.\n3 Arthur Larson & Lex K. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 67 (1999) [hereinafter Larson], cited with approval in Collins, 21 N.C. App. at 459, 204 S.E.2d at 876. Continuance of the \u201cgeneral\u201d employment is presumed, and the party asserting otherwise must make a \u201cclear demonstration that a new... employer [was] substituted for the old.\u201d Larson \u00a7 67.02, quoted, in Collins, 21 N.C. App. at 460, 204 S.E.2d at 877.\nAccordingly, in order to prevail on its summary judgment motion, defendant was required to show, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350, that it was an employer of decedent, i.e., that: (1) decedent made a contract for hire with defendant; (2) the work being done at the time of the accident was the work of defendant; and, (3) defendant had the right to control the detail of decedent\u2019s work, see Collins, 21 N.C. App. at 459, 204 S.E.2d at 876. For purposes of our ruling herein, we assume arguendo that the second prong of the special employer test has been met. However, we conclude the record reveals genuine issues of material fact as to the remaining prongs.\nEmployee is defined in the Act as\nevery person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written....\nN.C.G.S. \u00a7 97-2(2) (Supp. 1998). As this Court has previously noted,\n[b]ecause of this statutory requirement that the employment be under an \u201cappointment or contract of hire,\u201d . . . the first question which must be answered in determining whether a lent employee has entered into an employment relationship with a special employer for [purposes of the Act] is: Did he make a contract of hire with the special employer? If this question cannot be answered \u201cyes,\u201d the investigation is closed ....\nCollins, 21 N.C. App. at 459, 204 S.E.2d at 876-77. The contract requirement is crucial because\nthe employee loses certain rights along with those gained when striking up a new employment relation. Most important of all, he or she loses the right to sue the special employer at common law for negligence; and . . . the courts have usually been vigilant in insisting upon a showing of a deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit.\nLarson \u00a7 67.01[2].\nIn the case sub judice, defendant makes no argument nor does the record reflect that decedent entered into a written employment contract with defendant. Nonetheless, defendant asserts decedent \u201cexpressly accepted . . . employment\u201d by defendant for the quarry demolition job which resulted in decedent\u2019s death. Defendant points to evidence that decedent, after being contacted by Pettigrew, sought permission from Mr. Griffin to work at the site and maintains that by coming to the site, decedent \u201caccepted that assignment.\u201d These actions standing alone do not conclusively satisfy the contract for employment prong of the special employer test.\nMoreover, additional evidence was presented through the deposition testimony of Mr. Griffin, Pettigrew, and decedent\u2019s widow tending to show the following:\n(1) Decedent was paid by and insured through Griffin Wrecking, although defendant reimbursed Griffin Wrecking for forty percent of decedent\u2019s salary;\n(2) Defendant neither paid payroll taxes on behalf of decedent nor claimed him as an employee for insurance purposes;\n(3) Decedent represented to third parties that he was an employee of Griffin Wrecking;\n(4) Decedent drove a Griffin Wrecking truck and used tools and safety equipment provided by Griffin Wrecking; however, at the demolition site the explosives were provided by defendant;\n(5) Mr. Griffin gave decedent his assignments and decedent sought Mr. Griffin\u2019s permission to work on jobs with defendant; and,\n(6) Griffin Wrecking was the general contractor at the demolition site and defendant a subcontractor, indicating decedent might have been present as a representative of either Griffin Wrecking or defendant.\nMost notable among the foregoing is evidence concerning how decedent himself viewed his employment status, because an employment \u201crelationship could not [have] arise [n] without his express or implied consent.\u201d Collins, 21 N.C. App. at 460, 204 S.E.2d at 877. Although defendant presented evidence indicating decedent had obtained licenses and permits pertaining to explosives using defendant\u2019s name, such evidence is at least counterbalanced by the following exchange during the deposition of decedent\u2019s widow.\nQ: At all times that you talked to [decedent], did he tell you and others that he was employed by [Griffin Wrecking]?\nA: Yes.\nQ: Did you talk to [decedent] about who he believed he was employed by?\nA: Yes, sir.\nQ: What did he tell you?\nA: D.H. Griffin Wrecking Company.\nQ: Did [decedent] in your presence ever tell other people by whom he was employed?\nA: Yes, sir.\nQ: And what did he say?\nA: D.H. Griffin Wrecking Company.\nQ: Had he ever told you that he was employed by [defendant]?\nA: No, sir.\nConsideration of all the above evidence in the light most favorable to plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, raises at a minimum a genuine factual issue as to the first prong of the special employer test, i.e., whether there was an employment contract between defendant and decedent.\nThe third prong, control of the detail of the work, may be the most significant. See Hayes v. Elon College, 224 N.C. 11, 15, 29 S.E.2d 137, 140 (1944) (\u201c[t]he vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details\u201d). We therefore examine the record regarding whether decedent accepted control and direction from defendant.\nTaking the evidence presented in the light most favorable to plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, we note that although Pettigrew, supervisor of the demolition project, directed decedent regarding what needed to be done, no evidence was presented that the latter was told how to do the specific tasks assigned, see Collins, 21 N.C. App. at 461, 204 S.E.2d at 877-78 (merely telling plaintiff track driver where to make delivery and furnishing directions did not rise to level of supervision and control necessary to establish employment relationship); cf. Brown v. Friday Services, Inc., 119 N.C. App. 753, 760, 460 S.E.2d 356, 360-61 (decedent accepted assignment from general employer to work with special employer and \u201cperformed the work at the direction and under the supervision of\u201d special employer who \u201ccontrolled the details of decedent\u2019s work\u201d; decedent therefore qualified as employee of special employer), disc. review denied, 342 N.C. 191, 463 S.E.2d 234 (1995).\nIn his deposition, Pettigrew stated decedent was an explosive demolition expert who was \u201cinstructed to complete the final wiring and placement of charges at the quarry floor\u201d and who \u201cwas in charge of the bottom charges\u201d while Pettigrew was \u201cin charge of the horizontals.\u201d Deposition testimony of Mr. Griffin also tended to show decedent was in charge of part of the demolition:\nQ: Who does the analysis of where to do the cuts [on the structure to be demolished]?\nA: On that particular job, I would imagine it would have been [decedent]. It\u2019d either have been [decedent] or [Pettigrew], I really don\u2019t know, one of the two would have been in charge.\nMr. Griffin continued by noting that he \u201cthought [decedent] was gonna do it on this one\u201d and that decedent \u201cdid, when he was on jobs for [Pettigrew], do it all.\u201d Finally, Chris Jones (Jones), a co-worker present at the scene, was asked in his deposition, \u201cdid you understand that [Pettigrew] was in charge of bringing the structure down?\u201d Jones responded, \u201cyes, I was \u2014 I listened to both, I mean [decedent]\u2014 him and \u2014 him and [decedent] are more or less equals, I would say.\u201d\nTestimony of Pettigrew, Mr. Griffin and Jones therefore reflects that decedent, an expert, was \u201cin charge\u201d of at least part of the demolition and not subject to Pettigrew\u2019s control over how the bottom charges were to be wired or other details of his work. Taken in the light most favorable to plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, such evidence\nhardly amounts to such supervision and control over [decedent\u2019s] activities as to justify implying therefrom that [decedent]... was thereby consenting to enter into some type of special employment relationship,\nCollins, 21 N.C. App. at 461, 204 S.E.2d at 878, with defendant. In short, defendant at best has shown a genuine issue of material fact as to the third prong of the special employer test, defendant\u2019s control over the details of decedent\u2019s work.\nTo summarize, given the evidence presented to the trial court by both parties as to whether there existed a contract for hire between defendant and decedent and as to the nature of defendant\u2019s right to control the detail of decedent\u2019s work, see id. at 459, 201 S.E.2d at 876, we conclude defendant failed to meet its summary judgment burden, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350, of showing decedent was a joint employee of defendant and Griffin Wrecking, and thereby failed to establish that plaintiff\u2019s claim was barred by the affirmative defense, see id., of the exclusivity provisions of the Act. Accordingly, the trial court\u2019s grant of defendant\u2019s motion for summary judgment must be reversed.\nReversed.\nJudges LEWIS and EDMUNDS concur.\n. This treatise has recently been restructured and most sections renumbered. Previous cases of this Court therefore cite to \u00a7 48, which has now been renumbered \u00a7 67.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Twiggs, Abrams, Strickland & Trehy, P.A., by ' Douglas B. Abrams, and Iraelson, Salsbury, Clements & Beckman, by Stewart M. Salsbury and Leslie Hayes Russo, for plaintiff-appellant.", "Smith, Helms, Mulliss & Moore, L.L.P., by Jon Berkelhammer, Andrew S. Chamberlin, and Manning A. Connors, III, for defendant-appellee." ], "corrections": "", "head_matter": "DAVID A. ANDERSON, Ancillary Administrator of the Estate of GARY R. ANDERSON, Plaintiff v. DEMOLITION DYNAMICS, INC., Defendant\nNo. COA98-1350\n(Filed 16 February 2000)\nEmployer and Employee\u2014 employment by defendant \u2014 genuine issue of material fact\nAlthough defendant contends decedent was barred from bringing this wrongful death action because the exclusive remedy would be under the Workers\u2019 Compensation Act since decedent was a joint employee of defendant and Griffin Wrecking, the trial court erred by granting defendant\u2019s motion for summary judgment because there is a genuine issue of material fact under the \u201cspecial employer\u201d test concerning whether decedent was an employee of defendant based on: (1) whether there existed a contract for hire between defendant and decedent; and (2) the nature of defendant\u2019s right to control the detail of decedent\u2019s work.\nAppeal by plaintiff from judgment entered 2 July 1998 by Judge W. Erwin Spainhour in Guilford County Superior Court. Heard in the Court of Appeals 19 August 1999.\nTwiggs, Abrams, Strickland & Trehy, P.A., by ' Douglas B. Abrams, and Iraelson, Salsbury, Clements & Beckman, by Stewart M. Salsbury and Leslie Hayes Russo, for plaintiff-appellant.\nSmith, Helms, Mulliss & Moore, L.L.P., by Jon Berkelhammer, Andrew S. Chamberlin, and Manning A. Connors, III, for defendant-appellee." }, "file_name": "0603-01", "first_page_order": 637, "last_page_order": 645 }