{ "id": 9081348, "name": "CLYDE BENJAMIN BAKER, JR. and wife, BRENDA L. BAKER, CECIL L. BERRY, JR. and wife, DIANA PRICE BERRY, ROBERT LEE BROWN, DONALD R. CAMPBELL and wife, TOMMIE JO CAMPBELL, MELVIN EDWARD CARTER and wife, WANDA J. CARTER, HERBERT E. HALL and wife, KATHLEEN B. HALL, JAMES M. HOLT, SR. and wife, DOROTHY HOLT, FLOYD ISOM, SR. and wife, BEULA LAWSON ISOM, WALTER LEE JONES and wife, BETTY B. JONES, ALBERT W. LAWS and wife, BRENDA C. LAWS, MILDRED E. LAWS and husband, DAVID LAWS, KENDALL R. LINKER, CLYDE CARL MARSH, JOHN G. MILLER, JAMES D. PARKS and wife, LORETTA PARTS, and MARY FRANCIS PRICE, Plaintiffs v. ARTHUR LEE IVESTER, Defendant", "name_abbreviation": "Baker v. Ivester", "decision_date": "2002-05-21", "docket_number": "No. COA01-258", "first_page": "406", "last_page": "411", "citations": [ { "type": "official", "cite": "150 N.C. App. 406" } ], "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": "426 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "employer's duty to provide safe workplace generally is nondelegable" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524100 ], "year": 1993, "pin_cites": [ { "parenthetical": "employer's duty to provide safe workplace generally is nondelegable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0026-01" ] }, { "cite": "281 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "165-66" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. 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App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524101 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/116/0364-01" ] }, { "cite": "325 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "248" }, { "page": "248" }, { "parenthetical": "employer's duty to provide safe workplace generally is nondelegable" } ], "opinion_index": 0 }, { "cite": "312 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749409 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "714, 715" }, { "parenthetical": "employer's duty to provide safe workplace generally is nondelegable" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0710-01" ] }, { "cite": "239 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "244" } ], "opinion_index": 0 }, { "cite": "293 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567203 ], "year": 1977, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0731-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] }, { "cite": "545 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135880 ], "year": 2001, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0445-01" ] }, { "cite": "538 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134800 ], "year": 2000, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0737-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "353", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "pin_cites": [ { "page": "491", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0488-01" ] }, { "cite": "534 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497849 ], "year": 2000, "pin_cites": [ { "page": "784-85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0778-01" ] }, { "cite": "186 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "year": 1972, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] } ], "analysis": { "cardinality": 748, "char_count": 13280, "ocr_confidence": 0.741, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21408796420177392 }, "sha256": "44278f6b7e993aac872c42b2d7b38472be491b66ca4d2315981acc78a928a7b3", "simhash": "1:7708bedc282a2dec", "word_count": 2078 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge McCULLOUGH concur." ], "parties": [ "CLYDE BENJAMIN BAKER, JR. and wife, BRENDA L. BAKER, CECIL L. BERRY, JR. and wife, DIANA PRICE BERRY, ROBERT LEE BROWN, DONALD R. CAMPBELL and wife, TOMMIE JO CAMPBELL, MELVIN EDWARD CARTER and wife, WANDA J. CARTER, HERBERT E. HALL and wife, KATHLEEN B. HALL, JAMES M. HOLT, SR. and wife, DOROTHY HOLT, FLOYD ISOM, SR. and wife, BEULA LAWSON ISOM, WALTER LEE JONES and wife, BETTY B. JONES, ALBERT W. LAWS and wife, BRENDA C. LAWS, MILDRED E. LAWS and husband, DAVID LAWS, KENDALL R. LINKER, CLYDE CARL MARSH, JOHN G. MILLER, JAMES D. PARKS and wife, LORETTA PARTS, and MARY FRANCIS PRICE, Plaintiffs v. ARTHUR LEE IVESTER, Defendant" ], "opinions": [ { "text": "BIGGS, Judge.\nPlaintiffs are former employees, and spouses of former employees, of Fieldcrest Cannon, Inc. (Fieldcrest). Defendant was employed by Fieldcrest as an industrial hygienist, from 1976 to 1997. In 1997, plaintiffs filed suit against defendant, four other Fieldcrest employees, and Fieldcrest, seeking damages for illness and injury caused by workplace exposure to asbestos. On 28 May 1998, the trial court divided the plaintiffs into four classes, designated A, B, C, and D. The present appeal involves only the Class C group: plaintiffs and spouses who (a) worked for Fieldcrest within ten years of filing the complaint, and (b) had claims only against the individual defendants, but not against Fieldcrest. On 1 July 1998, after the case was severed into four plaintiff classes, defendant, with the others who had been sued, moved for summary judgment. Prior to argument on the summary judgment motion, the plaintiffs entered a voluntary dismissal against all parties sued except Ivester, the defendant in the present appeal. The motion was heard on 7 April 2000, and on 1 September 2000, the trial court granted summary judgment in favor of defendant. Plaintiffs appeal from this order.\nSummary judgment is proper \u201cif the 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.\u201d N.C.G.S. \u00a7 1A-1, 56(c) (2001). \u201cAn issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.\u201d Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). \u201cOnce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts,, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\u201d Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000). However, \u201cthe party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.\u201d Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citation omitted).\nOn appeal, this Court\u2019s standard of review involves a two-step inquiry, to determine if (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law. Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted). Furthermore, \u201cthe evidence presented by the parties must be viewed in the light most favorable to the non-movant.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\nIn the instant case, plaintiffs have filed suit against defendant, who is their co-employee, for damages associated with exposure to asbestos while working at Fieldcrest. Plaintiffs do not contend that there is any issue of material fact, and acknowledge that \u201c[t]he facts are not in dispute.\u201d However, plaintiffs contend that the trial court erred by finding defendant entitled to judgment as a matter of law. Consequently, we first review the law governing claims by an employee against a co-employee.\n\u201cThe Workmen\u2019s Compensation Act . . . [bars] an employee subject to the Act whose injuries arise out of and in the course of his employment [from maintaining] a common law action against a negligent co-employee.\u201d Strickland v. King and Sellers v. King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977). However, the North Carolina Supreme Court has recognized that the Workers\u2019 Compensation Act does not prevent an employee from bringing a suit against a co-employee for intentional torts, \u201cwillful, wanton and reckless negligence,\u201d or behavior that is \u201cmanifestly indifferent to the consequences.\u201d Pleasant v. Johnson, 312 N.C. 710, 714, 715, 325 S.E.2d 244, 248 (1985). The Court defined the relevant terms as follows:\n\u2018[W]anton\u2019 conduct [is] an act manifesting a reckless disregard for the rights and safety of others. The term \u2018reckless\u2019, as used in this context, appears to be merely a synonym for \u2018wanton[.]\\ . . . The term \u2018willful negligence\u2019 has been defined as the 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. A breach of duty may be willful while the resulting injury is still negligent. . . . Even in cases involving \u2018willful injury,\u2019 however, the intent to inflict injury need not be actual. Constructive 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.\nId. at 714-15, 325 S.E.2d at 248. The issue, therefore, is whether defendant\u2019s conduct, viewed in the light most favorable to the plaintiff, was willful, wanton, or reckless, so as to fall within the Pleasant exception. A review of the case law since Pleasant suggests that, on the facts of this case, the exclusivity provision of the Workman\u2019s Compensation Act precludes plaintiffs from maintaining a common law action against defendant.\nIn Echols v. Zarn, Inc., 116 N.C. App. 364, 448 S.E.2d 289 (1994), aff\u2019d 342 N.C. 184, 463 S.E.2d 228 (1995), plaintiff was injured when she performed a machine operation in violation of company rules, on instructions from defendant, who was plaintiff\u2019s supervisor, and in charge of enforcing safety rules. On these facts, the Court found the evidence insufficient to support \u201can inference that [defendant] intended that plaintiff be injured or that she was manifestly indifferent to the consequences of [plaintiff\u2019s actions.]\u201d Id. at 376, 448 S.E.2d at 296. See also Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993) (\u201c[defendants] may have known certain dangerous parts of the machine were unguarded when they instructed [plaintiff] to work at the machine, [but] we do not believe this supports an inference that they intended that [plaintiff] be injured or that they were manifestly indifferent to the consequences of his doing so.\u201d)\nThis Court recently addressed a situation similar to that of Pendergrass and Echols, in which the plaintiff, while under the influence of prescribed medication, was injured when she operated a machine at the direction of her supervisor, who (1) was in charge of employee safety; (2) knew of the machine\u2019s danger; and (3) also.knew about plaintiffs medication. This Court held that \u201c[i]n light of the holdings in Echols and Pendergrass, we do not believe [defendant\u2019s] actions support an inference that he intended that plaintiff be injured or was manifestly indifferent to the consequences of her operating the picker machine.\u201d Bruno v. Concept Fabrics, Inc., 140 N.C. App. 81, 87, 535 S.E.2d 408, 412-13, (2000).\nIn the case sub judice, it is not disputed that plaintiffs and defendant were co-employees of Fieldcrest. Defendant was employed as a supervisor in Fieldcrest\u2019s industrial hygiene department. His role at Fieldcrest was to make the company\u2019s management aware of health problems, such as exposure to cotton dust, excessive noise, and asbestos, and to assist in developing recommendations and policies for responding to these industrial health risks. Defendant was also the company\u2019s senior industrial hygienist in the area of asbestos abatement. As such, defendant chaired Fieldcrest\u2019s asbestos subcommittee, within the company\u2019s Environmental Compliance committee, and made recommendations to Fieldcrest management regarding environmental and statutory guidelines for asbestos abatement. He was also responsible for keeping Fieldcrest\u2019s management apprised of relevant OSHA regulations; developing a corporate plan for management of asbestos; and assisting the company president with monitoring and reviewing Fieldcrest\u2019s compliance with asbestos safety regulations.\nNothing in the record suggests that defendant had personal contact with any of the plaintiffs; nor do plaintiffs contend that defendant had an actual intent to injure individual plaintiffs. Rather, plaintiffs apparently contend that defendant\u2019s job performance was so deficient that as a matter of law it constituted willful, wanton, and reckless negligence. We do not agree.\nFieldcrest, as plaintiffs\u2019 employer, had the duty to provide its employees with \u201ca place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to his employees[.]\u201d N.C.G.S. \u00a7 95-129(1) (1999). Indeed, \u201c[i]t is well established in our jurisprudence that an employer must exercise the due care of a prudent person ... to provide a safe place for employees to work.\u201d Macklin v. Dowler, 53 N.C. App. 488, 490, 281 S.E.2d 164, 165-66 (1981).\nPlaintiffs appear to argue that, by assigning defendant tasks pertaining to asbestos abatement, Fieldcrest shifted their responsibility for workplace safety to defendant. However, as previously discussed, defendant owed his co-employees only the duty to exercise reasonable care and to avoid willful, wanton and recklessly negligent conduct. Pleasant, 312 N.C. 710, 325 S.E.2d 244. Plaintiffs have presented no evidence that Fieldcrest\u2019s obligations were transferred to defendant. See Brooks v. BCF Piping, 109 N.C. App. 26, 426 S.E.2d 282 (1993) (employer\u2019s duty to provide safe workplace generally is nondelegable). Thus, plaintiffs\u2019 evidence tending to suggest that Fieldcrest may have breached its duty of care towards its employees does not establish a cause of action against defendant.\nPlaintiffs failed to present evidence that defendant breached any duty owed to individual plaintiffs, or that he acted with actual or constructive intent to injure any individual plaintiffs. Further, plaintiffs have not cited any basis upon which to hold defendant individually liable for an industrial disease. There is nothing in the record indicating that defendant concealed from Fieldcrest, which had the legal responsibility for workplace safety, the fact that asbestos was an issue requiring Fieldcrest\u2019s attention. The record establishes that Fieldcrest was informed of its responsibility to ensure the safety of its employees in regard to exposure to asbestos, and that defendant participated in the company\u2019s efforts to address asbestos-related problems.\nWe conclude that the record evidence clearly establishes as a matter of law that defendant did not engage in the type of \u2018willful, reckless and wanton\u2019 conduct contemplated by the holding of Pleasant. We further conclude that, on the record before the trial court, the entry of summary judgment for defendant was not error. Accordingly, we affirm the trial court.\nAffirmed.\nChief Judge EAGLES and Judge McCULLOUGH concur.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Wallace and Graham, P.A., by Michael B. Pross, Edward L. Pauley and Mona Lisa Wallace, for plaintiff-appellants.", "Anderson, Korzen & Associates, P.C., by John J. Korzen for plaintiff-appellant.", "Harry C. Martin, for plaintiff-appellant.", "Smith Helms Mulliss & Moore, L.L.P, by Jeri L. Whitfield, Manning A. Connors and Stephanie E. Stark, for defendant-appellee.", "North Carolina Academy of Trial Lawyers, by Stella A. Boswell, for amicus curiae." ], "corrections": "", "head_matter": "CLYDE BENJAMIN BAKER, JR. and wife, BRENDA L. BAKER, CECIL L. BERRY, JR. and wife, DIANA PRICE BERRY, ROBERT LEE BROWN, DONALD R. CAMPBELL and wife, TOMMIE JO CAMPBELL, MELVIN EDWARD CARTER and wife, WANDA J. CARTER, HERBERT E. HALL and wife, KATHLEEN B. HALL, JAMES M. HOLT, SR. and wife, DOROTHY HOLT, FLOYD ISOM, SR. and wife, BEULA LAWSON ISOM, WALTER LEE JONES and wife, BETTY B. JONES, ALBERT W. LAWS and wife, BRENDA C. LAWS, MILDRED E. LAWS and husband, DAVID LAWS, KENDALL R. LINKER, CLYDE CARL MARSH, JOHN G. MILLER, JAMES D. PARKS and wife, LORETTA PARTS, and MARY FRANCIS PRICE, Plaintiffs v. ARTHUR LEE IVESTER, Defendant\nNo. COA01-258\n(Filed 21 May 2002)\nWorkers\u2019 Compensation\u2014 asbestos abatement \u2014 negligence action by one employee against another \u2014 no willful, reckless or wanton conduct\nThe trial court did not err by entering summary judgment for defendant in an action seeking damages for injuries caused by workplace exposure to asbestos where plaintiffs and defendants were co-employees of Fieldcrest; defendant was employed as a supervisor in Fieldcrest\u2019s industrial hygiene department with asbestos responsibilities; there was nothing in the record to suggest that defendant had personal contact with any of the plaintiffs; and plaintiffs do not contend that defendant had an actual intent to injure the individual plaintiffs. The record clearly establishes that defendant did not engage in the type of willful, reckless and wanton conduct contemplated by the exception to Workers\u2019 Compensation ban on common law actions between employees.\nAppeal by plaintiffs from summary judgment entered 1 September 2000 by Judge Robert M. Burroughs in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 February 2002.\nWallace and Graham, P.A., by Michael B. Pross, Edward L. Pauley and Mona Lisa Wallace, for plaintiff-appellants.\nAnderson, Korzen & Associates, P.C., by John J. Korzen for plaintiff-appellant.\nHarry C. Martin, for plaintiff-appellant.\nSmith Helms Mulliss & Moore, L.L.P, by Jeri L. Whitfield, Manning A. Connors and Stephanie E. Stark, for defendant-appellee.\nNorth Carolina Academy of Trial Lawyers, by Stella A. Boswell, for amicus curiae." }, "file_name": "0406-01", "first_page_order": 436, "last_page_order": 441 }