{
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  "name": "DONALD EARL WHITAKER and THOMAS LEE WHITAKER, JR., Co-Administrators of the Estate of CARLTON WHITAKER, Deceased, Plaintiffs v. TOWN OF SCOTLAND NECK, C.T. HASTY, Individually and in his official capacity as Safety Director for the Town of Scotland Neck, and DOUGLAS BRADDY, Individually and in his official capacity as Public Works Superintendent for the Town of Scotland Neck, Defendants",
  "name_abbreviation": "Whitaker v. Town of Scotland Neck",
  "decision_date": "2002-12-17",
  "docket_number": "No. COA02-22",
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    "judges": [
      "Judges TYSON and THOMAS concur."
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    "parties": [
      "DONALD EARL WHITAKER and THOMAS LEE WHITAKER, JR., Co-Administrators of the Estate of CARLTON WHITAKER, Deceased, Plaintiffs v. TOWN OF SCOTLAND NECK, C.T. HASTY, Individually and in his official capacity as Safety Director for the Town of Scotland Neck, and DOUGLAS BRADDY, Individually and in his official capacity as Public Works Superintendent for the Town of Scotland Neck, Defendants"
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        "text": "EAGLES, Chief Judge.\nDonald and Thomas Whitaker (\u201cplaintiffs\u201d) appeal from summary judgment in favor of the Town of Scotland Neck (\u201cdefendant\u201d). Plaintiffs are co-administrators of the estate of Carlton Whitaker (\u201cdecedent\u201d). Charles Hasty, the town\u2019s Safety Director, and Douglas Braddy, the town\u2019s Public Works Superintendent, were also named as defendants. On appeal, plaintiffs assert one assignment of error: that the trial court erred in granting defendant\u2019s motion for summary judgment. After careful review of the record, briefs, and arguments by counsel, we agree and reverse and remand for further proceedings.\nThe evidence tends to show the following. Carlton Whitaker was employed by defendant Town of Scotland Neck before his death. On 30 July 1997, decedent was assigned to a crew operating Scotland Neck\u2019s garbage truck Number 84. The other men on the crew were Danny Wood and Fred Shields. The truck\u2019s route included the dumpster at Hobgood Academy. Mr. Wood, who was driving Truck Number 84, used the mechanical arms of the truck to pick up the Academy\u2019s dumpster. While the dumpster was in the air being emptied into the back of the truck, it came partially detached from the truck\u2019s mechanical arms. The dumpster swung loose and pinned decedent against the side of the garbage truck. Decedent died from the resulting crush injury to his chest twenty-eight days later.\nDefendant\u2019s Safety Director Hasty investigated the accident on the date it occurred. His report confirmed that the dumpster became loose while it was being lifted in the air because of a defective latching device on Truck Number 84. Several town employees also stated that the dumpster at Hobgood Academy previously had fallen to the side of a garbage truck in a similar fashion while being emptied approximately three weeks before the accident on 30 July 1997. According to several employees, the earlier incident had been reported to Public Works Superintendent Braddy, but he did not take action to fix the truck or the dumpster until after decedent\u2019s accident. Woods and Shields testified in depositions that they told Braddy the dumpster at Hobgood Academy was unsafe and that Truck Number 84 had a broken locking latch. Shields estimated that the latch had been broken for two to three months. Another town employee, Linwood Clark, stated the latch had been broken for six months. Braddy denied having knowledge of the earlier accident and denied knowledge of any defect in the truck or dumpster involved in decedent\u2019s death.\nThe North Carolina Department of Labor\u2019s Division of Occupational Safety and Health (\u201cOSHA\u201d) performed an investigation of the accident, which began on 15 August 1997. OSHA found five \u201cserious\u201d violations by the Town of Scotland Neck stemming from the accident on 30 July 1997. These violations included citations for failure to train employees in a safe manner of operating the garbage truck equipment, failure to supervise employees in the operation of the equipment, failure to set up a program ensuring inspection of the equipment, operating unsafe equipment and operating equipment in an unsafe manner. The OSHA report stated that \u201cdefective equipment was the proximate cause of the accident\u201d and \u201cthe accident. . . was a result of employment conditions that were not in compliance with the safety standards of OSHA.\u201d The report found that \u201cwith reasonable diligence and routine inspection employer could and should have known\u201d of the broken latch on Truck Number 84. Defendant town was assigned a penalty of $10,500 as a result of the violations found in the OSHA report.\nPlaintiffs filed a claim in superior court on behalf of decedent\u2019s estate alleging gross negligence and wanton misconduct and seeking compensatory and punitive damages. Defendant responded that plaintiffs\u2019 claim was barred by the North Carolina Workers\u2019 Compensation Act and that recovery under the Act was plaintiffs\u2019 exclusive remedy against defendant. Defendant\u2019s first motion to dismiss was denied by an order entered 26 April 2001. Defendant did not respond to plaintiffs\u2019 request for admissions that were filed on 25 June 2001. Defendant renewed its motion for summary judgment, which was granted by order on 15 August 2001. From that order, plaintiffs appeal.\nOn appeal, plaintiffs argue that the trial court erred in granting defendant\u2019s motion for summary judgment. Plaintiffs argue that decedent\u2019s accident fits within an exception to the North Carolina Workers\u2019 Compensation Act. Because a genuine issue of material fact exists regarding whether defendant\u2019s actions were \u201csubstantially certain\u201d to cause decedent\u2019s death, we agree that summary judgment was not proper.\nThe North Carolina Workers\u2019 Compensation Act is the sole remedy in most cases for employees who suffer from employment-related diseases and injuries. G.S. \u00a7 97-1 et seq. (2001). The Workers\u2019 Compensation Act was created to \u201cprovide certain limited benefits to an injured employee regardless of negligence on the part of the employer, and simultaneously to deprive the employee of certain rights he had at the common law.\u201d Brown v. Motor Inns, 47 N.C. App. 115, 118, 266 S.E.2d 848, 849, disc. review denied 301 N.C. 86, 273 S.E.2d 300 (1980).\nIn 1991, the North Carolina Supreme Court created an exception to the general rule that the Workers\u2019 Compensation Act was the sole remedy for injured employees. The exception outlined in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), addresses intentional misconduct by employers:\nWe hold that when 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, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Act. Because, as also discussed in a subsequent portion of this opinion, the injury or death caused by such misconduct is nonetheless the result of an accident under the Act, workers\u2019 compensation claims may also be pursued. There may, however, only be one recovery.\nWoodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991). According to Woodson, if employers committed the equivalent of an intentional tort, employees would be allowed to step outside the bounds of the Workers\u2019 Compensation Act and sue employers for their injuries. Woodson v. Rowland, 329 N.C. 330, 341, 407 S.E.2d 222, 228-29 (1991).\nSince creation of the Woodson exception, a number of employees have asked courts to apply the exception to allow their claims outside of the Workers\u2019 Compensation Act. Before this case, no claim has been brought successfully under the Woodson exception. In an attempt to clarify when the Woodson exception should be applied, this Court listed the factors to be used when determining whether an employer engaged in misconduct with substantial certainty of causing his employee harm. See Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 513 S.E.2d 829 (1999). The Wiggins case analyzed the cases following Woodson and created a list of six factors to use when defining substantial certainty:\n(1) Whether the risk that caused the harm existed for a long period of time without causing injury. . . .\n(2) Whether the risk was created by a defective instrumentality with a high probability of causing the harm at issue... .\n(3) Whether there was evidence the employer, prior to the accident, attempted to remedy the risk that caused the harm. . ..\n(4) Whether the employer\u2019s conduct which created the risk violated state or federal work safety regulations.\n(5)Whether the defendant-employer created a risk by failing to adhere to an industry practice, even though there was no violation of a state or federal safety regulation.\n(6) Whether the defendant-employer offered training in the safe behavior appropriate in the context of the risk causing the harm.\nWiggins v. Pelikan, Inc., 132 N.C. App. 752, 756-58, 513 S.E.2d 829, 832-33 (1999) (citations omitted). Here, plaintiffs presented evidence of the existence of five out of these six factors by using several depositions. Defendant responded by denying plaintiffs\u2019 evidence and asking the court to measure plaintiffs\u2019 evidence against similar post-Woodson claims. The trial court then granted defendant\u2019s motion for summary judgment.\nA motion for summary judgment should only be granted if \u201cthere is no genuine issue as to any material fact\u201d and \u201cany party is entitled to judgment as a matter of law.\u201d G.S. \u00a7 1A-1, Rule 56 (2001). Summary judgment should be used to \u201celiminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim ... is exposed.\u201d Hall v. Post, 85 N.C. App. 610, 613, 355 S.E.2d 819, 822 (1987), rev\u2019d on other grounds, 323 N.C. 259, 372 S.E.2d 711 (1988) (quoting Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 642, 281 S.E.2d 36, 40 (1981)). \u201cSummary judgment is a drastic remedy and should be exercised with caution.\u201d Southern Watch Supply v. Regal Chrysler-Plymouth, 69 N.C. App. 164, 165, 316 S.E.2d 318, 319, disc. review denied, 312 N.C. 496, 322 S.E.2d 560 (1984), appeal after remand, 82 N.C. App. 21, 345 S.E.2d 453 (1986). In a case where \u201cthere is any question that can be resolved only by the weight of the evidence, summary judgment should be denied.\u201d In re Will of McCauley, 356 N.C. 91, 101, 565 S.E.2d 88, 95 (2002) (citing Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979)).\nSummary judgment was improper here because this case involves a question that can be resolved only by weighing the evidence presented. Plaintiffs presented some evidence regarding defendant employer\u2019s acting with \u201csubstantial certainty\u201d of causing plaintiff\u2019s decedent serious bodily injury, by offering proof of the existence of most of the Wiggins factors. Plaintiffs\u2019 affidavits and pleadings tended to show that the risk that caused decedent\u2019s death had existed for a relatively short but significant amount of time. Conflicting deposition testimony places the defect in existence at least three weeks before decedent\u2019s accident and possibly as long as six months before the accident. Plaintiffs\u2019 evidence showed that the defective instrumentality, in this case equipment on Truck Number 84, created a risk with a high probability of injuring a town employee in the same manner that decedent was injured. The third factor of the Wiggins test was satisfied by plaintiffs\u2019 claim that the Town\u2019s Public Works Superintendent Braddy knew of the defect and did not attempt to repair the defective Truck Number 84 in order to prevent injury. Also, plaintiffs\u2019 evidence demonstrated that the employer\u2019s conduct created the risk. The conduct creating the risk violated state and federal workplace safety regulations and failed to adhere to industry safety standards. Plaintiffs cite five serious violations by defendant according to the OSHA report in addition to violations of standards contained within the Accident Prevention Manual, which is produced by the National Safety Council.\nEvidence presented by defendant contradicted most of plaintiffs\u2019 proffered evidence. Defendant argued that there had been no similar accidents before the one that killed decedent, that Braddy had no knowledge of the defective truck and did not refuse to fix it, and that the OSHA citations were correctly denominated as \u201cserious\u201d violations instead of \u201cwillful\u201d violations.\nThe parties here have essentially disagreed on several issues of material fact, most importantly, whether defendant employer, through its Public Works Superintendent Braddy, knew of the defective condition of Truck Number 84 before decedent was killed on the job. Even were we to find that all the factual matters were resolved, in a case where a balancing of factors is necessary, summary judgment is inappropriate. The question of whether defendant acted with substantial certainty that its actions would cause decedent\u2019s death must be resolved by weighing the facts presented to the court. Accordingly, we conclude that the trial court erred by granting defendant Town\u2019s motion for summary judgment. Because we find error and reverse the trial court\u2019s decision, we do not determine whether defendants Hasty and Braddy may be sued in their individual capacities. Hasty and Braddy\u2019s liability as individuals depends upon a factual finding by the trial court that they are public employees who are not entitled to governmental immunity for their actions. We reverse and remand to the trial court for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges TYSON and THOMAS concur.",
        "type": "majority",
        "author": "EAGLES, Chief Judge."
      }
    ],
    "attorneys": [
      "Joynes & Gaidies Law Group, P.A., by Frank D. Lawrence, III, for plaintiff-appellants.",
      "Cranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan and Donna R. Rascoe, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "DONALD EARL WHITAKER and THOMAS LEE WHITAKER, JR., Co-Administrators of the Estate of CARLTON WHITAKER, Deceased, Plaintiffs v. TOWN OF SCOTLAND NECK, C.T. HASTY, Individually and in his official capacity as Safety Director for the Town of Scotland Neck, and DOUGLAS BRADDY, Individually and in his official capacity as Public Works Superintendent for the Town of Scotland Neck, Defendants\nNo. COA02-22\n(Filed 17 December 2002)\nWorkers\u2019 Compensation\u2014 Woodson claim \u2014 town employee\u2014 summary judgment improper\nThe trial court erred by granting summary judgment for defendant town on a Woodson claim for the death of a town employee who was killed when a dumpster partially detached from a garbage truck and struck the employee because of a defective latching device on the truck for the reason that a genuine issue of material fact exists regarding whether defendant\u2019s actions were substantially certain to cause death.\nAppeal by plaintiffs from order entered 15 August 2001 by Judge Dwight L. Cranford in Halifax County Superior Court. Heard in the Court of Appeals 28 October 2002.\nJoynes & Gaidies Law Group, P.A., by Frank D. Lawrence, III, for plaintiff-appellants.\nCranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan and Donna R. Rascoe, for defendant-appellees."
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