{ "id": 4347625, "name": "JOAN F. TRIVETTE and TERRY TRIVETTE, Husband and Wife, Plaintiffs v. PETER EDWARD YOUNT, Defendant", "name_abbreviation": "Trivette v. Yount", "decision_date": "2011-12-20", "docket_number": "No. COA11-446", "first_page": "477", "last_page": "488", "citations": [ { "type": "official", "cite": "217 N.C. App. 477" } ], "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": "643 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638095 ], "year": 2007, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0566-01" ] }, { "cite": "661 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640992, 12640993, 12640991 ], "year": 2008, "pin_cites": [ { "page": "242-43" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0242-02", "/se2d/661/0242-03", "/se2d/661/0242-01" ] }, { "cite": "648 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639058 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/648/0235-01" ] }, { "cite": "670 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642400 ], "year": 2009, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/se2d/670/0581-01" ] }, { "cite": "416 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "198", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313813 ], "year": 1992, "pin_cites": [ { "page": "155", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0146-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "317 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526461 ], "year": 1984, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0471-01" ] }, { "cite": "446 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12138241 ], "year": 1994, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0651-01" ] }, { "cite": "362 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "561-62", "parenthetical": "supervisor of injured employee classified as co-employee" } ], "opinion_index": 0 }, { "cite": "321 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569579 ], "year": 1987, "pin_cites": [ { "page": "240-41", "parenthetical": "supervisor of injured employee classified as co-employee" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0236-01" ] }, { "cite": "343 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "227", "parenthetical": "\"Under the law[,] public school teachers are hired, promoted, dismissed, and disciplined by their employer, the local school board.\" (Emphasis added)" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 656", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525387 ], "year": 1986, "pin_cites": [ { "page": "659", "parenthetical": "\"Under the law[,] public school teachers are hired, promoted, dismissed, and disciplined by their employer, the local school board.\" (Emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0656-01" ] }, { "cite": "212 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568958 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0488-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 115", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "325 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "247" }, { "page": "246" }, { "page": "250", "parenthetical": "\"It would be a travesty of justice and logic to permit a worker to injure a co-employee through such conduct, and then compel the injured co-employee to accept moderate benefits under the Act.\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749409 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "713" }, { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0710-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "year": 1991, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "364 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358631 ], "year": 1988, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0577-01" ] }, { "cite": "148 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "267 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559844 ], "year": 1966, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0545-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "266 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548326 ], "year": 1980, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0115-01" ] }, { "cite": "693 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 853", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "678 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167793 ], "year": 2009, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0586-01" ] }, { "cite": "361 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738344 ], "year": 2007, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0265-01" ] }, { "cite": "362 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150737 ], "year": 2008, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0352-01" ] }, { "cite": "185 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209557 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/185/0303-01" ] }, { "cite": "676 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "363 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "194 N.C. App. 779", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4163401 ], "year": 2009, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0779-01" ] }, { "cite": "566 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081673 ], "year": 2002, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0622-01" ] }, { "cite": "526 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "670", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092295 ], "year": 2000, "pin_cites": [ { "page": "142", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0138-01" ] }, { "cite": "487 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "805" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 95", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11792372 ], "year": 1997, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0095-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "334", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "733", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "391 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "488", "parenthetical": "where the Supreme Court was reviewing whether one company acted as the agent or alter-ego of another company" } ], "opinion_index": 1 }, { "cite": "326 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304859 ], "year": 1990, "pin_cites": [ { "page": "523", "parenthetical": "where the Supreme Court was reviewing whether one company acted as the agent or alter-ego of another company" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0522-01" ] }, { "cite": "321 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "506" } ], "opinion_index": 1 }, { "cite": "71 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523740 ], "year": 1984, "pin_cites": [ { "page": "53" } ], "opinion_index": 1, "case_paths": [ "/nc-app/71/0048-01" ] }, { "cite": "441 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "171" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527089 ], "year": 1994, "pin_cites": [ { "page": "67-68" } ], "opinion_index": 1, "case_paths": [ "/nc-app/114/0061-01" ] }, { "cite": "416 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "198" } ], "opinion_index": 1 }, { "cite": "106 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313813 ], "year": 1992, "pin_cites": [ { "page": "154" } ], "opinion_index": 1, "case_paths": [ "/nc-app/106/0146-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 1 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "year": 1991, "pin_cites": [ { "page": "340-41" } ], "opinion_index": 1, "case_paths": [ "/nc/329/0330-01" ] } ], "analysis": { "cardinality": 1102, "char_count": 26215, "ocr_confidence": 0.736, "pagerank": { "raw": 1.1967415926350717e-07, "percentile": 0.5926857125647094 }, "sha256": "c4b435cd0ec0bbbad054a0922cefbde375552f0db3cbf87409c2f5232b71eda9", "simhash": "1:1bb9400647eb27f5", "word_count": 4136 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCGEE concurs.", "Judge ELMORE dissents in a separate opinion." ], "parties": [ "JOAN F. TRIVETTE and TERRY TRIVETTE, Husband and Wife, Plaintiffs v. PETER EDWARD YOUNT, Defendant" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nPeter Edward Yount (\u201cDefendant\u201d) appeals the trial court\u2019s order denying his motion to dismiss and denying his motion for summary judgment. On appeal, Defendant contends the trial court erred by (1) exercising subject matter jurisdiction over this matter, as Plaintiffs\u2019 remedy is limited to relief under the Workers\u2019 Compensation Act and (2) denying Defendant\u2019s motion for summary judgment because even if the trial court\u2019s jurisdiction was proper, Defendant\u2019s conduct as alleged does not constitute willful, wanton, and reckless negligence. After careful review, we affirm.\nI. Factual & Procedural Background\nIn October 2008, Defendant was employed as the principal of William Lenoir Middle School. Joan Trivette worked as an office assistant in the school\u2019s front office. Ms. Trivette\u2019s duties included answering telephones and performing general secretarial work for Defendant.\nOn 23 October 2008, a student discharged a fire extinguisher in one of the school\u2019s classrooms. Upon investigation, Defendant determined the safety pin had been removed from the fire extinguisher. To avoid further incident, Defendant directed the school custodian to place the fire extinguisher in the front office of the school. The following day, Defendant placed the fire extinguisher on or near Ms. Trivette\u2019s desk. According to Ms. Trivette, Defendant began joking around and pretended to spray Ms. Trivette with the fire extinguisher. Suddenly, the fire extinguisher discharged, spraying Ms. Trivette with a powder-like chemical substance. Defendant admits handling the fire extinguisher at the precise moment it discharged, but asserts he intended only to move the fire extinguisher into his office for \u201csafety precautions,\u201d and, further, he was not joking around with the fire extinguisher, nor did he point it at Ms. Trivette.\nA few days after the incident, Ms. Trivette experienced a sharp pain in her chest and sought medical treatment. It was determined that Ms. Trivette had inhaled some of the powder-like substance emitted from the fire extinguisher, causing damage to her lungs and aggravating a preexisting neuromuscular condition. Prior to the incident, Ms. Trivette was an active bike rider and bowled regularly with the school\u2019s bowling team. Presently, Ms. Trivette has difficulty with basic activities, such as vacuuming, showering, and styling her own hair.\nOn 23 March 2010, Ms. Trivette and her husband Terry Trivette (collectively, \u201cPlaintiffs\u201d) filed a complaint against Defendant alleging gross negligence and loss of consortium. The complaint alleges Defendant\u2019s actions aggravated Ms. Trivette\u2019s pre-existing medical condition and caused her serious permanent bodily injury. The complaint further alleges Ms. Trivette has incurred medical and other expenses, lost wages, and a decreased earning capacity as a result of Defendant\u2019s conduct.\nDefendant filed an answer to Plaintiffs\u2019 complaint on 2 June 2010. In his answer, Defendant raises several defenses: (1) Plaintiffs failed to state a claim upon which relief could be granted, as Defendant was immune from suit pursuant to governmental or sovereign immunity; (2) the trial court lacked personal jurisdiction over Defendant and also lacked subject matter jurisdiction; (3) Plaintiffs\u2019 claims were barred by the doctrines of waiver, laches, or estoppel; (4) Plaintiffs failed to mitigate their damages; and (5) Plaintiffs failed to state aggravating factors to support an award of punitive damages.\nOn 26 August 2010, Plaintiffs amended their complaint to allege that Defendant and the Caldwell County Board of Education waived the defense of sovereign immunity by purchasing insurance. On 28 September 2010, Defendant filed an answer to the amended complaint, raising an additional defense: Ms. Trivette sustained her injuries while working within the scope of her employment, and, therefore, Plaintiffs\u2019 claims were barred by the exclusivity of the North Carolina Worker\u2019s Compensation Act.\nOn 8 October 2010, Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure, asserting: (1) the trial court lacked subject matter jurisdiction over Plaintiffs\u2019 claims, as the North Carolina Workers\u2019 Compensation Act provided Plaintiffs\u2019 exclusive remedy, and (2) Defendant was entitled to summary judgment because, viewing the facts in the light most favor to Plaintiffs, no genuine issue of material fact existed and Defendant\u2019s alleged conduct, as a matter of law, did not amount to willful, wanton, and reckless negligence. The trial court denied Defendant\u2019s motion in an order entered 16 November 2010. Defendant filed a Notice of Appeal with this Court on 13 December 2010.\nII. Jurisdiction\nWe note at the outset the trial court\u2019s order denying Defendant\u2019s motion to dismiss pursuant to Rule 12(b)(1) and motion for summary judgment pursuant to Rule 56(c) is interlocutory. An order is interlocutory \u201cif it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.\u201d N.C. Dept. of Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995) (citation omitted). The trial court\u2019s order in the case at bar is interlocutory because it did not address and dispose of Plaintiffs\u2019 loss of consortium claim.\nThe general rule is that an interlocutory order is not immediately appealable to this Court. See Barrett v. Hyldburg, 127 N.C. App. 95, 98, 487 S.E.2d 803, 805 (1997). An exception to this rule lies where the order affects a substantial right. See N.C. Gen. Stat. \u00a7 l-277(a) (2009); N.C. Gen. Stat. \u00a7 7A-27(d)(l) (2009). \u201cA substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.\u201d Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (quotation marks and citation omitted). \u201cThe burden is on the appealing party to establish that a substantial right will be affected.\u201d Id. \u201cWhether an interlocutory appeal affects a substantial right is determined on a case by case basis.\u201d McConnell v. McConnell, 151 N.C. App. 622, 625, 566 S.E.2d 801, 803 (2002).\nIn Burton v. Phoenix Fabricators & Erectors, Inc., the plaintiffs brought wrongful death actions against the defendant-employer alleging the defendant\u2019s intentional tortious conduct resulted in the death of their husbands, who had been employed by the defendant. 194 N.C. App. 779, 781, 670 S.E.2d 581, 582, review denied, 363 N.C. 257, 676 S.E.2d 900 (2009). The defendant moved to dismiss the plaintiffs\u2019 suit pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure, contending the trial court lacked subject matter jurisdiction as plaintiffs\u2019 remedy was limited to relief under the Workers\u2019 Compensation Act. Id. at 781, 676 S.E.2d at 583. The trial court denied the defendant\u2019s motion. Id. This Court affirmed the trial court\u2019s ruling in Burton v. Phoenix Fabricators & Erectors, Inc., 185 N.C. App. 303, 648 S.E.2d 235 (2007). Upon review, however, our Supreme Court specifically held that the trial court\u2019s denial of a defendant-employer\u2019s motion to dismiss based on asserted immunity under the Worker\u2019s Compensation Act \u201caffects a substantial right and will work injury if not corrected before final judgment.\u201d Burton v. Phoenix Fabricators & Erectors, Inc., 362 N.C. 352, 352, 661 S.E.2d 242, 242-43 (2008). Accordingly, we must conclude the trial court\u2019s order in the instant case affects a substantial right and this Court exercises jurisdiction over Defendant\u2019s appeal pursuant to North Carolina General Statutes \u00a7\u00a7 l-277(a) and 7A-27(d)(l).\nIII. Analysis\nA. Subject Matter Jurisdiction\nDefendant first contends the trial court erred in denying his Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, as Plaintiffs\u2019 relief is limited to a claim under the Workers\u2019 Compensation Act. We disagree.\nRule 12(b)(1) permits a party to contest, by motion, the jurisdiction of the trial court over the subject matter in controversy. See N.C. R. Civ. P. 12(b)(1). \u201cWe review Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction de novo and may consider matters outside the pleadings.\u201d Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007). \u201cPursuant to the de novo standard of review, \u2018the court considers the matter anew and freely substitutes its own judgment for that of the [trial court].\u2019 \u201d Blow v. DSM Pharm., Inc., 197 N.C. App. 586, 588, 678 S.E.2d 245, 248 (2009), review denied, 363 N.C. 853, 693 S.E.2d 917 (2010) (citation omitted) (alteration in original).\nThe purpose of the North Carolina Worker\u2019s Compensation Act (\u201cthe Act\u201d) is 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 of Carolina, Inc., 47 N.C. App. 115, 118, 266 S.E.2d 848, 849 (1980). According to the Act, \u201cevery employer and employee . . . shall be presumed to have accepted the provisions of [the Act] respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of his employment and shall be bound thereby.\u201d N.C. Gen. Stat. \u00a7 97-3 (2009).\nThe facts before this Court establish Ms. Trivette sustained injuries while working within the scope of her employment as an office assistant at William Lenoir Middle School. Consequently, the Act is applicable to Ms. Trivette\u2019s injuries.\n\u201cWhere the employer and the employee are subject to ... the Act, the rights and remedies therein granted to the employee exclude all other rights and remedies in his favor against the employer.\u201d Bryant v. Dougherty, 267 N.C. 545, 548, 148 S.E.2d 548, 551 (1966). \u201cAn employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the Act with respect to compensable injuries.\u201d McAllister v. Cone Mills Corp., 88 N.C. App. 577, 580, 364 S.E.2d 186, 188 (1988). Our Supreme Court, however, has carved out two exceptions to the exclusivity of the Act. First, an employee may pursue a common law action against his employer where the \u201cemployer 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.\u201d Woodson v. Rowland, 329 N.C. 330, 340, 407 S.E.2d 222, 228 (1991). Second, an employee may recover in a civil action against a co-employee for injuries received as a result of the co-employee\u2019s intentional or willful, wanton and reckless conduct (hereinafter referred to as \u201cthe Pleasant exception\u201d). Pleasant v. Johnson, 312 N.C. 710, 713, 325 S.E.2d 244, 247 (1985).\nPlaintiffs\u2019 claim alleges Ms. Trivette\u2019s injuries were the result of Defendant\u2019s willful, wanton, and reckless conduct. The pivotal issue, therefore, is whether Defendant was properly classified as Ms. Trivette\u2019s employer or co-employee at the time of the incident. If Defendant was Ms. Trivette\u2019s employer, Plaintiffs\u2019 remedy is limited to relief under the Act, as Plaintiffs have not alleged intentional conduct in their complaint. On the other hand, if Defendant and Ms. Trivette were co-employees, Plaintiffs may proceed with their common law cause of action against Defendant directly under the Pleasant exception.\nDefendant contends that \u201cas the top person [in] the school system,\u201d he must be classified as Ms. Trivette\u2019s employer. We note that our General Statutes define a school principal as \u201c[t]he executive head of the school.\u201d See N.C. Gen. Stat. \u00a7 115C-5(7) (2009). However, \u201cexecutive\u201d is not synonymous with \u201cemployer.\u201d Nor can we agree with Defendant\u2019s assertion he is the \u201ctop person\u201d in the school system. Our General Statutes carefully delineate a hierarchy of administrators within the public school system. The State Board of Education heads our public school system, see N.C. Gen. Stat. \u00a7 115C-10 (2009), and the local county school board has \u201cgeneral control and supervision of all matters pertaining to the public school in their respective administrative units.\u201d N.C. Gen. Stat. \u00a7 115C-36 (2009). The local school board has the power to elect and remove a superintendent of schools. N.G. Gen. Stat. \u00a7 115C-271 (2009). The superintendent recommends principals for election by the local school board. N.C. Gen. Stat. \u00a7 115C-284(a) (2009).\nMoreover, the powers and duties of a secondary school principal are set forth in exhaustive detail in North Carolina General Statutes \u00a7 115C-288. None of these powers vests a secondary school principal with the authority to employ any person in any position. See N.C. Gen. Stat. \u00a7 115C-288 (2009). A principal\u2019s responsibilities include supervision of the teachers at the school and \u201cany other part of the instructional program.\u201d N.C. Gen. Stat. \u00a7 115C-287.1(a)(3) (2009). While \u201cany other part of the instructional program\u201d is not defined by statute, this language clearly vests Defendant with supervisory responsibilities extending beyond supervision of teachers at the school. These responsibilities reasonably include supervision of an office assistant, such as Ms. Trivette.\nWe note it is well established that both a principal and the teachers under the principal\u2019s supervision are considered employees of the local school board. See N.C. Gen. Stat. \u00a7 115-325C et seq. (2009); Taylor v. Crisp, 286 N.C. 488, 212 S.E.2d 381 (1975); Warren v. Buncombe County Bd. of Educ., 80 N.C. App. 656, 659, 343 S.E.2d 225, 227 (1986) (\u201cUnder the law[,] public school teachers are hired, promoted, dismissed, and disciplined by their employer, the local school board.\u201d (Emphasis added)). In light of this precedent, we cannot conclude that Defendant was Ms. Trivette\u2019s employer. The school board, which is responsible for paying the salaries of all school employees, see N.C. Gen. Stat. \u00a7 115C-47(21) (2009), is properly classified as the employer of both Defendant and Ms. Trivette.\nWe conclude Defendant is more properly classified as Ms. Trivette\u2019s \u201cimmediate supervisor.\u201d Our courts have defined an immediate supervisor as a \u201cco-employee\u201d for purposes of workers\u2019 compensation. See Abernathy v. Consol. Freightways Corp., 321 N.C. 236, 240-41, 362 S.E.2d 559, 561-62 (1987) (supervisor of injured employee classified as co-employee); McCorkle v. Aeroglide Corp., 115 N.C. App. 651, 653, 446 S.E.2d 145, 147-48 (1994). The facts indicate Ms. Trivette worked directly under Defendant\u2019s supervision performing secretarial tasks, further supporting the conclusion that Defendant was her immediate supervisor. Because Defendant is Ms. Trivette\u2019s immediate supervisor, not her employer, Defendant and Ms. Trivette are co-employees for purposes of workers\u2019 compensation.\nThe dissent relies primarily upon the fact that Defendant hired Ms. Trivette as evidence that Defendant is Ms. Trivette\u2019s employer. We are unaware of any authority establishing that the power to hire is dis-positive on this issue. Furthermore, it is seldom true in today\u2019s world that the \u201chiring\u201d party \u2014 that is, the party physically extending the invitation of employment through an interview process or otherwise\u2014 is the legal employer. The employer often delegates the task of hiring to mid-level management. This is precisely what happened in the instant case, as Defendant acted on behalf of the school board in hiring Ms. Trivette.\nIn sum, Ms. Trivette and Defendant are co-employees for purposes of workers\u2019 compensation. As Plaintiffs have alleged Defendant\u2019s conduct was willful, wanton, and recklessly negligent, Plaintiffs may proceed with their claim against Defendant directly under the Pleasant exception. Accordingly, we hold the trial court correctly denied Defendant\u2019s motion to dismiss.\nB. Summary Judgment\nDefendant further contends the trial court erred in denying his motion for summary judgment pursuant to Rule 56(c) of the North Carolina Rules of Civil Procedure. Again, we disagree.\nA motion for summary judgment is appropriately granted where \u201cthe 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. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009). \u201cSummary judgment is a somewhat drastic remedy and should be granted cautiously, especially in actions alleging negligence as a basis of recovery.\u201d Dumouchelle v. Duke Univ., 69 N.C. App. 471, 473, 317 S.E.2d 100, 102 (1984). \u201cThe party moving for summary judgment has the burden of establishing the'lack of any triable issue.\u201d Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). On appeal, this Court must review the entire record, viewing all evidence in the light most favorable to the non-moving party. Id.\nDefendant asserts he is entitled to summary judgment because no genuine issue of material fact remains, and, viewing the evidence in the light most favorable to Plaintiffs, his conduct did not amount to willful, wanton, and reckless negligence as a matter of law.\n\u201c \u2018Wanton\u2019 and \u2018reckless\u2019 conduct is such conduct \u2018manifesting a reckless disregard for the rights and safety of others.\u2019 \u201d Dunleavy v. Yates, 106 N.C. App. 146, 155, 416 S.E.2d 193, 198 (1992) (citation omitted). \u201c \u2018Willful negligence\u2019 is \u2018the 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.\u2019 \u201d Id. (citation omitted).\nOur Supreme Court\u2019s ruling in Pleasant is particularly instructive, as the facts of that case are analogous to the facts presented in the instant case. In Pleasant, the plaintiff was walking across a parking lot towards his work site when the defendant, his co-employee, struck and seriously injured the plaintiff with his truck. 312 N.C. at 711, 325 S.E.2d at 246. At trial, the defendant testified he had been \u201cjoking\u201d and intended only \u201cto scare the plaintiff by blowing the horn and by operating the truck close to him.\u201d Id. Our Supreme Court concluded these facts demonstrated willful, wanton, and recklessly negligent conduct and allowed the plaintiff to proceed with his claim outside the Act. Id. at 717-18, 325 S.E.2d at 250 (\u201cIt would be a travesty of justice and logic to permit a worker to injure a co-employee through such conduct, and then compel the injured co-employee to accept moderate benefits under the Act.\u201d).\nIn the case sub judice, Defendant discovered that a student had removed the safety pin from a fire extinguisher. Exercising caution, Defendant instructed the custodian to move the fire extinguisher away from the students and into the school\u2019s front office. The following day, despite knowing the safety pin was missing, and despite having acknowledged the risks posed by the fire extinguisher by moving it into the front office, Defendant placed the fire extinguisher on Ms. Trivette\u2019s desk. Viewing the evidence in the light most favorable to Plaintiffs, Defendant then picked up the fire extinguisher and pretended to spray Ms. Trivette in a joking manner. Ms. Trivette stated in her affidavit that she warned Defendant \u201cto stop joking around and to put the extinguisher down before it went off.\u201d After urging Defendant to replace the safety pin and to remove the fire extinguisher from her desk, Defendant replied: \u201cOh, you\u2019re being such a baby, nothing is going to happen.\u201d The fire extinguisher discharged, spraying Ms. Trivette\u2019s body and face. The spray aggravated Ms. Trivette\u2019s preexisting neuromuscular condition causing extensive injury.\nThe evidence when viewed in the light most favorable to Plaintiffs indicates Defendant was aware of the risks posed by his \u201cjoke,\u201d but proceeded to act at Ms. Trivette\u2019s expense. This is evidence from which a jury could reasonably conclude Defendant\u2019s practical joke manifested a reckless disregard for Ms. Trivette\u2019s safety, thereby constituting willful, wanton, and recklessly negligent conduct. Therefore, summary judgment is not appropriate at this stage of the proceedings and the trial court correctly denied Defendant\u2019s motion.\nIV. Conclusion\nFor the foregoing reasons, the trial court\u2019s order is\nAffirmed.\nJudges MCGEE concurs.\nJudge ELMORE dissents in a separate opinion.\n. Ms. Trivette was diagnosed with myasthenia gravis in 1991. Prior to the incident in question, she had been in remission and off medication since 1996.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." }, { "text": "ELMORE, Judge,\ndissenting.\nI respectfully disagree with the majority\u2019s conclusion that defendant should be classified as Ms. Trivette\u2019s co-employee. As a result, I would reverse and remand the trial court\u2019s order, with instructions to grant defendant\u2019s motion to dismiss.\nThe majority states that defendant\u2019s argument on appeal is that he is \u201cthe top person in the school system.\u201d In turn, the majority provides a detailed hierarchy of the administrators within the public school system, in an attempt to refute defendant\u2019s claim. However, it is clear from defendant\u2019s brief filed with this Court, that the majority has misstated defendant\u2019s argument. In his brief, defendant does not argue that he is the top person in the school system-, rather, he argues that as principal, he is the top person in the school in which he is employed. Defendant further argues that as principal of his school, he is an officer and agent' of the school board, and thus, he is properly classified as Ms. Trivette\u2019s employer. I agree with defendant\u2019s argument.\nAs the majority has noted, our General Statutes define a school principal as \u201c[t]he executive head of the school.\u201d See N.C. Gen. Stat. \u00a7 115C-5(7) (2009). This Court has further established that a school principal is a public officer. See Gunter v. Anders, 114 N.C. App. 61, 67-68, 441 S.E.2d 167, 171 (1994). In Gunter, this Court reviewed whether the principal and the superintendent of a particular school system were considered officers or employees of the school board for purposes of liability. We held in Gunter that both superintendents and principals are properly classified as public officers, not employees. Furthermore, in Abell v. Nash County Bd. of Education, 71 N.C. App. 48, 53, 321 S.E.2d 502, 506 (1984), this Court established that \u201c[b]y statute and under traditional common-law principles, then, the superintendent and principal are agents of the board.\u201d Thus, as principal of his school, defendant was both an officer and agent of the school board.\nAn agent may also be referred to as an \u201calter-ego.\u201d See State ex rel. Utilities Com. v. Southern Bell Tel. & Tel. Co., 326 N.C. 522, 523, 391 S.E.2d 487, 488 (1990) (where the Supreme Court was reviewing whether one company acted as the agent or alter-ego of another company). Therefore, defendant, as an agent of the school board, may also be classified as an \u201calter-ego\u201d of the school board. This Court has established that one way to determine whether an individual is a co-employee or employer for purposes of Workers\u2019 Compensation is to determine whether that person is the \u201cemployer in person [or] a person who is realistically the alter ego of the [employer.]\u201d Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 154, 416 S.E.2d 193, 198 (1992). Here, defendant was an officer, agent, and alter-ego of the employer, the school board. Thus, defendant should be classified as Ms. Trivette\u2019s employer at the time of the incident.\nAs the majority has indicated, the exclusivity of the Workers\u2019 Compensation Act does not apply to common law actions by an employee against her employer when that action is based on the intentional conduct of the employer. Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991). Here, plaintiffs have not alleged intentional conduct in their complaint. Therefore, I believe that plaintiffs\u2019 relief is limited to a claim under the Workers\u2019 Compensation Act. The decision of the trial court should be reversed, and this case should be remanded to the trial court with instruction to grant defendant\u2019s motion to dismiss.", "type": "dissent", "author": "ELMORE, Judge," } ], "attorneys": [ "Law Offices of Amos & Kapral, LLP, by Stephen M. Kapral, Jr., and T. Dean Amos, for Plaintiff-appellees.", "Doughton & Hart PLLC, by Thomas J. Doughton and Amy L. Rich, for Defendant-appellant." ], "corrections": "", "head_matter": "JOAN F. TRIVETTE and TERRY TRIVETTE, Husband and Wife, Plaintiffs v. PETER EDWARD YOUNT, Defendant\nNo. COA11-446\n(Filed 20 December 2011)\n1. Appeal and Error \u2014 interlocutory orders and appeals\u2014 denial of 12(b)(6) motion and motion for summary judgment \u2014 Workers\u2019 Compensation immunity\nThe trial court\u2019s order denying defendant\u2019s motion to dismiss pursuant to Rule 12(b)(6) and defendant\u2019s motion for summary judgment was interlocutory, but was immediately appealable. The denial of a motion to dismiss based on asserted immunity under the Workers\u2019 Compensation Act affects a substantial right.\n2. Workers\u2019 Compensation \u2014 immunity\u2014Pleasant exception\nThe trial court correctly denied defendant\u2019s motion to dismiss a negligence action pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) by invoking workers\u2019 compensation immunity. Although defendant, a school principal, claimed to be the employer of plaintiff, an office assistant, defendant was plaintiff's immediate supervisor and thus a co-employee rather than an employer. Since plaintiffs alleged willful, wanton, and recklessly negligent conduct against a co-employee, they may proceed under the Pleasant exception to the Workers\u2019 Compensation Act.\n3. Workers\u2019 Compensation \u2014 immunity\u2014summary judgment denied\nThe trial court correctly denied a motion for summary judgment in an action by an office assistant at a school against the principal arising from a practical joke. When viewed in the light most favorable to plaintiffs, the evidence indicated that defendant was aware of the risks posed by his joke but proceeded to act at defendant\u2019s expense. The jury could reasonably have concluded that defendant\u2019s joke manifested a reckless disregard for plaintiff's safety.\nJudge ELMORE dissenting.\nAppeal by Defendant from order entered 16 November 2010 by Judge Richard D. Boner in Catawba County Superior Court. Heard in the Court of Appeals 27 September 2011.\nLaw Offices of Amos & Kapral, LLP, by Stephen M. Kapral, Jr., and T. Dean Amos, for Plaintiff-appellees.\nDoughton & Hart PLLC, by Thomas J. Doughton and Amy L. Rich, for Defendant-appellant." }, "file_name": "0477-01", "first_page_order": 487, "last_page_order": 498 }