{ "id": 4131873, "name": "LASHANDA SHAW, Plaintiff v. THE GOODYEAR TIRE & RUBBER CO., Defendants", "name_abbreviation": "Shaw v. Goodyear Tire & Rubber Co.", "decision_date": "2013-01-15", "docket_number": "No. COA12-338", "first_page": "90", "last_page": "105", "citations": [ { "type": "official", "cite": "225 N.C. App. 90" } ], "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": "639 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637619, 12637620, 12637621 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/639/0652-01", "/se2d/639/0652-02", "/se2d/639/0652-03" ] }, { "cite": "630 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635993 ], "weight": 2, "pin_cites": [ { "page": "685" }, { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0681-01" ] }, { "cite": "226 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "361 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745288, 3739688, 3741554, 3745749, 3740151, 3743896 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0168-05", "/nc/361/0168-06", "/nc/361/0168-04", "/nc/361/0168-03", "/nc/361/0168-01", "/nc/361/0168-02" ] }, { "cite": "178 N.C. 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App.", "case_ids": [ 9250349 ], "year": 2002, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0421-01" ] }, { "cite": "494 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551331, 551217, 551062, 551126, 551135 ], "year": 1997, "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", "weight": 5, "pin_cites": [ { "page": "793" }, { "page": "793" }, { "page": "792" }, { "page": "792", "parenthetical": "emphasis added" }, { "page": "792" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11791839 ], "weight": 5, "pin_cites": [ { "page": "40-41" }, { "page": "40" }, { "page": "38-39" }, { "page": "38" }, { "page": "38-39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0033-01" ] }, { "cite": "340 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720378 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0500-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 20, "year": 1991, "pin_cites": [ { "page": "225" }, { "page": "335" }, { "page": "225" }, { "page": "335-36" }, { "page": "225" }, { "page": "336" }, { "page": "226" }, { "page": "334" }, { "page": "224" }, { "page": "227-28", "parenthetical": "emphasis added" }, { "page": "341" }, { "page": "228-29", "parenthetical": "citations, quotation marks, ellipses, and brackets omitted" }, { "page": "233", "parenthetical": "citations and quotation marks omitted" }, { "page": "233" } ], "opinion_index": 0 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "weight": 7, "year": 1991, "pin_cites": [ { "page": "334" }, { "page": "348" }, { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0330-01" ] }, { "cite": "316 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "311 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681850 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0294-01" ] }, { "cite": "364 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "188", "parenthetical": "emphasis added" }, { "page": "188" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358631 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "580", "parenthetical": "emphasis added" }, { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0577-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "229 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "814", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550250 ], "year": 1976, "pin_cites": [ { "page": "485", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0481-01" ] }, { "cite": "493 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "464", "parenthetical": "citation, quotation marks, and ellipses omitted" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651936 ], "year": 1997, "pin_cites": [ { "page": "43", "parenthetical": "citation, quotation marks, and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0037-01" ] }, { "cite": "689 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175288 ], "year": 2010, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0509-01" ] } ], "analysis": { "cardinality": 1180, "char_count": 34258, "ocr_confidence": 0.734, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.28854230497608163 }, "sha256": "e672922c27e6d7b6d4e835e089bd7c214c738ab86d31bfc2f146be918a2a1104", "simhash": "1:01a1563ec43d38c4", "word_count": 5427 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR., Robert N. and BEASLEY concur.", "Judge Beasley concurred prior to 18 December 2012." ], "parties": [ "LASHANDA SHAW, Plaintiff v. THE GOODYEAR TIRE & RUBBER CO., Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nThis case presents in a unique procedural posture, with defendant\u2019s appeal from a $450,000,00 jury award to plaintiff for her claim of negligent infliction of emotional distress, arguing, inter alia, that the trial court lacked subject matter jurisdiction. For the following reasons, we agree and vacate the judgment of the trial court.\nI. Background\nThis case is in an unusual procedural posture because it comes to us with facts that have already been determined by a jury. Because the only issue addressed by this Court is subject matter jurisdiction, we recite just the background we deem pertinent for an understanding of the jurisdictional issue before us. In 2007, defendant hired plaintiff \u201cas an Area Manager.\u201d During the course of plaintiff\u2019s employment, she complained that she was being harassed by her male supervisor. Plaintiff\u2019s supervisor\u2019s behavior toward plaintiff was obnoxious and rude; the harassment was verbal and involved some forms of intimidation but did not involve anything of a sexual nature nor did it involve any physical contact with plaintiff. Despite plaintiff\u2019s complaints to the appropriate personnel, plaintiff\u2019s supervisor remained in his position, where he continued to harass her, and eventually, defendant terminated plaintiff\u2019s employment. On 13 January 2010, plaintiff filed a verified amended complaint claiming (1) wrongful discharge, (2) violation of Retaliatory Employment Discrimination Act (\u201cREDA\u201d), (3) tortious interference with contractual rights, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress (\u201cNIED\u201d).\nOn or about 27 August 2010, plaintiff voluntarily dismissed her second claim, the REDA claim. On 8 November 2010, defendant filed a motion for summary judgment. On 21 December 2010, the trial court filed an order regarding defendant\u2019s motion for summary judgment and dismissed plaintiff\u2019s third and fourth claims for tortious interference with contractual rights and intentional infliction of emotional distress. Accordingly, only plaintiff\u2019s first and fifth claims for wrongful discharge and NIED remained at the time of trial. The allegations central to both plaintiff\u2019s wrongful discharge and NIED claims were that plaintiff complained to defendant about the harassment by her supervisor; defendant negligently handled plaintiff\u2019s complaint about the harassment; and defendant\u2019s negligence caused plaintiff\u2019s emotional distress and eventually led to her wrongful discharge.\nSeveral specific issues were submitted to the jury, and on appeal neither party challenges these issues as submitted to the jury. After a lengthy trial, the jury entered the following verdict:\nISSUE ONE:\nDid the defendant intentionally discriminate against the plaintiff because of her race or sex or both when the defendant fired the plaintiff?\n[The jury answered \u201cNo[.]\u201d]\nISSUE TWO:\nDid the defendant retaliate against the plaintiff by firing her for her making a complaint of discrimination based upon her race or sex or both?\n[The jury answered \u201cYes[.]\u201d]\nISSUE THREE:\nWould the defendant have terminated the plaintiff in the absence of race or sex discrimination and/or retaliation for her complaints of discrimination?\nYOU WILL ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED ISSUES 1 OR 2 \u201cYES[\u201d] IN FAVOR OF THE PLAINTIFF.\n[The jury answered \u201cYes[.]\u201d]\nISSUE FOUR:\nDid the plaintiff suffer severe emotional distress as a proximate result of the negligence of the defendant?\n[The jury answered \u201cYes[.]\u201d]\nISSUE FIVE:\nWhat amount of damages is the plaintiff entitled to recover?\nYOU ARE TO ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED ISSUES 1 OR 2 \u201cYES\u201d IN FAVOR OF PLAINTIFF AND ANSWERED ISSUE 3 \u201cNO\u201d OR IF YOU HAVE ANSWERED ISSUE 4 IN FAVOR OF THE PLAINTIFF.\n[The jury answered \u201c$450,000.00[.]\u201d]\nThe jury verdict sheet required that the jury answer Issue Five only in either of two scenarios: (1) \u201cIF [IT HAD] ANSWERED ISSUES 1 OR 2 \u2018YES\u2019 IN FAVOR OF PLAINTIFF AND ANSWERED ISSUE 3 \u2018NO\u2019 \u201d or (2) \u201cIF [IT HAD] ANSWERED ISSUE 4 IN FAVOR OF THE PLAINTIFF.\u201d The jury answered Issue Two \u201cYes[,]\u201d but answered Issue Three \u201cNo[.]\u201d Accordingly, the jury could not award plaintiff a verdict based upon the first two issues. The jury answered Issue Four \u201cYes[,]\u201d and thus the award of $450,000.00 was based solely upon Issue Four regarding plaintiff\u2019s \u201csevere emotional distress as a proximate result of the negligence of defendant.\u201d In summary, the jury did not award plaintiff any damages for her wrongful discharge claim but only for her NIED claim.\nThe jury then considered the issue of punitive damages. The jury entered the following verdict as to punitive damages:\nISSUE ONE:\nIS THE DFENDANT LIABLE TO THE PLAINTIFF FOR PUNITIVE DAMAGES FOR NEGLIGENT INFLICTION OF SEVERE EMOTIONAL DISTRESS?\n[The jury answered \u201cYes[.]\u201d]\nISSUE TWO:\nWHAT AMOUNT OF PUNITIVE DAMAGES, IF ANY, DOES THE JURY IN ITS DISCRETION AWARD TO THE PLAINTIFF?\n(YOU ARE TO ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED THE FIRST \u201cYES\u201d IN FAVOR OF THE PLAINTIFF)\n[The jury answered \u201cNone[.]\u201d[\nOn 8 April 2011, the trial court entered judgment consistent with the jury\u2019s verdict sheets and awarded plaintiff compensatory damages of $450,000.00. Defendant appeals.\nII. Jurisdiction\nDefendant argues that \u201cthe trial court lacked subject matter jurisdiction over plaintiff\u2019s NIED claim, which is barred by the exclusivity provision of the Workers\u2019 Compensation Act.\u201d (Original in all caps.) \u201cWhether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.\u201d McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). It is important to note that the only issue on appeal is the trial court\u2019s jurisdiction as to plaintiff\u2019s NIED claim, and thus we need not consider any of plaintiff\u2019s other claims. Furthermore, the relevant facts have already been determined by the jury, so our analysis is based upon the jury\u2019s verdict and not the allegations or evidence of either party.\nHere, the jury determined that \u201cplaintiff suffered] severe emotional distress as a proximate result of the negligence of the defendant\u201d and awarded plaintiff $450,000.00 as compensation for that claim and that claim only. The jury further determined that defendant is \u201cliable to the plaintiff for punitive damages for negligent infliction of severe emotional distress\u201d but awarded no damages. (Original in all caps.) However, a finding of liability for punitive damages requires that the plaintiff prove \u201cthat the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud. (2) Malice. (3) Willful or wanton conduct.\u201d N.C. Gen. Stat. \u00a7 1D-I5(a) (2007). The jury was properly instructed on the requirements for a finding of liability for punitive damages as to willful or wanton conduct. Plaintiff proved \u201cthat the defendant [was] liable for compensatory damages\u201d as is shown by the jury\u2019s compensatory damages award of $450,000.00. Accordingly, the issue before us is whether the trial court had jurisdiction over plaintiff\u2019s claim for NEID caused by defendant\u2019s willful or wanton negligence.\nA. Willful and/or Wanton Negligence Defined\nHere, the jury has already made the determination that defendant\u2019s negligence was \u201cwillful or wanton.\u201d \u201cWillful negligence arises from the tortfeasor\u2019s deliberate breach of a legal duty owed to another, while wanton negligence is done of a wicked purpose or done needlessly, manifesting a reckless indifference to the rights of others.\u201d Sloan v. Miller Building Corp., 128 N.C. App. 37, 43, 493 S.E.2d 460, 464 (1997) (citation, quotation marks, and ellipses omitted). \u201cWil[l]ful and wanton negligence is conduct which shows either a deliberate intention to harm, or an utter indifference to, or conscious disregard for, the rights or safety of others. Carelessness and recklessness, though more than ordinary negligence, is less than willful[l]ness or wantonness.\u201d Siders v. Gibbs, 31 N.C. App. 481, 485, 229 S.E.2d 811, 814 (1976) (citation and quotation marks omitted). Here, defendant argues that the trial court did not have jurisdiction over plaintiff\u2019s NIED claim caused by defendant\u2019s willful and wanton negligence because the Industrial Commission has exclusive jurisdiction over this type of claim.\nB. The Exclusivity Provisions\nN.C. Gen. Stat. \u00a7 97-9 provides,\nEvery ,employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified.\nN.C. Gen. Stat. \u00a7 97-9 (2007).\nN.C. Gen. Stat. \u00a7 97-10.1, 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.\nN.C. Gen. Stat. \u00a7 97-10.1 (2007).\nThus, this Court and our Supreme Court have agreed that\n[t]he [Workers\u2019 Compensation] Act provides that its remedies are the only remedies an employee has against his or her employer for claims covered by the Act. . . . Even where the complaint alleges willful and wanton negligence and prays for punitive damages, the remedies under the Act are exclusive. An employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the Act with respect to compensable injuries.\nMcAllister v. Cone Mills Corp., 88 N.C. App. 577, 580, 364 S.E.2d 186, 188 (1988) (emphasis added) (citations omitted); see Freeman v. SCM Corporation, 311 N.C. 294, 295-96, 316 S.E.2d 81, 82 (1984) (The \u201cplaintiff filed this action, alleging that her injuries were caused by the gross, willful and wanton negligence and by the intentional acts of defendant.... Since plaintiff was here covered by and subject to the provisions of the Workers\u2019 Compensation Act, her rights and remedies against defendant employer were determined by the Act and she was required to pursue them in the North Carolina Industrial Commission. She could not, in lieu of this avenue of recovery, institute a common law action against her employer in the civil courts of this State.\u201d (citation omitted)). Thus, the only ways in which plaintiff might avoid the exclusive jurisdiction of the Industrial Commission are (1) that her claim falls under an exception to the exclusivity provisions or (2) that her NIED claim was not \u201ccovered by the Act.\u201d McAllister, 88 N.C. App. at 580, 364 S.E.2d at 188. We consider both of these alternatives in turn.\nC. Woodson v. Rowland\nIn 1991, our Supreme Court recognized one exception to the exclusivity provisions with the seminal case of Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). In Woodson, Mr. Thomas Sprouse was working in a trench \u201cto lay sewer lines.\u201d 329 N.C. at 334, 407 S.E.2d at 225. The trench should have had a trench box, but did not in violation of the Occupational Safety and Health Act of North Carolina. Id. at 335, 407 S.E.2d at 225. One foreman did not allow his men to work in the trench because of the dangers posed by the trench without a trench box. Id. Though a trench box was available on site, Mr. Sprouse\u2019s project supervisor, among others, decided not to use it; the trench collapsed and Mr. Sprouse was buried alive. Id. at 335-36, 407 S.E.2d at 225. Mr. Sprouse died as a result of the trench collapse and plaintiff, the administrator of Mr. Sprouse\u2019s estate, sued at the trial court but also\nfiled a Workers\u2019 Compensation claim to meet the filing deadline for compensation claims. In order to avoid a judicial ruling that she had elected a workers\u2019 compensation remedy inconsistent with the civil remedies she presently seeks, plaintiff specifically requested that the Industrial Commission not hear her case until completion of th[e] action [before the trial court]. The Commission . . . complied with her request[.]\nId. at 336, 407 S.E.2d at 226. The defendant requested summary judgment and prevailed at both the trial level and before this Court. Id. Upon further appeal, the question pending before the Supreme Court was \u201cwhether the exclusivity provisions of the Workers\u2019 Compensation Act limit[ed] plaintiff\u2019s remedies to those provided by the Act.\u201d Id. at 334, 407 S.E.2d at 224.\nThe Court then engaged in a thorough analysis of statutory provisions, our case law, and the case law of other jurisdictions reasoning that\n[i]n Pleasant, which involved co-employee liability for recklessly operating a motor vehicle, we concluded that injury to another resulting from willful, wanton and reckless negligence should also be treated as an intentional injury for purposes of our Workers\u2019 Compensation Act. The Pleasant Court expressly refused to consider whether the same rationale would apply to employer misconduct. Nonetheless, Pleasant equated willful, wanton and reckless misconduct with intentional injury for Workers\u2019 Compensation purposes.\nThe plaintiff in Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986), urged us to extend the Pleasant rationale to injuries caused by an employer\u2019s willful and wanton misconduct. The plaintiff, administrator of the estate of the deceased employee, alleged in part that the decedent died as a result of severe burns and other injuries caused by an explosion and fire in the. employer\u2019s plant. On the employer\u2019s motion for summary judgment, the plaintiff\u2019s forecast of evidence, which included the allegations of the complaint, tended to show as follows: the employer utilized ignitable concentrations of flammable gasses and volatile flammable liquids at its plant, violated OSHANC regulations in the use of these substances, covered meters and turned off alarms designed to detect and warn of dangerous levels of explosive gasses and vapors \u2014 all of which resulted in the explosion and fire which caused the employee\u2019s death.\nA majority of this Court in Barrino refused to extend the Pleasant rationale to employer conduct, but only two of the four majority justices expressed the view that the plaintiff\u2019s injuries were solely by accident and that the remedies provided by the Act were exclusive. These two justices relied in part on Freeman v. SCM Corporation, 311 N.C. 294, 316 S.E.2d 81 (1984), a per curiam opinion which concluded that a complaint alleging injuries caused by the willful and wanton negligence of an employer should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure because exclusive jurisdiction rested under the Workers\u2019 Compensation Act with the Industrial Commission.\nThe other two justices in the Barrino majority concurred on the ground that the plaintiff, having accepted workers\u2019 compensation benefits, was thereby barred from bringing a civil suit.\nThe three remaining justices dissented on the ground that the plaintiff\u2019s forecast of evidence was sufficient to raise a genuine issue of material fact as to whether the defendant-employer\u2019s conduct embodies a degree of culpability beyond negligence so as to allow the plaintiff to maintain a civil action. Believing the plaintiff\u2019s forecast of evidence was sufficient to survive summary judgment on the question of whether the employer was guilty of an intentional tort, the Barrino dissenters said:\nAs Prosser states: Intent is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. The death of Lora Ann Barrino the employee was, at the very least, substantially certain to occur given defendants\u2019 deliberate failure to observe even basic safety laws.\nAs discussed in a subsequent portion of this opinion, the dissenters also concluded that the plaintiff was not put to an election of remedies. They thus would have allowed the plaintiff\u2019s common law intentional tort claim to proceed to trial on the theory that the defendant intentionally engaged in conduct knowing it was substantially certain to cause serious injury or death. They would also have allowed the plaintiff to pursue both a workers\u2019 compensation claim and a civil action.\nToday we adopt the views of the Barrino dissent. We 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. We believe this holding conforms with general legal principles and is true to the legislative intent when considered in light of the Act\u2019s underlying purposes.\nId. at 339-41, 407 S.E.2d at 227-28 (emphasis added) (citations, quotation marks, ellipses, and brackets omitted). The Court further explained,\nOur holding is consistent with general concepts of tort liability outside the workers\u2019 compensation context. The gradations of tortious conduct can best be understood as a continuum. The most aggravated conduct is where the actor actually intends the probable consequences of his conduct. One who intentionally engages in conduct knowing that particular results are substantially certain to follow also intends the results for purposes of tort liability. Intent is broader than a desire to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. This is the doctrine of constructive intent. As the probability that a certain consequence will follow decreases, and becomes less than substantially certain, the actor\u2019s conduct loses the character of intent, and becomes mere recklessness. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence.\nProsser discusses the tortious conduct continuum: Lying between intent to do harm, which includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called quasi-intent. To this area, the words willful, wanton, or reckless, are customarily applied; and sometimes, in a single sentence, all three.\nId. at 341, 407 S.E.2d at 228-29 (citations, quotation marks, ellipses, and brackets omitted).\nD. Woodson Exception Noted But Not Applied\nCases subsequent to Woodson have noted its exception to the exclusivity provisions, but these cases have yet to satisfy Woodson\u2019s requirements:\nUnder the Workers\u2019 Compensation Act, an 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. However, an exception to this exclusivity exists for claims meeting the stringent proof standards of Woodson, 329 N.C. 330, 407 S.E.2d 222. Woodson permits a plaintiff to pursue both a workers\u2019 compensation suit and a civil suit against an employer in those narrowly limited cases where injury or death was the result of intentional conduct by an employer which the employer knew was substantially certain to cause serious injury or death. Willful and wanton negligence alone is not enough to establish a Woodson claim,-, a higher degree of negligence is required. The conduct must be so egregious as to be tantamount to an intentional tort.\nWake County Hosp. Sys. v. Safety Nat. Casualty Corp., 127 N.C. App. 33, 40-41, 487 S.E.2d 789, 793 (emphasis added) (citations, quotation marks, ellipses, and brackets omitted) (rejecting Woodson exception for negligent hiring or retention claim where a woman was murdered by co-employee with a criminal record noting that \u201cthe only allegations contained in the complaint in the Crews lawsuit that could possibly be construed as asserting a Woodson claim were that the Hospital hired a laundry employee with a relatively minor criminal record, and failed to fire that employee even though it had knowledge that he had engaged in sexual relations with other hospital employees at work, knew that he had a violent temper, and had knowledge of his alleged but unproven altercations with female co-employees in which no one was injured. Though these allegations may be sufficient to allege that the Hospital was negligent in hiring and retaining Sexton, the allegations are insufficient to allege conduct on the part of the Hospital substantially certain to cause injury or death and, therefore, do not meet the stringent requirements of Woodson. Without a Woodson claim, workers\u2019 compensation is the only remedy available in this case; any other action is barred as a matter of law\u201d), disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997).\nSpecifically, regarding the issue of emotional distress, Woodson was again noted, but rejected where the plaintiff \u201callege[ed] that defendants failed to investigate [her co-employee\u2019s,] Fields\u2019],] application, and as a result he assaulted her during the robbery causing her severe emotional distress.\u201d Caple v. Bullard Restaurants, Inc., 152 N.C. App. 421, 428, 567 S.E.2d 828, 833 (2002). This Court stated that\nas in Wake County Hosp. Sys., such conduct, at best, only shows that defendants were negligent in hiring and retaining Fields. It would still be insufficient to allege conduct on the part of defendants substantially certain to cause injury or death and, therefore, does not meet the stringent requirements of Woodson.\nId. (citation, quotation marks, and brackets omitted).\nE. Woodson Does Not Apply Here\nWhile we recognize that plaintiffs claim was not stated as a Woodson claim, based upon the jury\u2019s verdict and the issue raised by defendant, we have no choice but to consider whether the trial court could properly have had jurisdiction over plaintiff\u2019s NIED claim as a Woodson claim. Yet this Court is unaware of a single litigant in any case which has been subject to appellate review who has successfully pursued a Woodson claim since the exception to the exclusivity provisions was set out in 1991. See Woodson, 329 N.C. 330, 407 S.E.2d 222. As Wake County Hosp. Sys. stated, even under Woodson, \u201c[willful and wanton negligence alone is not enough to establish a Woodson claim; a higher degree of negligence is required. The conduct must be so egregious as to be tantamount to an intentional tort.\u201d 127 N.C. App. at 40, 487 S.E.2d at 793. Here, all the jury found was willful and wanton negligence on the part of defendant. Although plaintiff filed a complaint, an amended complaint, and attempted to amend her complaint a second time, alleging nine total different claims between the three documents, eight of the claims were regarding intentional conduct, but plaintiff only actually prevailed on one negligence claim. Accordingly, we conclude that the Woodson exception to the exclusivity provisions does not apply to plaintiff in this case.\nF. Plaintiff\u2019s NIED Claim\nWe are thus left with a claim for NIED which occurred in plaintiff\u2019s workplace; so to determine if it was a claim which was under the exclusive jurisdiction of the Industrial Commission, we must consider if the claim falls within the purview of the Workers Compensation Act. \u201cIn order for an injury to be compensable under the Workers\u2019 Compensation Act, a claimant must prove: (1) that the injury was caused by an accident; (2) that the injury arose out of the employment; and (3) that the injury was sustained in the course of employment.\u201d Wake County Hosp. Sys., 127 N.C. App. at 38-39, 487 S.E.2d at 792. (citation, quotation marks, and brackets omitted). North Carolina General Statute \u00a7 97-2(6) defines \u201c[i]njury and personal injury\u201d as \u201conly injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.\u201d N.C. Gen. Stat. \u00a7 97-2(6) (2007). \u201cInjury\u201d includes mental injury. Jordan v. Central Piedmont Community College, 124 N.C. App. 112, 118-19, 476 S.E.2d 410, 414 (1996) (\u201cWhile the claim in this case involves an injury by accident as opposed to an occupational disease, we do not read or interpret the Act as limiting compensation for mental conditions to only occupational diseases, excluding mental injuries by accident. As the Supreme Court in Ruark pointed out, our courts have recognized the compensability of mental injuries under tort law since the late nineteenth century. Furthermore, mental conditions have been acknowledged and compensated as occupational diseases under our Workers\u2019 Compensation Act. We cannot conclude that mental injuries by accident are not covered under the Act when we have clearly awarded workers\u2019 compensation for mental conditions as occupational diseases. Such a holding would lead to harsh results and would be incongruous in light of our well established history of compensating mental injuries under general principles of tort law.\u201d (emphasis added) (citation omitted)), disc. review denied, 345 N.C. 753, 485 S.E.2d 53 (1997). \u201c \u2018Accident\u2019 under the Act means (1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause.\u201d Woodson, 329 N.C. at 348, 407 S.E.2d at 233 (citations and quotation marks omitted).\n\u201cArising out of\u2019 the employment is construed to require that the injury be incurred because of a condition or risk created by the job. In other words, the basic question to answer when examining the arising out of requirement is whether the employment was a contributing cause of the injury. Our Supreme Court has held that, generally, an injury arises out of the employment when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment. When an injury cannot fairly be traced to the employment as a contributing proximate cause, or if it comes from a hazard to which the employee would have been equally exposed apart from the employment, or from the hazard common to others, it does not arise out of the employment.\nMintz v. Verizon Wireless,_N.C. App._,_,_S.E.2d_,_ (Nov. 20, 2012) (No. COA12-306) (citations, quotation marks, and brackets omitted). \u201cAs used in the Workers\u2019 Compensation Act the phrase, \u2018in the course of the employment,\u2019 refers to the time, place, and circumstances under which an accidental injury occurs; \u2018arising out of the employment\u2019 refers to the origin or cause of the accidental injury.\u201d Ramsey v. Southern Indus. Constructors Inc., 178 N.C. App. 25, 30, 630 S.E.2d 681, 685 (citation, quotation marks, and brackets omitted), disc. review denied, 361 N.C. 168, 639 S.E.2d 652 (2006).\nHere, it is crucial to recall that based upon plaintiff\u2019s allegations, the incident that caused plaintiff\u2019s emotional distress was not the harassment by her supervisor, but the defendant\u2019s mishandling of her complaints regarding that harassment. Plaintiff\u2019s NIED claim alleged that \u201c[t]he negligent actions of the Defendant ... in the handling of Plaintiff\u2019s situation and treatment of Plaintiff as alleged herein . . . show a reckless indifference to the likelihood that said actions would cause severe emotional distress to Plaintiff[;]\u201d \u201cDefendant negligently failed to offer an appropriate remedy to Plaintiff and wrongfully terminated Plaintiff[;] and \u201cDefendant knew, or reasonably should have known, that its behavior would cause emotional distress to Plaintiff.\u201d Accordingly, plaintiff\u2019s NIED claim caused by defendant\u2019s mishandling of her complaint would fall within the purview of the Industrial Commission as her emotional distress is an \u201cinjury\u201d recognized by the Workers Compensation Act. See N.C. Gen. Stat. \u00a7 97-2(6); Jordan, 124 N.C. App. at 118-19, 476 S.E.2d at 414. Plaintiff\u2019s \u201cinjury was caused by an accident\" as defendant\u2019s mishandling of her complaint was \u201can unlooked for and untoward event which is not expected or designed by the injured employee[.]\u201d Woodson, 329 N.C. at 348, 407 S.E.2d at 233; Wake County Hosp. Sys., 127 N.C. App. at 38, 487 S.E.2d at 792 (emphasis added). Plaintiff\u2019s \u201cinjury arose out of the employment\u201d in that complaining to an employer about harassment at work and the risk that the employer may not handle it properly \u201cis a natural and probable consequence or incident of the employment and a natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment.\u201d Mintz,_N.C. App. at_,_S.E.2d at_. Plaintiff\u2019s \u201cinjury was sustained in the course of employment\u201d in that the mishandling of her complaints occurred while plaintiff was working for defendant. Wake County Hosp. Sys., 127 N.C. App. at 38-39, 487 S.E.2d at 792; see Ramsey, 178 N.C. App. at 30, 630 S.E.2d at 685.\nG. Summary\nWe again stress that this case is unique. Plaintiffs NIED claim regarding the mishandling of her harassment complaints was valid, and her injuries were very real, yet she could not obtain relief from a jury because this case came to us not as claims for an intentional tort, gender or racial discrimination or wrongful termination, but solely as a NIED claim, an obviously negligence-based claim. Accordingly, although the issue on appeal only concerns plaintiff\u2019s NIED claim, plaintiff\u2019s other claims were not covered by the Workers\u2019 Compensation Act, particularly those involving intentional conduct; thus, it was proper for plaintiff to file all of her claims, except her claim for NIED, before the trial court or as in Woodson, plaintiff could have filed a claim before the Industrial Commission and requested that such claim be stayed until it had been determined which claims, if any, would be within the jurisdiction of the trial court. See generally Woodson, 329 N.C. 330, 407 S.E.2d 222.\nAs plaintiff\u2019s NIED claim was based upon the willful and wanton negligence of defendant, and as such conduct on the part of defendant falls within the purview of the Worker\u2019s Compensation Act but is not enough to sustain a Woodson claim and thereby qualify as an exception to the exclusivity provisions of the Workers\u2019 Compensation Act, the judgment awarding plaintiff $450,000.00 must be vacated as the trial court was without jurisdiction to enter such a judgment.\nIII. Conclusion\nFor the foregoing reasons, we vacate the judgment awarding plaintiff $450,000.00. As we are vacating the judgment awarding plaintiff $450,000.00 we need not address defendant\u2019s other issues on appeal.\nVACATED.\nJudges HUNTER, JR., Robert N. and BEASLEY concur.\nJudge Beasley concurred prior to 18 December 2012.\n. Plaintiffs verified amended complaint also included Mr. Doug Swain, her former supervisor, as a defendant. Furthermore, on 7 October 2010, plaintiff filed a motion to amend her complaint to add a claim for assault. On 15 November 2010, the trial court dismissed Mr. Swain from this lawsuit and denied plaintiff\u2019s motion to amend her complaint. Plaintiff has not appealed the 15 November 2010 order.\n. At this point, the verdict was essentially a dogfall. \u201cThis colloquialism is derived from wrestling where it signifies a draw or tie.\u201d Raybon v. Reimers, 226 S.E.2d 620, 621 n.1, (Ga. Ct. App. 1976).\n. We note that plaintiffs claim for NIED against defendant was based upon defendant\u2019s mishandling of her complaints about harassment by her supervisor; in other words, the cause of defendant\u2019s liability was not plaintiff\u2019s supervisor\u2019s harassment per se, but the fact that defendant mishandled plaintiffs complaints about her supervisor\u2019s harassment. Accordingly, cases in which claims are premised upon the actual harassment, be it sexual, physical or verbal, are of limited use in this case, as the determinative facts in this case do not concern harassment but instead the mishandling of harassment complaints.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellee.", "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by Julia C. Ambrose, John W. Ormand, III and Patricia W. Goodson, for defendant-appellant.", "Womble Carlyle Sandridge & Rice, LLP, by Burley B. Mitchell, Jr., for Amicus Curiae North Carolina Chamber." ], "corrections": "", "head_matter": "LASHANDA SHAW, Plaintiff v. THE GOODYEAR TIRE & RUBBER CO., Defendants\nNo. COA12-338\nFiled 15 January 2013\nJurisdiction \u2014 subject matter \u2014 negligent infliction of emotional distress \u2014 Workers\u2019 Compensation Act \u2014 exclusivity provisions\nThe trial court lacked subject matter jurisdiction over plaintiff\u2019s negligent infliction of emotional distress claim caused by defendant\u2019s willful or wanton negligence because the exclusivity provision of the Workers\u2019 Compensation Act gives the Industrial Commission exclusive jurisdiction over this type of claim. Plaintiff\u2019s claim fell within the purview of the Worker\u2019s Compensation Act but was not enough to sustain a Woodson claim and thereby qualify as an exception to the exclusivity provisions of the Workers\u2019 Compensation Act.\nAppeal by defendant from judgment entered 8 April 2011 by Judge Mary Ann Tally in Superior Court, Cumberland County. Heard in the Court of Appeals 29 November 2012.\nKennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellee.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by Julia C. Ambrose, John W. Ormand, III and Patricia W. Goodson, for defendant-appellant.\nWomble Carlyle Sandridge & Rice, LLP, by Burley B. Mitchell, Jr., for Amicus Curiae North Carolina Chamber." }, "file_name": "0090-01", "first_page_order": 100, "last_page_order": 115 }