{ "id": 4132277, "name": "DONNA W. TAFT, Administratrix of the Estate of Michael Wayne Paul, Jr., Plaintiff v. BRINLEY'S GRADING SERVICES, INC., ISMAEL DOMINGUEZ and THOMAS E. BRINLEY, SR., Defendants", "name_abbreviation": "Taft v. Brinley's Grading Services, Inc.", "decision_date": "2013-02-05", "docket_number": "No. COA12-790", "first_page": "502", "last_page": "521", "citations": [ { "type": "official", "cite": "225 N.C. App. 502" } ], "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": "665 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641799 ], "year": 2008, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0818-01" ] }, { "cite": "673 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642935 ], "weight": 12, "year": 2009, "pin_cites": [ { "page": "404-05", "parenthetical": "emphasis added" }, { "page": "404" }, { "page": "401, 404, 405" }, { "page": "544" }, { "page": "404" }, { "page": "541" }, { "page": "402" }, { "page": "545" }, { "page": "404" }, { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0399-01" ] }, { "cite": "396 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496706 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0464-01" ] }, { "cite": "386 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "77", "parenthetical": "explaining that, although factual findings from official investigative reports are admissible under Rule 803(8)(c), \"any hearsay contained in the report must also fall under one of the hearsay exceptions\"" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 443", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522843 ], "year": 1989, "pin_cites": [ { "page": "446", "parenthetical": "explaining that, although factual findings from official investigative reports are admissible under Rule 803(8)(c), \"any hearsay contained in the report must also fall under one of the hearsay exceptions\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0443-01" ] }, { "cite": "446 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "869", "parenthetical": "holding that trial court properly admitted OSHA report pursuant to Rule 803(8)" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522018 ], "year": 1994, "pin_cites": [ { "page": "46", "parenthetical": "holding that trial court properly admitted OSHA report pursuant to Rule 803(8)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0040-01" ] }, { "cite": "192 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160778 ], "year": 2008, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0478-01" ] }, { "cite": "398 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "327 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496145 ], "year": 1990, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0491-01" ] }, { "cite": "198 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551891 ], "year": 1973, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0207-01" ] }, { "cite": "522 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "312-13", "parenthetical": "quoting United Artists Records, Inc. v. Eastern Tape Corp., 19 N.C. App. 207, 215, 198 S.E.2d 452, 457 (1973)" }, { "page": "313" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242530 ], "year": 1999, "pin_cites": [ { "page": "670", "parenthetical": "quoting United Artists Records, Inc. v. Eastern Tape Corp., 19 N.C. App. 207, 215, 198 S.E.2d 452, 457 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0661-01" ] }, { "cite": "424 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1993, "pin_cites": [ { "page": "175" }, { "page": "173" }, { "page": "175" }, { "page": "175" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525009 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0562-01" ] }, { "cite": "462 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "533", "parenthetical": "quoting Medlin, 327 N.C. at 591, 398 S.E.2d at 462" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915858 ], "year": 1995, "pin_cites": [ { "page": "386", "parenthetical": "quoting Medlin, 327 N.C. at 591, 398 S.E.2d at 462" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0383-01" ] }, { "cite": "161 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "273 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576097 ], "year": 1968, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0701-01" ] }, { "cite": "340 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "122" }, { "page": "122" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521761 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "491-92" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0483-01" ] }, { "cite": "195 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164809 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "545", "parenthetical": "emphasis added" }, { "page": "538, 544, 545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0536-01" ] }, { "cite": "193 S.E. 224", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1937, "pin_cites": [ { "page": "226" }, { "page": "226" } ], "opinion_index": 0 }, { "cite": "212 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601183 ], "weight": 2, "year": 1937, "pin_cites": [ { "page": "122" }, { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0120-01" ] }, { "cite": "398 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "463", "parenthetical": "quoting Snow v. DeButts, 212 N.C. 120, 122, 193 S.E. 224, 226 (1937)" }, { "page": "463" }, { "page": "462" } ], "opinion_index": 0 }, { "cite": "327 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497254 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "592", "parenthetical": "quoting Snow v. DeButts, 212 N.C. 120, 122, 193 S.E. 224, 226 (1937)" }, { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0587-01" ] }, { "cite": "512 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "763" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238636 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0472-01" ] }, { "cite": "438 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "735" } ], "opinion_index": 0 }, { "cite": "335 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527709 ], "year": 1994, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0379-01" ] }, { "cite": "736 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "pin_cites": [ { "page": "581", "parenthetical": "holding first prong of special employer test not met based upon provision in contract between temporary employment agency and alleged special employer that \"expressly stated temporary employees are not employees of the [alleged special employer]\"" }, { "page": "581", "parenthetical": "distinguishing Brown because, unlike in Brown, contract at issue between general employer and alleged special employer in Gregory \"expressly stated temporary employees are not employees of the [alleged special employer]\"" } ], "opinion_index": 0 }, { "cite": "224 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4115544 ], "year": 2012, "pin_cites": [ { "page": "586", "parenthetical": "holding first prong of special employer test not met based upon provision in contract between temporary employment agency and alleged special employer that \"expressly stated temporary employees are not employees of the [alleged special employer]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/224/0580-01" ] }, { "cite": "525 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 18, "year": 2000, "pin_cites": [ { "page": "473", "parenthetical": "quoting 3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law \u00a7 67 (1999)" }, { "page": "607" }, { "page": "473" }, { "page": "608" }, { "page": "474" }, { "page": "609" }, { "page": "474", "parenthetical": "internal citation omitted" }, { "page": "474" }, { "page": "610" }, { "page": "475" }, { "page": "611" }, { "page": "475" }, { "page": "473", "parenthetical": "\"For purposes of our ruling herein, we assume arguendo that the second prong of the special employer test has been met. However, we conclude the record reveals genuine issues of material fact as to the remaining prongs.\"" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 603", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241126 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "606", "parenthetical": "quoting 3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law \u00a7 67 (1999)" }, { "page": "609" }, { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0603-01" ] }, { "cite": "677 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2009, "pin_cites": [ { "page": "491" }, { "page": "492" }, { "page": "492" }, { "page": "492" }, { "page": "493" }, { "page": "493" }, { "page": "492", "parenthetical": "\"We need not address the second prong because [the defendant] has failed to establish that no issue of fact exists as to the first and third prongs[.]\"" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167431 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "410" }, { "page": "412" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0404-01" ] }, { "cite": "460 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "360" }, { "page": "360" }, { "page": "360-61" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917546 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "759" }, { "page": "759" }, { "page": "759-60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0753-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "601 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "920" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 333", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411331 ], "year": 2004, "pin_cites": [ { "page": "340-41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0333-01" ] }, { "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": "218 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "381", "parenthetical": "quoting 6 James W. Moore et al., Moore's Federal Practice \u00a7 56-15[3], at 2337 (2d ed. 1971)" } ], "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "pin_cites": [ { "page": "378", "parenthetical": "quoting 6 James W. Moore et al., Moore's Federal Practice \u00a7 56-15[3], at 2337 (2d ed. 1971)" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2011, "opinion_index": 0 } ], "analysis": { "cardinality": 1468, "char_count": 47081, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1334000553700235 }, "sha256": "d090d34a0bb0b30242e12254800d09f2105084b1ff272e93571c2d348c30a0e5", "simhash": "1:1b625d6dd5a92cdf", "word_count": 7452 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STROUD concur." ], "parties": [ "DONNA W. TAFT, Administratrix of the Estate of Michael Wayne Paul, Jr., Plaintiff v. BRINLEY\u2019S GRADING SERVICES, INC., ISMAEL DOMINGUEZ and THOMAS E. BRINLEY, SR., Defendants" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Donna W. Taft, administratrix for the Estate of Michael Wayne Paul, Jr., appeals from the trial court\u2019s orders granting summary judgment to defendants Brinley\u2019s Grading Services, Inc. and Thomas E. Brinley, Sr. Plaintiff brought a wrongful death action based upon a workplace accident resulting in Mr. Paul\u2019s death. Plaintiff primarily argues on appeal that the trial court erred in granting summary judgment to Brinley\u2019s Grading on plaintiff\u2019s claims based on the exclusivity provision of the Workers\u2019 Compensation Act. See N.C. Gen. Stat. \u00a7 97-10.1 (2011). We agree that the evidence in the record gives rise to genuine issues of material fact regarding whether Mr. Paul, who was actually employed by a company other than Brinley\u2019s Grading, amounted to a \u201cspecial employee\u201d subject to the Workers\u2019 Compensation Act\u2019s exclusivity provision.\nBecause we also find that plaintiff presented sufficient evidence to defeat summary judgment of Brinley\u2019s Grading\u2019s vicarious liability for the acts of defendant Ismael Dominguez, we reverse the trial court\u2019s order entering summary judgment for Brinley\u2019s Grading. We affirm the order granting summary judgment to Mr. Brinley.\nFacts\nOn 14 February 2008, Mr. Paul was an employee of Pro-Tech Management & Equipment Services, Inc. and was working at Brinley\u2019s Grading\u2019s facility in Durham, North Carolina pursuant to an \u201cEmployee Leasing Agreement\u201d between Pro-Tech and Brinley\u2019s Grading. At approximately 7:20 a.m., Mr. Paul was beside a large commercial trailer working to load it for travel to a worksite. At the same time, Mr. Dominguez, an employee of Brinley\u2019s Grading, started a Brinley\u2019s Grading pickup truck that was facing the trailer, put the truck in gear, and popped the clutch. The truck lunged forward and pinned Mr. Paul in between the front bumper of the truck and the trailer. As a result of the collision, Mr. Paul sustained injuries leading to his death.\nOn 26 January 2010, plaintiff filed a wrongful death action against Brinley\u2019s Grading, Mr. Brinley (the president of Brinley\u2019s Grading), and Mr. Dominguez asserting that Mr. Paul\u2019s death was the result of their negligence. On 31 March 2010, Brinley\u2019s Grading and Mr. Brinley filed an answer denying the material factual allegations of the complaint and asserting as defenses contributory negligence and the fellow servant doctrine. Mr. Dominguez, who left the scene immediately after the accident, did not file an answer, has not been located by the parties since the accident, and was never interviewed or deposed.\nOn 15 November 2011, Brinley\u2019s Grading filed a motion for summary judgment. Brinley\u2019s Grading contended that Mr. Paul was a \u201cspecial employee\u201d of Brinley\u2019s Grading and a fellow servant of Mr. Dominguez at the time of the accident and, therefore, plaintiff\u2019s claims were barred by the exclusivity provision of the Workers\u2019 Compensation Act set out in N.C. Gen. Stat. \u00a7 97-10.1 and the fellow servant doctrine. Brinley\u2019s Grading further argued that Ms. Taft could not show that Mr. Dominguez was acting within the scope of his employment, that Brinley\u2019s Grading was in any way negligent, or that any negligence was the proximate cause of Mr. Paul\u2019s death.\nAlso on 15 November 2011, Mr. Brinley filed a separate motion for summary judgment. Mr. Brinley argued that Ms. Taft could not show that Mr. Brinley was responsible for the day-to-day operations of Brinley\u2019s Grading, that Mr. Brinley was in any way negligent, that any negligence was the proximate cause of Mr. Paul\u2019s death, or that Mr. Brinley possessed actual or constructive knowledge of any dangerous condition existing on the premises of the Durham facility where the accident occurred.\nOn 4 January 2012, the trial court entered an order granting summary judgment to Brinley\u2019s Grading and a separate order granting summary judgment to Mr. Brinley. Plaintiff timely appealed both orders to this Court.\nDiscussion\nA motion for summary judgment may be granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C.R. Civ. P. 56(c). In deciding the motion, \u201c \u2018all inferences of fact. . . must be drawn against the movant and in favor of the party opposing the motion.\u2019 \u201d Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W. Moore et al., Moore\u2019s Federal Practice \u00a7 56-15[3], at 2337 (2d ed. 1971)).\nThe party moving for summary judgment has the burden of establishing the lack of any triable issue. Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party meets its burden, then the non-moving party must \u201cproduce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.\u201d Id. We review a trial court\u2019s grant of summary judgment de novo. Coastal Plains Utils., Inc. v. New Hanover Cnty., 166 N.C. App. 333, 340-41, 601 S.E.2d 915, 920 (2004).\nI\nPlaintiff first contends that the trial court erred in granting summary judgment to Brinley\u2019s Grading based on the exclusivity provision of the Workers\u2019 Compensation Act contained in N.C. Gen. Stat. \u00a7 97-10.1. N.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.\nUnder the Act, \u201c \u2018employee\u2019 \u201d is defined in part as \u201cevery person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written . . . .\u201d N.C. Gen. Stat. \u00a7 97-2(2) (2011).\nIn addition to the definition of employee set out in the Workers\u2019 Compensation Act, our courts have adopted the \u201cspecial employment\u201d doctrine, which provides that, for purposes of the Workers\u2019 Compensation Act, \u201cunder certain circumstances a person can be an employee of two different employers at the same time.\u201d Brown v. Friday Servs., Inc., 119 N.C. App. 753, 759, 460 S.E.2d 356, 360 (1995). When the special employment doctrine applies, the joint liability under the Act of the company that directly employs the employee (the \u201cgeneral\u201d employer) and a second company (the \u201cspecial\u201d employer) provides the plaintiff-employee with two separate potential sources of workers\u2019 compensation benefits. Shelton v. Steelcase, Inc., 197 N.C. App. 404, 410, 677 S.E.2d 485, 491 (2009); Brown, 119 N.C. App. at 759, 460 S.E.2d at 360. However, under the special employment doctrine, the employee\u2019s receipt of workers\u2019 compensation benefits from either employer bars the employee from proceeding at common law against either of the employers. Id.\nDefendants contend that the exclusivity provision applies to bar plaintiff\u2019s claims against Brinley\u2019s Grading because Mr. Paul qualified as an employee of both Pro-Tech and Brinley\u2019s Grading under the Workers\u2019 Compensation Act pursuant to the special employment doctrine, and plaintiff had already received workers\u2019 compensation benefits from Pro-Tech.\nOur courts apply a three-prong test to determine whether the employee is a \u201cspecial employee\u201d for purposes of the Workers\u2019 Compensation Act\u2019s exclusivity provision:\n\u201cWhen a general employer lends an employee to a special employer, the special employer becomes liable for workmen\u2019s compensation only if:\n(a) the employee has made a contract of hire, express or implied, with the special employer;\n(b) the work being done is essentially that of the special employer; and\n(c) the special employer has the right to control the details of the work.\nWhen all three of the above conditions are satisfied in relation to both employers, both employers are liable for worker\u2019s compensation.\u201d\nAnderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 606, 525 S.E.2d 471, 473 (2000) (quoting 3 Arthur Larson & Lex K. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 67 (1999)). In addition, \u201c[c]ontinuance of the \u2018general\u2019 employment is presumed, and the party asserting otherwise must make a \u2018clear demonstration that a new . . . employer [was] substituted for the old.\u2019 \u201d Id. at 607, 525 S.E.2d at 473 (quoting Larson\u2019s \u00a7 67.02).\nThe first prong of the special employer test asks whether Mr. Paul entered into a contract for hire with Brinley\u2019s Grading. This Court has described the \u201ccontract requirement\u201d as \u201ccrucial\u201d because the application of the special employment doctrine results in the employee losing the right to sue the special employer at common law for negligence. Id.\nIn Anderson, the defendant \u2014 much like defendants here\u2014 argued that the first prong was established by evidence that the decedent \u201c \u2018expressly accepted\u2019 \u201d employment with the defendant when, after being contacted by the defendant, he sought permission from the general employer to work at the defendant\u2019s site and then \u201c \u2018accepted that assignment\u2019 \u201d by coming to the worksite. Id. at 608, 525 S.E.2d at 474. This Court held that \u201c[t]hese actions standing alone do not conclusively satisfy the contract for employment prong of the special employer test.\u201d Id.\nIn concluding that issues of fact existed regarding the first prong, the Court went on to note other evidence including, among other things, that the decedent was paid by and insured through the general employer, although the defendant reimbursed the general employer for 40% of the decedent\u2019s salary, and the defendant neither paid payroll taxes on behalf of the decedent nor claimed him as an employee for insurance purposes. Id. Further, the decedent represented to third parties that he was an employee of the general employer. Id. The Court held that \u201c [consideration of all the above evidence in the light most favorable to plaintiff raises at a minimum a genuine factual issue as to the first prong of the special employer test, i.e., whether there was an employment contract between defendant and decedent.\u201d Id. at 609, 525 S.E.2d at 474 (internal citation omitted).\nSimilarly, this Court concluded in Shelton that a jury issue existed as to the first prong. 197 N.C. App. at 412, 677 S.E.2d at 492. The defendant claimed that there was an implied employment agreement with the plaintiff because the plaintiff was hired by the general employer for the express purpose of working for the defendant, she had her own office at the defendant\u2019s plant, and she worked at the defendant\u2019s plant full time. Id. at 411, 677 S.E.2d at 492. This Court, however, concluded that the evidence was less compelling than the evidence found insufficient in Anderson.\nIn Shelton, the defendant had not contacted the plaintiff, but rather had entered into a contract with the general employer to provide cleaning services, and the general employer had chosen to provide those services by assigning the plaintiff to work for the defendant. Id. at 412, 677 S.E.2d at 492. The contract specifically provided that personnel supplied by the general employer to the defendant would \u201c \u2018be employees of the [the general employer].\u2019 \u201d Id. Further, the record contained evidence from witnesses identifying the plaintiff as an employee of the general employer and evidence that the general employer paid the plaintiff, withheld her taxes, was responsible for her workers\u2019 compensation insurance, and paid her benefits. Id.\nThis case is materially indistinguishable from Shelton and, like Shelton, less compelling than Anderson. Brinley\u2019s Grading argues that an implied contract existed between Mr. Paul and Brinley\u2019s Grading because Mr. Paul \u201caccepted tasks assigned to him by Brinley\u2019s Grading on Brinley\u2019s Grading premises and under the direction and control of Brinley\u2019s Grading personnel and subject to Brinley\u2019s Grading regulations and guidelines.\u201d This contention is essentially identical to the argument rejected in Anderson.\nMoreover, the Employee Leasing Agreement (\u201cthe Agreement\u201d) provided: \u201cThe parties understand that Pro-Tech is an independent contractor, and that all of the personnel assigned by Pro-Tech to Brinley\u2019s business in order to fill the relevant job positions are employees of Pro-Tech and only Pro-Tech.\u201d Further, under the Agreement, \u201cPro-Tech acknowledges that it is responsible for all matters related to the payment of federal, state and local payroll taxes, workers\u2019 compensation insurance, salaries and fringe benefits for its employees.\u201d Additionally, Pro-Tech was required by the Agreement to maintain its own general liability, professional malpractice, and automobile liability insurance for actions and omissions of leased Pro-Tech employees. Finally, in a Rule 30(b)(6) deposition for Brinley\u2019s Grading given by its president, Mr. Brinley, Brinley\u2019s Grading conceded that, pursuant to the Agreement, Mr. Paul was solely an employee of Pro-Tech.\nUnder Anderson and Shelton, this evidence was sufficient to give rise to an issue of fact on the first prong of the special employer test. See also Gregory v. Pearson, 224 N.C. App. 580, 586, 736 S.E.2d 577, 581 (2012) (holding first prong of special employer test not met based upon provision in contract between temporary employment agency and alleged special employer that \u201cexpressly stated temporary employees are not employees of the [alleged special employer]\u201d).\nTurning to the third prong, Anderson observed that this prong, \u201ccontrol of the detail of the work, may be the most significant.\u201d 136 N.C. App. at 609, 525 S.E.2d at 474. The Court, in Anderson, noted that although the defendant\u2019s supervisor directed the decedent regarding what needed to be done, \u201cno evidence was presented that the latter was told how to do the specific tasks assigned.\u201d Id. at 610, 525 S.E.2d at 475. Instead, evidence existed that the decedent was in charge of part of the work and not subject to the supervisor\u2019s control as to the details of his work, which the Court concluded was not sufficient to suggest such supervision and control as to justify implying that the decedent had consented to enter into a special employment relationship. Id. As a result, the Court concluded that rather than pointing to evidence justifying summary judgment for the defendant, the defendant had \u201cat best. . . shown a genuine issue of material fact as to the third prong of the special employer test, defendant\u2019s control over the details of decedent\u2019s work.\u201d Id. at 611, 525 S.E.2d at 475.\nIn Shelton, this Court pointed out that the defendant\u2019s evidence simply showed that the defendant\u2019s managers identified what work needed to be done, but did not establish that the defendant had the right to tell the plaintiff how to go about completing the projects it assigned. 197 N.C. App. at 413, 677 S.E.2d at 493. \u201cEven more significantly,\u201d however, \u201cthe contract between [the defendant] and [the general employer] specified in a provision entitled \u2018Supervision\u2019: \u2018[The general employer] will be solely responsible for the direction and supervision of personnel assigned to the facility, except that maintenance supervisor shall direct the duties of two (2) employees assigned to his/her department\u2019 \u201d \u2014 the latter proviso did not apply to the plaintiff. Id.\nThis Court pointed out: \u201cAs our Supreme Court has observed, \u2018[e]mployment, of course, is a matter of contract. Thus, where the parties have made an explicit agreement regarding the right of control, this agreement will be dispositive.\u2019 \u201d Id. (quoting Harris v. Miller, 335 N.C. 379, 387, 438 S.E.2d 731, 735 (1994)). The Court observed that the defendant \u201cspecifically chose to require, by contract, that [the general employer] be \u2018solely responsible for the direction and supervision\u2019 of [the plaintiff]. That contract provides sufficient evidence to warrant submission of the special employee issue to the jury. [The defendant] cannot blindly disregard its own contract in order to argue that no issue of fact existed for the jury to decide.\u201d Id. at 413-14, 677 S.E.2d at 493.\nHere, the Agreement provided in relevant part:\nIn order to carry out its obligations hereunder, Pro-Tech may designate one or more \u201con-site supervisors\u201d from among the employees assigned to fill job positions for Brinley\u2019s. The on-site supervisors shall oversee administrative and managerial matters relating to Pro-Tech\u2019s leased employees and shall be under the direct supervision of the Pro-Tech management team. If Pro-Tech does not elect to designate on-site supervisors, Pro-Tech\u2019s leased employees who are assigned to Brinley\u2019s shall be responsible to the Pro-Tech management team. The on-site supervisors or the management team shall determine the policies and procedures to be followed by Pro-Tech\u2019s leased employees regarding the time and performance of their duties. Brinley\u2019s shall cooperate with Pro-Tech in the formation of such policies and procedures and shall permit Pro-Tech to implement the same.\n(Emphasis added.)\nThe Agreement further provided:\nBrinley\u2019s expressly acknowledges, however, . . . Brinley\u2019s may assist in recruiting, hiring, evaluating, replacing, supervising, disciplining and firing Pro-Tech employees; however, Pro-Tech shall retain ultimate control over such matters.\n(Emphasis added.)\nBrinley\u2019s Grading thus chose to contractually agree that Pro-Tech, and not Brinley\u2019s Grading, would control and direct Mr. Paul\u2019s work. According to the Agreement, Brinley\u2019s Grading, at most, \u201cassisted]\u201d in personnel decisions, including supervision. Under Shelton, the Agreement is sufficient to create a genuine issue of material fact as to the third prong. Brinley\u2019s Grading cannot obtain summary judgment by ignoring the terms of the contract into which it chose to enter.\nDefendants, however, point to an affidavit by Chadwick Brinley, a vice-president of Brinley\u2019s Grading, which stated:\nAt all times when performing work for [Brinley\u2019s Grading], [Mr. Paul] was under the sole direction, control and supervision of [Brinley\u2019s Grading] with regard to his assigned tasks. Such direction included the manner in which he was to perform his duties, the locations at which said duties were to be performed and the time within which such duties were to be performed.\nWhile plaintiff argues that we should not consider Chadwick Brinley\u2019s affidavit because it contradicts the Rule 30(b)(6) deposition given by Brinley\u2019s Grading\u2019s president, we need not resolve that issue since this affidavit when juxtaposed with the Agreement, at most, raises an issue of fact. It cannot, in light of the Agreement, support summary judgment in Brinley\u2019s Grading\u2019s favor.\nIn sum, we hold that genuine issues of material fact exist regarding the first and third prongs of the special employment test. We, therefore, need not decide whether defendants have conclusively established the second prong. See id. at 411, 677 S.E.2d at 492 (\u201cWe need not address the second prong because [the defendant] has failed to establish that no issue of fact exists as to the first and third prongs[.]\u201d); Anderson, 136 N.C. App. at 607, 525 S.E.2d at 473 (\u201cFor purposes of our ruling herein, we assume arguendo that the second prong of the special employer test has been met. However, we conclude the record reveals genuine issues of material fact as to the remaining prongs.\u201d).\nDefendants nonetheless cite Poe v. Atlas-Soundelier/Am. Trading & Prod. Corp., 132 N.C. App. 472, 512 S.E.2d 760 (1999), and Brown in support of their argument. In Poe, however, the plaintiff conceded that the defendant was a \u201cco-employer\u201d with the temporary employment agency that supplied him to the defendant. 132 N.C. App. at 476, 512 S.E.2d at 763. Poe addressed a different issue and is not applicable here.\nBrown did not involve a contract between the general employer and alleged special employer with terms similar to those in this case and in Shelton \u2014 terms that specified that the worker was an employee of the general employer and that the worker performed under the direction and supervision of the general employer. See Brown, 119 N.C. App. at 759-60, 460 S.E.2d at 360-61. See also Gregory, 244 N.C. App. at 586, 736 S.E.2d at 581 (distinguishing Brown because, unlike in Brown, contract at issue between general employer and alleged special employer in Gregory \u201cexpressly stated temporary employees are not employees of the [alleged special employer]\u201d). Consequently, we conclude that summary judgment in favor of Brinley\u2019s Grading cannot be affirmed based upon N.C. Gen. Stat. \u00a7 97-10.1 and the special employment doctrine.\nII\nPlaintiff next argues that the trial court improperly granted summary judgment to Brinley\u2019s Grading because, in the light most favorable to plaintiff, a genuine issue of material fact existed as to Brinley\u2019s Grading\u2019s vicarious liability for Mr. Dominguez\u2019 negligence under a theory of respondeat superior. Defendants contend that undisputed evidence shows that Brinley\u2019s Grading cannot be vicariously liable for Mr. Dominguez\u2019 alleged negligence in operating the truck because Mr. Dominguez was forbidden, by company policy, from operating any company vehicle. According to Brinley\u2019s Grading, Mr. Dominguez was, therefore, acting outside of the scope of his employment when the alleged negligence occurred.\nEmployers are liable for torts committed by their employees under a respondeat superior \u201ctheory when the employee\u2019s act is \u2018expressly authorized; . . . committed within the scope of [the employee\u2019s] employment and in furtherance of his master\u2019s business \u2014when the act comes within his implied authority; . . . [or] when ratified by the principal.\u2019 \u201d Medlin v. Bass, 327 N.C. 587, 592, 398 S.E.2d 460, 463 (1990) (quoting Snow v. DeButts, 212 N.C. 120, 122, 193 S.E. 224, 226 (1937)). \u201cThus, where the employee\u2019s action is not expressly authorized or subsequently ratified, an employer is liable only if the act is \u2018committed within the scope of . . . and in furtherance of [the employer\u2019s] business.\u2019 \u201d Id. at 593, 398 S.E.2d at 463 (quoting Snow, 212 N.C. at 122, 193 S.E. at 226).\nThis Court has explained regarding the scope of employment:\n\u201cIt is well settled in this State that [i]f the act of the employee was a means or method of doing that which he was employed to do, though the act be unlawful and unauthorized, or even forbidden, the employer is liable for the resulting injury, but he is not liable if the employee departed, however briefly, from his duties in order to accomplish a purpose of his own, which purpose was not incidental to the work he was employed to do.\u201d\nEstes v. Comstock Homebuilding Cos., 195 N.C. App. 536, 545, 673 S.E.2d 399, 404-05 (2009) (emphasis added) (quoting Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 491-92, 340 S.E.2d 116, 122 (1986)). Accordingly, \u201c[performing a forbidden act does not necessarily remove an employee from the course and scope of employment.\u201d Id. at 544, 673 S.E.2d at 404. See also Johnson v. Lamb, 273 N.C. 701, 707, 161 S.E.2d 131, 137 (1968) (\u201cIf an employee is negligent while acting in the course of employment and such negligence is the proximate cause of injury to another, the employer is liable in damages under the doctrine of respondeat superior, notwithstanding the fact that the employer, himself, exercised due care in the supervision and direction of the employee, the employee\u2019s violation of instructions being no defense to the employer.\u201d (emphasis added)).\nIn Estes, the Court affirmed the trial court\u2019s entry of partial summary judgment for the plaintiff and against the defendant realty company for damages to a model home caused when the company\u2019s employee failed to extinguish a cigarette she was smoking on the premises. 195 N.C. App. at 538, 544, 545, 673 S.E.2d at 401, 404, 405. The defendant contended that an issue of fact existed precluding summary judgment regarding whether its employee was permitted to smoke on the premises. Id. at 544, 673 S.E.2d at 404.\nIn rejecting this argument, this Court explained: \u201c[WJhether [the employee] was permitted to smoke on the.deck of the model home is not relevant to the analysis in this case. The issue here is whether [the employee] was in the scope of her employment, and about the business of her employer, when the negligent act occurred. Performing a forbidden act does not necessarily remove an employee from the course and scope of employment.\u201d Id. Summary judgment was proper because \u201c(1) [the employee] was on the premises of her employer where she was required to be, able and willing to perform her duties; and (2) the negligence occurred when she went to perform one of those duties, answering the telephone.\u201d Id. at 541, 673 S.E.2d at 402.\nHere, there is no dispute that Mr. Dominguez was employed by Brinley\u2019s Grading as a laborer and that Brinley\u2019s Grading owned the truck, started by Mr. Dominguez, that caused the accident. A description of the accident was recorded in an \u201cEmployee Accident Report\u201d and a \u201cVehicle Accident Report\u201d completed by Chad Brinley as vice-president of Brinley\u2019s Grading. According to the Vehicle Accident Report, \u201cEdward Alston was late for work because of weather conditions. [Mr. Dominguez] took it upon himself to start the truck.\u201d The Employee Accident Report explained further that Mr. Paul \u201cwas loading pine straw on his trailer when [Mr. Dominguez] decided to start [the] truck that [Mr. Paul] parked in front of. As [Mr. Dominguez] started the truck it lunged forward from his foot slipping off the clutch we assume.\u201d\nIn addition, Shay Wingate, a North Carolina Department of Labor, Occupational Safety and Health Administration (\u201cOSHA\u201d) inspector, prepared an OSHA inspection report following a fatality inspection of Brinley\u2019s Grading arising out of the accident. Mr. Wingate arrived at the Brinley\u2019s Grading premises at approximately 8:30 a.m. on the morning of the accident, personally observed the accident location, and conducted interviews with Brinley\u2019s Grading employees. In the report, Mr. Wingate found that \u201cthe temperature was 30\u00b0F the day of the accident.\u201d He also found that \u201cMr. Paul was responsible for loading and delivering pine straw to the job sites the day of the inspection,\u201d other employees \u201cwere walking towards the back of the 53 foot trailer to unload bales of pine straw at the time of the accident,\u201d and a different employee \u201cwas standing on top of the goose neck trailer and was stacking the bales of pine straw directly above the victim.\u201d\nViewed in the light most favorable to plaintiff, this evidence tended to show that Mr. Dominguez was on the premises of his employer, Brinley\u2019s Grading, during work hours, on a cold morning, when other employees, including other laborers, were engaged in the process of loading pine straw to be driven to work sites. Mr. Dominguez took it upon himself to start up a work truck because another employee was late to work. Thus, like the employee in Estes, Mr. Dominguez was \u201con the premises of h[is] employer where [he] was required to be\u201d and appeared to be \u201cable and willing to perform h[is] duties.\u201d Id.\nMoreover, also like the evidence in Estes, the evidence here tended to show that Mr. Dominguez\u2019 alleged negligence occurred while he was performing his assigned duties of preparing for employees to drive to a work site. A reasonable juror could find that Mr. Dominguez was engaged in a \u201c \u2018means or method of doing that which he was employed to do\u2019 \u201d when the alleged negligence occurred. Id. at 545, 673 S.E.2d at 404 (quoting Hogan, 79 N.C. App. at 491, 340 S.E.2d at 122). Additionally, a reasonable juror could also find that Mr. Dominguez was acting in furtherance of Brinley\u2019s Grading\u2019s business when he started the truck.\nBecause this evidence tended to show that Mr. Dominguez was acting within the scope of his employment and in furtherance of Brinley\u2019s Grading\u2019s business when the alleged negligence occurred, evidence that Mr. Dominguez was forbidden from starting or otherwise operating the truck would \u201cnot necessarily remove [Mr. Dominguez] from the course and scope of employment.\u201d Id. at 544, 673 S.E.2d at 404. Accordingly, the trial court erred by granting summary judgment to Brinley\u2019s Grading on the issue of its vicarious liability for any negligence by Mr. Dominguez.\nIll\nPlaintiff next argues that the trial court erred in granting summary judgment on plaintiff\u2019s claim that Brinley\u2019s Grading was independently negligent in failing to (1) reasonably supervise Mr. Dominguez to ensure that he complied with the company\u2019s vehicle policy; (2) reasonably train Mr. Dominguez regarding the policy; and (3) secure the company vehicles\u2019 keys in a manner that would prevent unqualified employees from accessing them. We disagree.\nA claim for negligent hiring, supervision and retention is recognized in North Carolina when plaintiff proves:\n\u201c(1) the specific negligent act on which the action is founded ... (2) incompetency, by inherent unfitness or previous specific acts of negligence, from which incompetency may be inferred; and (3) either actual notice to the master of such unfitness or bad habits, or constructive notice, by showing that the master could have known the facts had he used ordinary care in oversight and supervision,...; and (4) that the injury complained of resulted from the incompetency proved.\u201d\nMoricle v. Pilkington, 120 N.C. App. 383, 386, 462 S.E.2d 531, 533 (1995) (quoting Medlin, 327 N.C. at 591, 398 S.E.2d at 462).\nThus, in order to survive defendants\u2019 motion for summary judgment, plaintiff must show some evidence of: (1) Mr. Dominguez\u2019 negligent act in attempting to start the truck; (2) Mr. Dominguez\u2019 inherent unfitness to perform his duty or prior acts of negligence by Mr. Dominguez; (3) actual or constructive notice to Brinley\u2019s Grading of Mr. Dominguez\u2019 inherent unfitness or prior negligence; and (4) Mr. Paul\u2019s death having resulted from Mr. Dominguez\u2019 negligent act.\nWe find plaintiff\u2019s failure to present any evidence of the third factor \u2014 actual or constructive notice to Brinley\u2019s Grading of Mr. Dominguez\u2019 inherent unfitness or prior negligence \u2014 dispositive. The record contains excerpts from the \u201cBRINLEY\u2019S GRADING SERVICE, INC. OCCUPATIONAL HEALTH AND SAFETY MANUAL\u201d which, under the section heading \u201cTRUCK DRIVERS, OPERATORS AND LABORERS HEALTH AND SAFETY RESPONSIBILITIES,\u201d provides:\n6. Do not operate equipment for which you have not been trained or authorized. If you have questions about the safe operation of a machine, contact your supervisor immediately. Under no circumstances should machines be used in an unsafe manner or with safety features missing, malfunctioning, or circumvented.\nIn addition, under the section heading \u201cHEALTH AND SAFETY RULES,\u201d the manual provides:\n\u2022 Driver License Requirements \u2014 All employees who drive a company vehicle must possess and be able to present a valid North Carolina driver\u2019s license. If an employee has had their driving privileges suspended or license revoked, The Company must be notified immediately.\n\u2022 Vehicle operators are responsible for knowledge of and compliance with all State and local laws and ordinances governing the use and operation of motor vehicles. . . .\n\u2022 Before starting, make sure the vehicle is in safe operation condition before each trip. . . .\n\u2022 Only the assigned driver or other company personnel engaged in the course of their employment are permitted to drive company vehicles.\n\u2022 No employee is to check out keys to any Company Vehicle without prior authorization from the area manager at that particular Brinley shop. The area manager will designate one authorized driver per company vehicle at that shop and only that designated employee is to do his pre-inspection of his vehicle and be responsible for starting and moving this designated vehicle from its parking spot on the equipment lot at any time.\n\u2022 Should any employee take it upon himself to procure the keys from the Key lock box and start or move any vehicle without specific authorization and direction from the area manager, it will be grounds for immediate termination of employment with Brinley\u2019s Grading Service, Inc., as this is a zero tolerance violation of Company Policy.\nMr. Brinley testified, in a Rule 30(b)(6) deposition, that the policies regarding the company\u2019s key lock box and the pairing of one driver to one vehicle were in place at the time of the accident. He further testified that because Mr. Dominguez did not have a license, Mr. Dominguez was not authorized to operate any Brinley\u2019s Grading vehicles.\nMr. Brinley also testified that all new Brinley\u2019s Grading hires, including laborers, are informed of the company vehicle policies, including the policy that \u201c[o]nly this driver drives this truck. No one else drives this truck. No one else starts it. No one else moves it.\u201d Mr. Brinley further testified that these vehicle policies are also \u201creiterated in our safety meetings each month.\u201d Chad Brinley likewise asserted, in an affidavit, that Mr. Dominguez \u201cwas expressly forbidden to operate any company vehicles.\u201d\nIn addition, Mr. Brinley testified he was not aware of any prior occasion on which Mr. Dominguez had started, or otherwise operated, any Brinley\u2019s Grading vehicle for any purpose. Moreover, Mr. Brinley testified that, to the best of his knowledge, this was the first time any unauthorized Brinley\u2019s Grading employee had attempted to operate a Brinley\u2019s Grading vehicle. In accordance with the policy, Chad Brinley testified that any person who violated the policy, either by operating a vehicle when not authorized to do so, or permitting another to operate a vehicle that the other was not authorized to operate, would be terminated immediately.\nWe, therefore, disagree with plaintiff\u2019s assertion that \u201c[t]here is simply no evidence whatsoever that Defendant Dominguez was ever told that he was unauthorized to operate the subject motor vehicle.\u201d Moreover, plaintiff has pointed to no evidence that Mr. Dominguez was unaware of the company\u2019s vehicle policies.\nInstead, plaintiff argues that \u201c[t]here is no evidence that Defendant Dominguez was ever given the OSHA Manual or any other company manual. The manuals themselves come with forms in both English and Spanish for employees to sign to say that they have received the manual.\u201d Plaintiff further asserts that defendants \u201cfailed to produce a single record or document showing that Defendant Dominguez was ever furnished with this manual.\u201d However, plaintiff points to no evidence in the record, and we have found none, that supports plaintiff\u2019s claims that the Brinley\u2019s Grading manuals contained employee signature receipt provisions or, if they did, that Mr. Dominguez did not complete one. In any event, the record does contain evidence tending to show that Mr. Dominguez was made aware of the vehicle polices at the time of his hire, and we have found no evidence to the contrary.\nPlaintiff, however, further argues: \u201cRegardless of whether Defendant Dominguez was ever in fact told that he was not allowed to operate the vehicle, the undisputed fact is that he was able to obtain the keys for the vehicle when they were in the possession of Brinley\u2019s Grading, walk back to the truck, get inside the driver\u2019s seat of the truck, and start the truck during the start of the work day without anyone stopping him or preventing him from doing so.\u201d Mr. Brinley testified that Mr. Dominguez could have easily obtained the keys to the track from the company\u2019s lockbox without anybody seeing him. Plaintiff\u2019s argument implies that, by failing to more closely guard the lockbox, and then-failing to stop Mr. Dominguez before he managed to start the vehicle, Brinley\u2019s Grading failed to adequately supervise Mr. Dominguez.\nThis court rejected a similar argument in B. B. Walker Co. v. Burns Int\u2019l Sec. Servs., Inc., 108 N.C. App. 562, 424 S.E.2d 172 (1993). There, the plaintiff appealed the trial court\u2019s grant of a directed verdict to the defendant employer on the plaintiff\u2019s claim for negligent supervision and retention. Id. at 566, 424 S.E.2d at 175. The defendant company had contracted with the plaintiff company to provide security guard services to the plaintiff. Id. at 564, 424 S.E.2d at 173. However, \u201c [subsequent to their assignment at plaintiff\u2019s manufacturing facility, the security guards supplied by defendant stole significant amounts of plaintiff\u2019s property, which the guards had been assigned to protect.\u201d Id.\nOn appeal, the plaintiff contended that \u201chad the guards been properly or adequately \u2018supervised,\u2019 their thefts could have been prevented.\u201d Id. at 567, 424 S.E.2d at 175. The Court rejected that argument, reasoning that it \u201camount[ed] to no more than speculation that because defendant failed to adequately guard the guards, it was negligent.\u201d Id. The claim failed, the Court held, because there was no showing \u201cthat defendant should have reasonably foreseen that more supervision was required to prevent these deliberate criminal acts which were the cause of plaintiff\u2019s loss.\u201d Id.\nAs in B. B. Walker Co., plaintiff has made no showing that Brinley\u2019s Grading should have reasonably foreseen that more supervision was required to prevent Mr. Dominguez\u2019 deliberate violation of company policy that resulted in Mr. Paul\u2019s death. As previously discussed, there is evidence tending to show Mr. Dominguez was aware of various company vehicle policies that forbid him from both accessing the keys to the truck and attempting to start the track. Because the only evidence regarding enforcement of these policies tends to show that they had never before been violated, and particularly never before been violated by Mr. Dominguez, there was no evidence that Brinley\u2019s Grading had actual or constructive notice of Mr. Dominguez\u2019 inherent unfitness regarding his duties or of prior negligence committed by Mr. Dominguez. The trial court\u2019s grant of summary judgment to Brinley\u2019s Grading on this claim was, therefore, proper.\nIV\nFinally, plaintiff argues that the trial court erred in granting summary judgment in favor of Mr. Brinley. Plaintiff specifically contends a genuine issue of material fact exists because there is evidence that Mr. Brinley \u201cfailed to ensure that policies and procedures regarding the use of his company\u2019s vehicles was effectively communicated to its employees, such as Defendant Dominguez, who were operating such trucks in furtherance of their duties for his company\u201d and that Mr. Brinley \u201cfailed to ensure that there were any safeguards to prevent keys for vehicles being taken from employees who were not to operate vehicles under his company\u2019s policies.\u201d Plaintiff then reasons that \u201c[b]y failing to provide these safeguards and ensure that his own regulations were being followed, Mr. Brinley was negligent. . . .\u201d\n\u201c[A]s a general rule an officer of a corporation is not liable for the torts of the corporation \u2018merely by virtue of his office.\u2019 \u201d Wolfe v. Wilmington Shipyard, Inc., 135 N.C. App. 661, 670, 522 S.E.2d 306, 312-13 (1999) (quoting United Artists Records, Inc. v. Eastern Tape Corp., 19 N.C. App. 207, 215, 198 S.E.2d 452, 457 (1973)). However, \u201can officer of a corporation \u2018can be held personally liable for torts in which he actively participates[,]\u2019 even though \u2018committed when acting officially.\u2019 \u201d Id., 522 S.E.2d at 313 (quoting Wilson v. McLeod Oil Co., 327 N.C. 491, 518, 398 S.E.2d 586, 600 (1990)).\nIn an affidavit, Mr. Brinley asserted that at the time of the accident he was not present at the Brinley\u2019s Grading Durham facility; he \u201cwas not responsible for directing or controlling the work of company employees being performed on the premises, including any work being performed by... Ismael Dominguez on behalf of the company on the premises\u201d; he was \u201cunaware of any actions taken by Ismael Dominguez on the premises\u201d; and \u201c[a]t no time prior to the accident did [he] have any information from any source of any unsafe or dangerous actions of Ismael Dominguez.\u201d Plaintiff points to no evidence contradicting this affidavit.\nThere is, however, some evidence that Mr. Brinley participated in the formation or implementation of the company safety policies at issue. Mr. Brinley testified that even though he had relinquished control of the company\u2019s day-to-day operations to the company\u2019s vice-presidents, Chad and Robby Brinley, Chad and Robby still met with Mr. Brinley to discuss \u201cpolicies we might want or things we might want to update or things we might want to change or things along that line.\u201d\nIn addition, Mr. Brinley testified to the substance of Brinley\u2019s Grading\u2019s safety policies and then explained that it was company policy to hold safety meetings in which the policies were reiterated to employees. Regarding his own participation in those events, Mr. Brinley testified: \u201cAnd I\u2019m speculating on what goes on month to month, but these are the meetings when I handle them, which has been a number of years. But I have kind of passed on to [Robby] and Chad, so I\u2019m sure that\u2019s what happens \u2014 reasonably sure.\u201d This evidence tended to show that, at the time of the accident, Mr. Brinley still participated in some company safety policy formation and that he had previously participated in the implementation of the company safety policies at issue.\nNevertheless, there is no evidence that Mr. Brinley\u2019s role in implementation of the company\u2019s safety policies was negligent. There is uncontradicted evidence that the policies at issue had, to Mr. Brinley\u2019s knowledge, never previously been violated by Mr. Dominguez or any other employee.\nPlaintiff\u2019s suggestion that Mr. Dominguez\u2019 violation of Brinley\u2019s Grading\u2019s policies, standing alone, constitutes evidence of Mr. Brinley\u2019s negligent implementation of safety procedures is insufficient. See B. B. Walker Co., 108 N.C. App. at 567, 424 S.E.2d at 175 (rejecting plaintiff\u2019s argument that, had employees of defendant been properly or adequately supervised, their thefts of plaintiff\u2019s property could have been prevented because it amounted to \u201cno more than speculation\u201d that because defendant failed to adequately supervise the employees, it was negligent).\nBecause there was no showing that Mr. Brinley \u201cshould have reasonably foreseen that more supervision was required\u201d to prevent Mr. Dominguez\u2019 deliberate violation of company policy, plaintiff has failed to show any negligence by Mr. Brinley. Id. The trial court did not err in granting summary judgment as to plaintiff\u2019s claims against Mr. Brinley.\nAffirmed in part, reversed in part.\nChief Judge MARTIN and Judge STROUD concur.\n. Based upon Rule 30(b)(6) deposition testimony by Chad and Thomas Brinley, the Brinley\u2019s Grading Employee Accident Report and Vehicle Accident Report qualify as business records and, thus, are admissible under Rule 803(6) of the Rules of Evidence as exceptions to the hearsay rule. See In re S.D.J., 192 N.C. App. 478, 482, 665 S.E.2d 818, 821 (2008) (\u201cA qualifying business record is admissible when a proper foundation ... is laid by testimony of a witness who is familiar with the... records and the methods under which they were made so as to satisfy the court that the methods, the sources of information, and the time of preparation render such evidence trustworthy.\u201d (internal quotation marks omitted)).\n. The OSHA report was admissible under Rule 803(8)(c) of the North Carolina Rules of Evidence as a public record. See Haymore v. Thew Shovel Co., 116 N.C. App. 40, 46, 446 S.E.2d 865, 869 (1994) (holding that trial court properly admitted OSHA report pursuant to Rule 803(8)); Bolick v. Sunbird Airlines, Inc., 96 N.C. App. 443, 446, 386 S.E.2d 76, 77 (1989) (explaining that, although factual findings from official investigative reports are admissible under Rule 803(8)(c), \u201cany hearsay contained in the report must also fall under one of the hearsay exceptions\"), aff\u2019d per curiam, 327 N.C. 464, 396 S.E.2d 323 (1990).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Abrams & Abrams, P.A., by Douglas B. Abrams, Margaret S. Abrams, and Noah B. Abrams; and Taft, Taft & Haigler, PA., by Thomas F. Taft, for plaintiff-appellant.", "Bryant, Lewis & Lindsley, P.A., by David O. Lewis, for defendantsappellees Brinley\u2019s Grading Services, Inc. and Thomas E. Brinley, Sr." ], "corrections": "", "head_matter": "DONNA W. TAFT, Administratrix of the Estate of Michael Wayne Paul, Jr., Plaintiff v. BRINLEY\u2019S GRADING SERVICES, INC., ISMAEL DOMINGUEZ and THOMAS E. BRINLEY, SR., Defendants\nNo. COA12-790\nFiled 5 February 2013\n1. Workers\u2019 Compensation \u2014 special employee \u2014 summary judgment improper\nThe trial court erred in a wrongful death case by granting summary judgment to defendant Brinley\u2019s Grading based on the exclusivity provision of the Workers\u2019 Compensation Act under N.C.G.S. \u00a7 97-10.1. The evidence in the record gave rise to genuine issues of material fact regarding whether decedent, who was actually employed by a company other than Brinley\u2019s Grading, amounted to a \u201cspecial employee\u201d subject to the Workers\u2019 Compensation Act\u2019s exclusivity provision.\n2. Wrongful Death \u2014 vicarious liability \u2014 negligence\u2014scope of employment\nThe trial court erred in a wrongful death case by granting summary judgment to defendant Brinley\u2019s Grading on the issue of its vicarious liability for any negligence by defendant Dominguez. The evidence tended to show that Dominguez was acting within the scope of his employment and in furtherance of Brinley\u2019s Grading\u2019s business when the alleged negligence occurred, and evidence that Dominguez was forbidden from starting or otherwise operating the truck involved in the accident would not necessarily remove Dominguez from the course and scope of employment.\n3. Employers and Employees \u2014 negligent hiring, supervision, and retention \u2014 compliance with company policy \u2014 wrongful death \u2014 no actual or constructive notice\nThe trial court did not err in a wrongful death case by granting summary judgment on plaintiff\u2019s claim that defendant Brinley\u2019s Grading was independently negligent by failing to reasonably supervise defendant Dominguez to ensure that he complied with the company\u2019s vehicle policy, reasonably trained Dominguez regarding the policy, and secured the company vehicles\u2019 keys in a manner that would prevent unqualified employees from accessing them. There was no evidence that Brinley\u2019s Grading had actual or constructive notice of Mr. Dominguez\u2019 inherent unfitness regarding his duties or of prior negligence committed by Mr. Dominguez.\n4. Employer and Employee \u2014 implementation of company safety policies \u2014 supervision\u2014no reasonable foreseeability\nThe trial court erred in a wrongful death case by granting summary judgment in favor of defendant Brinley. There was no evidence that Brinley\u2019s role in implementation of the company\u2019s safety policies was negligent since there was no showing that Brinley should have reasonably foreseen that more supervision was required to prevent defendant Dominguez\u2019 deliberate violation of company policy.\nAppeal by plaintiff from orders entered 4 January 2012 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 11 September 2012.\nAbrams & Abrams, P.A., by Douglas B. Abrams, Margaret S. Abrams, and Noah B. Abrams; and Taft, Taft & Haigler, PA., by Thomas F. Taft, for plaintiff-appellant.\nBryant, Lewis & Lindsley, P.A., by David O. Lewis, for defendantsappellees Brinley\u2019s Grading Services, Inc. and Thomas E. Brinley, Sr." }, "file_name": "0502-01", "first_page_order": 512, "last_page_order": 531 }