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IN THE SUPREME COURT OF NORTH CAROLINA
No.  49PA03
FILED:  7 NOVEMBER  2003
DONALD EARL WHITAKER and THOMAS LEE WHITAKER, JR.,
Co-Administrators of the Estate of CARLTON WHITAKER, Deceased
v.
TOWN OF SCOTLAND NECK, C.T. HASTY, Individually and in his
official capacity as Safety Director for the Town of Scotland
Neck, and DOUGLAS BRADDY, Individually and in his official
capacity as Public Works Superintendent for the Town of Scotland
Neck
On discretionary review pursuant to N.C.G.S.  §  7A-31 of
a unanimous decision of the Court of Appeals,  154 N.C. App.  660,
572 S.E.2d  812  (2002), reversing and remanding an order for
summary judgment entered by Judge Dwight L. Cranford on  15 August
2001, in Superior Court, Halifax County.    Heard in the Supreme
Court  9 September  2003.
Joynes & Gaidies Law Group, P.A., by Frank D. Lawrence,
III, for plaintiff-appellees.
Cranfill, Sumner & Hartzog, L.L.P., by Patrick H.
Flanagan, Donna R. Rascoe, Edward C. LeCarpentier, III,
and David H. Batten for defendant-appellants.
WAINWRIGHT, Justice.
The issue raised in the present appeal is whether
plaintiffs presented sufficient evidence to trigger the narrowly
defined Woodson exception to the general exclusivity provisions
of the North Carolina Workers’ Compensation Act  (Act).    See
Woodson v. Rowland,  329 N.C.  330,  407 S.E.2d  222  (1991); see also
N.C.G.S.  §  97-10.1  (2001)  (excluding all rights and remedies
against employers other than those specifically set forth in the
Workers’ Compensation Act).    For the reasons set forth below, we




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hold that plaintiffs did not meet this burden and that the trial
court properly granted summary judgment in favor of defendants.
The evidence presented to the trial court shows the
following:    The Town of Scotland Neck  (Town) is a North Carolina
municipality that provides general governmental services
including, among other things, garbage collection.    Decedent
Carlton Whitaker was employed by the Town as a general
maintenance worker assigned to assist in the operation of a
garbage truck.
On  30 July  1997, decedent and two other maintenance
workers were emptying a dumpster at a private school.    The
garbage truck backed up to the dumpster, with decedent positioned
at the rear of the truck.    Decedent’s job was to attach the
dumpster to the truck’s lifting equipment so that the dumpster
could be emptied.    In order to secure the dumpster for lifting,
decedent and his co-worker attached a trunnion bar on the front
of the dumpster to latching mechanisms located at the rear of the
truck.    Decedent hooked the truck’s cable winch to the rear of
the dumpster.    Coupled to the truck in this fashion, the winch
hoisted the dumpster into the air, pivoting the dumpster on its
trunnion bar, and allowing its contents to fall into the truck’s
rear compactor.
As the dumpster was being hoisted, the latching
mechanism on decedent’s side of the garbage truck gave way,
releasing the trunnion bar and allowing the raised container to
swing free of its restraints.    The dumpster swung around to
decedent’s side of the truck, striking decedent and pinning him




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against the truck.    Decedent’s co-workers rushed to his aid,
manually pushing the dumpster aside and lowering decedent to the
ground.    Following the accident, decedent was conscious and could
talk.
Rescue personnel responded and transported decedent to
the hospital.    Twenty-eight days after the accident, decedent
died as a consequence of a crush injury to his chest.
On the day of the accident, Scotland Neck Safety
Director C.T. Hasty began his investigation.    He found that the
dumpster latching mechanism on the truck could not, in fact, be
latched by hand and that the dumpster was bent.    He interviewed a
number of decedent’s co-workers, several of whom reported that
both the dumpster and the truck’s latching mechanism had been
broken for at least two months and that such defects had been
reported to their supervisor.    The supervisor, however, denied
any prior knowledge of defects in the truck or dumpster.    Based
upon his investigation, Hasty concluded that the broken latch and
the bent dumpster were the direct cause of the accident.
In August  1997, the North Carolina Department of
Labor’s Division of Occupational Safety and Health  (OSHANC) also
investigated the accident and similarly concluded that  “defective
equipment was the proximate cause of the accident” and that  “the
accident  .  .  . was a result of employment conditions that were
not in compliance with the safety standards of OSHA.”    More
specifically, the OSHANC investigator found five  “serious”
violations of state labor law.    These violations included:
failure to train employees in the safe operation of garbage truck




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equipment, failure to properly supervise employees in the
operation of garbage truck equipment, failure to implement a
program for inspection of garbage truck equipment, operation of
defective garbage truck equipment, and unsafe operation of
garbage truck equipment.    As a result of these OSHANC violations,
the Town was assessed penalties totaling  $10,500.
On  20 August  1999, plaintiffs Donald Whitaker and
Thomas Whitaker, Jr., as co-administrators of the estate of
decedent, filed a civil action against the Town; Scotland Neck
Safety Director C.T. Hasty, in his individual and official
capacity; and Scotland Neck Public Works Superintendent Douglas
Braddy, in his individual and official capacity.    Plaintiffs
alleged  “willful, wanton, reckless, careless and gross
negligence” and demanded compensatory and punitive damages.
Defendants denied all negligence.    As an additional
defense, defendants responded that plaintiffs’ civil action was
barred by the North Carolina Workers’ Compensation Act, which
limits remedies for work-related injuries to those expressly
provided by the Act.
The trial court agreed that plaintiffs’ claim was
barred by the Workers’ Compensation Act and granted defendants’
motion for summary judgment on  15 August  2001.    Plaintiffs
thereafter appealed to the Court of Appeals, which reversed the
trial court, concluding that plaintiffs had raised a genuine
issue of material fact under Woodson as to whether defendants’
actions were substantially certain to cause decedent’s death.




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Whitaker v. Town of Scotland Neck,  154 N.C. App.  660,  572 S.E.2d
812  (2002).
The Court of Appeals based its decision in the present
case on a multifactor test that it set out in Wiggins v. Pelikan,
Inc.,  132 N.C. App.  752,  513 S.E.2d  829  (1999).    Whitaker,  154
N.C. App. at  663-64,  572 S.E.2d at  814.    In Wiggins, the Court of
Appeals applied the following six factors in deciding whether the
defendant-employer intentionally engaged in misconduct
substantially certain to cause the injury or death of an
employee:                                                                “(1) Whether the risk that caused the harm existed for
a long period of time without causing injury”;  “(2) Whether the
risk was created by a defective instrumentality with a high
probability of causing the harm at issue”;  “(3) Whether there was
evidence the employer, prior to the accident, attempted to remedy
the risk that caused the harm”;  “(4) Whether the employer’s
conduct which created the risk violated state or federal work
safety regulations”;  “(5) Whether the defendant-employer created
a risk by failing to adhere to an industry practice, even though
there was no violation of a state or federal safety regulation”;
and  “(6) Whether the defendant-employer offered training in the
safe behavior appropriate in the context of the risk causing the
harm.”    Wiggins,  132 N.C. App. at  756-58,  513 S.E.2d at  832-33.
Relying on this test, the Court of Appeals in the
present case concluded that summary judgment in favor of
defendants was inappropriate because plaintiffs had offered proof
of the existence of most of the Wiggins factors.    Whitaker,  154
N.C. App. at  664-65,  572 S.E.2d at  815.




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After our thorough review of the facts in the present
case, we conclude that the trial court properly granted
defendants’ motion for summary judgment.    Moreover, we conclude
that the six-factor test created by the Court of Appeals in
Wiggins misapprehends the narrowness of the substantial certainty
standard set forth in Woodson v. Rowland.    Accordingly, we
explicitly reject the Wiggins test and rely solely on the
standard originally set out by this Court in Woodson v. Rowland.
As this Court has often discussed, the North Carolina
Workers’ Compensation Act was created to ensure that injured
employees receive sure and certain recovery for their work-
related injuries without having to prove negligence on the part
of the employer or defend against charges of contributory
negligence.    See, e.g., Pleasant v. Johnson,  312 N.C.  710,  712,
325 S.E.2d  244,  246-47  (1985).    In exchange for these  “limited
but assured benefits,” the employee is generally barred from
suing the employer for potentially larger damages in civil
negligence actions and is instead limited exclusively to those
remedies set forth in the Act.    Id.; Woodson,  329 N.C. at  338,
407 S.E.2d at  227.
This Court, however, recognizes an important exception
to the general exclusivity provisions of the Workers’
Compensation Act where an employee is injured or killed as a
result of the intentional misconduct of the employer.    See
Pleasant,  312 N.C. at  713,  325 S.E.2d at  247.    In Woodson, this
Court slightly expanded this exception to include cases in which
a defendant employer engaged in conduct that, while not




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categorized as an intentional tort, was nonetheless substantially
certain to cause serious injury or death to the employee.                329
N.C. at  337-44,  407 S.E.2d at  226-30.    In such cases, the injured
employee may proceed outside the exclusivity provisions of the
Act and maintain a common law tort action against the employer.
Id. at  348,  407 S.E.2d at  233.
In Woodson v. Rowland, the defendant-employer was a
construction company that specialized in trench excavation.    Id.
at  334,  407 S.E.2d at  225.    An employee of the defendant-employer
was killed when a fourteen-foot-deep trench in which he was
working collapsed.    Id. at  336,  407 S.E.2d at  225.    The factual
circumstances surrounding the employee’s death in Woodson were
particularly offensive to this Court.    In flagrant disregard of
safety regulations and industry-wide standards, the defendant-
employer’s president had knowingly directed his employees to work
in a deep trench with sheer, unstable walls that lacked proper
shoring.    Id. at  345-46,  407 S.E.2d at  231.    The hazard of a
cave-in was so obvious that the foreman of another construction
crew working on the project had emphatically refused to send his
men into the trench until it was properly shored.    Id. at  335,
407 S.E.2d at  225.    Moreover, the defendant-employer had been
cited at least four times in the preceding six and a half years
for multiple violations of trenching-safety regulations.    Id. at
345,  407 S.E.2d at  231.    Thus, there was sufficient evidence from
which  “a reasonable juror could determine that upon placing a man
in this trench serious injury or death as a result of a cave-in




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was a substantial certainty rather than an unforeseeable event,
mere possibility, or even substantial probability.”    Id.
Based on these specific facts, this Court in Woodson
defined a narrow exception to the general exclusivity provisions
of the North Carolina Workers’ Compensation Act.    We specifically
held 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.
Id. at  340-41,  407 S.E.2d at  228.
The Woodson exception represents a narrow holding in a
fact-specific case, and its guidelines stand by themselves.    This
exception applies only in the most egregious cases of employer
misconduct.    Such circumstances exist where there is
uncontroverted evidence of the employer’s intentional misconduct
and where such misconduct is substantially certain to lead to the
employee’s serious injury or death.
In the present case, there is insufficient evidence to
reasonably support plaintiffs’ contention that defendants
intentionally engaged in misconduct knowing that it was
substantially certain to cause serious injury or death to
decedent.    Indeed, the facts of the present case are readily
distinguishable from those that gave rise to our holding in
Woodson.




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In Woodson, the defendant-employer’s president was on
the job site and observed first-hand the obvious hazards of the
deep trench in which he directed the decedent-employee to work.
Id. at  335,  407 S.E.2d at  225.    Knowing that safety regulations
and common trade practice mandated the use of precautionary
shoring, the defendant-employer’s president nonetheless
disregarded all safety measures and intentionally placed his
employee into a hazardous situation in which experts concluded
that only one outcome was substantially certain to follow:    an
injurious, if not fatal, cave-in of the trench.    Id. at  345-46,
407 S.E.2d at  231-32.
In the present case, there is no similar evidence that
defendants were manifestly indifferent to the health and safety
of their employees.    The Town has a long history of garbage
collection, yet there is no evidence of record that the Town had
been previously cited for multiple, significant violations of
safety regulations, as in Woodson.    On the day of the accident,
none of the Town’s supervisors were on-site to monitor or oversee
the workers’ activities.    Decedent was not expressly instructed
to proceed into an obviously hazardous situation as in Woodson.
There is no evidence that defendants knew that the latching
mechanism on the truck was substantially certain to fail or that
if such failure did occur, serious injury or death would be
substantially certain to follow.    As discussed in Woodson, simply
having knowledge of some possibility, or even probability, of
injury or death is not the same as knowledge of a substantial
certainty of injury or death.




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In Woodson, evidence was presented from which a jury
could reasonably conclude that the defendant-employer’s president
recognized the immediate hazards of his operation and consciously
elected to forgo critical safety precautions.    Id. at  345,  407
S.E.2d at  231.    Here, there is no such evidence.    Moreover, in
Woodson, the employee worked in a deep, narrow trench in which it
was impossible for him to escape or avoid injury once the soil
around him began to cave in.    Here, however, decedent was not so
helpless.    In sum, the forecast of evidence in the present case
fails to establish that defendants intentionally engaged in
misconduct knowing that it was substantially certain to cause
serious injury or death to decedent.    The facts of this case
involve defective equipment and human error that amount to an
accident rather than intentional misconduct.
We therefore conclude that plaintiffs failed to raise a
genuine issue of material fact as to defendants’ civil liability
under the Woodson exception to the general exclusivity provisions
of the North Carolina Workers’ Compensation Act.    Accordingly, we
reverse the ruling of the Court of Appeals and instruct that
court to reinstate the original order of the Superior Court,
Halifax County, granting summary judgment in favor of defendants.
REVERSED.

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