Vaughn v. Pike Electric, LLC, et al.

North Carolina Court of Appeals
Nov. 19, 2013

Decedent Gary Vaughn was killed in October of 2009 during his employment with Pike Electric. The Plaintiff alleged that Vaughn was employed as a groundman for Pike, and that his job was to assist foremen, linemen and other employees. He was not trained or permitted to work on poles with energized power lines. On the date of his death, Vaughn had been employed for only two months and had received limited training. He was instructed by his supervisor, Kenneth Penland, to climb a pole and begin retrofitting a transformer. During this process, Vaughn was electrocuted and died. Vaughn's estate was awarded benefits pursuant to the Worker's Compensation Act.

The Estate then filed a complaint against Pike Electric and Penland, alleging that their egregious conduct caused Vaughn's death. Pike Electric and Penland both moved to dismiss the Plaintiff's claims on the basis that the Worker's Compensation Act provides the exclusive remedy for a worker against his employer and co-workers when the worker is injured during the course and scope of his employment. The trial court denied both motions to dismiss and the Defendants appealed.

On appeal, while noting that such claims are generally barred by the exclusivity provision of the Worker's Compensation Act, the Court of Appeals discussed the differences in the claims against the employer (Pike Electric) and the co-worker (Penland).

In Woodson v. Rowland, 329 N.C. 330 (1991), the North Carolina Supreme Court held that an injured employee may properly bring a claim against his employer if 1) the worker suffered injury or death and 2) the employer intentionally engaged in misconduct knowing that such conduct was substantially certain to cause serious injury or death. In sum, an injured worker needs to allege that his employer was engaged in intentional misconduct which caused the worker's injury. As stated in the Woodson opinion, "[intent] 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 'substantial intent'."

In contrast, when an injured worker seeks to pursue a claim against his co-worker, the injured worker must show only that the co-worker acted with willful, wanton and reckless negligence. Pleasant v. Johnson, 312 N.C. 710 (1985). "[W]illful, wanton and reckless negligence is present when a co-employee intentionally fails to carry out some duty with manifest indifference to the consequences resulting from that failure." Willful, wanton and reckless negligence requires something more than ordinary negligence, but does not require intent or "substantial intent." Willful, wanton and reckless acts fall somewhere between ordinary negligence and intentional acts.

The Court therefore held that to survive a motion to dismiss, a plaintiff must allege that his employer's actions amounted to intentional misconduct. In reviewing the Complaint here, the Court noted that it was never alleged that Pike Electric had notice of the alleged hazard, accepted and encouraged the practices performed in the field or had notice of Penland's alleged history of ignoring safety requirements. The Court points out that the Complaint does allege that Vaughn was instructed to climb the pole by Penland "in clear violation of Pike Electric's own methods and safety manuals." The Court found that the inference to be taken from this allegation is that Pike Electric clearly did not condone Penland's actions. "Simply put, Plaintiff offers no basis to believe that Pike Electric was aware of, intended, or was substantially certain that Penland's actions on that day would result in Decedent's death." As a result, the Plaintiff's claim against Pike Electric was dismissed.

The analysis of the claims against Penland is significantly different. As to Penland, it was alleged that he knew Vaughn was not properly trained for the type of work that he was being asked to do, knew that Vaughn was not allowed to perform the type of work he was being asked to do and knew that he lacked any experience in performing this type of work. While these allegations do not rise to the level of intentional misconduct on the part of Penland, they do "create an inference that Penland was manifestly indifferent to the consequences of his actions" for purposes of deciding a motion to dismiss. The Plaintiff was allowed to pursue her claim against co-worker Penland.

Frazier v. Carolina Coastal Railway, Inc. and the Town of Knightdale

NO. COA 13-426

Nov. 19, 2013