in the Court of Appeals 30 November 2016.
by defendants from order entered 8 March 2016 by Judge
Michael J. O'Foghludha in Wake County Superior Court No.
15 CVS 1191.
Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Anthony L.
Lucas, and Edwards Kirby, LLP, by William W. Plyler, for
Moore and Henderson, P.A., by Jay P. Tobin, for
central issue in this appeal is whether employees injured
while working in "ultrahazardous" jobs may sue
their employers in the court system despite the provisions of
the Workers' Compensation Act requiring those claims to
be pursued at the Industrial Commission.
Francisco "Frank" Fagundes, who seeks to sue his
employer for injuries suffered during a blasting accident,
acknowledges that this is a novel argument. But he contends
that his position is simply a logical extension of our
Supreme Court's decision in Woodson v. Rowland,
329 N.C. 330, 407 S.E.2d 222 (1991).
disagree. The portion of Woodson addressing
jurisdiction under the Workers' Compensation Act does not
depend on the inherent danger of the occupation.
Woodson permits injured workers to sue in court if
their employer engaged in "misconduct knowing it is
substantially certain to cause serious injury or death,
" regardless of whether the job, ordinarily, is a
dangerous one. 329 N.C. at 340, 407 S.E.2d at 228. Fagundes
does not argue that he can satisfy the Woodson
substantial certainty test. He instead argues that his job at
a blasting company involved an "ultrahazardous"
activity which, at common law, was the subject of a strict
liability cause of action in the court system. He argues
that, because of the danger of his job and the common law
remedies traditionally available to him, he should be
permitted to sue in court.
another way, what Fagundes wants is not for this Court to
extend the reasoning of Woodson to a closely
analogous set of facts, but to rewrite the Workers'
Compensation Act to create an exception that he believes
serves important policy purposes. That is not what courts do.
When the General Assembly established the exclusive
jurisdiction of the workers' compensation system, it
chose not to create the exception that Fagundes seeks from
the courts. We have no authority to override that legislative
as explained in more detail below, we reverse the trial
court's denial of Defendants' motions for summary
judgment and remand for entry of an appropriate order and
judgment consistent with this opinion.
and Procedural History
East Coast Drilling & Blasting, Inc. is a company that
provides construction services, including drilling, blasting,
and crushing rock. Defendant Scott Carle is the company's
president and CEO. Defendant Juan Albino is a blaster for the
July 2013, Plaintiff Frank Fagundes was performing rock
crushing services for the company when debris ejected from a
blasting operation that Albino was supervising struck and
seriously injured Fagundes. On 29 January 2015, Fagundes sued
the company, Carle, and Albino. Among other claims, Fagundes
asserted a strict liability claim against all three
defendants and a willful, wanton, or reckless negligence
claim against Albino.
moved for summary judgment on 17 December 2015. Among other
grounds, Defendants argued that Fagundes failed to forecast
sufficient evidence to overcome the exclusivity provision in
the Workers' Compensation Act, which severely limits the
types of workplace injury claims that can be pursued in the
court system.On 8 March 2016, the trial court entered an
order partially granting the motion, but denying the motion
with respect to Fagundes's strict liability claim and his
willful, wanton, or reckless negligence claim against Albino.
Defendants timely appealed. This Court has appellate
jurisdiction because the denial of a motion concerning the
exclusivity provision ...