               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-1427

                              Filed: 4 September 2018

Wake County, No. 15 CVS 1191

FRANCISCO FAGUNDES and DESIREE FAGUNDES, Plaintiffs,

              v.

AMMONS DEVELOPMENT GROUP, INC.; EAST COAST DRILLING                              &
BLASTING, INC.; SCOTT CARLE; and JUAN ALBINO, Defendants.


        Appeal by Plaintiff from order entered 9 October 2017 by Judge A. Graham

Shirley, II in Superior Court, Wake County. Heard in the Court of Appeals 4 June

2018.


        The Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Anthony L. Lucas,
        for Plaintiff-Appellant Francisco Fagundes.

        Ragsdale Liggett PLLC, by Amie C. Sivon and John M. Nunnally, for
        Defendant-Appellee Ammons Development Group, Inc.


        McGEE, Chief Judge.


        Francisco Fagundes (“Plaintiff”) appeals an order entered 9 October 2017

granting summary judgment in favor of defendant East Coast Drilling & Blasting,

Inc., defendant Scott Carle, and defendant Juan Albino (collectively, “the other

defendants”). Plaintiff appeals the 9 October 2017 order for the sole purpose of

appealing an order entered 8 December 2015 granting a motion to dismiss in favor of

defendant Ammons Development Group, Inc. (“Defendant”).           Plaintiff has no
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                                          Opinion of the Court



outstanding claims against the other defendants.1 For the reasons discussed below,

we reverse the trial court’s 8 December 2015 order.

                             I. Factual and Procedural Background

       Defendant was the developer of Heritage East (“Heritage East” or “the

construction site”), a planned residential subdivision in Wake Forest, North Carolina.

Defendant hired East Coast Drilling & Blasting, Inc., (“East Coast”) to provide the

services of onsite drilling, blasting, and crushing of rock during the construction of

Heritage East. Plaintiff was employed by East Coast as a heavy equipment operator

in East Coast’s rock crushing division.

       Members of East Coast’s blasting crew were blasting a certain area within the

construction site on or about 25 June 2013.                  Plaintiff was also working at the

construction site that day. According to both Plaintiff and Defendant, Juan Albino

(“Albino”), a blaster employed by East Coast, misinformed Plaintiff that Plaintiff was

“located in a position that would be safe from flying debris and flyrock [that would be

dislodged as a result of an imminent blast].” When Albino subsequently conducted

the blast, flyrock and debris flew from the blast site with tremendous force. A heavy

piece of rock struck Plaintiff’s left leg, causing injuries.




       1   Plaintiff Desiree Fagundes filed a voluntary dismissal in this action on 13 October 2015.


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       Plaintiff filed a complaint against Defendant, East Coast, Albino, and Scott

Carle, an East Coast executive officer, on 29 January 2015. In addition to various

claims asserted against the other defendants, Plaintiff alleged Defendant was

“strictly liable for the damages sustained by Plaintiff . . . that were proximately

caused by the ultrahazardous activity of blasting.” Defendant filed an answer and

motion to dismiss Plaintiff’s complaint on 20 April 2015. Citing N.C. Gen. Stat. § 1A-

1, Rule 12(b)(6), Defendant first asserted that Plaintiff failed to state a valid claim

for relief. Among its additional defenses, Defendant further asserted that “[t]he

doctrine of strict liability . . . does not apply to cases where injury results to those who

have reason to know of the risk which makes the undertaking ultrahazardous and

bring themselves within the area which will be endangered by its miscarriage.”

Defendant alleged that

              [a]s an employee working in the field of blasting, Plaintiff
              [] consented to the dangers and risks associated with the
              field of blasting and cannot recover against Defendant [] on
              a claim of strict liability. Plaintiff[] knowingly put himself
              at risk and was an active participant. Further, Plaintiff[]
              was warned about the risks associated with blasting and
              was trained regarding the risks associated with blasting.

The trial court granted Defendant’s motion to dismiss on 8 December 2015. Plaintiff

appealed the dismissal of his strict liability claim against Defendant, but this Court

dismissed that appeal as interlocutory because Plaintiff “continue[d] to assert

unadjudicated claims against [the other] defendants[,]” and Plaintiff did not



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specifically contend the interlocutory appeal affected a substantial right that would

be lost absent immediate review. See Fagundes v. Ammons Development Group, Inc.,

___ N.C. App. ___, ___, 791 S.E.2d 876, ___ (2016) (unpublished).

      The trial court subsequently denied summary judgment on Plaintiff’s strict

liability claim against the other defendants and Plaintiff’s willful, wanton, and

reckless negligence claim against Albino.       On appeal, this Court reversed.      See

Fagundes v. Ammons Development Group, Inc., ___ N.C. App. ___, 796 S.E.2d 529

(2017) (“Fagundes I”). We concluded that “because [Plaintiff] was injured in a work-

related accident, the [North Carolina] Workers’ Compensation Act provide[d] the

exclusive remedy for his injuries, and the trial court lacked jurisdiction to adjudicate

his strict liability claims against his employer.” Id. at ___, 796 S.E.2d at 533. This

Court also concluded the trial court erroneously denied summary judgment with

respect to Plaintiff’s claim against Albino for willful, wanton, and reckless negligence.

Id. at ___, 796 S.E.2d at 533. On remand, the trial court entered an order on 9 October

2017 granting summary judgment for the other defendants on Plaintiff’s strict

liability claim, and granting summary judgment for Albino on Plaintiff’s claim for

willful, wanton, and reckless negligence. Consequently, Plaintiff concedes the other

defendants “are no longer aggrieved parties.”        Plaintiff now appeals from the 9

October 2017 order for the purpose of appealing the 8 December 2015 order

dismissing Plaintiff’s strict liability claim against Defendant.



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                               II. Motion to Dismiss

                               A. Standard of Review

                    A motion to dismiss under [N.C. Gen. Stat. § 1A-1,
             Rule] 12(b)(6) is the usual and proper method of testing the
             legal sufficiency of [a] complaint. In reviewing a trial
             court’s Rule 12(b)(6) dismissal, the appellate court must
             inquire whether, as a matter of law, the allegations of the
             complaint, treated as true, are sufficient to state a claim
             upon which relief may be granted under some legal theory.

Newberne v. Department of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618

S.E.2d 201, 203 (2005) (citations and internal quotation marks omitted).           “A

complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the

claim made, if sufficient facts to make out a good claim are absent, or if facts are

disclosed which will necessarily defeat the claim.” Fussell v. N.C. Farm Bureau Mut.

Ins. Co., 364 N.C. 222, 225, 695 S.E.2d 437, 440 (2010) (citation and quotation marks

omitted).   “The complaint must be liberally construed, and [a] court should not

dismiss the complaint unless it appears beyond a doubt that the plaintiff could not

prove any set of facts to support his claim which would entitle him to relief.” Hunter

v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 480, 593 S.E.2d 595, 598 (2004)

(citation and quotation marks omitted) (emphases added). See also Burgin v. Owen,

181 N.C. App. 511, 512, 640 S.E.2d 427, 428 (2007) (“The standard of review of an

order granting a 12(b)(6) motion is whether the complaint states a claim for which

relief can be granted under some legal theory when . . . all the allegations included



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therein are taken as true.” (citation omitted) (emphasis added)); Acosta v. Byrum, 180

N.C. App. 562, 567, 638 S.E.2d 246, 250 (2006) (“When analyzing a 12(b)(6) motion,

the court . . . is concerned with the law of the claim, not the accuracy of the facts that

support [the] [] motion.” (citation omitted)). “This Court must conduct a de novo

review of the pleadings to determine their legal sufficiency and to determine whether

the trial court’s ruling on the motion to dismiss was correct.” Leary v. N.C. Forest

Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003).

                                      B. Analysis

      A Rule 12(b)(6) motion to dismiss “is addressed to whether the facts alleged in

the complaint, when viewed in the light most favorable to the plaintiff[], give rise to

a claim for relief on any theory.” Ford v. Peaches Entertainment Corp., 83 N.C. App.

155, 156, 349 S.E.2d 82, 83 (1986) (citation omitted). Importantly, “[t]he issue is not

whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer

evidence to support the claim.” S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC,

189 N.C. App. 601, 607, 659 S.E.2d 442, 448 (2008).

      In the present case, Plaintiff’s complaint alleged the following in support of his

strict liability claim against Defendant:

             58. Blasting is an ultrahazardous activity.

             59. Defendant [] knew that blasting is an ultrahazardous
             activity.

             60. Defendant [] hired [d]efendant East Coast to perform


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             the ultrahazardous activity of blasting at the Heritage East
             development site, including the area in question.

             61. In hiring [d]efendant East Coast to perform the
             ultrahazardous activity of blasting, Defendant [] ha[d] a
             non-delegable duty for the safety of Plaintiff [].

             62. Defendant [] is strictly liable for the damages sustained
             by Plaintiff [] that were proximately caused by the
             ultrahazardous activity of blasting.

             63. As a direct and proximate result of the ultrahazardous
             activity of blasting by Defendant [] as described herein,
             Plaintiff [] suffered the injuries and sustained the damages
             set forth above, and is entitled to compensatory damages[.]

      In a memorandum of law filed by Defendant in support of its motion to dismiss,

Defendant contended Plaintiff’s complaint “disclosed facts which necessarily defeat

Plaintiff’s claim against [Defendant].” Defendant argued certain facts alleged in the

complaint made it “clear that Plaintiff assumed the risk of being injured by a blast

and as such Plaintiff has not stated a claim for which relief can be granted.”

(emphasis added). Defendant argued that Plaintiff “voluntarily exposed himself to

danger both generally (by accepting employment with a blasting company[]) and

specifically (by being at the blast [that occurred on [25 June] 2013[]).”

      On appeal, Defendant asserts that an employee of a blasting company has no

legally cognizable strict liability claim – against any third party – for blasting-related

injuries sustained while at work.         According to Defendant, in this context,

“assumption of risk” is implicit in the contract of employment and bars recovery on



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the basis of strict liability as a matter of law. Thus, Defendant submits that, in the

present case, “Plaintiff, an employee of a blasting company, has no recognized strict

liability claim against the developer [] which hired [Plaintiff’s] [employer].”

Defendant further argues that, even if Plaintiff is entitled to assert a strict liability

claim in this context, the affirmative defense of assumption of risk applies to

Plaintiff’s claim and, based on the allegations in Plaintiff’s complaint, bars recovery

as a matter of law. We disagree.

       Ordinarily, “one who employs an independent contractor is not liable for the

independent contractor’s acts.” Reynoso v. Mallard Oil Co., 223 N.C. App. 58, 61, 732

S.E.2d 609, 611 (2012) (citation omitted). “However, if the work to be performed by

[an] independent contractor is either (1) ultrahazardous or (2) inherently dangerous,

and the employer either knows or should have known that the work is of that type,

liability may attach despite the independent contractor status.” Kinsey v. Spann, 139

N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000) (emphasis added).

       “Blasting is ultrahazardous because high explosives are used and it is

impossible to predict with certainty the extent or severity of its consequences.”

Guilford Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 74, 131 S.E.2d 900, 904

(1963) (citation and quotation marks omitted). In Guilford, our Supreme Court held

that, as a result of the unpredictable and unpreventable dangers associated with

blasting, “[b]lasting operations . . . must pay their own way. . . . The principle of strict



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or absolute liability for extrahazardous [sic] activity thus is the only sound

rationalization.” Id. (citation and quotation marks omitted). The Court subsequently

described strict liability for blasting as

              [t]he rule . . . that one who is lawfully engaged in blasting
              operations is liable without regard to whether he has been
              negligent, if by reason of the blasting he causes direct
              injury to neighboring property or premises by casting rocks
              or debris thereon or by concussion or vibrations set in
              motion by the blasting.

Trull v. Well Co., 264 N.C. 687, 691, 142 S.E.2d 622, 624 (1965) (emphasis added).

“To date, blasting is the only activity recognized in North Carolina as ultrahazardous.

Consequently, those responsible are held strictly liable for damages, mainly because

the risk of serious harm cannot be eliminated with reasonable care.”          Jones v.

Willamette Industries, Inc., 120 N.C. App. 591, 596, 463 S.E.2d 294, 298 (1995)

(citation omitted).

       Our appellate courts have distinguished between ultrahazardous activities,

which give rise to strict liability, and “inherently dangerous activities,” which are

governed by principles of negligence. “Unlike ultrahazardous activities, inherently

dangerous activities are susceptible to effective risk control through the use of

adequate safety precautions.” Woodson v. Rowland, 329 N.C. 330, 351, 407 S.E.2d

222, 234 (1991) (citation omitted). “[T]aking the necessary safety precautions can

demonstrate reasonable care protecting the responsible party from liability under a

negligence standard.” Id. This Court stated in Kinsey that, in contrast to inherently


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dangerous activity claims, in cases involving ultrahazardous activities, “the employer

is strictly liable for any harm that proximately results [from the ultrahazardous

activity].   In other words, he is liable even if due care was exercised in the

performance of the activity.”    Kinsey, 139 N.C. App. at 374, 533 S.E.2d at 491

(citations omitted) (emphasis in original).

                    Generally,     the    [North    Carolina]  Workers’
              Compensation Act provides the exclusive remedy for an
              employee injured in a workplace accident. However, in
              Woodson, [] our Supreme Court created an exception
              allowing an employee to assert a [civil] claim against an
              employer for damages when the employer intentionally
              engages in misconduct knowing it is substantially certain
              to cause serious injury or death to employees[.]

Arroyo v. Scottie’s Professional Window Cleaning, 120 N.C. App. 154, 158-59, 461

S.E.2d 13, 16 (1995) (citations and internal quotation marks omitted); see also

Pendergrass v. Card Care, Inc., 333 N.C. 233, 239-40, 424 S.E.2d 391, 395 (1993). The

“Woodson exception” applies not only to an employee’s direct employer but also to

“[o]ne who employs an independent contractor to perform an inherently dangerous

activity[,] [and the principal hiring entity] may not delegate to the independent

contractor the duty to provide for the safety of others[.]” Woodson, 329 N.C. at 352,

407 S.E.2d at 235.    “The party that employs the independent contractor has a

continuing responsibility to ensure that adequate safety precautions are taken.” Id.

Accordingly, under Woodson, a party that hires an independent contractor to perform

an inherently dangerous activity, and “[knows] of the circumstances creating the


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danger,” is liable to employees of the independent contractor if the principal employer

fails to “exercise due care to see that [the employees] [are] provided a safe place in

which to work and proper safeguards against any dangers as might be incident to the

work.” Id. at 356-57, 407 S.E.2d at 238.

      We note that Woodson involved an employee who was killed while constructing

a trench, an activity that may or may not be deemed inherently dangerous depending

“on the particular trench being dug and the pertinent circumstances surrounding the

digging.” Id. at 356, 407 S.E.2d at 237; see also O’Carroll v. Texasgulf, Inc., 132 N.C.

App. 307, 313, 511 S.E.2d 313, 318 (1999) (“Although the determination of whether

an activity is inherently dangerous is often a question of law, whether a particular

trenching situation constitutes an inherently dangerous activity usually presents a

question of fact and should be addressed on a case by case basis[.]” (citations omitted)

(emphases in original)). Although Woodson involved an inherently dangerous activity

claim, our Supreme Court stated in its opinion that

             [p]arties whose blasting proximately causes injury are held
             strictly liable for damages, largely because reasonable care
             cannot eliminate the risk of serious harm. Because these
             activities are extremely dangerous, they must “pay their
             own way,” and the parties who are responsible must bear
             the cost regardless of whether they have been negligent.

Id. at 350-51, 407 S.E.2d at 234 (citations omitted). In the present case, Plaintiff

contends this language in Woodson supports his strict liability claim against

Defendant. See also id. at 352, 407 S.E.2d at 235 (“The rule imposing liability on one


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who employs an independent contractor [to perform an inherently dangerous activity]

applies whether [the activity] involves an appreciable and foreseeable danger to the

workers employed or to the public generally.” (citation and internal quotation marks

omitted) (second alteration in original) (emphasis added)). Defendant responds that

Woodson “did not address whether the employees of independent contractors [are]

included within the protection of strict liability claims” or “whether a strict liability

claim can be brought by an employee of a company engaged in ultrahazardous

activities against the entity who hired the company.” Defendant observes that “[n]o

North Carolina court has found that [a] hiring entity is strictly liable for an injury to

an employee of the company who conducted an ultrahazardous activity.” We observe,

however, that Defendant also has not cited any North Carolina case law concluding

a hiring entity cannot, as a matter of law, be strictly liable to employees of its

independent contractor for blasting-related injuries.

      In cases predating the North Carolina Workers’ Compensation Act (“WCA”),

see N.C. Gen. Stat. § 97-1 et seq., our Supreme Court repeatedly held that parties

responsible for blasting operations could not avoid liability for harms associated with

blasting merely by employing an independent contractor to do the work. See Watson

v. R.R., 164 N.C. 176, 182, 80 S.E. 175, 177 (1913); Arthur v. Henry, 157 N.C. 393,

402, 73 S.E.2d 206, 209-10 (1911); Hunter v. R.R., 152 N.C. 682, 687-89, 68 S.E. 237,




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239-40 (1910). With respect to employees of an independent contractor, our Supreme

Court stated in Greer v. Construction Co., 190 N.C. 632, 130 S.E. 739 (1925):

             The rule exempting an owner or contractor from liability
             for the negligence of an independent contractor to a
             stranger or third person does not necessarily exempt such
             owner or contractor from liability to the servant or
             employee of the independent contractor who is injured
             while engaged in work for the ultimate benefit of such
             owner or contractor. There is a relationship between the
             owner or contractor and the servant or employee of the
             independent contractor which may impose upon the former
             duties which the law does not impose upon him with
             respect to strangers or third persons. The law would not
             be just to itself or to those who have a right to rely upon it
             for protection, if an owner or contractor could, in all cases,
             by committing the work in which he is interested to an
             independent contractor, secure absolute exemption from
             all liability to those who by their labor and by methods and
             under circumstances contemplated when the original
             contract was made, contribute to its full performance.

Greer, 190 N.C. at 636, 130 S.E. at 742. Recognizing that “certain exceptions must

be made to the general rule exempting owners or contractors from liability for the

negligence of an independent contractor[,]” the Court further observed that

             [w]here the thing contracted to be done is necessarily
             attended with danger, however skillfully and carefully
             performed, or is intrinsically dangerous, it is held that the
             party who lets the contract to do the act cannot thereby
             escape responsibility for any injury resulting from its
             execution, although the act to be performed may be lawful.

Id. (citation and quotation marks omitted).




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      Defendant dismisses Hunter, Arthur, Watson, and Greer as “inapplicable” to

the present case because they preceded both the WCA and the adoption of strict

liability for blasting in Guilford. Regardless, we find these cases useful for their

discussions about the relationship between the employer of an independent

contractor and third parties, including employees of the independent contractor,

when the work of the independent contractor is “necessarily attended with danger,

however skillfully and carefully performed[.]” Greer, 190 N.C. at 636, 130 S.E. at 742;

see also Watson, 164 N.C. at 182, 80 S.E. at 177 (“[T]he doctrine is well established

and is applicable here that the work at which the plaintiff [employee] was engaged[,

blasting,] is so intrinsically dangerous that protection from liability will not be

afforded by an independent contract[.]”); Arthur, 157 N.C. at 402, 73 S.E.2d at 210

(“[W]e must hold that the work to be done[, blasting,] was of such character that the

defendant [quarry owner] could not protect himself by the lease he made, and that he

is liable for the acts of the [independent contractor] in the prosecution of the work.”).

      Since Guilford – which did not involve personal injury or an employment-

related claim – few cases in our State have applied the principle of strict liability for

blasting. References to strict liability for blasting most often appear in dicta in cases

involving inherently dangerous activity claims. In mentioning strict liability for

blasting, however, our appellate courts have consistently indicated that a party

“responsible for,” or “engaged in,” the ultrahazardous activity is strictly liable for



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harm caused by the blasting. See, e.g., Woodson, 329 N.C. at 350-51, 407 S.E.2d at

234 (“Parties whose blasting proximately causes injury are held strictly liable for

damages, largely because reasonable care cannot eliminate the risk of serious harm.

Because these activities are extremely dangerous, they must ‘pay their own way,’ and

the parties who are responsible must bear the cost regardless of whether they have

been negligent.” (citations omitted) (emphasis added)); Trull, 264 N.C. at 691, 142

S.E.2d at 624 (“The rule . . . is that one who is lawfully engaged in blasting operations

is liable without regard to whether he has been negligent, if by reason of the blasting

he causes direct injury to neighboring property or premises[.]” (emphasis added));

Jones, 120 N.C. App. at 596, 463 S.E.2d at 298 (“To date, blasting is the only activity

recognized in North Carolina as ultrahazardous. Consequently, those responsible are

held strictly liable for damages, mainly because the risk of serious harm cannot be

eliminated with reasonable care.” (emphasis added)). Our Supreme Court stated in

Trull that “the rule of liability without allegation and proof of negligence . . . casts

the risk of the venture [of blasting] on the person who introduces the peril in the

community.” Trull, 264 N.C. at 691, 142 S.E.2d at 624 (emphasis added). Our limited

precedent on strict liability for blasting thus suggests that strict liability may attach

to any person or entity found “responsible for” blasting, and our pre-WCA case law

suggests that parties “responsible for” blasting may include one that hires an

independent contractor to conduct blasting operations.



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       Our case law also requires an element of proximate causation between the

blasting operations at issue and the injury or damages alleged. See, e.g., Trull, 264

N.C. at 691, 142 S.E.2d at 624 (holding “that one who is lawfully engaged in blasting

operations is [strictly] liable . . . if by reason of the blasting he causes direct injury[.]”

(emphasis added)); Kinsey, 139 N.C. App. at 374, 533 S.E.2d at 491 (noting an

employer engaged in blasting “is strictly liable for any harm that proximately results.”

(citation omitted) (second emphasis added)); Cody v. Dept. of Transportation, 45 N.C.

App. 471, 474, 263 S.E.2d 334, 335-36 (1980) (“Because of the inherently dangerous

or ultrahazardous nature of blasting, when a contractor employed by the Department

of Transportation uses explosives in the performance of his work, he is primarily and

strictly liable for any damages proximately resulting therefrom.” (citation and

internal quotation marks omitted) (emphasis added)).

       Here, Plaintiff’s complaint specifically alleged that Defendant “hired [] East

Coast to perform the ultrahazardous activity of blasting at the Heritage East

development site, including the area in [which Plaintiff was injured].” (emphasis

added). Plaintiff’s complaint also alleged that “[a]s a direct and proximate result of

the ultrahazardous activity of blasting by Defendant . . . , Plaintiff . . . suffered the

injuries and sustained the damages set forth [in the complaint][.]” (emphasis added).

We conclude that, under existing North Carolina law, Plaintiff has “allege[d] the

substantive elements of a valid claim[]” for strict liability for blasting. See Acosta,



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180 N.C. App. at 566-67, 638 S.E.2d at 250. Whether Plaintiff can successfully prove

Defendant was or should be considered “responsible for” the blast that injured

Plaintiff remains to be determined, but for purposes of Rule 12(b)(6), we find it

sufficient that Plaintiff alleged Defendant directly solicited East Coast’s blasting

services, and that a blast conducted pursuant to Defendant’s contract with East Coast

proximately caused Plaintiff’s injuries.

      Recently, in a separate appeal by the other defendants in this matter, this

Court determined that the WCA provides the exclusive remedy for an employee of a

blasting company who is injured by blasting and seeks to recover against his

employer, i.e., the blasting company. See Fagundes I, ___ N.C. App. at ___, 796

S.E.2d at 532-33; see also Whitaker v. Town of Scotland Neck, 357 N.C. 552, 556, 597

S.E.2d 665, 667 (2003) (“As this Court has often discussed, the [WCA] 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. 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 [WCA].” (citations and internal

quotation marks omitted)).      After observing in Fagundes I that “the workers’

compensation system [itself] imposes strict liability on employers[,]” this Court



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expressly declined to “create a new exception to the [WCA] because of the high risk

of serious injury in these types of ultrahazardous jobs and the robust common law

remedies that were available to workers injured in these types of jobs before our

General Assembly created the workers’ compensation system.” Fagundes I, ___ N.C.

App. at ___, 796 S.E.2d at 533.           We concluded that, notwithstanding the

ultrahazardous nature of blasting, “because [Plaintiff] was injured in a work-related

accident, the [WCA] provide[d] the exclusive remedy for his injuries, and the trial

court lacked jurisdiction to adjudicate his strict-liability claims against his employer.”

Id. at ___, 796 S.E.2d at 533 (emphasis added). In the present case, Defendant urges

us to “reject Plaintiff’s additional attempt to expand strict liability” by recognizing a

strict liability claim against an entity that hires an independent contractor to provide

blasting services by an employee of the independent contractor injured by blasting.

      Fagundes I involved Plaintiff’s strict liability claim against his direct employer

and co-employee only. See Estate of Gary Vaughn v. Pike Electric, LLC, 230 N.C. App.

485, 494, 751 S.E.2d 227, 233 (2013) (“Under the [WCA’s] exclusivity provision, a

worker is generally barred from bringing an action in our courts of general

jurisdiction against either his employer or a co-employee. Instead, the worker must

pursue his or her action before the North Carolina Industrial Commission.” (internal

citation omitted) (emphasis added)). This Court explicitly characterized the issue on

appeal in Fagundes I as being “whether employees injured while working in



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‘ultrahazardous’ jobs may sue their employers in the court system despite the

provisions of the [WCA] requiring those claims to be pursued [before] the Industrial

Commission.” Id. at ___, 796 S.E.2d at 531 (emphasis added). While this Court

suggested our analysis in Fagundes I encompassed employee claims “stemming from

workplace injuries[,]” we also acknowledged language in Woodson that “discussed

how a general contractor could be held strictly liable for injuries caused by a

subcontractor engaged in an ultrahazardous activity, such as blasting.” Id. at ___,

796 S.E.2d at 532 (citation omitted). In requiring Plaintiff to bring his claims against

East Coast before the Industrial Commission, we stressed that “the workers’

compensation system [already] imposes strict liability on employers.” Id. at ___, 796

S.E.2d at 533 (emphasis added).

      “To be entitled to maintain a proceeding for workers’ compensation, the

claimant must be, in fact and in law, an employee of the party from whom

compensation is claimed.” Youngblood v. North State Ford Truck Sales, 321 N.C. 380,

383, 364 S.E.2d 433, 437 (1988) (citations omitted) (emphasis added). “It is well

established that in order for a claimant to recover under the Workers’ Compensation

Act, the employer-employee relationship must exist at the time of the claimant’s

injury.” Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 343, 374 S.E.2d 472, 473

(1988); see also Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 689, 606 S.E.2d

379, 382 (2005) (“The claimant has the burden of proving that an employer-employee



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                                   Opinion of the Court



relationship existed at the time that the injury by accident occurred.” (citation

omitted)). “The question as to whether an employer-employee relationship existed at

the time of injury is a question of jurisdictional fact . . . [that] is reviewable by this

Court on appeal.” Durham v. McLamb, 59 N.C. App. 165, 168, 296 S.E.2d 3, 5 (1982)

(noting that, on appeal, “it is incumbent on this Court to review and consider all of

the evidence of record and make an independent finding [as to the existence of an

employer-employee relationship].” (citations omitted) (emphasis added)); see also

Postell v. B&D Const. Co., 105 N.C. App. 1, 10, 411 S.E.2d 413, 418 (1992) (listing

“several factors that are indicative of an employee/employer relationship.”). “[T]he

Industrial Commission has no jurisdiction to apply the [WCA] to a person who is not

subject to its provisions.” Youngblood, 321 N.C. at 383, 364 S.E.2d at 437; see also

Spencer v. Johnson & Johnson Seafood, 99 N.C. App. 510, 516, 393 S.E.2d 291, 294

(1990) (concluding that, because plaintiff was not an employee of defendant,

Industrial Commission “was without jurisdiction to render an award under the

[WCA].”).

      In the present case, nothing in Plaintiff’s complaint suggests Plaintiff and

Defendant had an employer-employee relationship at the time of Plaintiff’s blasting-

related injuries. See McCraw v. Mills, Inc., 233 N.C. 524, 530, 64 S.E.2d 658, 662

(1951) (holding employee of independent contractor was not an employee of party that

hired the independent contractor). Assuming arguendo that (1) Defendant may be



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                                         Opinion of the Court



subject to strict liability for Plaintiff’s injuries if Defendant was “responsible for” its

contractor’s blasting operations, and (2) no employer-employee relationship existed

between Plaintiff and Defendant when Plaintiff was injured, Plaintiff’s only avenue

for pursuing a strict liability claim against Defendant would be a civil action. As

discussed above, it remains to be determined whether Defendant was “responsible

for” the blast that injured Plaintiff. Moreover, Plaintiff’s complaint does not show on

its face that an employer-employee relationship existed between Plaintiff and

Defendant.      We therefore find it premature to determine whether this Court’s

reasoning in Fagundes I regarding the WCA’s exclusivity provisions necessarily

defeats Plaintiff’s strict liability claim against Defendant.2




        2
       We also note that the defendants in Fagundes I appealed the denial of their motions for
summary judgment, not an order granting or denying a motion to dismiss.

                The distinction between a Rule 12(b)(6) motion to dismiss and a motion
                for summary judgment is more than a mere technicality. When
                considering a 12(b)(6) motion to dismiss, the trial court need only look
                to the face of the complaint to determine whether it reveals an
                insurmountable bar to [the] plaintiff’s recovery. By contrast, when
                considering a summary judgment motion, the trial court must look at
                more than the pleadings; it must also consider additional matters such
                as affidavits, depositions and other specified matter outside the
                pleadings. Summary judgment is proper only when there are no
                genuine issues of material fact and one party is entitled to judgment
                as a matter of law.

Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (citations
omitted) (emphasis in original). “[T]he Rule 12(b)(6) motion is addressed solely to the sufficiency of
the complaint and does not prevent summary judgment from subsequently being granted based on
material outside the complaint.” Industries, Inc. v. Construction Co., 42 N.C. App. 259, 263, 257 S.E.2d
50, 53-54 (1979) (emphasis added).

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                                   Opinion of the Court



      Defendant offers various arguments why “[t]his Court should find[,] like courts

in other states, and as laid out in American Jurisprudence, that employees of a

blasting company cannot bring a strict liability claim against the entity who hired

their company to do the work.” (emphasis added). Defendant argues Plaintiff, as an

employee of a blasting company, does not “fall within the scope of persons designed

to be protected by strict liability.” Citing case law from other jurisdictions, Defendant

contends “no employee of a blasting company, no matter his position, should be

entitled to bring a strict liability claim against a developer when the employee is at a

blasting site in the course and scope of employment and injured by a blast caused by

his employer.” (emphasis added). According to Defendant, the mere fact that Plaintiff

worked for a blasting company shows Plaintiff knew or should have known of the

risks of blasting. Defendant also characterizes Plaintiff as a “participant” in the 25

June 2013 blast, rather than an “innocent bystander[][,]” because, inter alia,

“[Plaintiff’s] work in the rock crushing division involved him being on site when

blasting occurred” and “[Plaintiff] was in the course and scope of his employment

when the [25 June 2013] blast occurred.” Defendant speculates that “employees

involved in ultrahazardous activities directly benefit from the dangerous work

performed by their company and presumably their compensation reflects the danger

of the work.” Defendant further submits it should not be liable to employees of its




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                                   Opinion of the Court



independent contractor because “[a] developer has a different role in a project than

a[] [land]owner or a general contractor.”

      Whatever the factual accuracy of Defendant’s contentions, we find them

inappropriate bases for dismissing Plaintiff’s complaint pursuant to Rule 12(b)(6).

We are not persuaded that the mere fact of Plaintiff’s employment by East Coast, or

Plaintiff’s mere presence “on site” at the time of the blast that injured him,

demonstrate “to a certainty that [] [P]laintiff is entitled to no relief under any state

[sic] of facts which could be proved in support of [his] claim.”      See Ferguson v.

Williams, 92 N.C. App. 336, 339, 374 S.E.2d 438, 439 (1988) (emphasis added). Even

assuming that an employee whose job involves blasting cannot bring a strict liability

claim for employment-related blasting injuries, Plaintiff’s complaint does not

establish as a matter of law that his job with East Coast involved blasting or that, as

Defendant contends, Plaintiff was not an “innocent party” under the circumstances

surrounding his injuries.

      Plaintiff’s complaint does not establish on its face that Plaintiff, who did not

work in East Coast’s blasting division, was “involved,” “engaged,” or “a participant”

in the ultrahazardous activity of blasting. Plaintiff alleged he was employed at all

relevant times as a heavy equipment operator in East Coast’s rock crushing division,

and, on the date of the blast that caused his injuries, he “was working in the course

and scope of his employment as a heavy equipment operator in the rock crushing



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                                   Opinion of the Court



division of [] East Coast.” (emphasis added). According to Plaintiff’s complaint, the

Heritage East development comprised approximately 2,000 acres of land, and

“substantial portions . . . were under construction at all times relevant[.]”        The

complaint does not indicate where, within the larger construction site, Plaintiff

typically worked; how long, prior to 25 June 2013, he was employed by East Coast; or

whether and to what extent Plaintiff’s job in the rock crushing division required him

to work with blasters or around blasting. The complaint alleged that, immediately

before the 25 June 2013 blast, East Coast’s blaster-in-charge “misinformed Plaintiff

. . . that Plaintiff . . . was located in a position that would be safe from flying debris

and flyrock.” We are unable to determine whether Plaintiff knew, or should have

known, he was at risk of serious injury despite being (as he believed) “outside the

blasting area.” Additionally, because Plaintiff’s complaint reveals no information

about Plaintiff’s salary or other employment benefits, we are unable to determine at

this stage whether, as Defendant suggests, Plaintiff’s compensation may have

reflected the ultrahazardous nature of blasting. See Klingstubbins SE., Inc. v. 301

Hillsborough St. Partners, LLC, 218 N.C. App. 256, 262, 721 S.E.2d 749, 753 (2012)

(noting “questions of . . . material facts [] cannot be resolved under Rule 12(b)(6).”).

      Given our limited case law on strict liability for blasting, we cannot conclude

as a matter of law that Plaintiff falls outside “the scope of persons designed to be

protected by strict liability[]” in this context. This Court’s holding in Boston v. Webb,



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                                   Opinion of the Court



73 N.C. App. 457, 326 S.E.2d 104 (1985), is instructive. In Boston, the plaintiff sued

a city official for issuing a press release containing allegedly defamatory information

about the plaintiff.   The defendant successfully moved to dismiss the plaintiff’s

complaint under Rule 12(b)(6) on the basis that the plaintiff’s complaint showed the

defendant was acting within the scope of his authority as a public official when he

issued the press release, and that the official’s communications were therefore

absolutely privileged. This Court reversed, finding it was

             too early in the plaintiff’s action for us to say to a certainty
             that the plaintiff is entitled to no relief under any set of
             facts he might prove in support of his claim. We are unable
             to determine at this point whether [the defendant] was
             acting within the scope of his authority as [c]ity [m]anager
             when he published [the] news release. Similarly, from only
             the facts as found in the complaint, we cannot say whether
             all of the matter contained in the news release was
             privileged. . . . [Further], the defense of privilege is based
             upon the premise that some information, although
             defamatory, is of sufficient public or social interest to
             entitle the individual disseminating the information to
             protection against an action for liable. Whether such
             communications will be protected generally has been
             determined by the amount of public interest in the matter
             communicated.

Boston, 73 N.C. App. at 460-61, 326 S.E.2d at 106.           This Court concluded the

defendant’s motion to dismiss was improperly granted “precisely because the public’s

interest in the matter and [the defendant’s] right to relay it as he did remain[ed] to

be determined.” Id. at 461, 326 S.E.2d at 106. In the present case, we similarly find

it too soon to determine whether the totality of the circumstances surrounding


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                                   Opinion of the Court



Plaintiff’s injuries removed him from the ambit of strict liability protection that

generally applies to third parties injured by blasting.

      Defendant argues in the alternative that the defense of assumption of risk

should apply to strict liability claims for ultrahazardous activities and, in this case,

requires dismissal of Plaintiff’s complaint. See Skinner v. E.F. Hutton & Co., 314

N.C. 267, 270, 333 S.E.2d 236, 238 (1985) (“When [a] complaint states a valid claim

but also discloses an unconditional affirmative defense which defeats the asserted

claim, [] the [12(b)(6)] motion will be granted and the action dismissed.” (citation

omitted)). As Defendant acknowledges, “[n]o North Carolina cases directly address

the point of how assumption of the risk relates to a claim based on [a] defendant’s

strict liability for damages arising from an ultra[]hazardous activity.” Vecellio &

Grogan, Inc. v. Piedmont Drilling & Blasting, Inc., 183 N.C. App. 66, 70, 644 S.E.2d

16, 19 (2007) (declining to address availability of assumption of risk defense for strict

liability claims arising from ultrahazardous activities, where it was unclear “whether

the evidence presented at trial on remand [would] even present a factual issue of

assumption of risk[.]”).

      “The two elements of the common law defense of assumption of risk are: (1)

actual or constructive knowledge of the risk, and (2) consent by the plaintiff to assume

that risk.” Allred v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 287, 669

S.E.2d 777, 781 (2008) (citation omitted); see also Batton v. R.R., 212 N.C. 256, 268,



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                                   Opinion of the Court



193 S.E. 674, 684 (1937) (“Assumption of risk is founded upon knowledge of [an]

employee, either actual or constructive, of the risks and hazards to be encountered in

the performance of his duties and his consent to take the chance of injury therefrom.”

(citation and quotation marks omitted)). The defense of assumption of risk “[is]

affirmative and require[s] a showing on the part of the defendant to be considered at

all; and to prevail as a matter of law, . . . it must plainly appear from the evidence

that a reasonable mind could draw no other inference.” Bruce v. Flying Service, 231

N.C. 181, 188, 56 S.E.2d 560, 564 (1949).          This Court has held that, before an

employee will be treated as having assumed the risks of his employment, he “must

(or reasonably should) have been aware of the dangers involved and, in addition, must

(or reasonably should) have appreciated the danger and risk connected with the []

conditions leading to his injury; and [] in case of any doubt the question is ordinarily

one for the jury.” May v. Mitchell, 9 N.C. App. 298, 303-04, 176 S.E.2d 3, 7 (1970)

(citation and quotation marks omitted) (emphasis in original).

      Here, Defendant’s arguments in support of the assumption of risk defense are

not materially distinguishable from its arguments concerning Plaintiff’s ability to

state a claim for relief. Defendant argues it is entitled to prevail based on the defense

of assumption of risk because Plaintiff “took part in the blasting activity as an

employee of the blasting company . . . performing work at the [construction] site[]”

and because “Plaintiff[]’s scope of work included him being in proximity to blasts.”



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                                   Opinion of the Court



Again, Defendant does not cite any North Carolina case law in support of its

argument that Plaintiff’s complaint “makes it clear that Plaintiff[] assumed the risk

associated with blasting and therefore he cannot bring a strict liability claim against

[Defendant].”

      As in Vecellio, we find it unnecessary to reach the question of whether, as a

general matter, assumption of risk is available as a defense to a strict liability claim

arising from an ultrahazardous activity. The mere facts that Plaintiff was employed

by a company whose services included blasting, and that he came “within [] range of

the blasting activity” on the date of his injuries, are insufficient to establish as a

matter of law that Plaintiff “assumed the risks” of blasting. According to Plaintiff’s

complaint, Plaintiff was not employed as a blaster and, immediately prior to the blast

that caused his injuries, he believed he was located at a safe distance from the blast.

Based on the facts alleged in Plaintiff’s complaint, we cannot say whether proximity

to blasting was within Plaintiff’s “scope of work;” whether Plaintiff “took part” in the

blast that resulted in his injuries; or whether it was reasonable for Plaintiff to rely

upon the assurances of the blaster-in-charge about being at a safe distance from the

blast. Even assuming arguendo that the defense of assumption of risk can apply to

strict liability claims for blasting, we are not persuaded that Plaintiff’s complaint

clearly shows Plaintiff had actual or constructive knowledge of the risks of blasting,




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                                        Opinion of the Court



or that he consented to assume those risks.3 See Andrews v. Elliot, 109 N.C. App.

271, 275, 426 S.E.2d 430, 432 (1993) (reversing 12(b)(6) dismissal of plaintiff’s

complaint, where “plaintiff adequately alleged the essential elements of a claim for

defamation per se,” and “plaintiff’s complaint on its face [did not] disclose[] in

defendant’s favor the affirmative defense of absolute or qualified privilege.”); cf.

Holleman v. Aiken, 193 N.C. App. 484, 497, 668 S.E.2d 579, 588 (2008) (affirming

12(b)(6) dismissal of plaintiff’s libel claim based on the defense of truthfulness,

because “from plaintiff’s own complaint it [was] clear that some of the alleged

defamatory statements [were] true.”).

       “We emphasize that our holding addresses the pleading stage only. We cannot

predict whether a developed record will support [Plaintiff’s] allegations[.]” Fussell,

364 N.C. at 228, 695 S.E.2d at 441. We hold only that Plaintiff’s complaint, construed

liberally, states a strict liability claim for blasting-related injuries “sufficient to

withstand a motion to dismiss filed pursuant to Rule 12(b)(6).” Id. at 228, 695 S.E.2d

at 442. In Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970), our Supreme Court

discussed the concept of foreseeable risk as a limit on a defendant’s liability for




       3  We observe our Supreme Court has held that “assumption of risk is not available as a defense
to one not in a contractual relationship to the plaintiff.” McWilliams v. Parham, 269 N.C. 162, 166,
152 S.E.2d 117, 120 (1967); see also Clark v. Freight Carriers, 247 N.C. 705, 709, 102 S.E.2d 252, 255
(1958) (finding that, where there was “no allegation in the pleadings tending to show any contractual
relationship between the plaintiff and the [] defendants, the doctrine of assumption of risk [was] not
available as a defense.” (citations omitted)).


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                                    Opinion of the Court



negligence. The Sutton Court concluded that, although the plaintiff’s complaint

alleged facts that seemed to suggest the absence of foreseeable risk on the part of the

defendants, the Court

             [could not] say on the basis of the ‘bare bones pleadings’
             that [the] plaintiff cannot prove otherwise, or that he can
             prove no facts which would entitle him to recover from [the]
             defendants . . . for the damages resulting from the [incident
             alleged]. To dismiss the action now would be “to go too fast
             too soon.” This case is not yet ripe for a determination that
             there can be no liability as a matter of law.

277 N.C. at 108, 176 S.E.2d at 169 (citations omitted). In the present case, we

likewise find it “too early in [] [P]laintiff’s action for us to say to a certainty that []

[P]laintiff is entitled to no relief under any set of facts he might prove in support of

his claim.” Boston, 73 N.C. App. at 460, 326 S.E.2d at 106.

                                     III. Conclusion

      Considering our limited precedent on strict liability for blasting and the lack

of North Carolina case law involving the specific factual circumstances presented

here, we cannot say “it appears beyond doubt that [] [P]laintiff can prove no set of

facts in support of his claim which would entitle him to relief.” See Hull v. Floyd S.

Pike Electrical Contractor, 64 N.C. App. 379, 380, 307 S.E.2d 404, 406 (1983) (citation

omitted) (emphasis added).      Accordingly, we conclude the trial court improperly

dismissed Plaintiff’s strict liability claim against Defendant. We therefore reverse




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                                 Opinion of the Court



the trial court’s order granting Defendant’s motion to dismiss and remand for further

proceedings consistent with this opinion.

      REVERSED AND REMANDED.

      Judge STROUD concurs.

      Judge MURPHY concurs in result only.




                                        - 31 -
