UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES W. WILENT; ROBIN WILENT,
Plaintiffs-Appellants,

v.                                                                    No. 97-1834

FMC CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-95-406-3-MU)

Submitted: October 14, 1997

Decided: November 10, 1997

Before NIEMEYER, WILKINS, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Donald H. Bumgardner, Gastonia, North Carolina, for Appellants.
Brooks R. Buchanan, BUTLER, SNOW, O'MARA, STEVENS &
CANNADA, P.L.L.C., Jackson, Mississippi, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

James Wilent sustained injuries in the course of his employment
with Defendant FMC Corporation ("FMC"). Wilent and his wife filed
suit, alleging that FMC committed an intentional tort in the workplace
entitling him to damages for personal injuries in addition to his award
under workers' compensation. Wilent appeals the district court's deci-
sion granting FMC's motion for summary judgment on the grounds
that Wilent failed to establish a claim under Woodson v. Rowland,
407 S.E. 222 (N.C. 1991). We affirm.

In August 1993, Wilent suffered lacerations and bruises from an
explosion while pumping out lithium waste material from a 55-gallon
drum. Wilent was replacing the bung cap on an empty drum to pre-
vent water from reacting with any lithium remaining in the drum.
Subsequent investigation revealed that ignited solvent vapors left in
the drum caused the explosion. Specifically, it was likely that
Wilent's tightening the bung cap with a wrench caused the lithium
residue to compress against the drum and ignite vapors.

As a general rule, the North Carolina Workers' Compensation Act
("the Act") provides the exclusive remedies for injuries suffered by
employees in the course of their employment, see N.C. Gen. Stat.
§§ 97-9, 97-10.1 (1991). Under the Act, "the rights and remedies
[t]herein . . . exclude all other rights and remedies of the employee
. . . as against the employer at common law or otherwise on account
of such injury or death." § 97-10.1. In Woodson v. Rowland, however,
the North Carolina Supreme Court carved out an exception to this
general rule:

          [W]hen 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 . . . may pursue a civil action
          against the employer. Such conduct is tantamount to an
          intentional tort, and civil actions based thereon are not
          barred by the exclusivity provisions of the [Workers' Com-
          pensation] Act.

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407 S.E.2d at 228.

Wilent primarily contends that FMC was aware of the hazardous
and explosive nature of lithium and had to know that an explosion
was substantially certain to occur "sooner or later" injuring an
employee. Wilent's expert stated that the process conducted that day
was particularly hazardous because of the increased amounts of lith-
ium metal in the waste product. Furthermore, Wilent maintains that
he informed his supervisors of the volatile nature and dangerousness
of the lithium waste product and that he was instructed to proceed
anyway. Additionally, he contends that FMC's chemical engineers
should have been aware of the increased volatility created that day by
the increased amount of metal in the product due to a failure in the
filtering process.

The district court, however, held that the evidence was insufficient
to create a genuine issue of material fact regarding either element of
a Woodson claim: (1) a substantial certainty that a serious accident
would occur, and (2) employer's knowledge that its conduct was sub-
stantially certain to cause serious injury or death to the employee. We
review de novo a district court's award of summary judgment.
Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1132 (4th Cir. 1996).

District courts may enter summary judgment only when there is no
genuine issue of material fact and the movant is entitled to judgment
as a matter of law. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.
1990) (en banc). The facts and inferences to be drawn from the plead-
ings must be viewed in the light most favorable to the nonmoving
party. Ngyuen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995). Sum-
mary judgment is appropriate when the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986).

The FMC lithium plant was built in 1960. For several years, waste
material was collected and stored in 55-gallon drums. At the time of
the incident, FMC had been handling volatile materials for over thirty
years. In 1986, FMC built a specialty organics plant to produce lith-
ium. Waste materials from this plant was collected and stored in 55-
gallon drums and routinely transferred for disposal off-site. FMC
engaged in the storing and transferring process using a specific pump-

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ing process for over fourteen years. FMC has unloaded over one thou-
sand drums containing volatile waste materials. Wilent had worked in
the FMC plant since 1960, and on the day of the accident, he and his
coworkers had pumped twenty-seven drums in two days without inci-
dent. Throughout the years of operation, there was only one other
accident prior to this one.

Under these circumstances, we do not find that the court erred in
concluding that Wilent failed to create a genuine issue of fact that
either a serious accident was substantially certain to occur or that
FMC knew its conduct was substantially certain to cause injury to its
employees. Accordingly, we affirm the court's judgment. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court, and oral argu-
ment would not aid the decisional process.

AFFIRMED

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