             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA16-776

                              Filed: 7 February 2017

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 defendants from order entered 8 March 2016 by Judge Michael J.

O’Foghludha in Wake County Superior Court. Heard in the Court of Appeals 30

November 2016.


      The Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Anthony L. Lucas,
      and Edwards Kirby, LLP, by William W. Plyler, for plaintiff-appellee.

      Young Moore and Henderson, P.A., by Jay P. Tobin, for defendants-appellants.


      DIETZ, Judge.


      The 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.

      Plaintiff 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
                         FAGUNDES V. AMMONS DEV. GRP., INC.

                                  Opinion of the Court



Supreme Court’s decision in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222

(1991).

      We 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.

      Put 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 decision.



                                         -2-
                            FAGUNDES V. AMMONS DEV. GRP., INC.

                                        Opinion of the Court



       Accordingly, 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.

                              Facts and Procedural History

       Defendant 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 company.

       On 25 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.

       Defendants 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. 1

On 8 March 2016, the trial court entered an order partially granting the motion, but


       1 Defendants first raised this argument in a 14 April 2015 motion to dismiss. But based on the
appellate record, it appears the trial court never ruled on that motion.

                                                -3-
                        FAGUNDES V. AMMONS DEV. GRP., INC.

                                   Opinion of the Court



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 of the Workers’ Compensation Act affects a substantial right

and thus is immediately appealable. Blue v. Mountaire Farms, Inc., __ N.C. App. __,

__, 786 S.E.2d 393, 397–98 (2016).

                                       Analysis

 I.   Strict liability claim for injury during an ultrahazardous activity

      Defendants first argue that Fagundes’s claims are barred because he was

injured on the job. Thus, Defendants argue, the Industrial Commission has exclusive

jurisdiction over his claims.   Fagundes contends that, because he worked in an

ultrahazardous occupation (involving blasting), he should be permitted to sue in the

courts. Fagundes concedes that this is a novel argument but asserts that it is a logical

extension of our Supreme Court’s holding in Woodson v. Rowland, 329 N.C. 330, 407

S.E.2d 222 (1991). As explained below, we agree with Defendants.

      In general, the provisions of the Workers’ Compensation Act “are the exclusive

remedy in the event of [an] employee’s injury by accident in connection with [his or

her] employment.” Reece v. Forga, 138 N.C. App. 703, 705, 531 S.E.2d 881, 882–83

(2000). Under the Act, “the injured employee may not elect to maintain a suit for

recovery of damages for his injuries, but must proceed under the Act.” Id. As a result,



                                          -4-
                        FAGUNDES V. AMMONS DEV. GRP., INC.

                                  Opinion of the Court



claims stemming from workplace injuries “are within the exclusive jurisdiction of the

Industrial Commission; the superior court has been divested of jurisdiction by

statute.” Id.

      In Woodson, our Supreme Court created a narrow exception to the exclusivity

provision of the Act. See 329 N.C. at 340–41, 407 S.E.2d at 228. Under Woodson, “if

an employer ‘intentionally engages in misconduct knowing it is substantially certain

to cause serious injury or death’ and that conduct causes injury or death, a plaintiff

can pursue a civil action against his or her employer.” Trivette v. Yount, 366 N.C.

303, 306, 735 S.E.2d 306, 309 (2012) (quoting Woodson, 329 N.C. App. at 340, 407

S.E.2d at 228). Importantly, nowhere in this analysis did the Supreme Court suggest

that the dangerousness of the job itself impacted the Woodson test. Woodson, 329

N.C. at 337–44, 407 S.E.2d at 226–30.

      Fagundes argues that this Court should extend Woodson to recognize “that an

employer who engages in blasting . . . is not protected by the exclusivity provision”

and may be held strictly liable for injuries in a court proceeding. This proposed

holding does not follow from Woodson’s reasoning—indeed, it runs counter to

Woodson’s core premise. To be sure, a separate portion of the Woodson opinion

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 350–

56, 407 S.E.2d at 234–38. But that analysis came in an entirely separate section of



                                         -5-
                        FAGUNDES V. AMMONS DEV. GRP., INC.

                                   Opinion of the Court



the opinion, well after the portion addressing the exclusivity provision of the Workers’

Compensation Act. In the portion of the opinion that addressed exclusive jurisdiction

over workplace injuries, the Court focused on the employer’s knowledge and intent,

not the dangerousness of the job itself. Compare id. at 337–44, 407 S.E.2d at 226–

30, with id. at 350–56, 407 S.E.2d at 234–38. This is noteworthy because the job at

issue in Woodson—trenching—also is extremely dangerous. If the Supreme Court

believed the dangerousness of the job played a role in its analysis, it would have said

so.

      Fagundes also focuses on the fact that his job (involving blasting) is the only

type of job that our State’s courts have found to be “ultrahazardous.” See generally

Kinsey v. Spann, 139 N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000). At common

law, one who caused injury or property damage while engaged in an ultrahazardous

activity like blasting was held strictly liable. Courts imposed strict liability because

ultrahazardous activities were so dangerous that “reasonable care [could not]

eliminate the risk of serious harm.” Woodson, 329 N.C. at 350, 407 S.E.2d at 234.

Fagundes argues that, because this special common law rule applied to workers

injured on the job, he should be permitted to assert his strict liability claim in the

court system.

      The obvious flaw in this argument is that the workers’ compensation system

also imposes strict liability on employers. See id. at 338, 407 S.E.2d at 227. Thus, as



                                          -6-
                            FAGUNDES V. AMMONS DEV. GRP., INC.

                                         Opinion of the Court



Fagundes conceded at oral argument, the only difference between pursuing his claim

in court and pursuing it in the Industrial Commission is the possibility of a larger

monetary recovery in court. Put another way, Fagundes’s argument has nothing to

do with the exclusivity analysis our Supreme Court conducted in Woodson; rather,

Fagundes believes this Court should create a new exception to the Workers’

Compensation Act 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.2

       We must reject this argument. This Court is “an error-correcting body, not a

policy-making or law-making one.” Times News Pub. Co. v. Alamance-Burlington Bd.

of Educ., __ N.C. App. __, __, 774 S.E.2d 922, 927 (2015). We lack the authority to

change the law on the ground that it might make good policy sense to do so. If

Fagundes believes the Workers’ Compensation Act should provide an exception for

workers engaged in ultrahazardous activities, he must seek that policy change at the

General Assembly.




       2  True enough, there were robust remedies at common law. But there were also robust
defenses. Even in strict liability cases, for example, defendants could assert assumption of the risk as
a defense. See Pleasant v. Johnson, 312 N.C. 710, 711, 325 S.E.2d 244, 246 (1985). The General
Assembly enacted our workers’ compensation system to eliminate much of the uncertainty in
workplace accident cases by providing employees with limited but assured remedies. Id. at 711–12,
325 S.E.2d at 246–47.


                                                 -7-
                            FAGUNDES V. AMMONS DEV. GRP., INC.

                                        Opinion of the Court



       In sum, because Fagundes was injured in a work-related accident, the Workers’

Compensation Act provides the exclusive remedy for his injuries, and the trial court

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

Bowden v. Young, __ N.C. App. __, __, 768 S.E.2d 622, 624 (2015). We therefore

reverse the trial court’s denial of summary judgment on those claims and remand for

entry of an order dismissing those claims for lack of jurisdiction.3

II.    Pleasant claim against Fagundes’s co-employee

       Defendant Juan Albino also challenges the trial court’s denial of his motion for

summary judgment on Fagundes’s claim against him under Pleasant v. Johnson, 312

N.C. 710, 716, 325 S.E.2d 244, 249 (1985). Because Fagundes did not forecast any

evidence showing that Albino’s actions while supervising the blast were willful,

wanton, or reckless, we agree that the trial court should have entered summary

judgment in Albino’s favor on this claim.

       “[A] defendant, as the moving party, may meet its burden on summary

judgment by proving that an essential element of the opposing party’s claim is

nonexistent, or by showing through discovery that the opposing party cannot produce




       3  Fagundes also argues that this Court is bound by our decision in Hargrove v. Billings &
Garrett, Inc., 137 N.C. App. 759, 529 S.E.2d 693 (2000). That case involved suit by an injured worker
against the city that contracted with his employer and whether the city was immune from suit under
the public duty doctrine. Hargrove, 137 N.C. App. at 761, 529 S.E.2d at 695. The injured worker’s
employer was not a party to the appeal, and the Court did not address the exclusivity provision of the
Workers’ Compensation Act.

                                                -8-
                       FAGUNDES V. AMMONS DEV. GRP., INC.

                                  Opinion of the Court



evidence to support an essential element of his claim.” Camalier v. Jeffries, 340 N.C.

699, 710–11, 460 S.E.2d 133, 138 (1995).

      In Pleasant, our Supreme Court held that the Workers’ Compensation Act

“does not shield a co-employee from common law liability for willful, wanton and

reckless negligence.” 312 N.C. at 716, 325 S.E.2d at 249. The Court described

“wanton” and “reckless” conduct as “manifesting a reckless disregard for the rights

and safety of others” and defined “willful negligence” as “the intentional failure to

carry out some duty imposed by law or contract which is necessary to the safety of

the person or property to which it is owed.” Id. at 714, 325 S.E.2d at 248 (emphasis

added). “[T]he burden of proof is heavy on a plaintiff who seeks to recover under

Pleasant.” Trivette, 366 N.C. at 310, 735 S.E.2d at 311. “[E]ven unquestionably

negligent behavior rarely meets the high standard of ‘willful, wanton and reckless’

negligence established in Pleasant.” Id. at 312, 735 S.E.2d at 312.

      The only evidence on which Fagundes relies to support his Pleasant claim is

five citations for OSHA safety violations stemming from the accident that injured

him. He offers proof that Albino was responsible for these five safety violations. But

Fagundes concedes that, before his accident, neither Albino nor the company had ever

been cited for any OSHA violations, nor had anyone been injured as a result of the

company’s blasting activities. His argument turns entirely on the fact that the State

Department of Labor characterized the safety violations as “egregious.”



                                         -9-
                        FAGUNDES V. AMMONS DEV. GRP., INC.

                                  Opinion of the Court



      We hold that these safety violations, while troubling, are insufficient to survive

a motion for summary judgment under Pleasant. In Pendergrass v. Card Care, Inc.,

our Supreme Court rejected a Pleasant claim against two co-employees who ordered

the injured worker “to work at the final inspection machine when they knew that

certain dangerous parts of the machine were unguarded, in violation of OSHA

regulations and industry standards.” 333 N.C. 233, 238, 424 S.E.2d 391, 394 (1993).

The Supreme Court held that the knowing violation of these safety regulations did

“not rise to the level of the negligence in Pleasant.” Id. The Court elaborated as

follows:

             Although [the co-employees] may have known certain
             dangerous parts of the machine were unguarded when they
             instructed [the injured employee] to work at the machine,
             we do not believe this supports an inference that they
             intended that [the employee] be injured or that they were
             manifestly indifferent to the consequences of his doing so.

Id.

      We are unable to distinguish this case from Pendergrass. Indeed, the facts in

this case arguably are weaker than the facts in Pendergrass because Fagundes has

not forecast any evidence that Albino knowingly violated these safety regulations. In

short, after an opportunity to fully engage in discovery, Fagundes remains unable to

forecast any evidence for trial that would prove Albino was willfully, wantonly, or

recklessly negligent.   Accordingly, the trial court should have entered summary

judgment in favor of Albino on this claim.


                                         - 10 -
                        FAGUNDES V. AMMONS DEV. GRP., INC.

                                 Opinion of the Court



                                   Conclusion

      The trial court erred in denying Defendants’ motion for summary judgment.

We reverse the trial court’s order and remand for entry of an order and judgment

consistent with this opinion.

      REVERSED AND REMANDED.

      Judges CALABRIA and ZACHARY concur.




                                        - 11 -
