              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-751

                                Filed: 17 May 2016

Robeson County, No. 12 CVS 1673

BRIAN BLUE, Plaintiff,

             v.

MOUNTAIRE FARMS, INC., MOUNTAIRE FARMS OF NORTH CAROLINA
CORP., MOUNTAIRE FARMS, LLC, CHARLES BRANTON, DANIEL PATE,
JAMES LANIER, ROBERT GARROUTTE, a/k/a ROBERT GARROUTTE, JR.,
CHRISTOPHER SMITH, HALLEY ONDONA, THOMAS SAUFLEY, DETRA
SWAIN, As Executrix of the Estate of Clifton Swain, THE ESTATE OF CLIFTON
SWAIN, and BRADFORD SCOTT HANCOX, Public Administrator of Cumberland
County, North Carolina, and as Successor or substitute Personal Representative And/
or Administrator And/or Collector of the Estate of Clifton Swain, Defendants.


      Appeal by defendants and cross-appeal by plaintiff from order entered 31

December 2014 by Judge James Gregory Bell in Robeson County Superior Court.

Heard in the Court of Appeals 30 November 2015.


      Smith Moore Leatherwood LLP, by Lisa W. Arthur and Lisa K. Shortt, for
      defendants.

      Pinto Coates Kyre & Bowers, PLLC, by Jon Ward, Paul D. Coates, and Adam
      L. White, A.G. Linett & Associates, P.A., by Adam G. Linett and J. Rodrigo
      Pocasangre, for plaintiff.


      DAVIS, Judge.


      This appeal arises out of a tragic accident involving the release of ammonia at

a poultry processing plant in which Brian Blue (“Plaintiff”) was severely injured and

a co-worker, Clifton Swain (“Swain”), was killed. In his lawsuit, Plaintiff asserted
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                                         Opinion of the Court



Woodson1 claims against Defendants Mountaire Farms, Inc. (“Mountaire Farms”),

Mountaire Farms of North Carolina Corp., and Mountaire Farms, LLC (collectively

“the Mountaire Defendants”).             Plaintiff also asserted Pleasant2 claims against

Charles Branton; Daniel Pate; James Lanier;3 Robert Garroutte, a/k/a Robert

Garroutte, Jr.; Christopher Smith; Halley Ondona; Thomas Saufley; Detra Swain, as

executrix of the Estate of Clifton Swain; the Estate of Clifton Swain; and Bradford

Scott Hancox, public administrator of Cumberland County, North Carolina, and as

successor or substitute personal representative and/or administrator and/or collector

of the Estate of Clifton Swain (collectively “the Individual Defendants”).

       All of the Defendants appeal from the trial court’s order denying their motion

for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil

Procedure. Plaintiff cross-appeals from the trial court’s denial of his motion for

summary judgment as to Defendants’ affirmative defense of contributory negligence.

After careful review, we reverse the trial court’s denial of Defendants’ motion for




       1   Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).

       2   Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985).

       3  While both Plaintiff’s complaint and the caption of the trial court’s order from which this
appeal arises lists James Lanier as a defendant, the record does not contain any indication that an
individual by this name was employed by the Mountaire Defendants at any time relevant to the events
giving rise to this appeal. Nor do the parties reference anyone by this name in their briefs to this
Court. The record also fails to show that service of process was ever made on this defendant, and no
responsive pleading was filed on his behalf.

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summary judgment and remand for entry of summary judgment in favor of

Defendants on all claims.

                                     Factual Background

       Mountaire Farms is a poultry processing plant located in Robeson County,

North Carolina.        As part of its business, Mountaire Farms utilizes anhydrous

ammonia refrigeration to maintain the temperature of its poultry.                            This is

accomplished, in part, through the use of machinery called “votators,”4 which encase

the ammonia.

       At all times relevant to this appeal, Mountaire Farms’ Engineering and

Maintenance Department was responsible for overseeing the day-to-day operation

and upkeep of the plant. The head of the department was Halley Ondona (“Ondona”).

Christopher Smith (“Smith”), the maintenance manager, reported to Ondona. Robert

Garroutte (“Garroutte”), the processing maintenance manager, in turn, reported to

Smith. Below Garroutte was Jim Laird, the second processing area manager, who

supervised several second processing shift superintendents, including Charles

Branton (“Branton”). Thomas Saufley (“Saufley”) was Mountaire Farms’ safety and

health manager who was in charge of overseeing its safety program. Daniel Pate




       4  The manufacturer’s manual explains that votators “are scraped surface heat exchangers with
jacketed shell pressure vessels. The jacket around the ingredient area of the vessel allows for ammonia
cooling of the product medium to the desired temperature prior to packaging.”


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(“Pate”) was Mountaire Farms’ second processing maintenance superintendent, who

oversaw the operations of the second processing operation.

      The second processing operation was divided into two separate departments —

the refrigeration department and the maintenance department. The refrigeration

department was comprised of mechanics who dealt with any maintenance tasks at

the plant involving ammonia. The maintenance department, in turn, handled non-

refrigeration maintenance tasks. When the maintenance department was required

to perform maintenance on equipment containing ammonia, the refrigeration

department was typically tasked with ensuring the ammonia was evacuated from the

equipment prior to the maintenance department beginning its work.

      Branton’s job was to supervise the plant’s maintenance mechanics. He was the

direct supervisor of Swain, who was the mechanic in charge of performing

maintenance on the plant’s votators.           Branton also supervised Plaintiff, a

maintenance mechanic responsible for repairing and maintaining certain processing

equipment at the plant.    Both Plaintiff and Swain worked in the maintenance

department rather than the refrigeration department.

      On 1 April 2009, the United States Department of Agriculture (“the USDA”)

performed an inspection of the plant. As a result of this inspection, Mountaire Farms

was ordered by the USDA to replace the inner sleeve of one of its votators.




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       In response to the USDA’s findings, a new votator sleeve was ordered. Ondona,

Smith, and Garroutte held several meetings to discuss whether the new votator

sleeve could be installed by Mountaire Farms employees or, alternatively, whether

independent contractors needed to be hired for the installation. Ultimately, it was

determined that Mountaire Farms employees could perform the installation.5

       The new votator sleeve arrived at the plant on Tuesday, 16 June 2009. Branton

assigned the installation of the votator sleeve to Swain for the following weekend and

inputted the corresponding work order on the Mountaire Maintenance Log — a

spreadsheet that organized maintenance tasks to be performed and identified the

mechanic who was responsible for completing each task. The maintenance log did

not list any Mountaire Farms employee other than Swain in connection with the

installation of the votator sleeve.

       Prior to the installation, Branton provided Swain with selected pages of the

manufacturer’s operator’s manual for the votator, which detailed the procedure for

replacing the inner sleeve of a votator. The following warning was contained within

these pages of the manual:

               DANGER: Before removing the heat exchanger tube
               from the jacket, all refrigerant6 must be evacuated

       5There is conflicting evidence in the record as to who specifically made the decision to use
employees of Mountaire Farms to install the votator sleeve.

       6  An internal document prepared by Mountaire Farms and included in the exhibits to the
record entitled “Specific Programs within the Written Compliance Plan” explains that “Mountaire
Farms . . . utilizes Anhydrous Ammonia as a refrigerant coolant in its processing operation.”

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                from the jacket assembly.

      After Swain had reviewed these pages from the manual, Branton asked him “if

he’d ever made the repair before . . . if there was gonna be a problem.” Swain

responded that he “didn’t see a problem” with the assignment.

      On the morning of Saturday, 20 June 2009, Branton met with the second

processing shift mechanics he supervised — including Swain and Plaintiff — before

they began work. During this meeting, Branton briefed the mechanics on their

assigned tasks for the day based on the assignments previously entered in the

maintenance log. Once again, Swain was the only employee mentioned with regard

to the votator sleeve replacement.

      Swain then began work on the votator sleeve project while Plaintiff performed

other unrelated assignments in a separate area of the plant. Sometime later that

morning, Swain called over the radio to request Plaintiff’s assistance with the

replacement of the votator sleeve. Plaintiff then “went over to see what [he] could do

for [Swain.]”

      As Plaintiff entered the room where Swain was working, Swain was in the

process of unscrewing a valve on the votator. Branton was observing Swain’s work

from a position next to the ladder upon which Swain was standing. As he saw Swain

unscrewing the valve, Plaintiff — who was aware of the fact that the votator

contained ammonia and of the hazardous nature of ammonia — shouted at Swain:



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                                   Opinion of the Court



“Stop Cliff, stop.” However, his warning was too late as the pressure behind the

partially opened votator sleeve forced ammonia out of the votator in an explosive

manner, which caused the room to be filled with ammonia almost instantaneously.

      Swain died as a result of his exposure to the ammonia, and Plaintiff and

Branton were both seriously injured. Plaintiff’s injuries left him in a coma for four to

five months. He was also required to undergo a double lung transplant as a result of

his exposure to the ammonia.           Branton required hospitalization and was

incapacitated for approximately forty days.

      A subsequent investigation performed by the North Carolina Department of

Environment and Natural Resources Division of Air Quality (“DAQ”) found several

violations by Mountaire Farms of its risk management and safety guidelines in

connection with the accident. As a result, DAQ imposed a civil penalty against

Mountaire Farms in the amount of $25,000.00. The North Carolina Occupational

Safety and Health Review Commission performed its own investigation after the 20

June 2009 accident and assessed a penalty against Mountaire Farms in the amount

of $33,950.00.

      On 19 June 2012, Plaintiff filed a lawsuit in Robeson County Superior Court

asserting a Woodson claim against the Mountaire Defendants as well as a Pleasant

claim against each of the Individual Defendants. On 20 August 2012, all Defendants

except for Garroutte and Ondona filed motions to dismiss Plaintiff’s claims pursuant



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                                 Opinion of the Court



to Rules 12(b)(1) and (6) of the North Carolina Rules of Civil Procedure. Garroutte

and Ondona filed their own motions to dismiss on 31 August 2012 and 12 September

2012, respectively.

      On 5 November 2012, Defendants’ motions to dismiss were heard before the

Honorable Mary Ann L. Tally. Judge Tally entered an order on 28 November 2012

denying the motions. Defendants filed an answer to the complaint on that same date.

      On 23 June 2014, Plaintiff filed a motion for summary judgment as to the

defense of contributory negligence, which was listed as an affirmative defense in

Defendants’ answer. Defendants filed a motion for summary judgment as to all

claims contained in Plaintiff’s complaint on 25 August 2014. Plaintiff voluntarily

dismissed his claims against Mountaire Farms, LLC and Pate on 25 September 2014.

      On 1 December 2014, the parties’ summary judgment motions were heard

before the Honorable James Gregory Bell. The trial court entered an order on 31

December 2014 denying both motions. On 12 January 2015, Defendants filed a notice

of appeal, and on 15 January 2015, Plaintiff cross-appealed.

                                     Analysis

I. Appellate Jurisdiction

      As an initial matter, we note that Defendants’ appeal is interlocutory.

“[W]hether an appeal is interlocutory presents a jurisdictional issue, and this Court

has an obligation to address the issue sua sponte.” Duval v. OM Hospitality, LLC,



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                                   Opinion of the Court



186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation, quotation marks, and

brackets omitted). “A final judgment is one which disposes of the cause as to all the

parties, leaving nothing to be judicially determined between them in the trial court.”

Id. (citation omitted). Conversely, an order or judgment is interlocutory if it does not

settle all of the issues in the case but rather “directs some further proceeding

preliminary to the final decree.” Heavner v. Heavner, 73 N.C. App. 331, 332, 326

S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d 610 (1985).

      Generally, there is no right of immediate appeal from an interlocutory order.

Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., 228 N.C. App. 314, 317, 745

S.E.2d 69, 72 (2013). The prohibition against appeals from interlocutory orders

“prevents fragmentary, premature and unnecessary appeals by permitting the trial

court to bring the case to final judgment before it is presented to the appellate courts.”

Russell v. State Farm Ins. Co., 136 N.C. App. 798, 800, 526 S.E.2d 494, 496 (2000)

(citation and brackets omitted).

                     However, there are two avenues by which a party
             may immediately appeal an interlocutory order or
             judgment. First, if the order or judgment is final as to some
             but not all of the claims or parties, and the trial court
             certifies the case for appeal pursuant to N.C. Gen. Stat. §
             1A-1, Rule 54(b), an immediate appeal will lie. Second, an
             appeal is permitted under N.C. Gen. Stat. §§ 1-277(a) and
             7A-27(d)(1) if the trial court’s decision deprives the
             appellant of a substantial right which would be lost absent
             immediate review.




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N.C. Dep’t of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)

(internal citations omitted).

       This Court has held that a defendant’s interlocutory appeal from the denial of

a dispositive motion involving a Woodson claim affects a substantial right and is

therefore immediately appealable. See Edwards v. GE Lighting Systems, Inc., 193

N.C. App. 578, 581, 668 S.E.2d 114, 116 (2008) (holding that employer’s appeal from

denial of motion for summary judgment on Woodson claim was proper because denial

of motion affected employer’s substantial right of immunity from liability based on

North Carolina Workers’ Compensation Act).

       This same principle applies equally to Pleasant claims as such claims are also

an exception to the exclusivity of the Workers’ Compensation Act. See Bruno v.

Concept Fabrics, Inc., 140 N.C. App. 81, 85, 535 S.E.2d 408, 411 (2000) (“Normally,

the Workers’ Compensation Act provides an exclusive remedy for an employee injured

as a result of an on-the-job accident. Our Supreme Court held in Pleasant, however,

that the Workers’ Compensation Act does not shield a co-employee from liability for

injury to another employee caused by willful, wanton and reckless negligence.”

(internal citations omitted)). Therefore, this Court possesses jurisdiction over both of

the issues raised in Defendants’ appeal.7


       7   Because we hold that Defendants’ motion for summary judgment was improperly denied by
the trial court, Plaintiff’s cross-appeal is rendered moot and, therefore, we need not determine whether
we possess jurisdiction to consider the cross-appeal. See Sellers v. FMC Corp., 216 N.C. App. 134, 143,



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II. Woodson Claim

         On appeal, the Mountaire Defendants argue that the trial court erred in

denying their motion for summary judgment as to Plaintiff’s Woodson claim. We

agree.

                      The standard of review relating to the granting or
               denial of a summary judgment motion is whether there is
               a genuine issue of material fact and whether the moving
               party is entitled to judgment as a matter of law. In ruling
               on the motion, the court must consider the evidence in the
               light most favorable to the nonmovant, who is entitled to
               the benefit of all favorable inferences which may
               reasonably be drawn from the facts proffered. Summary
               judgment may be properly shown by proving that an
               essential element of the plaintiff’s case is non-existent.

JPMorgan Chase Bank, Nat’l Ass’n v. Browning, 230 N.C. App. 537, 540-41, 750

S.E.2d 555, 559 (2013) (internal citations and quotation marks omitted). “When the

denial of a summary judgment motion is properly before this Court . . . the standard

of review is de novo.” Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C.

App. 581, 583, 664 S.E.2d 8, 10 (2008).

         As a general proposition, the North Carolina Workers’ Compensation Act (“the

Workers’ Compensation Act”) provides the exclusive remedy available to employees

seeking relief for work-related injuries resulting from the acts or omissions of their

employers. See Wake Cty. Hosp. System, Inc. v. Safety Nat. Cas. Corp., 127 N.C. App.


716 S.E.2d 661, 667 (2011) (“Due to our above decision on plaintiff’s appeal, we must dismiss
defendant’s issues on cross-appeal as moot . . . .”), disc. review denied, 366 N.C. 250, 731 S.E.2d 429
(2012). Defendants’ motion to dismiss the cross-appeal is also denied as moot.

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                                  Opinion of the Court



33, 40, 487 S.E.2d 789, 793 (“[T]he exclusivity provision of the Act precludes a claim

for ordinary negligence, even when the employer’s conduct constitutes willful or

wanton negligence.”), disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997). We

explained the rationale underlying this exclusive remedy in Edwards.

             The North Carolina Workers’ Compensation Act grants
             employers who fall under the purview of the act immunity
             from suit for civil negligence actions. In exchange for this
             immunity, the Act imposes liability, including medical
             expenses and lost income, on employers for work-related
             injuries without the worker having to prove employer
             negligence or face affirmative defenses such as
             contributory negligence and the fellow servant rule.

Edwards, 193 N.C. App. at 582, 668 S.E.2d at 117 (internal citations, quotation

marks, and brackets omitted).

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

of the Workers’ Compensation Act as a remedy for injuries in the workplace. The

employer in Woodson was a construction company that specialized in trench

excavation. Woodson, 329 N.C. at 334, 407 S.E.2d at 225. Acting in disregard of

applicable safety regulations and the obvious danger of a potential cave-in, the

company’s president ordered his employees to work in a trench that had sheer,

unstable walls and lacked proper shoring without the use of a trench box (despite the

fact that one was available). Id. at 345-46, 407 S.E.2d at 231. One of the company’s

employees was killed when the trench in which he was working collapsed. Id. at 336,

407 S.E.2d at 226. The record revealed that the company had been cited at least four


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                                    Opinion of the Court



times in the preceding six and a half years for violations of trenching safety

regulations. Id. at 345, 407 S.E.2d at 231.

      Based on these facts, our Supreme Court ruled that there was sufficient

evidence from which “a reasonable juror could determine that upon placing a man in

this trench serious injury or death as a result of a cave-in was a substantial certainty

rather than an unforeseeable event, mere possibility, or even substantial probability.”

Id. The Court proceeded to hold that

             when 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, or the personal
             representative of the estate in case of death, may pursue a
             civil action against the employer. Such misconduct is
             tantamount to an intentional tort, and civil actions based
             thereon are not barred by the exclusivity provisions of the
             [Workers’ Compensation] Act.

Id. at 340-41, 407 S.E.2d at 228.

      The elements of a Woodson claim are: “(1) misconduct by the employer; (2)

intentionally engaged in; (3) with the knowledge that the misconduct is substantially

certain to cause serious injury or death to an employee; and (4) that employee is

injured as a consequence of the misconduct.” Hamby v. Profile Products, LLC, 197

N.C. App. 99, 106, 676 S.E.2d 594, 599 (2009) (citation and quotation marks omitted).

      The Supreme Court has cautioned, however, that “[t]he Woodson exception

represents a narrow holding in a fact-specific case, and its guidelines stand by



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themselves. This exception applies only in the most egregious cases of employer

misconduct. Such circumstances exist where there is uncontroverted evidence of the

employer’s intentional misconduct and where such misconduct is substantially

certain to lead to the employee’s serious injury or death.” Whitaker v. Town of

Scotland Neck, 357 N.C. 552, 557, 597 S.E.2d 665, 668 (2003). This Court has held

that “[w]illful and wanton negligence alone is not enough to establish a Woodson

claim; a higher degree of negligence is required. The conduct must be so egregious

as to be tantamount to an intentional tort.” Shaw v. Goodyear Tire & Rubber Co.,

225 N.C. App. 90, 101, 737 S.E.2d 168, 176 (citation omitted), disc. review denied, 367

N.C. 204, 748 S.E.2d 323 (2013).

      In the present case, we conclude that the Mountaire Defendants were entitled

to summary judgment on Plaintiff’s Woodson claim for several reasons. First, and

most basically, it is undisputed that Plaintiff was not assigned to perform any work

at all regarding the votator sleeve installation. As the record makes clear, Swain was

the sole employee who was assigned this task. At no point was Plaintiff ever ordered

by a supervisor to assist Swain with the project, and Plaintiff never actually

performed any work on the installation. Instead, Plaintiff merely entered the room

where Swain was working and “[t]he accident happened before [Plaintiff] could get to

him.” Thus, Plaintiff’s injury occurred only after he voluntarily chose to enter the

room in which Swain was working in response to a request for assistance from Swain,



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who did not occupy a supervisory position over Plaintiff.      Moreover, Plaintiff’s

deposition testimony makes clear that he did not inform his supervisor of his intent

to assist Swain.

             Q. So you went there in response to Mr. Swain’s request; is
             that right?

             A. Yes, ma’am.

             Q. You never spoke to Mr. Branton about going in to help
             Mr. Swain?

             A. No, ma’am.

      Consequently, the Mountaire Defendants did not place Plaintiff in danger in

connection with the votator sleeve installation and, therefore, Plaintiff cannot

establish a valid Woodson claim. In several prior cases, this Court has reached a

similar conclusion where an employee engaged in a dangerous activity or placed

himself in a dangerous area without first being instructed to do so by his employer.

For example, in Hamby, the plaintiff was a truck-dump operator at a mulch company.

On his own initiative, he decided to clear accumulated woodchips in an auger pit at

his employer’s plant that was used for grinding mulch. While doing so, he slipped

and entangled his left leg in the augers, causing him to suffer serious injuries that

ultimately required the amputation of his left leg above the knee. Hamby, 197 N.C.

App. at 101, 676 S.E.2d at 596. The pit was found to be in violation of OSHA

standards due to the fact that no protective guard rail surrounded it. The emergency



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                                   Opinion of the Court



deactivation switch for the auger pit was also inoperable at the time of the plaintiff’s

accident such that the augers could not be immediately shut down. Id.

      The plaintiff brought a Woodson claim against his employer, and the trial court

granted the employer’s motion for summary judgment. Id. at 105, 676 S.E.2d at 598.

On appeal, we affirmed the trial court’s entry of summary judgment in favor of the

employer, holding as follows:

             Plaintiffs’ forecast of evidence here shows that Hamby was
             injured by Terra-Mulch’s inadequately guarded machinery
             — the rotating augers — in violation of OSHA standards.
             Our Supreme Court, however, [has] found this
             circumstance insufficient to establish a Woodson claim,
             even when coupled with an allegation that supervisors
             specifically directed the employee to work in the face of the
             hazard. Plaintiffs’ allegations and forecast of evidence in
             this case did not demonstrate that Hamby was specifically
             instructed to descend from the truck-dump operator
             platform in the manner that exposed him to the hazardous
             augers, or that Terra-Mulch was otherwise substantially
             certain he would be seriously injured. Accordingly, we
             agree with the trial court that Plaintiffs’ forecast of
             evidence at summary judgment was insufficient to
             establish their Woodson claim against Terra-Mulch.

Id. at 108, 676 S.E.2d at 600 (internal citations and quotation marks omitted and

emphasis added).

      In Edwards, an employee worked at his employer’s plant, which manufactured

industrial lighting through a process that “require[d] metal parts to be baked in

annealing ovens in an oxygen-free gas which contains a high concentration of carbon

monoxide.” Edwards, 193 N.C. App. at 580, 668 S.E.2d at 115. The employee, an


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annealing oven operator, was working overtime and decided to take a break, choosing

to do so behind one of the annealing ovens. However, due to a leak emanating from

the rear of the annealing oven, he was exposed to fatal levels of carbon monoxide,

ultimately causing his death. Id.

      The employee’s estate brought a Woodson claim against the employer. The

employer filed a motion for summary judgment, which was denied by the trial court.

Id. at 580, 668 S.E.2d at 115-16.       On appeal, this Court held that because the

employee had acted on his own initiative, the elements of a Woodson claim were

lacking. We reasoned that

             in contrast to Woodson, where the employer intentionally
             ordered the decedent to work in a known dangerous
             condition, in the instant case, decedent volunteered to work
             extra hours after his shift, and chose to take a break behind
             the annealing ovens, where the carbon monoxide
             concentration was very high. Although plaintiff contends
             that [the employer] could have done more to ensure its
             workers’ safety, the evidence does not show that the
             employer engaged in misconduct knowing it was
             substantially certain to cause death or serious injury.

Id. at 584-85, 668 S.E.2d at 118 (citation, quotation marks, and brackets omitted).

      The second primary reason why Plaintiff’s Woodson claim fails as a matter of

law is his inability to show knowledge on the part of the Mountaire Defendants that

the attempt to replace the votator sleeve was substantially certain to cause serious

injury or death. The evidence of record shows that Swain led his supervisor to believe

that the installation of the votator sleeve could safely be performed. Swain informed


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Branton after examining the excerpt from the operator’s manual that he “didn’t see

a problem” with him performing the installation. This evidence belies the notion that

Branton was on notice that Swain’s installation of the votator sleeve was

substantially certain to result in serious injury or death.

      Plaintiff points to his own deposition testimony in which he stated that he had

a conversation with Swain prior to the accident in which Plaintiff expressed his belief

that Swain could not perform the installation himself and that mechanics from

Mountaire Farms’ refrigeration department needed to be involved. According to

Plaintiff, Swain responded that he felt like he had no choice other than to perform

the installation in order to keep his job. However, Plaintiff has failed to offer evidence

that Plaintiff, Swain, or anyone else expressed concerns to management personnel at

Mountaire Farms about Swain’s alleged inability to safely perform the installation.

      Branton testified that he was unaware of the dangers posed by the installation

in terms of the potential for the release of ammonia from the votator. His lack of

awareness of this danger was aptly demonstrated by the fact that he stood next to

Swain while Swain was performing the installation. Indeed, Branton testified that

he did not know that there was any risk at all of ammonia being released during the

replacement of the votator sleeve and, therefore, his testimony shows that he lacked

any basis for believing that the refrigeration department needed to be brought in to

assist with the project.



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Q. If you had noted that this involved exposure -- this
involved an actual Ammonia exposure situation would you
have signed [sic] this to Clifton Swain?

A. No.

Q. What would you have done?

A. Well, it would have -- I would have gotten touch [sic]
with refrigeration if it was -- yeah. It would have been a --
refrigeration would have been responsible to drain the
Ammonia.

Q. Was refrigeration available that Saturday?

A. Yes.

....

Q. Have you ever assigned a task to your mechanics that
you did not think they were qualified to do?

A. No.

Q. At any time did Brian Blue or Clifton Swain express to
you any concerns about doing this project?

A. No, no.

....

Q. Would you have -- you actually went into the room where
Brian Blue was [sic] Clifton Swain were in there. Would
you have gone into that room and exposed yourself to
potential ---

A. No.

Q. --- bodily injury or death if you thought ---



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                                   Opinion of the Court



             A. No.

             Q. --- there was exposure?

             A. No.

      Nor has Plaintiff shown that Mountaire Farms’ managerial personnel had any

basis for believing that any attempt by its mechanics to replace the votator sleeve

was substantially certain to result in serious injury or death. While there was an

internal discussion as to whether Mountaire Farms should hire an independent

contractor to perform the installation, the mere fact that such a discussion took place,

without more, falls short of meeting the “substantial certainty” element of Woodson.

      Notably, the only evidence on this issue established that this was the first time

Mountaire Farms had been required to address the need for repair of a votator.

Ondona testified on this issue as follows:

             Q. Okay. When the votators were installed, how many
             votators were there?

             A. I think three.

             ....

             Q. Okay. During the time that you were engineering and
             maintenance manager for Mountaire Farms, was there a
             process or a procedure for performing major repairs on
             votators?

             A. We haven’t [sic] done any repairs yet, so I could not
             recall initiating repair. And that’s my recollection.




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       When asked why the possibility of using independent contractors for the

project had been discussed, Ondona responded that this was “[b]ecause it was never

done before by the plant, and it’s the first time that we are going to undertake that

kind of job. . . .”

       Therefore, there were no past experiences upon which the Mountaire

Defendants could have drawn in determining how to handle the installation of the

new votator sleeve. Moreover, the evidence suggests that the votator sleeve could, in

fact, have been safely installed by Mountaire Farms’ employees had the ammonia

been drained from the votator — presumably by a mechanic with the refrigeration

department — prior to Swain beginning the installation.

       However, there is no evidence that at any time after being assigned the project

Swain requested assistance from the refrigeration department in draining the

ammonia from the votator.       Nor did he or Plaintiff ask Branton or any other

supervisor to arrange for such assistance. Plaintiff also did not alert any of the

refrigeration mechanics about his belief that they needed to assist Swain on this

project. Plaintiff testified as follows regarding the issue of whether refrigeration

mechanics could have provided assistance:

               Q. Could Mr. Swain that morning have had refrigeration
               drain the system?

                      MR. LINETT: Objection to form.

               A. That was the supervisor’s call.         We don’t have the


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                                  Opinion of the Court



             authority to tell no supervisor what to do.

             Q. But refrigeration personnel were there at the plant that
             day?

             A. Yes, ma’am.

             Q. And they could have drained the system?

             A. Yes, ma’am.

                   MR. LINETT: Objection to form.

             A. Excuse me.

             Q. Could Mr. Swain have asked his supervisor to have
             refrigeration drain the system?

                   MR. LINETT: Objection to form.

             A. I guess he could have, yes.

             Q. And could he have talked to his supervisor about this
             task?

                   MR. LINETT: Objection to form.

             A. Yes.

      To the extent that Mountaire Farms’ manner of handling and staffing the

project can be characterized as negligent, this Court — as noted above — has made

clear that “[w]illful and wanton negligence alone is not enough to establish a Woodson

claim; a higher degree of negligence is required. The conduct must be so egregious

as to be tantamount to an intentional tort.” Shaw, 225 N.C. App. at 101, 737 S.E.2d

at 176 (citation omitted). Similarly, the mere fact that additional safety measures


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                                  Opinion of the Court



should — in hindsight — have been implemented is not enough to establish that the

Mountaire Defendants intentionally engaged in conduct that they knew was

substantially certain to cause serious injury or death to their employees.       See

Edwards, 193 N.C. App. at 585, 668 S.E.2d at 118 (“Although plaintiff contends that

[the employer] could have done more to ensure its workers’ safety, the evidence does

not show that the employer engaged in misconduct knowing it was substantially

certain to cause death or serious injury.” (citation, quotation marks, and brackets

omitted)).

      We likewise reject Plaintiff’s contention that the existence of prior DAQ and

OSHA violations demonstrates egregious conduct by Mountaire Farms in terms of

allowing the plant to operate in a state of noncompliance with applicable safety

regulations. “While OSHA violations are not determinative, they are a factor in

determining whether a Woodson claim has been established.” Kelly v. Parkdale Mills,

Inc., 121 N.C. App. 758, 761, 468 S.E.2d 458, 460 (1996) (internal citation omitted).

In the present case, prior to the 20 June 2009 accident, Mountaire Farms had been

cited a total of three times — twice by OSHA and once by the DAQ. Notably, none of

these violations related to the storage or release of ammonia.

      On a number of occasions, North Carolina courts have rejected Woodson claims

despite the presence of evidence in the record demonstrating that the workplace at

issue was unsafe at the time of the accident. See Pendergrass v. Card Care, Inc., 333



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                                  Opinion of the Court



N.C. 233, 238, 424 S.E.2d 391, 394 (1993) (employer “knew that certain dangerous

parts of . . . machine were unguarded, in violation of OSHA regulations and industry

standards”); Hamby, 197 N.C. App. at 108, 676 S.E.2d at 600 (“Plaintiffs’ forecast of

evidence here shows that Hamby was injured by [the employer’s] inadequately

guarded machinery — the rotating augers — in violation of OSHA standards.”);

Edwards, 193 N.C. App. at 584, 668 S.E.2d at 118 (“[A]lthough the evidence tended

to show that [the employer] did not adequately maintain its equipment, even a

knowing failure to provide adequate safety equipment in violation of OSHA

regulations does not give rise to liability under Woodson.” (citation, quotation marks,

brackets, and ellipses omitted)); Regan v. Amerimark Bldg. Products, Inc., 127 N.C.

App. 225, 226, 489 S.E.2d 421, 423 (1997) (three months before plaintiff’s accident,

employer was issued citations for “several serious violations of the Occupational

Safety and Health Act”), aff’d per curiam, 347 N.C. 665, 496 S.E.2d 378 (1998).

      For all of these reasons, we hold that Plaintiff has failed to show the existence

of a genuine issue of material fact as to his Woodson claim and that the Mountaire

Farms Defendants were entitled to judgment as a matter of law. The trial court

therefore erred in denying the Mountaire Defendants’ motion for summary judgment

as to this claim.

III. Pleasant Claims




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                                    Opinion of the Court



         The Individual Defendants argue that the trial court also erred in denying

their motion for summary judgment as to Plaintiff’s Pleasant claims. Once again, we

agree.

         In Pleasant, the plaintiff and his co-worker were both employees of a

construction company. One afternoon, the plaintiff was walking back from lunch to

the construction site. The co-worker, who was driving his truck at the time, saw the

plaintiff walking and decided to “scare [him] by blowing the horn and by operating

the truck close to him.” He drove too close to the plaintiff, hitting him with the truck

and seriously injuring his right knee. Pleasant, 312 N.C. at 711, 325 S.E.2d at 246.

         The plaintiff filed a personal injury action against the co-worker, who argued

that the suit was barred by the exclusivity provision of the Workers’ Compensation

Act. Id. The trial court entered a directed verdict in favor of the co-worker, and a

divided panel of this Court affirmed. Pleasant v. Johnson, 69 N.C. App. 538, 317

S.E.2d 104 (1984), rev’d, 312 N.C. 710, 325 S.E.2d 244 (1985).

         Our Supreme Court reversed, holding that “[t]he pivotal issue in this case is

whether the North Carolina Workers’ Compensation Act provides the exclusive

remedy when an employee is injured in the course of his employment by the willful,

wanton and reckless conduct of a co-employee. We hold that it does not and that an

employee may bring an action against the co-employee for injuries received as a result

of such conduct.” Pleasant, 312 N.C. at 710-11, 325 S.E.2d at 246.



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      In applying Pleasant, we have held that

             [e]ngaging in willful, wanton, and reckless behavior is akin
             to the commission of an intentional tort, and, as such, the
             employee must form the constructive intent to injure. Such
             intent exists where conduct threatens the safety of others
             and is so reckless or manifestly indifferent to the
             consequences that a finding of willfulness and wantonness
             equivalent in spirit to actual intent is justified.
             Alternatively, when an employee is injured by the ordinary
             negligence of a co-employee, the Act is the exclusive
             remedy.

Pender v. Lambert, 225 N.C. App. 390, 395, 737 S.E.2d 778, 782 (internal citations

and quotation marks omitted), disc. review denied, 366 N.C. 591, 743 S.E.2d 197

(2013); see also Trivette v. Yount, 366 N.C. 303, 312, 735 S.E.2d 306, 312 (2012)

(“[E]ven unquestionably negligent behavior rarely meets the high standard of ‘willful,

wanton and reckless’ negligence established in Pleasant.”).

      The caselaw from this Court and the Supreme Court applying Pleasant

illustrates the high bar that a plaintiff must meet in order to survive summary

judgment on a Pleasant claim. See, e.g., Jones v. Willamette Indus., Inc., 120 N.C.

App. 591, 596, 463 S.E.2d 294, 297-98 (1995) (holding Pleasant claim not established

where employee died while cleaning residue from boiler system at employer’s plant

in unsafe manner in accordance with co-workers’ instructions because “although

supervisory personnel at [employer] should have ensured that adequate and

appropriate safety measures were in place, and being used . . . this does not support

an inference that they intended for [the decedent] to be injured, nor does it support


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                                  Opinion of the Court



an inference that they were manifestly indifferent to the consequences”), disc. review

denied, 342 N.C. 656, 467 S.E.2d 714 (1996); Dunleavy v. Yates Const. Co., Inc., 106

N.C. App. 146, 156, 416 S.E.2d 193, 199 (Pleasant claim not established where co-

worker supervising inexperienced employee left employee unsupervised for brief

period of time during which employee died as a result of trench collapse because

“evidence show[ed] that [the co-worker’s] conduct, although arguably negligent, was

not willful, wanton, and reckless”), disc. review denied, 332 N.C. 343, 421 S.E.2d 146

(1992).

      We first address Plaintiff’s Pleasant claim against Branton, the supervisor at

Mountaire Farms most directly involved in the assignment of the votator sleeve

project. As discussed above in our analysis of Plaintiff’s Woodson claim, the record is

devoid of evidence that Branton was aware of the dangers involved with the

installation of the votator sleeve. Indeed, Branton’s lack of knowledge on this subject

was most fundamentally demonstrated by the fact that he stood close enough to the

votator during the attempted installation so that when the ammonia was released he

— like Plaintiff — was seriously injured. It logically follows that he could not have

formed the constructive intent to expose Plaintiff to a hazardous situation as would

be necessary in order for a viable Pleasant claim to exist on these facts. Moreover, as

discussed earlier, Branton was not responsible for Plaintiff’s presence in the room

where the installation was being performed.



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                                   Opinion of the Court



         Plaintiff’s Pleasant claims against Garroutte, Ondona, and Smith are premised

on his assertion that in their roles as managerial employees of Mountaire Farms they

failed to recognize that the votator sleeve needed to be installed by an independent

contractor as opposed to a Mountaire Farms’ employee. However, as discussed above,

the record fails to support Plaintiff’s argument that Mountaire Farms employees were

clearly incapable of replacing the votator sleeve. Moreover, even assuming arguendo

that these Defendants were mistaken in their belief that the project could be safely

performed by their own employees, there is no indication in the record that the need

to utilize independent contractors was so obvious that a contrary decision amounted

to the sort of willful, wanton, and reckless conduct required to support a Pleasant

claim.

         Plaintiff also alleges that Ondona failed to keep Mountaire Farms’ risk

management plan up to date and that Saufley should be held liable because he

possessed “responsibility for general employee safety.” However, such assertions —

without more — are insufficient to establish a valid Pleasant claim. See Jones, 120

N.C. App. at 596, 463 S.E.2d at 297-98 (“[A]lthough supervisory personnel . . . should

have ensured that adequate and appropriate safety measures were in place, and

being used . . . this does not support an inference that they intended for [the decedent]

to be injured, nor does it support an inference that they were manifestly indifferent

to the consequences.”).



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                                     Opinion of the Court



         Finally, summary judgment is also proper as to Plaintiff’s Pleasant claim

against Swain. Swain’s lack of understanding that the ammonia had to be drained

from the votator prior to the installation of the new votator sleeve and his failure to

take the necessary safety precautions were mistakes on his part that tragically ended

up costing him his life. Such errors simply do not amount to the sort of willful,

wanton, and reckless conduct between co-workers that lies at the heart of a Pleasant

claim.

         Thus, we hold that Plaintiff failed to forecast sufficient evidence in support of

his Pleasant claims to defeat the Individual Defendants’ motion for summary

judgment. Therefore, the trial court erred in denying their motion.

                                       Conclusion

         For the reasons stated above, the trial court’s denial of Defendants’ motion for

summary judgment is reversed.          We remand this case to the trial court with

instructions to enter summary judgment in favor of Defendants on all claims asserted

by Plaintiff in this action. Plaintiff’s cross-appeal is dismissed as moot.

         REVERSED AND REMANDED IN PART; DISMISSED IN PART

         Chief Judge McGEE and Judge DILLON concur.




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