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Tise v. Yates Construction Co.2/10/1997
aled to the Court of Appeals from the trial court's order granting the City's motion to dismiss for failure to state a claim upon which relief could be granted. The Court of Appeals, in a unanimous opinion, affirmed. Yates' petition for discretionary review was allowed by this Court on 30 July 1996.
The sole question before this Court is whether the Court of Appeals erred in affirming the trial court's order granting summary judgment in favor of the City on the issue of whether actionable negligence of the City, as Tise's employer, joined and concurred with the negligence of Yates in causing Tise's death.
N.C.G.S. § 97-10.2, the statute defining the rights under the North Carolina Workers' Compensation Act that are not affected by liability of a third party and rights and remedies against third parties, provides in pertinent part:
(e) The amount of compensation and other benefits paid or payable on account of [work-related] injury or death shall be admissible in evidence in any proceeding against the third party. In the event that said amount of compensation and other benefits is introduced in such a proceeding the court shall instruct the jury that said amount will be deducted by the court from any amount of damages awarded to the plaintiff. If the third party defending such proceeding, by answer duly served on the employer, sufficiently alleges that actionable negligence of the employer joined and concurred with the negligence of the third party in producing the injury or death, then an issue shall be submitted to the jury in such case as to whether actionable negligence of employer joined and concurred with the negligence of the third party in producing the injury or death. The employer shall have the right to appear, to be represented, to introduce evidence, to cross-examine adverse witnesses, and to argue to the jury as to this issue as fully as though he were a party although not named or joined as a party to the proceeding.
N.C.G.S. § 97-10.2(e) (1991) (emphasis added). If the jury finds that the employer's actionable negligence joined and concurred with the negligence of the third party in producing the injury or death, the court must reduce the damages awarded by the jury against the third party by the amount which the employer would otherwise be entitled to receive therefrom by way of subrogation. Id.
In the instant case, Yates alleged that the City, through its police department, negligently handled the initial call to the construction site and that such negligence was a proximate cause of Tise's death. Specifically, Yates alleged that the Winston-Salem police officers who had responded to the initial complaint at the construction site (1) had failed to take all reasonable precautions to prevent further tampering and theft of the grading equipment, (2) had ineffectively attempted to disable the equipment, and (3) had failed to contact any representative of Yates about trespassers at the site and/or tampering with the equipment until after the fatal incident. Yates argues that these allegations, when taken as true, sufficiently allege that the City's negligence joined and concurred with its negligence to cause Tise's death so as to bar the City's subrogation rights under N.C.G.S. § 97-10.2(e) and, therefore, were sufficient to withstand the City's motion to dismiss.
In determining whether Yates has alleged sufficient facts showing the City's negligence to withstand a motion to dismiss, we are guided by the standard of the reasonable person of ordinary prudence. "Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent person would exercise under similar conditions." Hart v. Ivey, 332 N.C. 2
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