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Echols v. Zarn Inc.9/20/1994
REF-->
Plaintiff's intestate sued Prestress, among other defendants, in superior court for wrongful death to recover damages. Prestress moved for summary judgment, which motion the trial court granted. Plaintiff appealed to this Court. On appeal, this Court stated, "the question for our determination is whether the forecast of evidence is sufficient to show that Prestress intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death" pursuant to Woodson. Powell, 114 N.C. App. at 324, 442 S.E.2d at 146. On this issue, this Court stated:
The misconduct which satisfies the substantial certainty standard is best demonstrated by the following illustration . . . .
A throws a bomb into B's office for the purpose of killing B. A knows that C, B's stenographer, is in the office. A has no desire to injure C, but knows that this act is substantially certain to do so. C is injured by the explosion. A is subject to liability to C for an intentional tort.
Id. at 325, 442 S.E.2d at 147 (citation omitted). Further, "substantial certainty requires more than a mere possibility or substantial probability of serious injury or death." Id. In light of these rules, this Court concluded:
The forecast of evidence in this case persuades us that Prestress did not engage in misconduct knowing it was substantially certain to cause serious death or injury . All the evidence showed that Prestress' policy was that the straddle crane was not to be operated without a signal man and that, at the time of Powell's death, this policy was being enforced. Plaintiff presented no evidence that Prestress had a policy to allow cranes to be moved without a signal man. Unlike the employer in Woodson, Prestress did not permit work to go on without an arrangement to carry out a policy designed to protect the safety of its employees. Assuming arguendo that a reasonable juror could determine that by permitting employees to work in close proximity to a moving straddle crane, the risk of serious injury or death as a result of contact with a crane was present, then the forecast of evidence is not sufficient to show that these circumstances were substantially certain to cause Powell's injury and death. No employees of Prestress had been struck by a crane in the past. Prestress' past violations involving crane operation do not concern the hazards of operating a crane in close proximity to workers. There were no safety regulations which required Prestress to use tire guards or keep its employees a certain distance from moving cranes.
Id. at 325-26, 442 S.E.2d at 147 (emphasis by underline added).
Based on these Conclusions, this Court held:
The circumstances of Powell's death demonstrate that Prestress could have taken further steps to ensure the safety of its employees who worked in close proximity to straddle cranes, but the forecast of evidence is not sufficient to show that there exists a genuine issue of material fact regarding whether Prestress engaged in misconduct knowing it was substantially certain to cause serious injury or death. Summary judgment in favor of Prestress must therefore be affirmed.
Id. at 326, 442 S.E.2d at 147.
In the present case, plaintiff's evidence in its most favorable light tends to show that Zarn adopted the safety rule that "only authorized mechanics and maintenance personnel may reach around or otherwise bypass a safety guard when working on machinery or equipment" and that Zarn knew of the practice of supervisors training employees to reach under the safety
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