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Hooper v. Pizzagalli Construction Co.11/2/1993
plaintiffs' motion to set aside the order dismissing plaintiffs' complaint, it could not allow plaintiffs' motion to amend plaintiffs' complaint. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990), disc. review denied, 328 N.C. 570, 403 S.E.2d 509 (1991).
Plaintiffs also argue that the trial court erred in granting defendant Acme's motion to dismiss the complaint on the grounds that the court had no subject matter jurisdiction over plaintiffs' claim pursuant to the Workers' Compensation Act. Plaintiffs argue that they filed a tort action which alleged that defendant Acme engaged in misconduct which was substantially certain to cause death or injury and pursuant to the holding in Woodson, the trial court did have subject matter jurisdiction.
The Court in Woodson stated:
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, 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.
Woodson, 329 N.C. at 340-41, 407 S.E.2d at 228. Because the employer furnishes benefits under the Act, employer liability must be based on more egregious conduct than the "wilful and wanton misconduct" standard applicable to injuries inflicted by co-employees. Id.
The forecast of evidence by plaintiffs did not produce evidence tending to show that the employer defendant Acme engaged in conduct substantially certain to cause death or injury . As stated earlier, defendant Acme was hired to provide plumbing services for the project. There was no evidence that the supervisor for defendant Acme directed the decedent and Mr. Rigsbee to engage in any activity substantially certain to cause death or injury. In fact, there was no evidence presented which established that the supervisor directed decedent and Mr. Rigsbee to use the makeshift scaffold or expected that the installation of a valve gasket would be performed with the assistance of the makeshift scaffold. As such, there is no genuine issue of fact as to whether any agent of Acme engaged in misconduct which was known to create a substantial certainty of death or injury. Because Woodson is inapplicable, the action falls under the exclusivity provisions of the Workers' Compensation Act and the trial court is without subject matter jurisdiction. The trial court properly granted defendant Acme's motion to dismiss.
The decision of the trial court is affirmed.
Disposition
The decision of the trial court is affirmed.
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