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Woodson v. Rowland8/14/1991
This is a wrongful death action arising from a work-related trench cave-in which killed Thomas Alfred Sprouse on Sunday, 4 August 1985. Plaintiff is the administrator of Sprouse's estate. The principal question is whether the exclusivity provisions of the Workers' Compensation Act limit plaintiff's remedies to those provided by the Act. The courts below concluded plaintiff was so limited in her choice of remedies. We disagree. Other issues in the case concern the viability of certain theories of liability plaintiff asserts: the nondelegability of duties of safety owed to plaintiff's intestate, and the negligent hiring and retention of a subcontractor.
I.
Defendant Pinnacle One Associates ("Pinnacle One") was the developer on a construction project for IBM in Research Triangle Park. It retained defendant Davidson & Jones, Inc. ("Davidson & Jones") as general contractor. One aspect of the project required construction of a sanitary sewer line on Chin Page Road in Durham County. Davidson & Jones hired defendant Morris Rowland Utility, Inc. ("Rowland Utility" or "employer") to dig the line. Defendant Neal Morris Rowland ("Morris Rowland") has at all relevant times been the president and sole shareholder of Rowland Utility. Decedent Thomas Sprouse was Rowland Utility's employee.
On defendants' motions for summary judgment, plaintiff's forecast of evidence tends to show the following:
On Saturday, 3 August 1985, workers from both Rowland Utility and Davidson & Jones were digging trenches to lay sewer lines. The Chin Page Road project required two separate trenches.
Although Rowland Utility was hired to dig both, in the interest of time a Davidson & Jones crew provided men to work in one of the trench sites.
Because the trenches were not sloped, shored, or braced, and did not have a trench box, Lynn Craig, the Davidson & Jones foreman, refused to let his men work in them. The Occupational Safety and Health Act of North Carolina ("OSHANC") and the rules promulgated thereunder required such safety precautions for the trenches in question. N.C.G.S. § 95-136(g); 13 N.C. Admin. Code 7E .1400 et seq ; cf. 29 C.F.R. § 1926.650-.653. Because of the soil conditions and geography, Craig believed that a trench box was the best means of ensuring his workers' safety. Morris Rowland procured a trench box for Craig and the Davidson & Jones crew, which commenced work inside the trench after receiving the safety device on the morning of Saturday, 3 August. Morris Rowland did not acquire a trench box for his own crew.
Charles Greene, a member of the Davidson & Jones crew, was operating a backhoe at the Rowland Utility site that Saturday. Craig checked on the site's progress several times. Morris Rowland asked Craig if he could put a Rowland Utility man on the job because he believed that Greene was not operating the backhoe fast enough. Several times Craig denied these requests. Once, Craig operated the machinery himself for a few minutes and concluded that Greene's progress had been adequate. In his deposition, Craig testified that by the end of the day the sides of the Rowland Utility trench were not being adequately sloped, and that it "could have been a little safer." At that point, the trench construction violated OSHANC regulations.
On Sunday, 4 August, the Davidson & Jones crew did not work, and its trench box lay idle. However, the Rowland Utility crew reported to the site to continue digging its trench. A Rowland Utility man, rather than Greene, was now operating the backhoe. Morris Rowland and project supervisor, Elmer Fry, discussed whether to use the trench bo
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