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Woodson v. Rowland8/14/1991
to trial against Davidson & Jones, Inc. on the theory that it breached a non-delegable duty of safety owed to the plaintiff's decedent. The majority appears to recognize that Davidson & Jones, Inc. did not retain the right to control the manner in which the independent contractor it employed performed the work in question here. Therefore, the majority acknowledges that the plaintiff cannot recover from Davidson & Jones, Inc. on this theory, unless the plaintiff can show that her claim falls within an exception to the general rule prohibiting recovery against one who employs an independent contractor and does not retain the right to control the manner in which it performs the work to be done. In finding such an exception here, the majority relies upon the rule that one who employs an independent contractor to perform an inherently dangerous activity may not delegate to the independent contractor the duty to provide for the safety of others. The majority concludes that under the circumstances presented in this case, a jury could reasonably find that the trenching involved was an inherently dangerous activity for which Davidson & Jones, Inc. could not delegate its duty to provide for the safety of the plaintiff's decedent. I do not agree.
An activity is either inherently dangerous or it is not. If an activity may be conducted in an entirely safe manner when ordinary safety precautions are taken but may be hazardous if performed in a negligent manner, it is not an "inherently dangerous" activity in my view. See Black's Law Dictionary 782 (6th ed. 1990). Here, the record reveals and the majority concedes that the trenching activity leading to the cave-in which killed the plaintiff's decedent could have been performed safely if ordinary safety precautions, such as sloping the shoulders of the trench or the use of a trench box, had been employed. Therefore, it would seem to follow ipso {PA}
Page 362} facto that the trenching was not inherently dangerous. For that reason, I dissent from the majority's conclusion that this claim by the plaintiff may be found to fall within an exception to the general rule that an employer is not liable for its independent contractor's negligence where, as here, it has not retained the right to control the manner in which the work undertaken is to be performed. I would affirm the holding of the Court of Appeals that the trial court properly entered summary judgment for the defendant Davidson & Jones, Inc. with regard to this claim for relief.
Finally, for reasons fully set forth in the thoughtful opinion of Judge Eagles (Judge Parker concurring) in the Court of Appeals, I dissent from Part II of the opinion of the majority of this Court. Woodson v. Rowland, 92 N.C. App. 38, 40-42, 373 S.E.2d 674, 675-77 (1988). In Part II, the majority holds that the exclusivity provision of the North Carolina Workers' Compensation Act, N.C.G.S. ยง 97-10.1, does not apply here and that the plaintiff may recover in a civil action against the defendants Morris Rowland and Morris Rowland Utility, Inc. for conduct substantially certain to cause injury . Although I concede that the majority's holding represents reasonable and perhaps desirable social policy, I must agree with the Court of Appeals that to give an employee, in addition to the rights available under our Workers' Compensation Act, a right to bring a civil action "against his employer, even for gross, willful and wanton negligence, would skew the balance of interests inherent in . . . Act. Changes in the Act's delicate balance of interests is more properly a legislative prerogative than a judicial function." Id. at 42, 373 S.E.2d
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