 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Woodson v. Rowland8/14/1991
x in their ditch. They decided not to use it, indicating in deposition that they had believed the soil was packed hard enough so the trench would not cave in.
A backhoe worked in front of of decedent Sprouse and his co-workers, who were laying pipe inside the freshly dug trench. A piece of heavy machinery called a front-end loader drove along the edge of the ditch and followed their progress, dumping loads of gravel onto the newly laid pipe. Workers tamped the gravel using a device similar to a jackhammer. Sprouse was the closest person in the trench to the front-end loader.
At about 9:30 a.m. one side of the trench collapsed, completely burying Sprouse and burying the man closest to him up to his armpits. The partially buried man was Alan Fry, son of project supervisor Elmer Fry. The workers pulled Alan Fry out of the trench, and Morris Rowland took him to the hospital.
Morris Rowland did not return to the site for several hours after the cave-in. The remaining workers continued to dig Sprouse out. They refused several offers of help given by Jennifer Spencer, a security guard for another company, who was then on duty and who volunteered to call a rescue squad. By the time the workers had finished digging Sprouse out, he was dead.
The trench was approximately fourteen feet deep and four feet wide with vertical sides at the point of the cave-in. Craig, who saw the site later and commented on a photograph of it at his deposition, stated that the trench was being sloped less than it had been at the end of the previous day's work. He characterized it as "unsafe" and stated that he "would never put a man in it."
Pursuant to N.C.G.S. ยง 28A-18-2, plaintiff filed civil suits against Rowland Utility; Morris Rowland in his individual capacity; Davidson & Jones; and Pinnacle One Associates. In July 1987, plaintiff filed a Workers' Compensation claim to meet the filing deadline for compensation claims. In order to avoid a judicial ruling that she had elected a workers' compensation remedy inconsistent with the civil remedies she presently seeks, plaintiff specifically requested that the Industrial Commission not hear her case until completion of this action. The Commission has complied with her request, and plaintiff has received no benefits under the Workers' Compensation Act.
In the civil actions before us, the trial court granted all defendants' motions for summary judgment; and the Court of Appeals affirmed, with Judge Phillips concurring in part and dissenting in part. Plaintiff appealed of right on the basis of Judge Phillips'
dissent, and we granted her petition for discretionary review as to additional issues. We now affirm in part and reverse in part.
II.
We first decide whether the forecast of evidence is sufficient to survive Rowland Utility's and Morris Rowland's motions for summary judgment, which are based on the ground that Sprouse's death was caused only by "accident" under the Workers' Compensation Act ("the Act"). If the death can only be considered accidental, defendants' summary judgment motions were properly allowed because Sprouse's death would fall within the Act's exclusive coverage, and no other remedies than those provided in the Act are available to plaintiff either against his employer, Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966), or a co-worker, Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977). On the other hand, if the forecast of evidence is sufficient to show that Sprouse's death was the result of an intentional tort committed by his employ
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|