DONNA W. TAFT, Administratrix of the Estate of Michael Wayne Paul, Jr., Plaintiff v. BRINLEY'S GRADING SERVICES, INC., ISMAEL DOMINGUEZ and THOMAS E. BRINLEY, SR., Defendants
Case Details
- Citation
- 225 N.C. App. 502
- Judge(s)
- Chief Judge MARTIN and Judge STROUD concur.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Court of Appeals reversed summary judgment for defendant Brinley's Grading on vicarious liability and special employment doctrine issues, finding genuine issues of material fact existed; affirmed summary judgment for individual defendant Brinley on negligent supervision claim.
Excerpt
DONNA W. TAFT, Administratrix of the Estate of Michael Wayne Paul, Jr., Plaintiff v. BRINLEY’S GRADING SERVICES, INC., ISMAEL DOMINGUEZ and THOMAS E. BRINLEY, SR., Defendants No. COA12-790 Filed 5 February 2013 1. Workers’ Compensation — special employee — summary judgment improper The trial court erred in a wrongful death case by granting summary judgment to defendant Brinley’s Grading based on the exclusivity provision of the Workers’ Compensation Act under N.C.G.S. § 97-10.1. The evidence in the record gave rise to genuine issues of material fact regarding whether decedent, who was actually employed by a company other than Brinley’s Grading, amounted to a “special employee” subject to the Workers’ Compensation Act’s exclusivity provision. 2. Wrongful Death — vicarious liability — negligence—scope of employment The trial court erred in a wrongful death case by granting summary judgment to defendant Brinley’s Grading on the issue of its vicarious liability for any negligence by defendant Dominguez. The evidence tended to show that Dominguez was acting within the scope of his employment and in furtherance of Brinley’s Grading’s business when the alleged negligence occurred, and evidence that Dominguez was forbidden from starting or otherwise operating the truck involved in the accident would not necessarily remove Dominguez from the course and scope of employment. 3. Employers and Employees — negligent hiring, supervision, and retention — compliance with company policy — wrongful death — no actual or constructive notice The trial court did not err in a wrongful death case by granting summary judgment on plaintiff’s claim that defendant Brinley’s Grading was independently negligent by failing to reasonably supervise defendant Dominguez to ensure that he complied with the company’s vehicle policy, reasonably trained Dominguez regarding the policy, and secured the company vehicles’ keys in a manner that would prevent unqualified employees from accessing them. There was no evidence that Brinley’s Grading had actual or constructive notice of Mr. Dominguez’ inherent unfitness regarding his duties or of prior negligence committed by Mr. Dominguez. 4. Employer and Employee — implementation of company safety policies — supervision—no reasonable foreseeability The trial court erred in a wrongful death case by granting summary judgment in favor of defendant Brinley. There was no evidence that Brinley’s role in implementation of the company’s safety policies was negligent since there was no showing that Brinley should have reasonably foreseen that more supervision was required to prevent defendant Dominguez’ deliberate violation of company policy. Appeal by plaintiff from orders entered 4 January 2012 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 11 September 2012. Abrams & Abrams, P.A., by Douglas B. Abrams, Margaret S. Abrams, and Noah B. Abrams; and Taft, Taft & Haigler, PA., by Thomas F. Taft, for plaintiff-appellant. Bryant, Lewis & Lindsley, P.A., by David O. Lewis, for defendantsappellees Brinley’s Grading Services, Inc. and Thomas E. Brinley, Sr. GEER, Judge. Plaintiff Donna W. Taft, administratrix for the Estate of Michael Wayne Paul, Jr., appeals from the trial court’s orders granting summary judgment to defendants Brinley’s Grading Services, Inc. and Thomas E. Brinley, Sr. Plaintiff brought a wrongful death action based upon a workplace accident resulting in Mr. Paul’s death. Plaintiff primarily argues on appeal that the trial court erred in granting summary judgment to Brinley’s Grading on plaintiff’s claims based on the exclusivity provision of the Workers’ Compensation Act. See N.C. Gen. Stat. § 97-10.1 (2011). We agree that the evidence in the record gives rise to genuine issues of material fact regarding whether Mr. Paul, who was actually employed by a company other than Brinley’s Grading, amounted to a “special employee” subject to the Workers’ Compensation Act’s exclusivity provision. Because we also find that plaintiff presented sufficient evidence to defeat summary judgment of Brinley’s Grading’s vicarious liability for the acts of defendant Ismael Dominguez, we reverse the trial court’s order entering summary judgment for Brinley’s Grading. We affirm the order granting summary judgment to Mr. Brinley. Facts On 14 February 2008, Mr. Paul was an employee of Pro-Tech Management & Equipment Services, Inc. and was working at Brinley’s Grading’s facility in Durham, North Carolina pursuant to an “Employee Leasing Agreement” between Pro-Tech and Brinley’s Grading. At approximately 7:20 a.m., Mr. Paul was beside a large commercial trailer working to load it for travel to a worksite. At the same time, Mr. Dominguez, an employee of Brinley’s Grading, started a Brinley’s Grading pickup truck that was facing the trailer, put the truck in gear, and popped the clutch. The truck lunged forward and pinned Mr. Paul in between the front bumper of the truck and the trailer. As a result of the collision, Mr. Paul sustained injuries leading to his death. On 26 January 2010, plaintiff filed a wrongful death action against Brinley’s Grading, Mr. Brinley (the president of Brinley’s Grading), and Mr. Dominguez asserting that Mr. Paul’s death was the result of their negligence. On 31 March 2010, Brinley’s Grading and Mr. Brinley filed an answer denying the material factual allegations of the complaint and asserting as defenses contributory negligence and the fellow servant doctrine. Mr. Dominguez, who left the scene immediately after the accident, did not file an answer, has not been located by the parties since the accident, and was never interviewed or deposed. On 15 November 2011, Brinley’s Grading filed a motion for summary judgment. Brinley’s Grading contended that Mr. Paul was a “special employee” of Brinley’s Grading and a fellow servant of Mr. Dominguez at the time of the accident and, therefore, plaintiff’s claims were barred by the exclusivity provision of the Workers’ Compensation Act set out in N.C. Gen. Stat. § 97-10.1 and the fellow servant doctrine. Brinley’s Grading further argued that Ms. Taft could not show that Mr. Dominguez was acting within the scope of his employment, that Brinley’s Grading was in any way negligent, or that any negligence was the proximate cause of Mr. Paul’s death. Also on 15 November 2011, Mr. Brinley filed a separate motion for summary judgment. Mr. Brinley argued that Ms. Taft could not show that Mr. Brinley was responsible for the day-to-day operations of Brinley’s Grading, that Mr. Brinley was in any way negligent, that any negligence was the proximate cause of Mr. Paul’s death, or that Mr. Brinley possessed actual or constructive knowledge of any dangerous condition existing on the premises of the Durham facility where the accident occurred. On 4 January 2012, the trial court entered an order granting summary judgment to Brinley’s Grading and a separate order granting summary judgment to Mr. Brinley. Plaintiff timely appealed both orders to this Court. Discussion A motion for summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.R. Civ. P. 56(c). In deciding the motion, “ ‘all inferences of fact. . . must be drawn against the movant and in favor of the party opposing the motion.’ ” Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W. Moore et al., Moore’s Federal Practice § 56-15[3], at 2337 (2d ed. 1971)). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party meets its burden, then the non-moving party must “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.” Id. We review a trial court’s grant of summary judgment de novo. Coastal Plains Utils., Inc. v. New Hanover Cnty., 166 N.C. App. 333, 340-41, 601 S.E.2d 915, 920 (2004). I Plaintiff first contends that the trial court erred in granting summary judgment to Brinley’s Grading based on the exclusivity provision of the Workers’ Compensation Act contained in N.C. Gen. Stat. § 97-10.1. N.C. Gen. Stat. § 97-10.1 provides: If the employee and the employer are subject to and have complied with the provisions of this Article, then, the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death. Under the Act, “ ‘employee’ ” is defined in part as “every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written . . . .” N.C. Gen. Stat. § 97-2(2) (2011). In addition to the definition of employee set out in the Workers’ Compensation Act, our courts have adopted the “special employment” doctrine, which provides that, for purposes of the Workers’ Compensation Act, “under certain circumstances a person can be an employee of two different employers at the same time.” Brown v. Friday Servs., Inc., 119 N.C. App. 753, 759, 460 S.E.2d 356, 360 (1995). When the special employment doctrine applies, the joint liability under the Act of the company that directly employs the employee (the “general” employer) and a second company (the “special” employer) provides the plaintiff-employee with two separate potential sources of workers’ compensation benefits. Shelton v. Steelcase, Inc., 197 N.C. App. 404, 410, 677 S.E.2d 485, 491 (2009); Brown, 119 N.C. App. at 759, 460 S.E.2d at 360. However, under the special employment doctrine, the employee’s receipt of workers’ compensation benefits from either employer bars the employee from proceeding at common law against either of the employers. Id. Defendants contend that the exclusivity provision applies to bar plaintiff’s claims against Brinley’s Grading because Mr. Paul qualified as an employee of both Pro-Tech and Brinley’s Grading under the Workers’ Compensation Act pursuant to the special employment doctrine, and plaintiff had already received workers’ compensation benefits from Pro-Tech. Our courts apply a three-prong test to determine whether the employee is a “special employee” for purposes of the Workers’ Compensation Act’s exclusivity provision: “When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if: (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for worker’s compensation.” Anderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 606, 525 S.E.2d 471, 473 (2000) (quoting 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 67 (1999)). In addition, “[c]ontinuance of the ‘general’ employment is presumed, and the party asserting otherwise must make a ‘clear demonstration that a new . . . employer [was] substituted for the old.’ ” Id. at 607, 525 S.E.2d at 473 (quoting Larson’s § 67.02). The first prong of the special employer test asks whether Mr. Paul entered into a contract for hire with Brinley’s Grading. This Court has described the “contract requirement” as “crucial” because the application of the special employment doctrine results in the employee losing the right to sue the special employer at common law for negligence. Id. In Anderson, the defendant — much like defendants here— argued that the first prong was established by evidence that the decedent “ ‘expressly accepted’ ” employment with the defendant when, after being contacted by the defendant, he sought permission from the general employer to work at the defendant’s site and then “ ‘accepted that assignment’ ” by coming to the worksite. Id. at 608, 525 S.E.2d at 474. This Court held that “[t]hese actions standing alone do not conclusively satisfy the contract for employment prong of the special employer test.” Id. In concluding that issues of fact existed regarding the first prong, the Court went on to note other evidence including, among other things, that the decedent was paid by and insured through the general employer, although the defendant reimbursed the general employer for 40% of the decedent’s salary, and the defendant neither paid payroll taxes on behalf of the decedent nor claimed him as an employee for insurance purposes. Id. Further, the decedent represented to third parties that he was an employee of the general employer. Id. The Court held that “ [consideration of all the above evidence in the light most favorable to plaintiff raises at a minimum a genuine factual issue as to the first prong of the special employer test, i.e., whether there was an employment contract between defendant and decedent.” Id. at 609, 525 S.E.2d at 474 (internal citation omitted). Similarly, this Court concluded in Shelton that a jury issue existed as to the first prong. 197 N.C. App. at 412, 677 S.E.2d at 492. The defendant claimed that there was an implied employment agreement with the plaintiff because the plaintiff was hired by the general employer for the express purpose of working for the defendant, she had her own office at the defendant’s plant, and she worked at the defendant’s plant full time. Id. at 411, 677 S.E.2d at 492. This Court, however, concluded that the evidence was less compelling than the evidence found insufficient in Anderson. In Shelton, the defendant had not contacted the plaintiff, but rather had entered into a contract with the general employer to provide cleaning services, and the general employer had chosen to provide those services by assigning the plaintiff to work for the defendant. Id. at 412, 677 S.E.2d at 492. The contract specifically provided that personnel supplied by the general employer to the defendant would “ ‘be employees of the [the general employer].’ ” Id. Further, the record contained evidence from witnesses identifying the plaintiff as an employee of the general employer and evidence that the general employer paid the plaintiff, withheld her taxes, was responsible for her workers’ compensation insurance, and paid her benefits. Id. This case is materially indistinguishable from Shelton and, like Shelton, less compelling than Anderson. Brinley’s Grading argues that an implied contract existed between Mr. Paul and Brinley’s Grading because Mr. Paul “accepted tasks assigned to him by Brinley’s Grading on Brinley’s Grading premises and under the direction and control of Brinley’s Grading personnel and subject to Brinley’s Grading regulations and guidelines.” This contention is essentially identical to the argument rejected in Anderson. Moreover, the Employee Leasing Agreement (“the Agreement”) provided: “The parties understand that Pro-Tech is an independent contractor, and that all of the personnel assigned by Pro-Tech to Brinley’s business in order to fill the relevant job positions are employees of Pro-Tech and only Pro-Tech.” Further, under the Agreement, “Pro-Tech acknowledges that it is responsible for all matters related to the payment of federal, state and local payroll taxes, workers’ compensation insurance, salaries and fringe benefits for its employees.” Additionally, Pro-Tech was required by the Agreement to maintain its own general liability, professional malpractice, and automobile liability insurance for actions and omissions of leased Pro-Tech employees. Finally, in a Rule 30(b)(6) deposition for Brinley’s Grading given by its president, Mr. Brinley, Brinley’s Grading conceded that, pursuant to the Agreement, Mr. Paul was solely an employee of Pro-Tech. Under Anderson and Shelton, this evidence was sufficient to give rise to an issue of fact on the first prong of the special employer test. See also Gregory v. Pearson, 224 N.C. App. 580, 586, 736 S.E.2d 577, 581 (2012) (holding first prong of special employer test not met based upon provision in contract between temporary employment agency and alleged special employer that “expressly stated temporary employees are not employees of the [alleged special employer]”). Turning to the third prong, Anderson observed that this prong, “control of the detail of the work, may be the most significant.” 136 N.C. App. at 609, 525 S.E.2d at 474. The Court, in Anderson, noted that although the defendant’s supervisor directed the decedent regarding what needed to be done, “no evidence was presented that the latter was told how to do the specific tasks assigned.” Id. at 610, 525 S.E.2d at 475. Instead, evidence existed that the decedent was in charge of part of the work and not subject to the supervisor’s control as to the details of his work, which the Court concluded was not sufficient to suggest such supervision and control as to justify implying that the decedent had consented to enter into a special employment relationship. Id. As a result, the Court concluded that rather than pointing to evidence justifying summary judgment for the defendant, the defendant had “at best. . . shown a genuine issue of material fact as to the third prong of the special employer test, defendant’s control over the details of decedent’s work.” Id. at 611, 525 S.E.2d at 475. In Shelton, this Court pointed out that the defendant’s evidence simply showed that the defendant’s managers identified what work needed to be done, but did not establish that the defendant had the right to tell the plaintiff how to go about completing the projects it assigned. 197 N.C. App. at 413, 677 S.E.2d at 493. “Even more significantly,” however, “the contract between [the defendant] and [the general employer] specified in a provision entitled ‘Supervision’: ‘[The general employer] will be solely responsible for the direction and supervision of personnel assigned to the facility, except that maintenance supervisor shall direct the duties of two (2) employees assigned to his/her department’ ” — the latter proviso did not apply to the plaintiff. Id. This Court pointed out: “As our Supreme Court has observed, ‘[e]mployment, of course, is a matter of contract. Thus, where the parties have made an explicit agreement regarding the right of control, this agreement will be dispositive.’ ” Id. (quoting Harris v. Miller, 335 N.C. 379, 387, 438 S.E.2d 731, 735 (1994)). The Court observed that the defendant “specifically chose to require, by contract, that [the general employer] be ‘solely responsible for the direction and supervision’ of [the plaintiff]. That contract provides sufficient evidence to warrant submission of the special employee issue to the jury. [The defendant] cannot blindly disregard its own contract in order to argue that no issue of fact existed for the jury to decide.” Id. at 413-14, 677 S.E.2d at 493. Here, the Agreement provided in relevant part: In order to carry out its obligations hereunder, Pro-Tech may designate one or more “on-site supervisors” from among the employees assigned to fill job positions for Brinley’s. The on-site supervisors shall oversee administrative and managerial matters relating to Pro-Tech’s leased employees and shall be under the direct supervision of the Pro-Tech management team. If Pro-Tech does not elect to designate on-site supervisors, Pro-Tech’s leased employees who are assigned to Brinley’s shall be responsible to the Pro-Tech management team. The on-site supervisors or the management team shall determine the policies a
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