Wrongful Termination Cases

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

LASHANDA SHAW, Plaintiff v. THE GOODYEAR TIRE & RUBBER CO., Defendants No. COA12-338 Filed 15 January 2013 Jurisdiction — subject matter — negligent infliction of emotional distress — Workers’ Compensation Act — exclusivity provisions The trial court lacked subject matter jurisdiction over plaintiff’s negligent infliction of emotional distress claim caused by defendant’s willful or wanton negligence because the exclusivity provision of the Workers’ Compensation Act gives the Industrial Commission exclusive jurisdiction over this type of claim. Plaintiff’s claim fell within the purview of the Worker’s Compensation Act but was not enough to sustain a Woodson claim and thereby qualify as an exception to the exclusivity provisions of the Workers’ Compensation Act. Appeal by defendant from judgment entered 8 April 2011 by Judge Mary Ann Tally in Superior Court, Cumberland County. Heard in the Court of Appeals 29 November 2012. Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellee. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by Julia C. Ambrose, John W. Ormand, III and Patricia W. Goodson, for defendant-appellant. Womble Carlyle Sandridge & Rice, LLP, by Burley B. Mitchell, Jr., for Amicus Curiae North Carolina Chamber. STROUD, Judge. This case presents in a unique procedural posture, with defendant’s appeal from a $450,000,00 jury award to plaintiff for her claim of negligent infliction of emotional distress, arguing, inter alia, that the trial court lacked subject matter jurisdiction. For the following reasons, we agree and vacate the judgment of the trial court. I. Background This case is in an unusual procedural posture because it comes to us with facts that have already been determined by a jury. Because the only issue addressed by this Court is subject matter jurisdiction, we recite just the background we deem pertinent for an understanding of the jurisdictional issue before us. In 2007, defendant hired plaintiff “as an Area Manager.” During the course of plaintiff’s employment, she complained that she was being harassed by her male supervisor. Plaintiff’s supervisor’s behavior toward plaintiff was obnoxious and rude; the harassment was verbal and involved some forms of intimidation but did not involve anything of a sexual nature nor did it involve any physical contact with plaintiff. Despite plaintiff’s complaints to the appropriate personnel, plaintiff’s supervisor remained in his position, where he continued to harass her, and eventually, defendant terminated plaintiff’s employment. On 13 January 2010, plaintiff filed a verified amended complaint claiming (1) wrongful discharge, (2) violation of Retaliatory Employment Discrimination Act (“REDA”), (3) tortious interference with contractual rights, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress (“NIED”). On or about 27 August 2010, plaintiff voluntarily dismissed her second claim, the REDA claim. On 8 November 2010, defendant filed a motion for summary judgment. On 21 December 2010, the trial court filed an order regarding defendant’s motion for summary judgment and dismissed plaintiff’s third and fourth claims for tortious interference with contractual rights and intentional infliction of emotional distress. Accordingly, only plaintiff’s first and fifth claims for wrongful discharge and NIED remained at the time of trial. The allegations central to both plaintiff’s wrongful discharge and NIED claims were that plaintiff complained to defendant about the harassment by her supervisor; defendant negligently handled plaintiff’s complaint about the harassment; and defendant’s negligence caused plaintiff’s emotional distress and eventually led to her wrongful discharge. Several specific issues were submitted to the jury, and on appeal neither party challenges these issues as submitted to the jury. After a lengthy trial, the jury entered the following verdict: ISSUE ONE: Did the defendant intentionally discriminate against the plaintiff because of her race or sex or both when the defendant fired the plaintiff? [The jury answered “No[.]”] ISSUE TWO: Did the defendant retaliate against the plaintiff by firing her for her making a complaint of discrimination based upon her race or sex or both? [The jury answered “Yes[.]”] ISSUE THREE: Would the defendant have terminated the plaintiff in the absence of race or sex discrimination and/or retaliation for her complaints of discrimination? YOU WILL ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED ISSUES 1 OR 2 “YES[”] IN FAVOR OF THE PLAINTIFF. [The jury answered “Yes[.]”] ISSUE FOUR: Did the plaintiff suffer severe emotional distress as a proximate result of the negligence of the defendant? [The jury answered “Yes[.]”] ISSUE FIVE: What amount of damages is the plaintiff entitled to recover? YOU ARE TO ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED ISSUES 1 OR 2 “YES” IN FAVOR OF PLAINTIFF AND ANSWERED ISSUE 3 “NO” OR IF YOU HAVE ANSWERED ISSUE 4 IN FAVOR OF THE PLAINTIFF. [The jury answered “$450,000.00[.]”] The jury verdict sheet required that the jury answer Issue Five only in either of two scenarios: (1) “IF [IT HAD] ANSWERED ISSUES 1 OR 2 ‘YES’ IN FAVOR OF PLAINTIFF AND ANSWERED ISSUE 3 ‘NO’ ” or (2) “IF [IT HAD] ANSWERED ISSUE 4 IN FAVOR OF THE PLAINTIFF.” The jury answered Issue Two “Yes[,]” but answered Issue Three “No[.]” Accordingly, the jury could not award plaintiff a verdict based upon the first two issues. The jury answered Issue Four “Yes[,]” and thus the award of $450,000.00 was based solely upon Issue Four regarding plaintiff’s “severe emotional distress as a proximate result of the negligence of defendant.” In summary, the jury did not award plaintiff any damages for her wrongful discharge claim but only for her NIED claim. The jury then considered the issue of punitive damages. The jury entered the following verdict as to punitive damages: ISSUE ONE: IS THE DFENDANT LIABLE TO THE PLAINTIFF FOR PUNITIVE DAMAGES FOR NEGLIGENT INFLICTION OF SEVERE EMOTIONAL DISTRESS? [The jury answered “Yes[.]”] ISSUE TWO: WHAT AMOUNT OF PUNITIVE DAMAGES, IF ANY, DOES THE JURY IN ITS DISCRETION AWARD TO THE PLAINTIFF? (YOU ARE TO ANSWER THIS ISSUE ONLY IF YOU HAVE ANSWERED THE FIRST “YES” IN FAVOR OF THE PLAINTIFF) [The jury answered “None[.]”[ On 8 April 2011, the trial court entered judgment consistent with the jury’s verdict sheets and awarded plaintiff compensatory damages of $450,000.00. Defendant appeals. II. Jurisdiction Defendant argues that “the trial court lacked subject matter jurisdiction over plaintiff’s NIED claim, which is barred by the exclusivity provision of the Workers’ Compensation Act.” (Original in all caps.) “Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). It is important to note that the only issue on appeal is the trial court’s jurisdiction as to plaintiff’s NIED claim, and thus we need not consider any of plaintiff’s other claims. Furthermore, the relevant facts have already been determined by the jury, so our analysis is based upon the jury’s verdict and not the allegations or evidence of either party. Here, the jury determined that “plaintiff suffered] severe emotional distress as a proximate result of the negligence of the defendant” and awarded plaintiff $450,000.00 as compensation for that claim and that claim only. The jury further determined that defendant is “liable to the plaintiff for punitive damages for negligent infliction of severe emotional distress” but awarded no damages. (Original in all caps.) However, a finding of liability for punitive damages requires that the plaintiff prove “that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud. (2) Malice. (3) Willful or wanton conduct.” N.C. Gen. Stat. § 1D-I5(a) (2007). The jury was properly instructed on the requirements for a finding of liability for punitive damages as to willful or wanton conduct. Plaintiff proved “that the defendant [was] liable for compensatory damages” as is shown by the jury’s compensatory damages award of $450,000.00. Accordingly, the issue before us is whether the trial court had jurisdiction over plaintiff’s claim for NEID caused by defendant’s willful or wanton negligence. A. Willful and/or Wanton Negligence Defined Here, the jury has already made the determination that defendant’s negligence was “willful or wanton.” “Willful negligence arises from the tortfeasor’s deliberate breach of a legal duty owed to another, while wanton negligence is done of a wicked purpose or done needlessly, manifesting a reckless indifference to the rights of others.” Sloan v. Miller Building Corp., 128 N.C. App. 37, 43, 493 S.E.2d 460, 464 (1997) (citation, quotation marks, and ellipses omitted). “Wil[l]ful and wanton negligence is conduct which shows either a deliberate intention to harm, or an utter indifference to, or conscious disregard for, the rights or safety of others. Carelessness and recklessness, though more than ordinary negligence, is less than willful[l]ness or wantonness.” Siders v. Gibbs, 31 N.C. App. 481, 485, 229 S.E.2d 811, 814 (1976) (citation and quotation marks omitted). Here, defendant argues that the trial court did not have jurisdiction over plaintiff’s NIED claim caused by defendant’s willful and wanton negligence because the Industrial Commission has exclusive jurisdiction over this type of claim. B. The Exclusivity Provisions N.C. Gen. Stat. § 97-9 provides, Every ,employer subject to the compensation provisions of this Article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified. N.C. Gen. Stat. § 97-9 (2007). 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. N.C. Gen. Stat. § 97-10.1 (2007). Thus, this Court and our Supreme Court have agreed that [t]he [Workers’ Compensation] Act provides that its remedies are the only remedies an employee has against his or her employer for claims covered by the Act. . . . Even where the complaint alleges willful and wanton negligence and prays for punitive damages, the remedies under the Act are exclusive. An employee cannot elect to pursue an alternate avenue of recovery, but is required to proceed under the Act with respect to compensable injuries. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 580, 364 S.E.2d 186, 188 (1988) (emphasis added) (citations omitted); see Freeman v. SCM Corporation, 311 N.C. 294, 295-96, 316 S.E.2d 81, 82 (1984) (The “plaintiff filed this action, alleging that her injuries were caused by the gross, willful and wanton negligence and by the intentional acts of defendant.... Since plaintiff was here covered by and subject to the provisions of the Workers’ Compensation Act, her rights and remedies against defendant employer were determined by the Act and she was required to pursue them in the North Carolina Industrial Commission. She could not, in lieu of this avenue of recovery, institute a common law action against her employer in the civil courts of this State.” (citation omitted)). Thus, the only ways in which plaintiff might avoid the exclusive jurisdiction of the Industrial Commission are (1) that her claim falls under an exception to the exclusivity provisions or (2) that her NIED claim was not “covered by the Act.” McAllister, 88 N.C. App. at 580, 364 S.E.2d at 188. We consider both of these alternatives in turn. C. Woodson v. Rowland In 1991, our Supreme Court recognized one exception to the exclusivity provisions with the seminal case of Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). In Woodson, Mr. Thomas Sprouse was working in a trench “to lay sewer lines.” 329 N.C. at 334, 407 S.E.2d at 225. The trench should have had a trench box, but did not in violation of the Occupational Safety and Health Act of North Carolina. Id. at 335, 407 S.E.2d at 225. One foreman did not allow his men to work in the trench because of the dangers posed by the trench without a trench box. Id. Though a trench box was available on site, Mr. Sprouse’s project supervisor, among others, decided not to use it; the trench collapsed and Mr. Sprouse was buried alive. Id. at 335-36, 407 S.E.2d at 225. Mr. Sprouse died as a result of the trench collapse and plaintiff, the administrator of Mr. Sprouse’s estate, sued at the trial court but also 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 th[e] action [before the trial court]. The Commission . . . complied with her request[.] Id. at 336, 407 S.E.2d at 226. The defendant requested summary judgment and prevailed at both the trial level and before this Court. Id. Upon further appeal, the question pending before the Supreme Court was “whether the exclusivity provisions of the Workers’ Compensation Act limit[ed] plaintiff’s remedies to those provided by the Act.” Id. at 334, 407 S.E.2d at 224. The Court then engaged in a thorough analysis of statutory provisions, our case law, and the case law of other jurisdictions reasoning that [i]n Pleasant, which involved co-employee liability for recklessly operating a motor vehicle, we concluded that injury to another resulting from willful, wanton and reckless negligence should also be treated as an intentional injury for purposes of our Workers’ Compensation Act. The Pleasant Court expressly refused to consider whether the same rationale would apply to employer misconduct. Nonetheless, Pleasant equated willful, wanton and reckless misconduct with intentional injury for Workers’ Compensation purposes. The plaintiff in Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986), urged us to extend the Pleasant rationale to injuries caused by an employer’s willful and wanton misconduct. The plaintiff, administrator of the estate of the deceased employee, alleged in part that the decedent died as a result of severe burns and other injuries caused by an explosion and fire in the. employer’s plant. On the employer’s motion for summary judgment, the plaintiff’s forecast of evidence, which included the allegations of the complaint, tended to show as follows: the employer utilized ignitable concentrations of flammable gasses and volatile flammable liquids at its plant, violated OSHANC regulations in the use of these substances, covered meters and turned off alarms designed to detect and warn of dangerous levels of explosive gasses and vapors — all of which resulted in the explosion and fire which caused the employee’s death. A majority of this Court in Barrino refused to extend the Pleasant rationale to employer conduct, but only two of the four majority justices expressed the view that the plaintiff’s injuries were solely by accident and that the remedies provided by the Act were exclusive. These two justices relied in part on Freeman v. SCM Corporation, 311 N.C. 294, 316 S.E.2d 81 (1984), a per curiam opinion which concluded that a complaint alleging injuries caused by the willful and wanton negligence of an employer should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure because exclusive jurisdiction rested under the Workers’ Compensation Act with the Industrial Commission. The other two justices in the Barrino majority concurred on the ground that the plaintiff, having accepted workers’ compensation benefits, was thereby barred from bringing a civil suit. The three remaining justices dissented on the ground that the plaintiff’s forecast of evidence was sufficient to raise a genuine issue of material fact as to whether the defendant-employer’s conduct embodies a degree of culpability beyond negligence so as to allow the plaintiff to maintain a civil action. Believing the plaintiff’s forecast of evidence was sufficient to survive summary judgment on the question of whether the employer was guilty of an intentional tort, the Barrino dissenters said: As Prosser states: Intent is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. The death of Lora Ann Barrino the employee was, at the very least, substantially certain to occur given defendants’ deliberate failure to observe even basic safety laws. As discussed in a subsequent portion of this opinion, the dissenters also concluded that the plaintiff was not put to an election of remedies. They thus would have allowed the plaintiff’s common law intentional tort claim to proceed to trial on the theory that the defendant intentionally engaged in conduct knowing it was substantially certain to cause serious injury or death. They would also have allowed the plaintiff to pursue both a workers’ compensation claim and a civil action. Today we adopt the views of the Barrino dissent. We hold that when 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 Act. Because, as also discussed in a subsequent portion of this opinion, the injury or death caused by such misconduct is nonetheless the result of an accident under the Act, workers’ compensation claims may also be pursued. There may, however, only be one recovery. We believe this holding conforms with general legal principles and is true to the legislative intent when considered in light of the Act’s underlying purposes. Id. at 339-41, 407 S.E.2d at 227-28 (emphasis added) (citations, quotation marks, ellipses, and brackets omitted). The Court further explained, Our holding is consistent with general concepts of tort liability outside the workers’ compensation context. The gradations of tortious conduct can best be understood as a continuum. The most aggravated conduct is where the actor actually intends the probable consequences of his conduct. One who intentionally engages in conduct knowing that particular results are substantially certain to follow also intends the results for purposes of tort liability. Intent is broader than a desire to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. This is the doctrine of constructive intent. As the probability that a certain consequence will follow decreases, and becomes less than substantially certain, the actor’s conduct loses the character of intent, and becomes mere recklessness. As the probability decreases further, and amounts only to a risk that the resul