— Posts About Wrongful Death

NC Court of Appeals Rejects Another Woodson Claim

Earlier this month, the North Carolina Court of Appeals issued an opinion concerning the viability of plaintiff’s Woodson claim — a wrongful death tort action based on an injury sustained at work.  In Valenzuela v. Pallet Express Inc., the Court once again rejected a Woodson in what seemed to be an egregious case.  Typically, plaintiffs injured at work can only bring claims under workers’ compensation, and not tort actions, such as for wrongful death.  There is an exception, however, for injuries resulting from intentional misconduct by the employer or “conduct that, while not categorized as an intentional tort, was nonetheless substantially certain to cause serious injury or death to the employee.”

In this case, the plaintiff alleged that the employer: 1) removed safety guards from the shredder which sacrificed employee safety for increased production; 2) assigned an underage employee to work on heavy equipment in violation of State and federal law; 3) failed to provide Nery with proper training on the shredder; and 4) failed to ensure that trained personnel were present when the shredder was operated.  The underage 17-year-old worker was left unattended and was killed when he apparently fell into the giant shredder machine.  Nonetheless, the Court concluded that the employer’s alleged was not reckless enough to constitute a valid Woodson claim.  Given the egregiousness of the conduct here, it is hard to imagine any non-intentional conduct that the Court would accept under Woodson.

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New Workers’ Compensation Decisions from Court of Appeals

On December 8, the North Carolina Court of Appeals published a couple of workers’ compensation decisions. In the first, Heflin v. G.R. Hammonds Roofing, the Court faced an unusual situation involving Florida’s workers’ comp laws and a plaintiff’s efforts to delay her own case. Plaintiff’s husband was killed while working in Florida in 2004. Because the plaintiff’s workers’ comp claim in Florida was initially denied, she pursued a wrongful death claim instead, as allowed under Florida law. To keep that suit going, she did not want to pursue a possible workers’ compensation claim in North Carolina. However, when she tried to stay her case in North Carolina, the Industrial Commission ignored her request. The Court vacated the Commission’s decision and remanded, holding that the plaintiff’s motion for a stay must be addressed, and hinting that it should be granted.

In Van Dyke v. CMI Terex Corp., the Court again dealt with the exclusivity of workers’ compensation claims, i.e. that the availability of workers’ compensation bars personal injury lawsuits against the employer and certain related parties.  In this case, the plaintiff brought suit because the decedent had been killed in an explosion at his workplace.  At issue was whether a particular defendant was sufficiently related to the employer so that the personal injury case against it was barred.  The defendant was the sole shareholder of an LLC (limited liability company), which was a member-manager of the employer, also an LLC.  Long story short, because the appealing defendant was not running the employer-company, and was not sued for doing so, the exclusivity of workers’ compensation did not protect it.

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NC Supreme Court Denies Review in Fulford v. Jenkins; Win for Plaintiff

The North Carolina Supreme Court denied the defendants’ petition for discretionary review (PDR) in Fulford v. Jenkins today, among its long list of orders.  This is a wrongful death action based on the negligence of the Duplin County Department of Social Services and its employees.  The defendants lost on the issue governmental immunity, appealed, lost unimously in the Court of Appeals, and then sought review from the Supreme Court.   Burton Craige and Narendra Ghosh assisted with the plaintiff’s representation at the Supreme Court, opposing the PDR.  The Court’s denial of the PDR means that the case will return to the trial court where it can proceed.

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