EARL J. BARRINO, ADMINISTRATOR OF THE ESTATE OF LORA ANN BARRINO v. RADIATOR SPECIALTY COMPANY
No. 8326SC753
COURT OF APPEALS OF NORTH CAROLINA
3 July 1984
69 N.C. App. 501
Plaintiff‘s acceptance оf workers’ compensation benefits for the death of an employee precluded plaintiff from seeking additional compensation in a сommon law action based upon alleged willful and intentional acts by defendant employer. Furthermore, even if plaintiff was not precluded from bringing аn action based on intentional acts, plaintiff‘s allegations demonstrated only gross negligence by defendant with regard to the protection of its еmployees and failed to show an actual intent to injure the deceased employee.
Judge PHILLIPS dissenting.
APPEAL by plaintiff from Griffin, Judge. Judgment entered 23 March 1982 in Superior Court, MECKLENBURG County. Heard in thе Court of Appeals 1 May 1984.
Prior to her death, Lora Ann Barrino was an employee at defendant‘s manufacturing plant in Indian Trail, North Carolina. Plant oрerations generally involved the handling and processing of volatile, flammable liquids and gases. On 26 November 1980, an explosion and fire occurred at thе plant causing decedent to sustain second and third degree burns over seventy percent of her body. These burns resulted in her death on 10 December 1980. Dеcedent was subsequently paid benefits under the North Carolina Workers’ Compensation Act.
Plaintiff, who is decedent‘s father and administrator of her estate, filed this action on 24 November 1982 to recover for the injuries and death of decedent. Plaintiff contended that the explosion was the result of defendant‘s willful and intentional misconduct. Defendant answered, claiming that the acceptance of Workers’ Compensation benefits was an absolutе bar to all other remedies under
Golding, Crews, Meekins, Gordon and Gray, by James P. Crews and Henry C. Byrum, Jr., and Weinstein, Sturges, Odom, Groves, Bigger, Jonas and Campbell, by John J. Doyle, Jr., for defendant appellee.
ARNOLD, Judge.
Plaintiff contends that the trial court erred in granting defendant‘s motion for summary judgment in that defendant‘s conduct amounted to an intentional tort, which would enable plaintiff to seek a civil recovery in addition to the Workers’ Compensation benefits previously awаrded. We disagree with this contention and affirm the order of the trial court.
The North Carolina Workers’ Compensation Act provides that:
If the employee and the employer are subject to and have cоmplied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal represеntative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employеr at common law or otherwise on account of such injury or death.
G.S. 97-10.1 .
Plaintiff argues, however, that where an employee is injured by the employer‘s intеntional act the immunity from suit provided by
Plaintiff contends that the acts of defendant were willful, wanton, malicious and intended, thereby justifying the application of the exception to the exclusivity clause of
covering meters designed to detect dangerous gas and vapor levels in defendant‘s plant with plastic bags to render them inoрerative; - turning off, on the day of the explosion, alarms designed to warn of dangerous gas and vapor levels in defendant‘s plant, and instructing employees to continue or to resume working despite the alarms;
- installing and operating equipment used in storing and handling explosive gas without the inspections аnd approvals required by law;
- using equipment which lacked explosion-proof safeguards to prevent sparks in an explosion-prone atmosphere in violation of the National Electrical Code and the Occupational Safety and Health Act of North Carolina; and
- in general, failing to provide a safe work place.
Even when cоnsidered in the light most favorable to plaintiff, these allegations of misconduct do not establish an intentional act sufficient to remove the protection afforded defendant by
Since there was no showing that defendant intended to injure decedent, we find no substance in plaintiff‘s attempt to avoid a claimed exclusivity provision of
Affirmed.
Judge WEBB concurs.
Judge PHILLIPS dissents.
EARL J. BARRINO, ADMINISTRATOR OF THE ESTATE OF LORA ANN BARRINO v. RADIATOR SPECIALTY COMPANY
No. 8326SC753
COURT OF APPEALS OF NORTH CAROLINA
3 July 1984
69 N.C. App. 501
Judge PHILLIPS dissenting.
As was recognized by our Supreme Court in Essick v. City of Lexington, 232 N.C. 200, 60 S.E. 2d 106 (1950), an employer‘s immunity from suit for intentional injuries is no part of the bargain that is our Workers’ Compensation Act. As numerous other decisions of that Court and this have intimated, the only rights against their employers that employees surrendered by the enactment of Workers’ Compensаtion was the right to sue for negligently caused injuries. See Lovette v. Lloyd, 236 N.C. 663, 73 S.E. 2d 886 (1953); Lee v. American Enka Corporation, 212 N.C. 455, 193 S.E. 809 (1937). Which is as it should be, in my opinion, and since the plaintiff‘s complaint alleges an intentional tort that resulted in a young woman‘s death, it was error, I believe, to dismiss the case by summary judgment. The judgment is based only upon the pleadings and plaintiff‘s admissions that decedеnt was employed by defendant and Workers’ Compensation benefits were applied for and received; none of which showed either that plaintiff‘s allegations cannot be proved or that plaintiff is necessarily barred for having applied for and accepted Workers’ Compensаtion benefits. From aught that the record shows the defendant‘s tort was as alleged and there were equities which justified plaintiff in obtaining the benefits availablе. According to the complaint, and nothing in the record refutes it, the horrible, painful death of a young woman was caused by intentional conduct that wаs markedly calloused and without regard for the life and health of defendant‘s employees. Among other things it is alleged that defendant‘s plant handles, storеs and utilizes liquefied petroleum gases; and the death of plaintiff‘s decedent was