Pleasant v. Johnson
325 S.E.2d 244
N.C.
1985
Check Treatment

*1 THE IN SUPREME COURT Pleasant v. Johnson determination; instead, it such a to make legislature allow the to the tes- happen for what judgment ought substitutes its own The slays ques- who testator. tamentary legatee share tion, believe, legislature. left to the is best dissenting opinion. in this joins

Justice MEYER LEE PLEASANT v. VICTOR JOHNSON WILLIAM GERALD 433A84 No. (Filed 1985) January wanton, compensation willful, 89.1— workers’ and reckless Master and Servant 8 — co-employee law action allowed conduct of —common granted in com- should not have been for defendant A directed verdict plain- arising prank played on negligence action from a defendant mon law Compensation preclude a suit co-employee. Workers’ Act does not tiff torts, injury resulting for intentional wanton, an intentional tort for should be treated as and reckless 97-9, purposes Compensation Act. G.S. G.S. 97-10.1. of the Workers’ Vaughn this participate in the consideration or decision of Justice did not case. Meyer dissenting. Justice 7A-30(2)

Appeal from the decision under N.C.G.S. right 538, 317 App. Appeals, a divided of the Court panel in favor of the affirming a directed verdict S.E. 2d Godwin, September Pilston Jr. on Judge entered A. defendant Court, County. Heard in the Superior 1982 in DURHAM 15, 1984. November Supreme Court McCain, Jr., Essen, Erick Grover C. McCain & Jeff Essen plaintiff appellant. Patterson, Patterson, P.A., Drew, A. by Lee Crill &

Bryant, II appellee. defendant

MITCHELL, Justice. the North Carolina case is whether issue this pivotal remedy when the exclusive provides *2 by injured in the course of his the employment an of a hold co-employee. wanton and reckless conduct We may bring does not and that an an action that it as a result of such conduct. injuries the received we reverse the decision of the Court of Accordingly, Appeals. in in The and the dispute. plaintiff The facts this case are not May Incorporated. were of Electricon On employees defendant from lunch to the construction site the returned plaintiff As the working. plaintiff he and the defendant were where site, job the a truck driven across the lot toward parking walked seriously injuring right the his by plaintiff, the defendant struck knee. disability under was awarded benefits plaintiff Act. He then filed this action for dam-

Workers’ Compensation that: simple negligence in addition to alleging ages, wantonly in willfully, recklessly negligent was Defendant in such a fashion so operating he was motor vehicle motor vehicle to see how close he could the said operate as to but, actually misjudging him striking without plaintiff actually plain- struck the ability such a accomplish prank, was operating. with the motor vehicle he tiff chief, the defendant in called plaintiff his case During or “horse- joking that he had been The defendant testified stand. that he had intend- the accident. He stated at the time of playing” by operating the horn and by blowing plaintiff scare the ed to evidence plaintiffs him. At the close of close to truck verdict. was a directed granted moved for and defendant Compensa- involves the North Carolina case This Act which are to those sections of the turning Act. Before tion here, of briefly background we review the directly applicable legislation. compensation workers’ was the vast Revolution of the Industrial tragic by-product A factories, mills, and in were workers who of

number brought negli- who injured workers majority Yet mines. their claims defeated found employers their actions gence contributory trinity” of defenses: “unholy employer’s risk, rule. S. fellow-servant and the assumption negligence, Horovitz, Workmen’s and Death Under Injury THE IN SUPREME COURT Horovitz). (1944) (hereinafter Laws 2 as Some courts at- cited harsh these impact adopting reduce the defenses tempted exception to the fellow- vice-principal such as the doctrines workers, however, rule. Most remained without ade- servant Id,., remedy injuries. p. 3. quate work-related Germany In the responded problem mid-1880’s en legislation. the first workers’ German acting compensation compulsory large part upon employee was and relied in con plan Larson, 1 A. The Law Workmen’s Compensation tributions. (1984) (hereinafter Larson). cited England 5.10 as established a Horovitz, In 1913 workers’ 1897. 5. New plan p. *3 legisl became state to workers’ compensation York the first enact ation,1 and next remaining the states followed over the several Larson, years. adopted 5.20. North Carolina its Workers’ Com § Act in 1929. pensation compensation is that in- The social behind workers’ policy and dignified, workers should be with efficient cer- jured provided injuries and that the consumers of benefits for work-related tain the burden of group are the most bear product appropriate the Larson, of important 2.20. The most feature the payments. the § is that the and employee workers’ scheme compensation typical right employ- their common law to sue the up dependents give his exchange in for limited but assured benefits. negligence for er worker or- injured and fault Consequently negligence the Id., dinarily is irrelevant. 1.10. the North provisions of Carolina here are N.C.G.S. 97-9 with which we are concerned primarily Act 97-9 provides: 97-10.1. and N.C.G.S. of

Every subject compensation provisions to the employer of his payment shall secure the this Article and while provided; in manner hereinafter employees force, his conducting in he or those security remains such any in- only employee personal be liable to shall business extent manner or accident to the and jury death specified. herein ruled 1910. It was un- adopted compensation scheme in York an earlier 1. New Ry., 201 Appeals in Ives v. York of South the New

constitutional Buffalo 271, liability imposing without fault ground that 94 N.E. 431 on N.Y. process law. property of employer taking without due upon the constituted IN THE 713 SUPREME COURT v. Johnson Pleasant 97-10.1 states: N.C.G.S. subject

If the are to and have employer Article, of this then the complied provisions rights with his depend- and ents, herein to the granted employee, remedies kin, all representative or shall exclude personal next his dependents, other rights employee, remedies kin, against employer next of as at representative on account of such or death. common law or otherwise a worker We these bar from main- provisions have held law action taining negligence employer. common 364, See, 240 County, Hicks v. S.E. 2d e.g., Guilford (1966). interpreted foreclosing We have as worker also injured in the of his a co- employment suing who course 97-9; negligence injury. whose caused N.C.G.S. (and 97-10); King, its Strickland v. predecessor 97-10.1 N.C.G.S. Sanders, (1977); 731, Altman v. 267 N.C. 293 N.C. 239 S.E. 2d 243 727, (1966); Leder, 234 Warner v. Act relative to an worker Provisions 2d in- causing party a third bringing action were only parties to third who have been held jury apply Bobbitt, Jackson v. “strangers employment.” 2d 6 S.E. Warner 117 S.E. (1952). *4 that, intentional in- involving in cases recognized We have to the relegated the cannot be by jury employer, Act, a may bring common recovery afforded but limited v. 234 Warner See against employer. tort action law 200, 727, (1952); 232 60 v. N.C. Lexington, 6 Essick 69 S.E. 2d N.C. (1950). may that worker 106 We also have said an 2d S.E. in- for intentional co-employee a a tort action maintain (1960). 540, See, Lea, S.E. 2d 350 114 Wesley v. 252 N.C. jury. e.g., Justice) (now our Vaughn, Judge In a opinion recent the Workers’ held that expressly Appeals for intentional a suit preclude not does Peters, 124, 2d 284 S.E. 748 App. v. 55 N.C. Andrews torts. (1982). 395, denied, holding S.E. 2d 364 This 290 rev. disc. did legislature conclusion that the common-sense upon rested liability for intentional a co-employee intend insulate not 127, 750. 284 S.E. 2d at Id. at fellow worker. upon torts inflicted 714

The Court of also noted Appeals many jurisdictions that in immunity, granting co-employee an for intentional acts exception injury had been causing either expressly set out the statutes judicially or grafted upon them. Id. case,

In his complaint present in the plaintiff alleged occurred because the “willfully, defendant was reckless- ly wantonly negligent.” The defendant contends that such allegations are insufficient allege intentional tort which would support plaintiffs action. We disagree.

The concept of reckless and wanton in- negligence twilight habits a zone which ordinary exists somewhere between injury. and intentional The state of mind of the perpe- trator of such conduct lies within penumbra of what has been Keeton, referred to as intent.” W. W. “quasi Prosser and (5th 1984). “willful,” Law Torts 34 ed. the terms Though “reckless” and conjunction, “wanton” are often used in we have endeavored in prior cases to differentiate between them.

We have described “wanton” conduct as an act manifesting a reckless disregard rights safety of others. Brewer v. Harris, 288, (1971); Sellars, 279 182 S.E. 345 N.C. 2d Givens v. 273 44, (1968); R.R., 162, 159 S.E. 530 N.C. 2d v. 238 Wagoner 77 N.C. (1953); 189, S.E. 701 2d Foster v. 197 Hyman, N.C. 148 S.E. 36 (1929). “reckless,” context, The term as used in this to be appears merely synonym for “wanton” and has been in conjunction used R.R., 169, many years. with it See Bailey 62 S.E. N.C. (1908). “willful

Defining negligence” has been more difficult. At first glance phrase to be a appears contradiction in terms. The “willful term has negligence” been defined as the intentional carry failure to out duty some law or imposed contract which necessary safety of the person property to which it is Harris, (1971); owed. Brewer v. R.R., Hyman, Foster v. 148 S.E. 36 Bailey 62 S.E. 912 A duty may breach of be willful resulting injury Only while the is still when negligent. *5 is concept negligence intentional does the cease to play part. 189, (1929); R.R., Hyman, Foster v. 197 148 S.E. 36 N.C. Ballew v. (1923). 704, 186 120 S.E. 334 N.C. We have noted the distinction duty between the willfulness which refers to a breach of and the 715 injury. willfulness which refers to In former only willful, is while in the latter negligence injury intentional. (1929). 189, 197 148 S.E. Hyman, Foster v. N.C. 36 however, Even in “willful involving injury,” cases the intent inflict need not intent injure be actual. Constructive to may provide necessary also state for an mental intentional (1923). Id.; R.R., 334 tort. Ballew v. 186 N.C. Con injure structive intent to exists where conduct threatens safe ty of others manifestly and is so reckless or indifferent and consequences finding that willfulness wantonness justified. in to actual intent is Foster v. equivalent spirit Hyman, (1929). 189, 148 36 197 N.C. S.E. Wanton reckless negligence and rise to constructive intent. gives

We wanton and reckless previously acknowledged have that an intentional act for may equated pur- behavior be with certain in- damages may Punitive be recovered in an action for an poses. tort, By ordinary negligence. not in though tentional suits in recovery damages involving cases wanton allowing punitive in- as actions for implicitly we have treated such cases negligence, Dawson, 23, 92 244 S.E. E.g., torts. Hinson v. tentional S.E. 2d v. Acceptance Corp., Binder (1943). reckless conduct have also held that wanton and We necessary degree a second support malice supply can killed when defendant who another conviction murder 391, 317 S.E. Snyder, while intoxicated. State driving (1925) Trott, 130 S.E. 627 See State 2d (malice drive). We conclude another to when one drunk allowed willful, wanton reckless resulting injury to another pur- as an also be treated intentional should Act. Compensation of our Workers’ poses with immuni- jurisdictions provide co-employees which theOf in covered situations law tort actions ty from common acts, recognize excep- appear sixteen workers’ A. 2A torts. immunity involving intentional such cases tion Larson, (1983 72.21 & Workmen’s The Law Florida, Hawaii, 1984). states, however, Only four Supp. Cum. which treat statutory schemes have Wyoming, Iowa (or as an intentional equivalent) conduct its and reckless wanton *6 IN THE SUPREME COURT Pleasant v. Johnson immunity.2 tort and exclude it from co-employee Our research willful, no judicially reveals state which has explicity adopted see, wanton and reckless exception co-employee immunity. to But (W. 1978) Industries, Inc., Mandolidis v. Elkins 246 S.E. 2d 907 Va. (West Virginia Supreme permitted employees to sue for in willful, juries by caused the employer’s wanton and reckless con duct and appeared recognize that the reasoning could be applied against co-employees). suits In the past this Court has expressly rejected the argument that reckless and wanton conduct a co-employee defeats the exclusive original jurisdiction of the Industrial Commission under the Workers’ Compensation thereby Act and makes such co- Lea, subject employee to a common law tort action. Wesley (1960). 540, 114 S.E. 2d 350 jurisdictions Other have also re See, jected argument. Jeffers, this e.g., Bryan 103 N.J. Super. (1968), denied, 248 A. 2d cert. 53 N.J. 252 A. authority Despite contrary such and the lack of an however, statutory express provision, we now hold that Act does not shield a co-employee from liability common law wanton and reckless negligence. Our is holding consistent with the distinction which has been made in previously such cases between ordinary negligence and intentional torts. As was noted Appeals Court of Peters, Andrews v. App. ac- today’s are cidents unavoidable in By industrial environment. accepting employment worker increases the risk himself and others. One has suggested commentator that a ra- immunity tionale supporting co-employee immunity is that ordinary common law suit for part of that which an forfeiting receives for his own right bring a negli- Larson, Furthermore, action. 2A 72.22. gence since negligence § inadvertence, connotes injured unconscious allowing workers to sue co-employees injuries would not reduce caused ordinary negligence. The same be said in cannot cases involving intentional torts. 440.11(1) (West 1981) (“willful 2. Fla. Ann. disregard” Stat. and wanton § (1976) (“wilful “gross negligence”); Hawaii Rev. Stat. 386-8 and wanton miscon- § (West 1984) duct”); (“gross negligence amounting Iowa Code Ann. 85.20 to such § another”); safety Wyo. neglect lack care as to amount to wanton for the Stat. 27-12-103(a) (1983) (“culpably negligent”). a co- an action bring worker to

Permitting upon responsibility tort places for an intentional *7 inten- of an it Since the commission belongs. where tortfeasor injure, intent al- a constructive or actual tort includes tional serves as a to sue the tortfeasor injured an co-worker lowing By allowing negli- wanton future misconduct. against deterrent see Hinson v. damages, punitive awards of support gence Dawson, recognized we have 92 S.E. 2d an in- be treated as can be deterred and should that such conduct Therefore, Compensa- Workers’ we hold that tentional tort. liability for co-employee not shield a tion Act does willful, negligence. wanton and reckless caused his under the benefits has received plaintiff The fact that bringing him from foreclose Act does not In negligence. and wanton defendant’s willful an action where a co- that reasoned Appeals Andrews Court injured worker tort an intentional had committed damages recover Act and also under the receive benefits could hold true for should The same co-employee. from his willful, and wanton miscon- reckless co-employee’s caused to par- required is neither co-employee negligent Since the duct. nor contribute claim in the defense ticipate award, the in- unduly by permitting prejudiced not he is to the Act. benefits under the receiving him after to sue jured employee Furthermore, receives benefits under who when an co-worker, ob- any amount against a judgment Act is awarded of N.C.G.S. according provisions will be disbursed tained inno- an placed upon burden otherwise may reduce the and 97-10.2 or insurer. employer cent may worker injured in this case is whether issue whose co-employee tort action a common law

maintain willful, in- worker’s caused and reckless wanton employ- whether an do not decide not consider and We need jury. conduct. for similar may be sued er Workers’ Com- the North Carolina we hold that

In conclusion from the effects co-employee insulate a does not pensation worker in An negligence. reckless wanton and main- the Act and also under may receive benefits such situations We believe co-employee. action common law tain a will help that this result to deter such conduct in the future. It travesty of in- justice logic permit would be a and a worker to conduct, jure through such and then the in- co-employee compel jured accept moderate benefits under the Act. See Horovitz, they 336. To the. extent that conflict with p. this deci- (1960) sion, Lea, 114 S.E. 2d 350 Wesley (1952) Warner v. are overruled. Since the did plaintiffs complaint allege defendant had willfully, wantonly recklessly negligent, been the decision of affirming the Court a directed verdict favor of the Appeals defendant is reversed. This case is remanded to the of Ap- Court, peals County, further remand to the Durham Superior for further proceedings not inconsistent with this opinion.

Reversed and remanded. *8 Vaughn participate

Justice did not in the consideration or decision this case. Meyer dissenting.

Justice Contrary conveyed by impression majority opinion, the facts of this case do not reveal a malicious attempt to come as close to Pleasant as without possible actually Johnson admittedly him. striking playful, although dangerous, This was to scare Pleasant close to him horseplay attempt driving —an friends, him horn. scaring by blowing good These were no certainly no injury. following malice was intended and are ex- testimony from the of defendant cerpts Johnson: Johnson, you Mr. were the van at the time Mr. operating struck, you Pleasants was were not? [sic] Yes, sir. occurrence, you

At the time of that were to see trying you Mr. operate how close could the vehicle to Pleasant with- actually him? striking out

No, sir.

[*] [*] [*] IN THE SUPREME COURT Johnson, it Mr. that at the time though, It is true not you Mr. trying put the van struck Pleasants were [sic] him to him? fright operating or a scare into van close Yes, sir.

[*] [*] [*] you Mr. about what And when Woods came and asked you you him been with happened, horseplaying told had van, it, you not? messing around with did Yes, sir.

[*] [*] [*] your vehicle such a manner operated You could have close to Mr. Pleasants that it would not have even come [sic]? Yes, sir. ability to come close to him? you misjudge your just

Did I won’t to hit him. trying him, say- hit I am You didn’t mean to but understand. ability to drive the vehicle close to you your

ing misjudge did him? actually him and hit

No, sir. hit him?

You did

Yes, sir.

[*] [*] [*] close, you missed? to come but You meant Yes, sir.

[*] # [*] horn, Johnson, Now, horn? toot the you honk the Mr. did Yes, sir. feet from those 20 to 30 you were about

Is it correct horn? you honked the when folks Yes, sir.

Pleasant Johnson COURT: How far? 20 feet.

About

[*] [*] [*] didn’t, Bill When I tooted the horn and Jessie moved and way opposite I on brakes and cut the wheels put I when struck Bill. then

[*] [*] [*] And move? Billy didn’t

Yes, sir. on you

Then slammed the brakes?

Yes. picture? And the van to the left as shown in that turned * # * you left honked Why turn the after you did van horn? him, I it. I so tried to avoid fixing seen I was hit of the you then out van? get All did right, Yes, sir. Billy? over you go

And did Yes, sir. you him? anything

What if did tell it, joking I sorry, mean to do Told him was didn’t said — I reckon. horseplaying, Joking?

Yes, sir. to hit you

Did intend him?

No, sir. him with the toot to scare your

Was intent in fact horn?

Pleasant Johnson Yes, sir. you if he to time anything say

What did at that when you of out the van? got worry me not to about it.

Told say he else? anything Did that until the building.

Not at time we to got say did he at up building? What worry again, Told me not about it he would tell the he that fell off the ladder. people you Billy at time friends? Were that Yes, sir. while

Injuries employer’s arriving in the lot parking incurred from at or work have been held arise out departing frequently in employment of and in the course of because the risk in in kind and than that ex- greater degree such lots is different See, general public. e.g., Mecklenburg Bass perienced Harless v. County, Flynn, 2d 570 this neither ini- As plaintiff App. in his in horseplay resulting tiated participated nor this only question is Act. before claim covered our subject is to this defendant is whether the individual has that the co- found damages. majority civil action for subject is to suit. has, contrary to the established majority that Believing State, authority in other contrary judicial weight law this nation, and, fact, in this ex- in without precedent jurisdictions Compen- our Workers’ under coverage the exclusion panded Act, first that this appears dissent. It respectfully sation exclusivity of from the the exclusion in to extend case the nation co-employees. acts negligent pro- will result is unwise and extension I believe this broad anytime employees fellow employees against liferation of suits the negligent or coverage available is insurance there slightest possibility there is the satisfy judgment can recklessly willfully were of horseplay that acts find jury might to the work- benefits available of the limited Because committed. *11 722 v.

Pleasant Johnson Act, er under the employees will find themselves subject suit liability and personal money for judgments the responsibility ought which to be rightfully by industry absorbed and not worker.

Our Workers’ Compensation Act a statutory compro- was mise. The to employers benefits are not pertinent here. em- that if ployee assured he sustains injury arising out and in employment course of his he will be compensated without Also, having prove negligence on the part of the employer. as a part of the employer’s trade-off loss of law common de- fenses, the gave employee up right to bring common law suits and to judgments against recover employer his fellow Larson, A. employees. See 2 The Law of Workmen’s Compensa- (hereafter (1983) Larson); tion 72.20 cited as Smith v. Liberty § (M.D.N.C. 1976). Co., Mut. Ins. F. Supp. 409 1211 employee’s loss of his right to common law against suits the employer is ex- Act, in pressed exclusivity section of the which in per- states part: tinent

If and the employer are subject Article, have with complied the provisions of this then the rights and remedies granted herein . . . shall other exclude all rights and remedies of the employee ... as at employer common law on otherwise ac- count of such or death. This

N.C.G.S. exclusivity. 97-10.1. Court has recognized and enforced this § Lea, v. 252 Wesley Lovette v. Lloyd, 73 S.E. 2d N.C.G.S. provides 97-9 pertinent in part: §

Every subject to the employer compensation provisions payment this Article shall secure the to his force, employees . . . and while such security remains in he those conducting only or his business be any shall liable to employee for ... personal death manner added.) specified. (Emphasis herein (1966) Sanders, In Altman v. we interpreted phrase conducting “those his business” to include employees. fellow The courts of North interpreted Carolina have 97-10.1, 97-9, together with N.C.G.S. N.C.G.S. to be a § IN THE SUPREME COURT statutory abrogation employee’s right to sue his fellow employees negli- Fellow are excluded from common law employee. Lea, 540, 114 liability. S.E. 2d 350. gence Wesley See Co., Liberty Supp. also Mut. Ins. 409 F. 1211. Smith N.C.G.S. 97-10.2, relating to actions third has been held parties, § inapplicable negligent co-employee. Warner v. *12 (1951). 727, 69 S.E. 62d N.C. recognized

This has that an intentional assault an Court immunity removes the from his common law employer employer to common law suits. the is of felonious or willful assault employer guilty

“Where on an he cannot him to the employee relegate compensation recovery. act for It would be sound reason to allow then com- employer deliberately helper, to batter his the worker to moderate workmen’s pel benefits, accept or from himself either his insurance carrier as authority weight gives self-insurer. The at common law or suing employer accepting choice of compensation.” 733-34, 10, Leder, quoting v. 234 69 S.E. 2d at

Warner N.C. at Horovitz, “Injury Compensation and Death Under Workmen’s 336; 200, Laws,” 232 Lexington, Essick v. N.C. page (1950). tort that even an intentional a

This has never held Court immunity from his to com- co-employee co-employee removes the actions, so hold. might intimated that it although it has mon law 350; Lea, 540, Warner v. 252 114 S.E. 2d v. N.C. Wesley 727, case of Andrews Appeals 69 S.E. 2d 6. The 234 Court N.C. 124, Peters, 748 disc. rev. 284 S.E. 2d App. 55 N.C. v. (1982) 395, denied, only case in this 290 S.E. is 2d to as- amounting tort held that an intentional State that has immunity. by a removes co-employee misconduct saultive merely extending difficulty if we were I no would have who co-employees the Act to exclusivity of from the exclusion intentional, is intended to injury where willful assaults engage however, would, rulings the prior adhere to employee. a fellow remedy negligently the exclusive the Act is this to sitúa- exclusion to extend the I will not vote injuries. caused Pleasant Johnson merely tions where the is Where co-employee negligent. here, only clearly as intends to do the act and does not employee, injury, negligence intend to do the is not eliminated. idea “[T]he only when negligence damage eliminated is in- 189, 191, tentional.” Foster v. 148 S.E. Hyman, R.R., Ballew v. 120 S.E. 334 that “We statement also have said that an may worker maintain a tort for intentional Lea, injury” majority for which the cites Wesley 350 is completely misleading. That case did in- not volve an upset resulting intentional tort but involved one car ordinary from the of the in- employee-driver which jured the co-employee-passenger. paragraph Wesley majority from which the takes opinion its statement is as follows: Plaintiff contends that conduct of defendant in the merely of the car was not was operation negligent, but reckless and wanton. But to take the case out of the Workmen’s *13 must be intentional. Warren v. at supra, any 733. There is no evidence of intention on the

page part injure plaintiff. defendant 354. N.C. at 2d at out the emphasis points

distinction have alluded to in the difference between the intent actually opposed injure. to do the act as intent majority only will not hurt the can opinion employer —he by recovery already paid of amounts out benefits. It will gain him subjecting harm the to civil actions to which he exposed. not now contrary Besides established overruling precedent me, satisfactory without reasons emasculates the ex- ruling as to co- clusivity of our Workers’ provision is for required public policy If such is sound employees. for this legislature and not Court.