All
opinions are subject to modification and technical correction prior to official
publication in the
NO. COA08-942
Filed: 19
May 2009
LENNIE and
BONNIE HAMBY,
Plaintiffs,
v.
No.
04 CVS 81
PROFILE
PRODUCTS, LLC,
TERRA-MULCH
PRODUCTS, LLC,
ROY D. HOFFMAN,
and ELECTRIC
SERVICE GROUP,
INC.,
Defendants.
Appeal by Plaintiffs from order entered 8
May 2008 by Judge Timothy L. Patti in Superior Court,
Jones Martin Parris & Tessener Law
Offices, P.L.L.C, by John Alan Jones & G. Christopher Olson, for plaintiffs.
Forman Rossabi Black, P.A., by Amiel J.
Rossabi & William F. Patterson, Jr., for defendant Terra-Mulch Products,
LLC.
WYNN, Judge.
This is the second appeal arising from an
action brought by Plaintiffs Lennie and Bonnie Hamby against defendants Roy
Hoffman; Terra-Mulch, L.L.C. (“Terra-Mulch”); Profile Products, L.L.C. (“Profile”);
and Electric Service Group, Inc.(“ESG”), for personal injuries sustained in a
workplace accident. Though this matter
has been the subject of opinions from this Court and the Supreme Court, to
appreciate the procedural posture of this case, we first describe the
roles of each of the parties involved in this litigation.
Plaintiff Lennie Hamby (“Hamby”) worked
as a truck-dump operator for Terra-Mulch at its
Plaintiffs “allege that Profile and Terra-Mulch
collectively failed to provide a safe work site for the inherently dangerous
work Hamby performed and that they thus ‘engaged in conduct which was grossly
negligent, willful and wanton, and substantially certain to lead to death or
serious injury . . . .’” Hamby v.
Profile Prods., L.L.C., 361 N.C. 630, 632, 652 S.E.2d 231, 233 (2007). Though Plaintiffs asserted joint claims
against Profile and Terra-Mulch, Plaintiffs argued (and our Supreme Court so
interpreted) that they were asserting a claim against Terra-Mulch pursuant to
Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), and an ordinary
negligence claim against Profile. Hamby,
361 N.C. at 634, 652 S.E.2d at 234.
Plaintiffs also asserted a claim against Terra-Mulch’s Assistant Plant
Manager, Roy Hoffman, pursuant to Pleasant v. Johnson, 312 N.C. 710, 325
S.E.2d 244 (1985), alleging that he “engaged in misconduct which was willful
and wanton.” Finally, Plaintiffs alleged
that ESG negligently performed electrical work causing an emergency stop button
to become inoperable, resulting in serious injury to Hamby.
In May 2005, all Defendants moved for
summary judgment. On 1 June 2005,
Plaintiffs moved to compel discovery, requesting relief pursuant to Rule 56 (f)
of the North Carolina Rules of Civil Procedure 56(f). On 6 June 2005, without ruling on Plaintiffs’
motion to compel discovery, the trial court granted summary judgment to Terra-Mulch
and Hoffman, but denied summary judgment to Profile and ESG. Profile immediately appealed the denial of
summary judgment to this Court, which in a divided opinion dismissed that
appeal as interlocutory. Hamby v.
Profile Prods., L.L.C., 179 N.C. App. 151, 158, 632 S.E.2d 804, 809 (2006).
Based on the dissenting opinion, Profile
appealed as a matter of right to our Supreme Court, which found the denial of
summary judgment to Profile immediately appealable. Hamby, 361 N.C. at 639, 652 S.E.2d at
237. To reach that result, the Supreme Court
first agreed that Profile’s appeal from the denial of summary judgment was
interlocutory because the trial court’s order “does not dispose of the case,
but leaves it for further action by the trial court in order to settle and
determine the entire controversy.”
the trial court erred in denying Profile’s
motion for summary judgment because the denial was premised on Plaintiffs’
assertion of a third-party ordinary negligence claim against Profile, a claim
that, as a matter of law, plaintiffs could not bring against Profile. Therefore, we remand this case to the
Court of Appeals for further remand to the trial court for entry of summary
judgment in favor of Profile.
After the Supreme Court’s decision, on 9
January and 3 March 2009, Plaintiffs filed a Motion for Reconsideration
regarding the granting of summary judgment in favor of Terra-Mulch, contending
that,
When the summary judgment arguments were
heard . . ., the parties’ arguments were premised on Profile’s status as a
separate legal entity apart from the employer, Terra-Mulch. As such, the misconduct on the part of
Defendant Profile was not attributed to Defendant Terra-Mulch. The Supreme Court Opinion in this matter
materially changed the substantive law governing issues involved in this case
and compels a different result with respect to the summary judgment ruling in
favor of Defendant Terra-Mulch. Under
the Supreme Court’s ruling, the actions, misconduct, and knowledge of Profile
is properly attributable to Defendant Terra-Mulch.
The trial court denied Plaintiff’s Motion
for Reconsideration on 8 May 2008 but certified “the judgment and all rulings
in favor of Defendant Terra-Mulch Products, LLC” to this Court for immediate
review. Thereafter, Plaintiffs gave “notice
of appeal from the following Orders, rulings, and actions of the trial court:”
(1) The
Order by the Honorable Nathanial J. Poovey entered on 21 June 2005, granting
Defendant Terra-Mulch Products, LLC’s and Defendant Roy D. Hoffman’s Motions
for Summary Judgment;
(2) The
decision by the Honorable Nathanial J. Poovey to proceed with the hearing of
Defendant Terra-Mulch Products, LLC’s Motion for Summary Judgment without
addressing Plaintiff’s pending Motion to Compel and request for relief pursuant
to Rule 56(f) of the North Carolina Rules of Civil Procedure;
(3) The
Order of the Honorable Robert P. Johnston entered 27 July 2005, staying
discovery pending Defendant Profile Products, LLC’s appeal;
(4) The
decision by the Honorable Robert P. Johnston to proceed with the hearing of
Defendant Profile Products, LLC’s Motion to Stay without addressing Plaintiffs’
pending Motion to Compel;
(5) The
8 May 2008 Order by the Honorable Timothy L. Patti denying Plaintiffs’ Motion
for Reconsideration in Light of Subsequently-Decided Authority pursuant to
N.C.R. Civ.P.60(b)(6); and
(6) The
decision of the Honorable Timothy L. Patti to proceed with the hearing of
Plaintiffs’ Motion for Reconsideration without addressing Plaintiffs’ pending
Motion to Compel and request for relief pursuant to Rule 56(f) of the North
Carolina Rules of Civil Procedure.
Plaintiffs also filed a petition for writ
of certiorari, asking this Court to review the grant of summary judgment to
Hoffman contemporaneously with the motion to reconsider the grant of summary
judgment to Terra-Mulch. Defendants
Terra-Mulch and Hoffman opposed Plaintiffs’ petition for writ of certiorari;
Terra-Mulch also moved to dismiss this appeal.
From the outset, we observe that our
Supreme Court, in mandating the entry of summary judgment in favor of Profile,
found it significant to note preliminarily “that plaintiffs did not cross-assign
error to the trial court’s grant of summary judgment for Terra-Mulch on grounds
that the exclusive remedy plaintiffs have against Terra-Mulch is under the
Workers’ Compensation Act.”
Plaintiffs’ complaint, amended three
times, asserts all claims against Terra-Mulch and Profile jointly, and none of
these claims allege ordinary negligence as to those defendants. Before the
trial court, the Court of Appeals, and this Court, plaintiffs have argued that
Profile’s liability is based on ordinary negligence, not gross negligence. The
pivotal question presented by this case is whether, as a matter of law,
plaintiffs are able to assert an ordinary negligence claim in civil court
against Profile, the member-manager of the employer Terra-Mulch. To answer that
question and, in so doing, determine whether the trial court’s order creates
the risk of inconsistent verdicts, we must decide whether Profile, like Terra-Mulch,
is entitled to the protection of the exclusivity provision of Chapter 97.
The Court’s statement that the Plaintiffs
failed to “cross-assign error to the trial court’s grant of summary judgment
for Terra-Mulch on grounds that the exclusive remedy plaintiffs have against
Terra-Mulch is under the Workers’ Compensation Act,” when read alone, appears
to indicate that the trial court’s order of summary judgment in favor of Terra-Mulch
was a final order. However, in mandating
that summary judgment be granted for Profile, the Supreme Court did not reach
the issue of whether the trial court properly determined that Plaintiffs could
not establish a viable Woodson claim against Terra-Mulch. Instead, the Court held that “the trial court
erred in denying Profile’s motion for summary judgment because the denial was
premised on Plaintiffs’ assertion of a third-party ordinary negligence claim
against Profile, a claim that, as a matter of law, plaintiffs could not bring
against Profile.”
On appeal, Plaintiffs argue the trial
court erred by (I) granting summary judgment in favor of Terra-Mulch on the
ground that Plaintiffs failed to establish a Woodson claim; (II) denying
their motion to reconsider because our Supreme Court’s opinion in this case
changed the law regarding evidence that could be attributed to Terra-Mulch at
summary judgment; and (III) failing to consider discoverable evidence by not
ruling on Plaintiffs’ motion to compel discovery.
I.
Plaintiffs first contend that the trial
court erred by granting summary judgment for Terra-Mulch on the ground that
Plaintiffs failed to establish a Woodson claim; and thus, their
exclusive remedy was under the Worker’s Compensation Act. We uphold the trial court’s grant of summary
judgment in favor of Terra-Mulch.
“Summary judgment is proper ‘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.’” Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 212,
580 S.E.2d 732, 735 (2003) (quoting N.C. Gen. Stat. §1A-1, Rule 56(c)
(2001)), aff’d per curiam, 358 N.C. 381, 591 S.E.2d 521 (2004). “A defendant may show entitlement to summary
judgment by ‘(1) proving that an essential element of the plaintiff’s case is
non-existent, or (2) showing through discovery that the plaintiff cannot
produce evidence to support an essential element of his or her claim, or (3)
showing that the plaintiff cannot surmount an affirmative defense.’” Id. (citations omitted). “When considering a motion for summary
judgment, the trial judge must view the presented evidence in a light most
favorable to the nonmoving party.” In
re Will of Jones, 362 N.C. 569, 573-74, 669 S.E.2d 572, 576 (2008) (citation
and quotation marks omitted).
The burden of establishing a Woodson
claim is akin to a showing of culpability required to establish an intentional
tort:
[W]hen 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 [Worker’s Compensation] Act.
Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222,
228 (1991). “The elements of a Woodson
claim are: (1) misconduct by the
employer; (2) intentionally engaged in; (3) with the knowledge that the
misconduct is substantially certain to cause serious injury or death to an
employee; and (4) that employee is injured as a consequence of the misconduct.” Pastva v. Naegele Outdoor Adver., Inc.,
121 N.C. App. 656, 659, 468 S.E.2d 491, 494 (1996) (citing Woodson, 329
N.C. at 340-41, 407 S.E.2d at 228). “Such
circumstances exist where there is uncontroverted evidence of the employer’s
intentional misconduct and where such misconduct is substantially certain to
lead to the employee’s serious injury or death.” Whitaker v. Town of
Woodson’s facts are unquestionably the benchmark
for a plaintiff seeking to escape the exclusivity provision of this State’s
Worker’s Compensation Act.
In Woodson, the defendant-employer’s
president was on the job site and observed first-hand the obvious hazards of
the deep trench in which he directed the decedent-employee to work. Knowing that safety regulations and common
trade practice mandated the use of precautionary shoring, the defendant-employer’s
president nonetheless disregarded all safety measures and intentionally placed
his employee into a hazardous situation in which experts concluded that only
one outcome was substantially certain to follow: an injurious, if not fatal,
cave-in of the trench.
Whitaker, 357 N.C. at 557-58, 597 S.E.2d at 668
(citing Woodson, 329 N.C. at 335, 345-46, 407 S.E.2d at 225, 231-32).
In sharp contrast to Woodson’s
singular circumstances, in this case, Plaintiffs relied on the following
forecast of evidence at summary judgment: deposition testimony of employees
acknowledging injuries and dangerous conditions at Terra-Mulch’s Conover plant;
an affidavit from a certified safety professional opining that documented OSHA
violations at Terra-Mulch’s Conover plant created “an extremely dangerous” work
environment and made it “virtually inevitable that an employee would be killed
or seriously injured”; Hoffman’s agreement during his deposition that
conditions documented by the Risk Assessment Report indicated a “virtual
inevitability that somebody would be seriously injured unless safety changes
were implemented”; and post-incident OSHA citations for safety violations at
the Conover plant, including the lack of a stairway from the loading dock to
the truck-dump operator platform and inadequate guarding. There was also evidence that it was customary
for workers to complete their tasks in a manner that exposed them to the safety
violations. The trial court granted
summary judgment for Terra-Mulch despite Plaintiffs’ pending discovery
requests. We agree that Plaintiffs’
forecast of evidence was insufficient.
Plaintiffs’ forecast of evidence in this
case is not unlike the plaintiff-employee’s insufficient allegations in Pendergrass
v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993). In Pendergrass, the plaintiff-employee
asserted Pleasant claims against his co-employee-defendants and a Woodson
claim against his employer-defendant. Id.
at 237, 424 S.E.2d at 394. The plaintiff-employee
alleged that the co-employee and employer defendants proximately caused his
injuries because they were “grossly and wantonly negligent” in designing and
permitting the use of a machine with inadequate guards in violation of OSHA
standards, and further directing him to work at the inadequately guarded
machine. Id. at 238, 424 S.E.2d
at 394. The Court held that the
plaintiff-employee did not state a Pleasant claim because, while the co-employee-defendants
“may have known certain dangerous parts of the machine were unguarded when they
instructed [the plaintiff-employee] to work at the machine, we do not believe
this supports an inference that they intended that [the plaintiff-employee] be
injured or that they were manifestly indifferent to the consequences of his
doing so.” Id. at 238, 424 S.E.2d
at 394. Nor were the plaintiff-employee’s
allegations sufficient to meet “the higher level of negligence as defined in Woodson
of substantial certainty of injury.” Id.
at 239-40, 424 S.E.2d at 395.
Similar to the plaintiff-employee’s
allegations in Pendergrass, Plaintiffs’ forecast of evidence here shows
that Hamby was injured by Terra-Mulch’s inadequately guarded machinery - the
rotating augers - in violation of OSHA standards. Our Supreme Court, however, found this
circumstance insufficient to establish a Woodson claim, even when
coupled with an allegation that supervisors specifically directed the employee
to work in the face of the hazard.
II.
Next, Plaintiffs argue the trial court
erred by denying their motion to reconsider its grant of summary judgment for
Terra-Mulch because the Supreme Court’s opinion changed the applicable
law. Plaintiffs seek relief under North
Carolina Rule of Civil Procedure 60(b)(6) contending that the Supreme Court’s
holding that Profile’s knowledge and misconduct can be imputed to Terra-Mulch
changed the governing law that was applied in the summary judgment hearing, at
which Profile and Terra-Mulch were treated as separate entities. We hold that the trial court was within its
discretion to deny Plaintiffs’ motion to reconsider.
Plaintiffs argue that in light of the
Supreme Court’s opinion, the trial court should further consider their evidence
against Profile-a Risk Assessment Report prepared prior to Hamby’s injury-as
being attributable to Terra-Mulch. The
Risk Assessment Report memorializes a risk control consultant’s safety
inspection of Terra-Mulch’s Conover plant on 7 February 2002 for purposes of
insuring the plant. The consultant
generally found safety conditions at the Conover Terra-Mulch plant
unsatisfactory, and also made the following specific findings, which Plaintiffs
deem particularly relevant to their Woodson claim:
[The Conover Terra-Mulch plant] has all
the red flags of an uncontrolled high hazard account. High risk operation with frequency, severity
and catastrophic worker compensation exposures, new management (acting plant
manager and most experience on site manager has been there less than a year)
(sic), high turn over, low paying jobs, basic OSHA controls not in place, no
safety program, no accountabilities, no safety culture. Corporate pressure is work 24/7 and get
production out.
. . .
Basically no [risk management programs]
in place. There may be a sign here and
there; safety glasses are worn and emergency exit maps, but that is it.
. . .
Physical Exposures - Machinery (caught
in/amputations); Exposure: High; Control: Needs Improvement; Comments:
Choppers, chippers & augers needs improvement. There are some jury-rigged interlock controls
but I would want to rely on them if I fell onto a conveyor and was moving
toward a chipper. (sic)
. . .
Worker’s Compensation Comments: No
foreign travel or aircraft. The acct has
a turnover rate of between 30 and 70 employees a month. Most of these are temps but they also loose
(sic) permanent employees each year (not sure how many, contact would not say). This provides a situation where employees are
never really informally trained on jobs and we don’t know the losses that have
occurred to the temp. The acct keeps
their OSHA log on their employees only and tell me the Temp agency takes care
of the temps. The account has not
addressed their basic OSHA requirements and basically I was told production is
the only real concern. . . . The only accountability is budgetary and
production.
. . .
This is the poorest worker’s comp account
I have seen in a long time. Without very
strong guidance and leadership from the corporate office, it will never change
(and based on used (sic) of temps and turnover, I don’t think it will change
even with corporate guidance). My
opinion is that we should not insure this account.
. . .
Likelihood of Compliance: My contact
stated the emphasis is production. Also
he feels that the turn over is so great, why train, people who are gone
tomorrow. . . . Right now this location
is overwhelmed and corporate just isn’t providing guidance. . . .
Following the inspection, the safety
consultant sent a letter, containing specific safety recommendations reflecting
the unsatisfactory conditions, to Jim Cebulski, Profile’s Vice President and
Controller.
Rule 60(b)(6) authorizes a trial court to
relieve a party from a final order or judgment for “[a]ny other reason
justifying relief from the operation of the judgment.” N.C. Gen. Stat. §1A-1, Rule 60(b)(6)
(2007). Accordingly, “the Rule has been
described as a ‘grand reservoir of equitable power’ by which a court may grant
relief from a judgment whenever extraordinary circumstances exist and there is
a showing that justice demands it.” Barnes
v. Taylor, 148 N.C. App. 397, 400, 559 S.E.2d 246, 248-49 (2002) (quoting
Dollar v. Tapp, 103 N.C. App. 162, 163-64, 404 S.E.2d 482, 483
(1991)). Rule 60(b)(6) is properly
employed to revisit a judgment affected by a subsequent change in the law. See id.; McNeil v. Hicks, 119
N.C. App. 579, 580-81, 459 S.E.2d 47, 48 (1995). However, this Court reviews a trial court’s
decision whether to grant relief from judgment under Rule 60(b)(6) for an abuse
of discretion. Barnes, 148 N.C.
App. at 399, 559 S.E.2d at 248.
Here, we find no abuse of discretion in
the trial court’s denial of Plaintiffs’ motion to reconsider because their
forecast of evidence is insufficient to establish a Woodson claim even
when the Risk Assessment Report is attributed to Terra-Mulch. First, we deem it significant that the trial
court heard evidence and arguments on all Defendants’ summary judgment motions
in the same hearing. We also observe
that Plaintiffs in fact attributed the Risk Assessment Report to Terra-Mulch,
with the same level of detail with which they cite the Report to this Court in
this appeal, in their Memorandum in Opposition to Defendants’ Motion for
Summary Judgment. Thus, even if we
assume, as Plaintiffs contend, that the trial court did not consider the Risk
Assessment Report for its probative value against Terra-Mulch, we hold that the
consideration of the additional evidence would still not establish a prima
facie Woodson claim against Terra-Mulch.
To reiterate, “[t]he elements of a Woodson
claim are: (1) misconduct by the employer; (2) intentionally engaged in; (3)
with the knowledge that the misconduct is substantially certain to cause
serious injury or death to an employee; and (4) that employee is injured as a
consequence of the misconduct.” Pastva,
121 N.C. App. at 659, 468 S.E.2d at 494.
Here, even though evidence in the record raises the suspicion that
conditions at the Conover Terra-Mulch plant failed to comply with OSHA
mandates, the evidence hardly shows that Terra-Mulch’s noncompliance or other
actions or omissions were substantially certain to cause serious injury or
death. See Whitaker, 357 N.C. at
558, 597 S.E.2d at 669 (reinstating grant of summary judgment to municipal
employer because plaintiff’s evidence was insufficient to establish Woodson
claim); see also Maraman v. Cooper Steel Fabricators, 146 N.C. App. 613,
555 S.E.2d. 309 (2001) (reversing directed verdict on Woodson claim for
defendant-employer), rev’d in part, 355 N.C. 482, 562 S.E.2d 420 (2002)
(per curiam). Rather, the most favorable
view of Plaintiffs’ evidence demonstrates that the auger pit was inadequately
guarded prior to Hamby’s injury, in violation of OSHA regulations; the Risk Assessment
Report tends to show that Terra-Mulch was aware of the inadequately guarded
augers before Hamby was injured. As in Pendergrass,
the Risk Assessment Report, even when cumulated with Plaintiffs’ original
forecast of evidence, does not sufficiently show that Terra-Mulch was
substantially certain that serious injury or death would result. Accordingly, we reject Plaintiffs’ contention
that the trial court erred by denying their motion to reconsider.
III.
In their final argument, Plaintiffs
contend that the trial court erred by granting summary judgment to Terra-Mulch
before ruling on their outstanding motion to compel discovery.
After Terra-Mulch moved for summary
judgment, Plaintiffs filed a motion to compel discovery against Profile and
Terra-Mulch. The motion specifically
requested an order compelling discovery pursuant to North Carolina Rule of
Civil Procedure 37(a)(2), and stated further: “Additionally and out of an
abundance of caution, Plaintiffs request relief pursuant to Rule 56(f) . . .
insofar as [Profile and Terra-Mulch] are refusing to produce materials which
would bolster Plaintiffs’ opposition to [Profile’s and Terra-Mulch’s] motion
for summary judgment.” The motion
identified “information regarding other workplace injuries, workplace safety
and OSHA compliance issues, and documents related to investigation of workplace
safety incidents,” including Reports of Injury.
The trial court heard all pending
motions, including Plaintiffs’ motion to compel and outstanding summary
judgment motions, in a single hearing that occurred on 6 and 8 June 2005. At the hearing, the trial court heard
argument from all counsel regarding the evidence and claims, and subsequently
the court requested argument on Plaintiffs’ motion to compel. Plaintiffs’ counsel identified the Reports of
Injury as the most important information sought in their motion to compel. Ultimately, after further argument on the
discovery issue from counsel for Plaintiffs and Defendants, the following
exchange occurred:
[Terra-Mulch’s counsel]: There’s nothing
that they’ve asked for that would have any effect upon our argument as stated
in our brief. If you’ll look at them,
nothing they’re asking for has anything to do with it.
The Court: I haven’t heard anything
either, but, obviously, depending on how I rule on those other motions, it
might take care of the motion to compel or a motion for protective order.
[Plaintiffs’ counsel]: Judge, as we
stated in our brief, we think, based on the prior safety audit and the
testimony of Mr. Hoffman that an injury, serious injury, was virtually
inevitable, we think we meet the Woodson standard. I filed - I have filed a motion to compel and
noticed their motion for protective order out of an abundance of caution to
make sure I don’t have to defend a motion without having documents that will
bolster my case, but I think we have sufficient evidence in the record now to
defeat the pending motions for summary judgment, but if there’s any doubt with
the Court, then I think I’m entitled to those documents, because I think they
might further bolster our case.
The remaining argument went to the merits
of the pending motions for summary judgment with no further mention from either
side of the discovery issues.
It is ordinarily error for a trial court
to rule on a summary judgment motion without addressing a pending motion to
compel discovery that “might lead to the production of evidence relevant to the
motion . . . and the party seeking discovery has not been dilatory in doing so.” Conover v.
Plaintiffs here argue the trial court
erred by granting summary judgment without compelling production of Reports of
Injury that allegedly would have “bolstered” their opposition to summary
judgment. Plaintiffs characterized, at
the summary judgment hearing and in their brief before this Court, the Reports
of Injury as “bolstering” their opposition to summary judgment because they
acknowledge receiving OSHA logs documenting the same injuries as the unproduced
Reports of Injury. They also contend the
Reports of Injury “could have proven the total number of workplace injuries at
the [Conover Terra-Mulch] plant” and “the occurrence of similar incidents.” Before this Court, Plaintiffs depict the OSHA
logs as insufficient because they “contain only the vaguest description of an
injury such as ‘left eye’ or ‘mashed left thumb.’”
In contrast, Plaintiffs’ position before
the trial court was that they produced sufficient evidence to establish their Woodson
claim against Terra-Mulch without the Reports of Injury, and their motion to
compel was a mere “abundance of caution”- a figurative “just-in-case” the trial
court finds our evidence insufficient.
Consistently with that position, Plaintiffs’ counsel spent the remainder
of the summary judgment hearing, on 8 June 2005, arguing the merits of the
pending claims with no further insistence upon obtaining any additional
discovery. Plaintiffs may not now argue
the trial court erred by granting summary judgment for Terra-Mulch before
ruling on their motion to compel when Plaintiffs manifestly acquiesced in that
course of events at the summary judgment hearing. Cf. Belcher v. Fleetwood Enters., Inc.,
162 N.C. App. 80, 84, 590 S.E.2d 15, 18 (2004) (holding that plaintiffs could
not complain that they had insufficient time to produce evidence where the
trial court transformed defendants’ Rule 12(b)(6) motion into a motion for
summary judgment because plaintiffs “fully participated in the hearing” and did
not request a continuance at the hearing).
Moreover, the trial court was required to
give Plaintiffs, as the nonmoving party, the most favorable view of the
evidence at summary judgment. Jones,
362 N.C. at 573-74, 669 S.E.2d at 576.
Considering Plaintiffs’ acknowledgment that the OSHA logs document most,
if not all, of the same injuries documented by the Reports of Injury, we cannot
conclude that any additional information in the Reports of Injury would have
produced a different outcome. Nor are we
moved by Plaintiffs’ argument that any additional information in the Reports of
Injury regarding “the total number of workplace injuries” or “the occurrence of
similar incidents” would have assisted them any more than the OSHA logs in
establishing their Woodson claim.
Again, Plaintiffs were entitled to the most favorable view of the
evidence in the OSHA logs, which show injuries over the span of at least three
years at the Conover Terra-Mulch plant, including, by Plaintiffs’ own
admission, “numerous incidents that appear to be the same type injury as Hamby suffered . . . .” Thus, the OSHA logs, when viewed most
favorably to Plaintiffs, sufficed to show the record of previous injuries at
the Conover Terra-Mulch plant, and the similarity of those injuries to Hamby’s.
Accordingly, we find no error in the
trial court’s granting summary judgment to Terra-Mulch while discovery requests
were pending because: Plaintiffs expressed
a preparedness to oppose summary judgment without the Reports of Injury; argued
the merits of the summary judgment motions without requesting further
discovery; did not object during the trial court’s rulings; and the OSHA logs,
when viewed most favorably to Plaintiffs, provided a sufficient forecast of any
additional evidence Plaintiffs allege to exist in the Reports of Injury. Indeed, our Supreme Court in Whitaker
emphasized that Woodson “represents a narrow holding in a fact-specific
case.”
In sum, we affirm the trial court’s
denial of Plaintiffs’ motion to reconsider; deny Plaintiffs’ petition for writ
of certiorari; and deny Terra-Mulch’s motion to dismiss.
Affirmed.
Chief Judge MARTIN and Judge ERVIN
concur.
NOTE
1. The Court conspicuously noted that Plaintiffs “did not cross-assign
error to the trial court’s grant of summary judgment for Terra-Mulch on grounds
that the exclusive remedy plaintiffs have against Terra-Mulch is under the
Worker’s Compensation Act.” Hamby,
361 N.C. at 634, 652 S.E.2d at 234.