NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 1997
JANET B. STONE; ANNIE B. LOCKLEAR;
MARY BARBARA WASHINGTON; CARRIE M.
GALLOPS and WILLIAM E. PEELE,
JR., Co-Administrators of the Estate of
ROSE GIBSON PEELE; JIMMIE
BROADY, Administrator of the Estate of
MINNIE THOMPSON; LILLIE B.
DAVIS; JOHNNY DAWKINS; SHARON
E. TOWNSEND; GEORGIA ANN
QUICK; RONALD WAYNE POOL;
Administrator of the Estate of PEGGY
JEAN ANDERSON; DAVID MACK
ALBRIGHT, Administrator of the Estate
of DAVID MICHAEL ALBRIGHT;
FRED ERNEST BARRINGTON, SR.
and NELSON BARRINGTON, Co-Administrators
of the Estate of JOSEPHINE
BARRINGTON; PEARLIE GAGNON,
Administratrix of the Estate of
JOHN R. GAGNON; MATTIE
FAIRLEY; MARTHA WATERS;
EVELYN WALL; KENNETH WHITE;
CONESTER WILLIAMS; JOHN
SANDERS; LARRY BELLAMY,
Administrator of the Estate of
ELIZABETH ANN BELLAMY; SARAH
WILLIAMS; NELSON BARRINGTON
and LINDA OWENS, Co-Administrators
of the Estate of FRED BARRINGTON;
JR.; ADA BLANCHARD; AUDREY SUE
SCOTT; LETHA TERRY; ELAINE
GRIFFIN; KIM MANGUS; SYLVIA
MARTIN; GLORIA MALACHI;
ALBERTA MCRAE; SANDRA
MCPHAUL; EVANDER LYNCH,
Administrator of the Estate of JANICE
LYNCH; BERNETTA ODOM;
THOMAS OATES, III; KATIE
NICHOLSON; PAMELA MOORE;
PRISCILLA MURPHY; SALLY
MURPHY; NORA BUSH; THOMAS
COBLE; BRENDA CHAMBERS,
Administratrix of the Estate of ROSIE
ANN CHAMBERS; BERNARD
CAMPBELL; ROSE CHAPPELL;
MARTHA NELSON, Administratrix of
the Estate of MARTHA RATLIFF;
DEBORAH PITTMAN; ANNETTE
PIERCE; ZELDA ROBERTS;
RICHARD ROBERTS; CLEO
REDDICK; DELORES POUNCY;
BOBBY QUICK; DELORES QUICK;
LULA SMITH, Administratrix of the
Estate of CYNTHIA RATLIFF; WILLIE
QUICK; MARY BRYANT; DONNA
BRANCH DAVIS; DORIS BOSTIC;
RACHEL INGRAM; RICHARD M.
LIPFORD; ALICE S. WEBB,
Administratrix of the Estate of JEFFREY
A. WEBB; BARBARA SHAW; FLORA
C. BANKS, Administratrix of the Estate
of MARGARET TERESA BANKS;
JAMES THOMAS BANKS; LINDA
CAROL ELLISON; PAUL SAUNDERS,
Administrator of the Estate of MARY
LILLIAN WALL; JOANNE PAGE,
Administratrix of the Estate of GAIL
VIVIAN CAMPBELL; VELMA
BUTLER; ROY FUNDERBURK; MARY
SUE RICH, Administratrix of the Estate
of DONALD BRUCE RICH; PEGGY
BROWN, Administratrix of the Estate of
MARY ALICE QUICK; CAROLYN M.
RAINWATER; MARGIE MORRISON,
Administratrix of the Estate of
MICHAEL A. MORRISON;
SHERMAN MCDONALD; WILLIAM G.
HAMILTON and MARIE A.
HAMILTON; BRENDA F. BAILEY;
ELTON RAY CAFFERATA; PAMELA
S. COOPER; WILLIAM KELLY, JR.,
Administrator of the Estate of BRENDA
GAIL KELLY; CATHERINE
DAWKINS, Administratrix of the Estate
of PHILIP R. DAWKINS; JEANETTE L.
SMITH; RUBY BULLARD SELLERS;
REGGIE SMITH; CYNTHIA FAYE
GRAHAM; WILLIAM WINSTON
SMITH, SR.; WILLIAM NOCONDA
SMITH, JR.; BETTY EUBANKS,
Administratrix of the Estate of
CYNTHIA S. WALL; BETTY B.
WHITE; DARRELL LEONARD
WILKINS, Administrator of the Estate of
ROSE LYNETTE JACOBS WILKINS;
ANGELA LYNN COULTER,
Administratrix of the Estate of JOSIE
MAE COULTER; FELTON ALBERT
HATCHER; PATRICIA W. HATCHER;
MILDRED LASSITER MOATES; OLIN
DELLANO MOATES; GLADYS FAYE
NOLAN; RONNIE CARROL NOLAN;
HOMER F. JARRELL, Administrator of
the Estate of BERTHA JARRELL;
LORETTA SCOTT; LORETTA
GOODWIN; BENITA INGRAM; MATTIE
P. NICHOLSON; MARY ANN DAIREN;
MONICA MCDOUGALD; ALISON
GRIFFIN; BRENDA MCDOUGALD;
AND ROY S. MORRISON, JR.,
NORTH CAROLINA DEPARTMENT OF
LABOR and NORTH CAROLINA
DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH DIVISION,
North Carolina Industrial Commission
Appeal by defendants from order entered 19 December 1995 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 October 1996.
Fuller Becton Billings & Slifkin, P.A., by Charles L. Becton, Russell & King, P.A., by Edward L. Bleynat, Jr., Law Offices of Woodrow Gunter, by Woodrow W. Gunter, II, Adams Kleemeier Hagan Hannah & Fouts, by J. Alexander S. Barrett, and Kitchin, Neal, Webb & Futrell, by Henry L. Kitchin, for plaintiffs-appellees.
Attorney General Michael F. Easley, by Senior Deputy Attorney General Reginald L. Watkins, Special Deputy Attorney General David Roy Blackwell, Special Deputy Attorney General Elisha H. Bunting, Jr., and Special Deputy Attorney General Ralf F. Haskell, for the State.
Plaintiffs commenced this action under the Tort Claims Act, N.C. Gen. Stat. section 143-291 et. seq., for damages incurred as a result of a 3 September 1991 fire at the Imperial Food Products plant ("the plant") in Hamlet. Plaintiffs allege that defendants negligently failed to inspect the plant for workplace safety violations and failed to enforce workplace safety laws. Defendants moved to dismiss the claims under N.C.R. Civ. P. 12(b)(6) for failure to state a claim and under N.C.R. Civ. P. 12(b)(1) and (2) on the basis of sovereign immunity. Deputy Commissioner D. Bernard Alston denied defendants' motions. The full Commission affirmed and adopted the Deputy Commissioner's decision. Defendants appeal.
Since we are reviewing a ruling on a motion to dismiss, we treat plaintiffs' allegations as true. See Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). Plaintiffs allege that on 3 September 1991, a hydraulic fuel line near a deep fat fryer in the processing section of the plant ruptured, igniting hydraulic fuel from a natural gas fume cooker. The fire spread rapidly through the plant, killing twenty-five (25) people and injuring fifty-six (56). Defendants had never inspected the plant, despite the occurrence of two other fires at the plant, one in 1980 and another in 1983. When it was inspected subsequent to the fire in September 1991, the plant was issued eighty-three (83) citations for various violations of the Occupational Safety and Health Act of North Carolina. Plaintiffs allege, inter alia, that defendants' failure to inspect the plant was negligent.
As a preliminary matter, we note that ordinarily, the denial of a motion to dismiss is not immediately appealable. E.g. Godwin v. Walls, 118 N.C. App. 341, 344, 455 S.E.2d 473, 477 (1995). However, since defendants' motion is based on sovereign immunity, its denial is properly before us. See Hawkins v. State of North Carolina, 117 N.C. App. 615, 622, 453 S.E.2d 233, 237 (1995).
Defendants argue that because they owed no duty to plaintiffs, they cannot be held liable to them under the Tort Claims Act. The first reason they cite for lack of duty is the public duty doctrine. However, in an opinion filed contemporaneously herewith, Hunt v. North Carolina Department of Labor, 96COA-312, we reject this argument and hold that the public duty doctrine does not apply in actions brought against State agencies under the Tort Claims Act. Accordingly, this argument has no merit.
Defendants next argue that no duty is imposed by Chapter 95 of the North Carolina General Statutes, entitled "Department of Labor and Labor Regulations." They argue that if Chapter 95 establishes a duty, it is a duty owed by the employer not the government. We disagree.
Plaintiffs allege that a duty is imposed by N.C. Gen. Stat. section 95-4. This statute states that the Commissioner of Labor is "charged with the duty":
(4) To secure the enforcement of all laws relating to the inspection of factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State. . . .
(5) To visit and inspect, personally or through his assistants and factory inspectors, at reasonable hours, as often as practicable, the factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State, where goods, wares, or merchandise are manufactured, purchased, or sold, at wholesale or retail.
(6) To enforce the provisions of this section and to prosecute all violations of laws relating to the inspection of factories, mercantile establishments, mills, workshops, public eating houses, and commercial institutions in this State before any court of competent jurisdiction. . . .
N.C. Gen. Stat. § 95-4 (1993)(emphasis added).
This statute clearly imposes specific duties upon the Commissioner of Labor to enforce inspection laws, to inspect the workplaces of North Carolina and to prosecute violations. One obvious purpose of this statute is to provide for the safety of the people who work in commercial establishments and to protect them from injuries in the workplace arising from unsafe conditions. Therefore, we hold that a violation of these duties to inspect and enforce can give rise to an action for negligence. See Hunt v. North Carolina Department of Labor, 96COA-312; see also Coleman v. Cooper, 89 N.C. App. 188, 195-97, 366 S.E.2d 2, 7-8 (1988).
In the present case, plaintiffs have alleged that defendants have never inspected the plant. They further allege that, as a result of this breach of defendants' duty to inspect, they suffered injury. We hold that these allegations are sufficient to enable plaintiffs' negligence claim to withstand a motion to dismiss. Accordingly, the Industrial Commission did not err in denying defendants' motions.
Judges WALKER and MARTIN, MARK D. concur.