Jackson v. ES&J Enterprises (Lawyers Weekly No. 12-16-0181, 19 pp.) (Martha A. Geer, J.) Appealed from Columbus County Superior Court. (Douglas B. Sasser, J.) N.C. App. Unpub. Click here for full-text opinion.
Holding: When defendants were laying pipe, their apparently unique policy required any workers in the trench to wait inside the pipe while machinery was being operated in the trench. Although this was not industry standard, plaintiff failed to show that it was intentionally undertaken with the knowledge that it was substantially certain to cause serious injury or death to plaintiff’s decedent.
We affirm summary judgment for defendants.
Defendants were laying 42-inch pipe. From inside the trench, plaintiff’s decedent signaled the trackhoe operator to make another pass through the trench. Pursuant to defendants’ policy, the decedent was then supposed to go inside the already-laid 42-inch pipe.
However, as the bucket of the trackhoe was lowered into the trench, the operator heard the decedent “holler.” The bucket of the trackhoe had pinned the decedent against the 42-inch pipe. The decedent died later the same day as a result of his injuries.
The alleged misconduct in this case was having the employee go inside an already-installed pipe instead of leaving the trench while equipment was operating in the trench.
Plaintiff does not cite to any evidence in the record — and we have found none — to support the claim in her brief that the evidence was conflicting as to whether it was standard practice at defendant ES&J Enterprises for employees to go into the existing pipe as opposed to simply remaining in the trench. Indeed, plaintiff’s own expert witness identified the alleged misconduct as “requiring the late Joel Tripp to work inside the trench box and … expect[ing] Joel Tripp to go inside the 42” pipe when the bucket of the excavator is lowered into the trench box….”
Plaintiff presented no evidence that defendants were manifestly indifferent to the health and safety of their employees when adopting the practice of having employees go inside a pipe for protection. ES&J had no previous OSHA citations regarding this practice. Nor has plaintiff presented evidence of multiple, significant safety violations of any kind, even though ES&J has been in the business of laying pipe for many years.
In his report, OSHA inspector Paul Vogel repeatedly indicates that the danger was to employees “within the confines of the trench box” — it does not state that the same danger existed if the employee went into the already-installed pipe past the end of the trench box, where the pipe was covered with dirt. In fact, Mr. Vogel testified that, if an employee followed ES&J’s practice, the employee would be protected in the concrete pipe with overhead and lateral protection. According to Mr. Vogel, had the decedent been in the pipe consistent with standard ES&J operating procedure, he would not have been hurt.
Plaintiff has presented no evidence to suggest that the supervisors or anyone else at ES&J knew that going into the pipe was dangerous at all — to say nothing of being substantially certain to result in serious injury or death.
Two supervisors were present at the site. Those supervisors — one of whom had 20 and the other 40 years of experience — testified that they believed entering the already-laid pipe was standard industry practice and that they had never had an employee injured while following that practice. Another employee with over 30 years’ experience had also never seen an injury when entering the pipe. Further, the record contains no evidence that ES&J had ever had anyone injured as a result of this practice.
Larry Carlisle, estimator for ES&J, acknowledged that the bucket operator — and perhaps the pipe layer in the trench — has a very high-risk job. Mr. Carlisle’s testimony, upon which plaintiff relies, does not indicate that the practice of having the employee go into the already-installed pipe was high risk.
Apart from explaining that there were safer alternatives to the practice used by defendants, plaintiff’s expert, C. William Brewer, provided no evidence that it was generally known that the practice employed by ES&J was substantially certain to result in serious injury or death. Even though Mr. Brewer’s evidence regarding industry practices rebuts ES&J’s evidence that this practice was industry standard, this issue of fact is not sufficient to defeat summary judgment because it does not address ES&J’s knowledge that serious injury or death was substantially certain. Evidence of a violation of industry standards, without more, is not sufficient to establish a claim under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).
Finally, plaintiff points to the fact that Mr. Brewer concludes that the conduct “had an exceedingly high probability of causing serious injury or death” and “was substantially certain to result in serious injury or death.” We note, “A Woodson claim cannot be made out or saved from summary judgment simply because a nonlegal expert states that Woodson‘s test has been met.”
We find the evidence in this case materially indistinguishable from that in Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665 (2003). Based on Whitaker and other authority, the trial court properly granted summary judgment on plaintiff’s Woodson claim.
Defendant Esther Carlisle is the owner and sole shareholder of defendant ES&J, and any actions Ms. Carlisle took were in furtherance of ES&J’s business. Consequently, under Woodson, any claim against Ms. Carlisle must be determined under the substantial certainty standard. Since we have concluded that summary judgment was properly entered under Woodson in favor of the company for plaintiff’s failure to meet that standard, summary judgment was also properly entered in favor of Ms. Carlisle.
Defendant Carroll Williams was not on site at the time of the accident, and plaintiff has cited no evidence that Ms. Williams was the one who required employees to move inside a pipe rather than leave the trench while the trackhoe bucket was operating in the trench. Therefore, the trial court also properly entered summary judgment for Ms. Williams.