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Tort/Negligence – Workers’ Compensation – Exclusivity Exception – Co-Employee – Schools & School Board – Principal & Secretary – Horseplay

Trivette v. Yount (Lawyers Weekly No. 12-06-1204, 19 pp.) (Robert H. Edmunds Jr., J.) (Patricia Timmons-Goodson, J., concurring in part & dissenting in part) Appealed from Catawba County Superior Court (Richard D. Boner, J.) On appeal from the Court of Appeals. N.C. S. Ct.

Holding: A school principal was a co-employee of the school’s secretary, so the secretary could state a claim against the principal under Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985). However, the principal’s horseplay with a fire extinguisher wasn’t willful, wanton or reckless enough to make out a prima facie case under Pleasant.

We affirm the denial of the principal’s motion to dismiss but reverse the denial of his motion for summary judgment.

According to the secretary’s complaint, despite her asking the principal to put away a fire extinguisher, he played around with it until it accidentally discharged, spraying the secretary and aggravating her myasthenia gravis, which had been in remission.

The parties agree that the principal was an agent of the local school board. In the 1950’s, this court held that an agent of an employer fell within the exclusivity provision of the Workers’ Compensation Act. However, allowing the Act’s exclusivity provision to apply to agents but not to other co-employees would thwart Pleasant’s purpose of placing the blame for willful, wanton, and reckless negligence on the tortfeasor, where it belongs. Accordingly, the principal’s position as an agent of the local school board does not determine whether the secretary’s Pleasant claim can proceed.

We also reject the theory that the principal is an alter ego of the school board, not only because of the possibility that an alter-ego school principal could expose the school board to unexpected liability, but also because such an interpretation considers neither the statutorily dictated hierarchical relationship between local school boards and principals, nor the role of the local superintendent, who interacts with both the principal and the local board on a day-to-day basis.

When the alleged incident occurred, both parties were employees of the Caldwell County school board. For purposes of the Act, they are treated as co-employees.

Viewing the evidentiary forecast in the light most favorable to the secretary, the principal knew she was worried for her health, fearing that if anything happened with the extinguisher, her myasthenia gravis might recur.

Even unquestionably negligent behavior rarely meets the high standard of “willful, wanton and reckless” negligence established in Pleasant. While the

danger of immediate injury is obvious when a worker deliberately shows a co-worker how to evade the safety guards on heavy machinery, as in Echols v. Zarn, Inc., 116 N.C. App. 364, 448 S.E.2d 289 (1994), or allows a co-worker to excavate without safety gear, as in Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, disc. rev. denied, 332 N.C. 343, 421 S.E.2d 146 (1992), the risk that the discharge of a fire extinguisher might cause a relapse of a neuromuscular disease is less apparent.

No evidence indicates that the extinguisher or its effluvium presented any danger, either immediate or latent, and the record is silent as to whether the extinguisher bore any warning labels. Even if we assume that the principal knew that an unexpected discharge would be messy and unpleasant, we do not believe the evidence before us, taken in the light most favorable to the secretary, supports an inference that the principal was willfully, wantonly, and recklessly negligent, or that he was manifestly indifferent to the consequences of an accidental outburst.

The Court of Appeals erred when it affirmed the trial court’s denial of the principal’s summary judgment motion.

Affirmed in part, reversed in part and remanded.


(Timmons-Goodson, J.) Taking the evidence in the light most favorable to plaintiff, the principal of a middle school was “joking and horse playing around” with a fire extinguisher. He knew the fire extinguisher was fully charged, and he knew the safety pin had been removed. A scared woman with a known lung condition begged him to “put the pin in the fire extinguisher and get it away from me.” Defendant dismissed her warnings, declared, “You’re being such a baby,” and continued taunting her until he triggered the fully charged fire extinguisher and sprayed her with a powdered chemical mixture.

Plaintiff has alleged and forecast, sufficiently to survive summary judgment, that, as in Pleasant, defendant was “horse playing” and “intended to scare” her. Was defendant willfully, wantonly, and recklessly negligent? That is a question about which reasonable minds might differ. It is a question for the jury. Therefore, it not appropriate to dispense with this question on summary judgment.


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