North Carolina Lawyers Weekly
Usually when someone at a middle school gets in trouble for messing around with a fire extinguisher, you expect it to be one of the students.
But a secretary at a middle school in Lenoir will not be able to sue the principal of her school for injuries she suffered when the principal was “joking and horse playing around” with a fire extinguisher that subsequently went off. She claims that the discharge aggravated her rare medical condition, but the North Carolina Supreme Court has held that she will have to file her claim through workers’ comp because she couldn’t prove the principal’s behavior was “willful, wanton and reckless.”
According to Joan Trivette, school officials confiscated a fire extinguisher that a student had sprayed in a classroom and brought it to the area where Trivette and the school’s principal, Peter Yount, worked. The next day, she said, Yount was playing with the extinguisher while she repeatedly asked him to replace the safety pin. Yount scoffed, claimed the extinguisher would not go off, and continued to play with the extinguisher while joking with another secretary—right up until the moment it discharged all over Trivette.
The mishap was no laughing matter, however. Trivette suffers from myasthenia gravis, a neuromuscular disease that causes muscle weakness and fatigability. The disease had been in remission until it was triggered by the chemicals in the fire extinguisher, she said. She and her husband sued the principal for damages including loss of consortium.
Yount moved to have the suit tossed out on both procedural and factual grounds, saying that the trial court lacked jurisdiction to hear the case because the state’s Workers Compensation Act provides the exclusive remedy for such claims, and that even if it didn’t, he was entitled to summary judgment. The trial court denied both motions, as did a divided Court of Appeals.
The Supreme Court decided that the court had jurisdiction under an exception to the exclusivity rule, but granted Yount’s motion for summary judgment, saying that Trivette had not met the extraordinarily high threshold for utilizing that exception.
No obvious danger
In Pleasant v. Johnson, the Supreme Court held that an injured worker could get around the exclusivity rule and sue a co-employee in a common law action if the fellow employee acted in a “willful, wanton and reckless manner.” Trivette argued that she could sue Yount personally under this exception. Yount argued that, as an agent of the local school board, he was Trivette’s employer, not her co-employee.
The parties agreed that Yount was an agent of the school board, but the court said this was not enough to determine whether Yount and Trivette were co-employees. The court said that Yount was not acting as the alter ego of the school board, but rather as Trivette’s direct supervisor, and for the purposes of workers’ compensation law, supervisors and those they supervise are treated as co-employees. So the court determined that the trial court had authority to hear the case.
Nevertheless, the court granted Yount’s motion for summary judgment, saying that Trivette had failed to show enough evidence to satisfy the Pleasant exception.
Although Trivette had warned Yount that she was worried that an accident with the fire extinguisher would endanger her health, the court found that the danger was not obvious because the risk that the discharge of a fire extinguisher might cause a relapse of a neuromuscular disease was even less apparent than in other cases where the courts had granted summary judgment for the defendants. The court noted that Trivette presented no evidence about whether there were warning labels on the extinguisher.
“The burden of proof is heavy on a plaintiff who seeks to recover under Pleasant,” Justice Robert H. Edmunds Jr. wrote for the majority. “Even unquestionably negligent behavior rarely meets the high standard of ‘willful, wanton and reckless’ negligence established in Pleasant.”
“Even if we assume that defendant 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 plaintiff, supports an inference that defendant was … manifestly indifferent to the consequences of an accidental outburst.”
‘Horseplay’ wasn’t principal’s job
Justice Patricia Timmons-Goodson dissented, arguing that the majority had decided issues that were best resolved by a jury. The cases that the majority cited to reach its decision, she said, all involved employment where hazardous work was in the nature of the job.
“Here, in contrast, defendant created a hazard in the otherwise safe environment of a middle school office by ‘joking and horse playing around’ with a fully charged fire extinguisher without its safety pin,” Timmons-Goodson wrote. “Presumably, horseplay with such unsafe equipment was entirely unrelated to defendant’s work as the principal of a middle school.”
The facts of the case, she said, were much more analogous to Pleasant itself. She argued that questions of intent and negligence in this case were ones where reasonable minds might differ, and thus appropriate to send to a jury.
Stephen M. Kapral, Jr. and T. Dean Amos of Law Offices of Amos & Kapral in Hickory represented Trivette. Tommy Doughton and Amy Rich of Doughton & Rich in Winston-Salem represented Yount.
Doughton said that the decision reaffirmed the court’s previous rulings about the difficulty employees have in qualifying for the Pleasant exception.
“One of the justices, at oral argument asked opposing counsel, ‘Are you aware of any case that has survived summary judgment since Pleasant?’ and their answer was no,” Doughton said. “I think if you look at all the cases that have come down since the Pleasant decision, it’s a tough standard to meet.
The 19-page decision is Trivette v. Yount (Lawyers Weekly No. 12-06-1204). The full text of the opinion can be found online at nclawyersweekly.com.
Follow David Donovan on Twitter @NCLWDonovan or email [email protected]
