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No. 9310SC3
Ligon & Hinton by Lemuel W. Hinton Raleigh NC for plaintiff-appellant. Cranfill Sumner & Hartzog by Susan K. Burkhart and Buxton S. Copeland Raleigh NC for defendant-appellee.
Elizabeth G. McCrodden, J. John B. Lewis Jr. and James A. Wynn Jr., JJ. concurring.
The Hon. Justice Elizabeth G. McCrodden

Plaintiff assigns error to the trial court's granting of summary judgment for defendant Capers. We have reviewed plaintiff's arguments and affirm the trial court.

A trial court may grant a motion for summary judgment only when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. N.C. Gen. Stat. Sec. 1A-1 Rule 56(c) (1990); Ballenger v. Crowell 38 N.C. App. 50 53 247 S.E.2d 287 290 (1978). Where a case involves either (1) a claim or defense which is utterly baseless in fact or (2) a controversy on a question of law on indisputable facts not needing the full exposure of trial summary judgment is appropriate. Kessing v. Mortgage Corp. 278 N.C.523 180 S.E.2d 823 (1971). In ruling on the motion the trial court must construe all evidence in the light most favorable to the non-moving party allowing the non-moving party a trial upon the slightest doubt as to the facts. Moye v. Thrifty Gas Co. 40 N.C. App. 310 314 252 S.E.2d 837 841 disc. review denied 297 N.C.611 257 S.E.2d 219 (1979).

The evidence when considered in the light most favorable to plaintiff shows the following. Sometime prior to December 1989 defendant Capers hired Lyndon Young to re-roof a house owned by him and his wife in Middlesex North Carolina. Young hired the deceased to be part of his crew. Around lunchtime on 3 December Young informed defendant Capers that he needed more plyboard for the roof so defendant Capers left the work site around 2:00 p.m. to purchase the additional plyboard. He did not return to the Middlesex house until after the accident occurred. The only eyewitnesses to the fall were Young and Titus Gunter (another crew member) neither of whom could be located at the time of the hearing. However Anthony Tart who was also working on the Middlesex house on 3 December testified that the deceased had been on the roof cutting boards with a circular saw prior to his fall. The roof was an A-frame with a steep pitch approximately 8 on 12.

Tart's testimony was that he had been a friend of Canady's for two or three years prior to the deceased's death. On the day of the accident Young hired the deceased as a replacement for a member of Young's crew. Using Capers' truck defendant Capers and Young drove him and the deceased to the work-site on the morning of 3 December. Tart testified that when the deceased got in the truck Tart could tell that he was "drunk."

According to Tart between 12:00 and 12:30 p.m. that day defendant Capers volunteered to get lunch for the ten men at the work site. Capers returned with sandwiches a six-pack of Miller beer and "two liters or fifths" of Richards Wine. Tart consumed some of the alcohol without noticing any effect upon his ability to function on the roof. He noticed however that the deceased was "hitting kind of heavy" on the wine drinking one-half of a bottle of the Richards Wine.

About 4:00 p.m. while working on the roof the deceased slipped and fell. He was transported to Wilson Memorial Hospital and was later taken to Pitt County Memorial Hospital. While at Wilson Memorial medical personnel tested the deceased's blood alcohol content and the pathology reports later indicated that his blood alcohol content at the time of the test 5:45 p.m. was 0.293. He died on 10 December 1989.


[1] In plaintiff's first argument she contends that because defendant Capers was the employer of the deceased he had a duty to provide both a safe place to work and appropriate safety appliances and tools. Defendant Capers responds that he was not the employer of the deceased but rather that the deceased was an employee of Young an independent contractor. Citing Brown v. Texas Co. 237 N.C. 738 741 76 S.E.2d 45 46 (1953) defendant Capers submits that because he hired Young an independent contractor he is not required to take proper safeguards against dangers which may be incident to the work undertaken by the independent contractor. Thus he claims that he owed no duty to the deceased.

Assuming without deciding that plaintiff's forecast of evidence tended to show that defendant Capers was the deceased's employer plaintiff has no cause of action in the general courts of justice unless she has also forecast evidence that would allow her to bring an action outside the Workers' Compensation Act. N.C. Gen. Stat. Sec. (s) 97-1 to -101 (1991 and Supp.1993). If the death can only be considered accidental the trial court properly granted summary judgment because Dennis Canady's death would fall within the exclusive coverage of the Act and there are no other remedies available to plaintiff against the deceased's employer. Woodson v. Rowland 329 N.C.330 337 407 S.E.2d 222 226 (1991). If the forecast of evidence is sufficient to show that Canady's death was the result of an intentional tort committed by Capers then summary judgment was improperly allowed because Capers' intentional tort will support a civil action. Id.

The Woodson case adopted for North Carolina the substantial certainty test:

When 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 Act.

Id. at 340-41 407 S.E.2d at 228.

Applying the Woodson principles to the case at bar we must determine whether plaintiff's forecast of evidence is sufficient to show that defendant Capers intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death. The Woodson Court explained the continuum of tortious conduct as follows:

The most aggravated conduct is where the actor actually intends the probable consequences of his conduct. One who intentionally engages in conduct knowing that particular results are substantially certain to follow also intends the results for purposes of tort liability. Restatement (Second) of Torts Sec. 8A and comment b (1965) (hereinafter "Rest. 2d of Torts"). Intent is broader than a desire to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. W. Keeton D. Dobbs R. Keeton & D. Owen Prosser and Keeton on Torts Sec. 8 at 35 (5th ed. 1984) (hereinafter "Prosser"). This is the doctrine of "constructive intent." "As the probability that a [certain] consequence will follow decreases and becomes less than substantially certain the actor's conduct loses the character of intent and becomes mere recklessness. . . . As the probability decreases further and amounts only to a risk that the result will follow it becomes ordinary negligence." Rest. 2d of Torts Sec. 8A comment b.

Id. at 341 407 S.E.2d at 228-29. Substantial certainty requires more than a mere possibility or substantial probability of serious injury or death. See id. at 345 407 S.E.2d at 231.

In the instant case plaintiff's forecast of evidence does not persuade us that defendant Capers engaged in misconduct knowing that it was substantially certain to cause serious injury or death. There is no doubt that defendant Capers' actions in furnishing alcohol to the deceased while he was re-roofing a house were inappropriate. Nevertheless plaintiff's evidence is insufficient to show that defendant Capers knew that it was substantially certain when he provided the alcohol to the deceased that he would suffer serious injury or death.


[2] In the alternative plaintiff alleges that even if Lyndon Young were an independent contractor summary judgment was improper because defendant Capers' actions were willful and wanton. Assuming again without deciding that Young were a contractor rather than an employee of defendant Capers defendant Capers is still entitled to summary judgment. Willful and wanton conduct is conduct which shows either a deliberate intention to harm or an utter indifference to or conscious disregard for the rights or safety of others. Siders v. Gibbs 31 N.C. App. 481 485 229 S.E.2d 811 814 (1976). We believe that if proven defendant Capers' actions in furnishing alcohol to the deceased while he was re-roofing a house on a cold and windy December day may have risen to a level constituting willful and wanton behavior.

Despite this however we are constrained to hold that the deceased's own negligence in consuming the alcohol while working on a roof rose to the same level of negligence as that of defendant Capers and thus bars plaintiff's claim. See Sorrells v. M.Y.B.

Hospitality Ventures of Asheville 332 N.C.645 423 S.E.2d 72 (1992) (even though plaintiff's allegations in a negligence claim against the provider of alcohol establish more than ordinary negligence on the part of defendant plaintiff's claim is barred since the allegations also establish a similarly high degree of contributory negligence on the part of the decedent for voluntarily consuming alcohol and then driving while intoxicated). Accordingly we hold that as a matter of law the deceased's contributory negligence bars plaintiff's claim and that the trial court properly granted summary judgment.


In addition plaintiff argues that she may proceed to trial on her claim that even if Young were a contractor defendant Capers breached non-delegable duties of safety owed to plaintiff's deceased. Generally one who employs an independent contractor is not liable for an independent contractor's negligence unless the employer retains the right to control the manner in which the contractor performs his work. Woodson 329 N.C. at 350 407 S.E.2d at 234. However as an exception to this rule plaintiff may recover from defendant Capers for breaches of non-delegable duties of safety if the roofing activity was an "inherently dangerous activity." See Id.

Our Supreme Court has held as a matter of law that certain activities such as building construction resulting in injury are not inherently dangerous. See Vogh v. Geer 171 N.C.672 88 S.E.874 (1916). This Court in Olympic Products Co. v. Roof Systems Inc. ruled that re-roofing a building is not inherently dangerous so as to fall within those activities considered non-delegable in nature. 88 N.C. App. 315 334 363 S.E.2d 367 378 disc. review denied 321 N.C.744 366 S.E.2d 862 (1988). Subsequent to the decision in Olympic Products Woodson altered the rule that certain activities are always inherently dangerous while others may never be stating that "bright-line rules and mathematical precision are not always compatible with discerning whether an activity is inherently dangerous." Woodson 329 N.C. at 353 407 S.E.2d at 236.

In light of Woodson we must look at the particular circumstances surrounding the re-roofing of the Middlesex house on 3 December 1989 to determine whether the roofing job was inherently dangerous. Plaintiff's forecast of evidence shows that the deceased prior to his fall was operating a circular saw on a steep roof on a cold and windy December day. Tart testified that the weather conditions on 3 December were "kind of tough that the wind was gusting real hard but that he did not feel unsafe on the roof. We do not believe that this forecast of evidence is sufficient to qualify the deceased's job as an inherently dangerous activity. Even if it were, we cannot find in plaintiff's forecast of evidence a causal connection between such activity and the deceased's fall from the roof. Indeed, at the time of the hearing, plaintiff was unable to locate anyone who had witnessed the deceased's fall. Accordingly, we overrule this assignment of error.

We affirm the trial Court's grant of summary judgment.


Court LEWIS and WYNN concur.