Pinckney v. Van Damme

Page 825

447 S.E.2d 825

116 N.C.App. 139

Jackson "Rock" PINCKNEY, Plaintiff/Cross-Appellant, v. Jean Claude VAN DAMME, Defendant/Appellant.

No. 9312SC785.

Court of Appeals of North Carolina.

Sept. 6, 1994.

Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A. by H. Gerald Beaver and Harold Lee Boughman, Jr., Fayetteville, for plaintiff-cross-appellant.

Millberg & Gordon, P.L.L.C. by John C. Millberg, Raleigh, for defendant-appellant.

MARTIN, Judge.

Defendant argues on appeal that the trial court erred (1) in denying his motion for judgment notwithstanding the verdict because the evidence was insufficient to support a finding of willful, wanton and reckless misconduct, (2) in denying defendant's motion for new trial based on juror misconduct, (3) in denying defendant's motion for new trial on the ground that reputation evidence was improperly admitted, and (4) by entering judgment out of session, out of term, and out of county. We find no reversible error.

Defendant first argues that the trial court erred by denying his motion for judgment notwithstanding the verdict because the evidence was insufficient to support a finding of willful, wanton and reckless misconduct so as to avoid the exclusivity provisions of the Workers' Compensation Act. In reviewing a ruling upon a motion for judgment notwithstanding the verdict made pursuant to G.S. § 1A-1, Rule 50, the evidence must be viewed in the light most favorable to the non-movant "deeming all evidence which tends to support his position to be true, resolving all evidentiary conflicts favorably to him and giving the non-movant the benefit of all inferences reasonably to be drawn in his favor." Daughtry v. Turnage, 295 N.C. 543, 544, 246 S.E.2d 788, 789 (1978). A motion to set aside the verdict as being against the greater weight of the evidence is directed to the sound discretion of the presiding judge, whose ruling is not reviewable on appeal in the absence of abuse of discretion. Nytco Leasing v. Southeastern Motels, 40 N.C.App. 120, 252 S.E.2d 826 (1979).

Although the Workers' Compensation Act provides the exclusive remedy when an employee is injured in the course of his employment by the ordinary negligence of co-employees, Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 362 S.E.2d 559 (1987), reh'g denied, 321 N.C. 747, 366 S.E.2d 855 (1988), the Act does not preclude suits against co-employees for intentional torts. Andrews v. Peters, 55 N.C.App. 124, 284 S.E.2d 748 (1981), disc. review denied, 305 N.C. 395, 290 S.E.2d 364 (1982). Injury to another resulting from willful, wanton and reckless negligence is treated as intentional injury for purposes of the Act. Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985). Our Supreme Court has explained the concept of willful, wanton and reckless negligence:

The concept of willful, reckless and wanton negligence inhabits a twilight zone which exists somewhere between ordinary negligence and intentional injury. The state of mind of the perpetrator of such conduct lies within the penumbra of what has been referred to as "quasi intent." ...

We have described "wanton" conduct as an act manifesting a reckless disregard for the rights and safety of others. The term "reckless," as used in this context, appears to be merely a synonym for "wanton" and has been used in conjunction with it for many years....

The term "willful negligence" has been defined as the intentional failure to carry out some duty imposed by law or contract which is necessary to the safety of the person or property to which it is owed....

Constructive intent to injure may also provide the mental state necessary for an intentional tort. Constructive intent to injure exists where conduct threatens the safety of others and is so reckless or manifestly indifferent to the consequences that a finding of willfulness and wantonness equivalent in spirit to actual intent is justified. Wanton and reckless negligence gives rise to constructive intent.

Id. at 714-15, 325 S.E.2d at 247-48. (Citations omitted.)

When considered in the light most favorable to him, plaintiff's evidence tended to show the following: Blaise Loong, the sword and martial-arts consultant for the film "Cyborg," and an actor and stuntman, testified that generally there is a goal to avoid actual physical contact between weapons and individuals when filming fight scenes. Several other stuntmen and actors in "Cyborg" complained to Loong about excessive contact from defendant in fight scenes. Elizabeth Featherston, a casting agent for "Cyborg" testified that based upon conversations with others on the set of "Cyborg," defendant had a widely discussed overall reputation of making unnecessary contact with people and hurting them. Charles Allen, another special ability talent for the film and ranked as a first degree black belt in karate, testified that during the rehearsal of fight scenes he noticed a considerable amount of unplanned contact being made by defendant who did not appear to be "pulling his punches," by stopping his punches before they made impact, a skill learned in karate. Allen also testified that other cast members complained about defendant not "pulling his punches," and that defendant had a reputation for engaging in a pattern of near contact or contact designed to create realism in filming fight scenes in "Cyborg." From observing the scene at issue between defendant and plaintiff, Allen believed that defendant was not concerned whether he had contact with plaintiff because his only concern was to "do his movie."

Martha Lee, the owner of the casting company that supplied special ability talent for "Cyborg," observed an extra, who had a role in the movie similar to plaintiff's, who suffered injuries to his leg and side and told her that defendant had hit him. Lee made a formal complaint and spoke with other members of the production staff. Lee discovered that defendant was purposely making physical contact on a regular basis to make the movie more realistic. Another of the cast members told Lee that defendant hit him but he did not want to be a "crybaby." After Lee's complaint and before plaintiff's injury, Tom Elliot, the stunt coordinator of "Cyborg" told her that defendant had been warned and that there would be no more contact on the set. Linda Pickett, a Cannon Films employee who prepared food for the crew, observed a fight scene between defendant and Blaise Loong during which defendant pushed Loong up against a concrete pillar as the scene called for, but with what Pickett assumed was "much more force than necessary because of the loud noise when the guy [Loong] hit the pillar, because of [sic] expression on his face and because of the expressions on everyone else's faces." Loong was pretty upset and the next day showed her a bruise he had acquired from the incident. Pickett also stated that based upon discussions she had with other stunt people and special ability talent in the movie, defendant had a reputation for using more force than needed to "make it look good for the camera."

Timothy Baker, a karate expert who worked as an actor with defendant in an earlier film testified that defendant had kicked him very hard during a fight scene. Baker, the production manager and the director all asked defendant to try and hold back the contact, but defendant just shrugged and kept kicking him. Defendant kicked Baker in the groin so hard that he could not get up for over five minutes.

During a rehearsal of defendant's fight scene with plaintiff, defendant kicked plaintiff's hand and came so close to his face with a prop knife that plaintiff could feel the wind. The director, Albert Pyun, told defendant that he had come too close; defendant made no response. During the actual filming of the scene, defendant made physical contact when he kicked plaintiff's right hand, and, although defendant had been instructed to hold his knife in a tuck close to his forearm, he held it up and struck plaintiff's eye with the knife. Plaintiff fell into the water and grabbed his face. Plaintiff testified that defendant just stood there and did not say anything or help him.

John Taylor, a journalist, testified that he interviewed defendant for an article that appeared in the 1 April 1991 edition of New York Magazine during which defendant expressed his preference for doing fight scenes in Asia where "guys [are] not afraid to touch, really fight, go for it. Because when you do slow motion you have to see," and that "[i]n America when you do it you have, like, union and, 'Oh, I'm going to sue.' " The article reported that defendant said his fight scenes were so real, he did not dare stage them in the United States.

In summary, plaintiff's evidence demonstrated that in filming "Cyborg" and other movies defendant had injured other actors, stunt people and extras and had been warned not to make excessive, injurious contact with those people, which warnings he often ignored. During rehearsal of the scene at issue, defendant made physical contact with plaintiff and was warned not to do so. Also, during the actual filming of that scene defendant held his knife open, instead of in the "tucked" position in which it was supposed to have been held. There was ample testimony that defendant wanted his fight scenes to look as authentic and realistic as possible and that he had a reputation for engaging in excessive contact in order to do so. From this evidence a jury could conclude that defendant was reckless or manifestly indifferent to the consequences of his conduct and that he intentionally breached his duty to use ordinary care not to injure plaintiff. Pendergrass v. Card Care, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993). (Mere knowledge by coworkers of dangerous condition did not support inference of intent to injure or manifest indifference.) Abernathy, supra. (Evidence that co-employees were aware that a tow motor was brakeless, but thought that it could be stopped...