Stephens v. ADP Totalsource De IV, Inc.

886 S.E.2d 537

The ESTATE OF Desmond Japrael STEPHENS, Larry F. Stephens, Administrator, Plaintiff,

v.ADP TOTALSOURCE DE IV, INC., Micron Precision, LLC d/b/a King Machine of North Carolina and Kory J. Kachur, Defendants.

No. COA22-372

Court of Appeals of North Carolina.

Filed April 4, 2023

Hendrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, Charlotte, G. Anderson Stein, and Tyler A. Stull, Charlotte, for Defendants-Appellants.

Law Offices of James Scott Farrin, Durham, by Coleman Cowan and Preston W. Lesley, and Law Offices of R. Lee Farmer, PLLC, by R. Lee Farmer, for Plaintiff-Appellee.

COLLINS, Judge.

Desmond Japrael Stephens was crushed to death at his workplace when part of a 2,000-pound metal tire mold that was elevated by a forklift that had been modified without manufacturer approval fell onto his chest. Plaintiff filed willful negligence claims against Stephens’ employer and his on-site supervisor (collectively "Defendants"). Defendants moved to dismiss the claims under North Carolina Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim upon which relief can be granted, arguing that the North Carolina Industrial Commission has exclusive jurisdiction over workplace injuries and Plaintiff failed to allege facts sufficient to establish an exception to the Commission's exclusive jurisdiction. The trial court denied Defendants’ motions and Defendants appealed. Because Plaintiff alleged facts sufficient to establish exceptions to the Commission's exclusive jurisdiction, we affirm.

I. Factual Background

The facts of this case, as Plaintiff alleged, are as follows: King Machine operates a facility in Caswell County "where it manufactures tire molds and repurposes tire molds for tire manufacturers[,]" which weigh "approximately two thousand (2,000) pounds and [are] used in the tire manufacturing process to give tires their final shape, taking on tread pattern and sidewall engraving." Defendant Kory J. Kachur "was the on-site Vice President of King Machine and was responsible and familiar with the work that was being performed by the employees of Defendant King Machine who were present at the facility ...." "At the time of the incident, [Stephens] was employed by King Machine as a general laborer and had been an employee for approximately three (3) weeks[,]" prior to which Stephens had "never worked in a factory or manufacturing facility and never repaired and/or repurposed tire molds," nor had he "receive[d] training as to the proper method of repairing and repurposing tire molds."

On 30 April 2019, although "Defendants knew [Stephens] was not trained, qualified or experienced" to work with tire molds, Defendants "pulled [Stephens] from another part of the Plant" and "instructed [Stephens] to detach bolts from below a two-piece tire mold weighing approximately two thousand (2,000) pounds elevated by a forklift." Stephens was "not supervised" or "provided with adequate personal protective/supportive equipment while undertaking the tasks assigned to him." "Shortly after [Stephens] was instructed to perform work under the tire mold a bolt snapped causing one part of the two piece mold to collapse from the elevated position" onto Stephens’ chest, killing him.

After Stephens’ death, the North Carolina Occupational Safety and Health Division of the North Carolina Department of Labor ("NCOSH") investigated the Caswell County Plant and concluded that King Machine had violated several sections of the Occupational Safety and Health Act ("OSHA"). Specifically, NCOSH concluded that King Machine "committed a ‘Willful Serious’ violation of 29 CFR 1910.178(m)(2), whereby employees stood under or passed under the elevated portion of a [forklift][,] ... while unbolting metal plates weight approximately 1,705 pounds." NCOSH also concluded that King Machine "committed a violation of 29 CFR 1910.178(a)(4) and 29 CFR 1910.178(a)(5), whereby Defendant King Machine modified their [forklifts] without manufacturer approval with a single hook beam front-end forklift attachment to transport and lift approximately 1,705 pound metal plates."

II. Procedural History

Plaintiff filed its initial complaint in superior court in October 2020, alleging willful negligence against King Machine and Kachur and seeking compensatory and punitive damages. Defendants answered in January 2021, denying Plaintiff's allegations, and asserting that the court lacked subject matter jurisdiction because Plaintiff had failed to allege conduct that warranted an exception to the Industrial Commission's exclusive jurisdiction over workplace injuries. In July 2021, Plaintiff filed a motion for leave to amend its complaint to add allegations clarifying its claims, which was granted. Plaintiff filed its amended complaint in September 2021, which included a negligence claim against King Machine in addition to the previous allegations of willful negligence against each defendant. Defendants answered in October 2021, denying Plaintiff's allegations and reasserting that the court lacked subject matter jurisdiction to hear the case. Defendants filed motions to dismiss Plaintiff's complaint under North Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(6) in December 2021. After hearing the parties’ arguments, the trial court denied Defendants’ motions. Defendants appealed.

The record on appeal was settled on 22 April 2022. Defendants filed their principal brief on 8 July 2022. Plaintiff filed a supplement to the record on appeal on 4 August 2022 pursuant to North Carolina Rules of Appellate Procedure 9(b)(5), asserting that the settled record on appeal was insufficient to respond to the issues presented in Defendants’ brief. On 8 August 2022, Plaintiff filed its brief. Defendants subsequently moved to strike Plaintiff's 9(b)(5) supplement, arguing that the documents in the supplement were not appropriate additions to the record on appeal because they "were neither filed with the trial court, submitted to the trial court for consideration at the hearing, admitted by the trial court, or made the subject of an offer of proof[.]" Plaintiff also moved on 11 October 2022, pursuant to North Carolina Rules of Appellate Procedure 9(b)(5)(b) and 37, to add the transcript from the December 2021 hearing on Defendants’ motions to dismiss to the record on appeal; Defendants opposed the motion.

III. Discussion

A. Motions on Appeal

1. Defendants’ Motion to Strike Plaintiff's Rule 9(b)(5) Supplement to the Record on Appeal

Plaintiff's brief, filed four days after it filed the 9(b)(5) supplement, extensively referenced documents in the supplement. Defendants moved to strike the supplement, arguing that its contents were not appropriate additions to the record on appeal. Defendants further requested that this Court strike all references to the supplement in Plaintiff's brief.

Rule 9(b)(5)(a) of the North Carolina Rules of Appellate Procedure states, "If the record on appeal as settled is insufficient to respond to the issues presented in an appellant's brief ..., the responding party may supplement the record on appeal with any items that could otherwise have been included pursuant to this Rule 9." N.C. R. App. P. 9(b)(5)(a). Rule 9(d) states, "Exhibits and other items that have been filed, served, submitted for consideration, admitted, or made the subject of an offer of proof may be included in the record on appeal ...." N.C. R. App. P. 9(d).

It is well-settled that this Court may "only consider the pleadings and filings before the trial court ...." Twaddell v. Anderson , 136 N.C. App. 56, 68, 523 S.E.2d 710, 719 (1999). As Defendants argue, Plaintiff has failed to demonstrate that the documents in the 9(b)(5) supplement had been filed, served, submitted for consideration, admitted, or made the subject of an offer of proof. Accordingly, Defendants’ motion to strike the 9(b)(5) supplement and all references to its contents is allowed.

2. Plaintiff's Motion to Add the Hearing Transcript

After all briefs in this matter had been filed, Plaintiff moved pursuant to Rule 9(b)(5)(b) to add the transcript of the hearing on Defendants’ motions to dismiss to the record on appeal. Rule 9(b)(5)(b) states, "On motion of any party or on its own initiative, the appellate court may order additional portions of a trial court record or transcript sent up and added to the record on appeal." N.C. R. App. P. 9(b)(5)(b).

In support of its motion, Plaintiff argues that inclusion of the transcript will assist this Court's understanding of the issues and that no prejudice would result from the addition as both parties reference the hearing in their briefs. Defendants oppose the motion, arguing that, because all briefs had already been filed, Defendants would have no opportunity to respond to any issue raised by the introduction of the transcript. Defendants also argue that their proposed issues on appeal are the same issues presented in their brief, and thus good cause does not exist to add the transcript to the record after the record on appeal was settled.

After considering the parties’ arguments, in our discretion, we deny Plaintiff's motion to add the hearing transcript to the record on appeal.

B. Appellate Jurisdiction

The trial court's order denying Defendants’ motions to dismiss is not a final order and is therefore interlocutory. Veazey v. City of Durham , 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) ("An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.") A party generally has "no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp. , 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, an interlocutory order may be immediately appealable if the judgment affects a substantial right. N.C. Gen. Stat. § 7A-27(b)(3)(a) (2021). Our Supreme Court...