North Carolina: Workers’ Involved in “Ultra-hazardous” Activity May Not Sue Employers in Tort

A North Carolina appellate court held that the exclusive remedy provisions of the state’s Workers’ Compensation Act apply to bar civil actions against the employer for all employees—even those that are engaged in “ultra-hazardous” activity. Acknowledging that at common law, it might have been possible for such employees to sue the employer under a strict liability doctrine, the court stressed that there was no special carve out available to the plaintiff. Plaintiff also argued that allowing him to sue the employer would be a logical extension of the rule in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), in which the N.C. Supreme Court had adopted the “substantial certainty” exception to the exclusive remedy defense. The plaintiff here did not argue that he could meet the substantial certainly test, but rather that his blasting job was so hazardous that the employer ought to be held to a higher standard. The appellate court indicated that when the state’s General Assembly established the exclusive jurisdiction of the workers’ compensation system, it chose not to create the exception that the plaintiff sought from the courts. The court had no authority to override that legislative decision.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Fagundes v. Ammons Dev. Group, 2017 N.C. App. LEXIS 54 (Feb. 7, 2017)

See generally Larson’s Workers’ Compensation Law, § 100.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law