Larrimore v. Dillard, Inc.

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1317

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

T. VAN LARRIMORE, Employee,

Plaintiff

v. North Carolina

Industrial Commission

I.C. No. 458055

DILLARD, INC., Employer, ESIS,

Carrier,

Defendants.

Appeal by Defendants from opinion and award entered 26 June

2013 by the North Carolina Industrial Commission. Heard in the

Court of Appeals 10 April 2014.

Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by John F.

Ayers, III, of Counsel, for Plaintiff.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Paul C.

Lawrence, M. Duane Jones, and Adebola V. Lamikanra, for

Defendants.

DILLON, Judge.

Defendants Dillard, Inc. (Dillard) and ESIS appeal from an

opinion and award of the North Carolina Industrial Commission

(Commission) in which, pursuant to N.C. Gen. Stat. § 97-12, the

Commission increased T. Van Larrimore’s (Plaintiff’s) workers’

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compensation benefits by ten percent, for a previously

determined compensable injury, due to Dillard’s “willful

failure” to comply with various statutory safety regulations.

For the following reasons, we reverse.

I. Factual & Procedural Background

The record evidence as presented before the Commission

tended to show the following. Plaintiff was employed as a

clothing salesman at the Dillard’s retail location in Pineville,

North Carolina. The store’s escalators were generally

inoperative prior to the time the store opened to the public;

until that time, Plaintiff and other Dillard employees simply

walked up and down the stairs of the immobile escalators.

On 20 August 2004, Plaintiff arrived at work at

approximately 8:40 a.m., prior to the store’s scheduled opening

that day at 10:00 a.m. On that particular morning, a pit cover

had been removed from the bottom of one of the escalators,

exposing a hole that spanned the width of an escalator stair and

was more than four feet deep. Dillard had not notified its

employees that maintenance work was being performed in that

area; nor were there any safety barriers, cones, or warning

signs to demarcate the exposed pit. When Plaintiff descended

the aforementioned escalator, he failed to notice the exposed

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pit, fell into it, and was knocked unconscious. Plaintiff

resultantly sustained serious injury to his left leg, ribs, and

elbow. Security camera footage later revealed that a nearby

maintenance worker was present on the scene, but had turned his

back to speak with another individual and thus failed to warn

Plaintiff of the exposed pit.

Defendants conceded the compensability of Plaintiff’s

injuries, and Plaintiff has been receiving temporary total

disability benefits since 27 July 2006. Plaintiff has

experienced increasing medical and psychological problems and

has not worked at all since 2 May 2007. On 29 July 2011,

Plaintiff filed a request for a “10% penalty on [his] claim due

to [Dillard’s] failure to provide safety barriers around the

escalator shaft that [he] fell into.” By opinion and award

entered 26 June 2013, the Commission awarded Plaintiff “a ten

percent increase on [Plaintiff’s] weekly temporary total

disability compensation” pursuant to N.C. Gen. Stat. § 97-12 in

light of its determination that Dillard had “willfully” failed

to comply with a number of Occupational Safety and Health

Administration (OSHA) regulations. From this opinion and award,

Defendants appeal.

II. Analysis

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In accordance with our standard of review, we must

determine whether competence evidence supports the Commission’s

findings of fact and whether such findings, in turn, are

sufficient to support the Commission’s conclusions of law.

Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442, 640

S.E.2d 744, 748 (2007). Findings supported by competent

evidence are binding on appeal, “even if the evidence might also

support contrary findings. The Commission’s conclusions of law

are reviewable de novo.” Id. at 442-43, 640 S.E.2d at 748

(citations omitted).

Defendants contend that the Commission erred in increasing

Plaintiff’s workers’ compensation benefits by ten percent

pursuant to N.C. Gen. Stat. § 97-12. We agree.

N.C. Gen. Stat. § 97-12 provides for a ten percent increase

in workers’ compensation benefits where, inter alia, the

claimant can prove that his injury was “caused by the willful

failure of the employer to comply with any statutory requirement

. . . .” N.C. Gen. Stat. § 97-12 (2011) (emphasis added). “An

act is considered willful when there exists a deliberate purpose

not to discharge some duty necessary to the safety of the person

or property of another, a duty assumed by contract or imposed by

law[,]” Jenkins v. Easco Aluminum, 165 N.C. App. 86, 97, 598

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S.E.2d 252, 259 (2004) (citations and quotation marks omitted),

and OSHA regulations constitute “statutory requirements” for

purposes of N.C. Gen. Stat. § 97-12, Brown v. Kroger Co., 169

N.C. App. 312, 317-18, 610 S.E.2d 447, 451 (2005) (“[B]y virtue

of N.C. Gen. Stat. § 95–131(a), the requirements of 29 C.F.R.

1910.22(b)(1) are a ‘statutory requirement’ that brings [an

employee’s] injury and [an employer’s subsequent] citation

within the scope of N.C. Gen. Stat. § 97–12.”).

Here, the Commission concluded, in pertinent part, as

follows:

4. There are multiple relevant [OSHA] safety

regulations that apply to this claim under

29 C.F.R. § 1910.23(a), including the

following sections:

1910.23(a)(1)

Every stairway floor opening shall be

guarded by a standard railing constructed in

accordance with paragraph e . . . and shall

be provided on all exposed sides (except at

entrance to stairway).

1910.23(a)(3)

Every hatchway and chute floor opening shall

be guarded by one of the following:

1910.23(a)(3)(i)

Hinged floor opening cover of standard

strength and construction equipped with

standard railings or permanently

attached which leave only one side

exposed. When the opening is not in

use, the cover shall be closed or the

exposed side shall be guarded.

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1910.23(a)(5)

Every pit and trap door floor opening,

infrequently used, shall be guarded by a

floor opening cover of standard strength and

construction. While the cover is not in

place, the pit or trap opening shall be

constantly attended by someone or shall be

protected on all exposed sides by removable

standard railings.

1910.23(a)(6)

Every manhole floor opening shall be guarded

by standard manhole cover which need not be

hinged in place. While the cover is not in

place, the manhole opening shall be

constantly attended by someone or shall be

protected by removable standard railings.

1910.23(a)(7)

Every temporary floor opening shall have

standard railings, or shall be constantly

attended by someone.

1910.23(a)(8)

Every floor hole into which persons can

accidentally walk shall be guarded by

either:

1910.23(a)(8)(i)

A standard railing with standard toe

board on all exposed sides, or

1910.23(a)(8)(ii)

A floor hole cover of standard strength

and construction. While the cover is

not in place, the floor hole shall be

constantly attended by someone or shall

be protected by a removable standard

railing.

The escalator pit into which Plaintiff fell

meets the definition of “[f]loor opening.”

29 C.F.R. §1910.21(a)(2). Several of the 29

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C.F.R. §1910.23(a) safety regulations were

violated by [Dillard] on August 20, 2004[.]

. . . .

7. . . . [Dillard’s] failure to erect

warning barricades around and/or have an

employee constantly attend to a severely

hazardous open pit, in clear violation of 29

C.F.R. §1910.23(a), amounted to a deliberate

purpose not to discharge their statutory

duties and was therefore willful. That

[Dillard] in the case at hand, during every

other episode of escalator or elevator

maintenance had erected yellow safety

barriers that are four feet tall blocking

the escalator entrances, which barriers

would have physically prevented plaintiff

from entering the escalator at all, further

establishes willfulness in this case, as in

Jenkins, because at the time of the accident

there existed known safety measures that

would have prevented the accident.

Furthermore, the evidence . . . establishes

that the unprotected, unmarked, and

unguarded nature of the severe hazard was

noticeable by many employees working in that

area of the first floor of [Dillard’s] store

on the morning of 20 August 2004, yet was

not corrected prior to plaintiff’s fall.

Finally, [Dillard’s] incident report

indicated that the accident was caused by

“inadequate safety” measures, and, according

to the testimony of Mr. Chamochumbi [(a

long-time Dillard employee)], the erection

of barriers during the escalator maintenance

has continued to be a mandatory procedure.

. . . [P]laintiff has established the

willful failure of [Dillard] to comply with

applicable OSHA regulations, and that this

willful failure was the proximate cause of

plaintiff’s injuries on 20 August 2004.

Plaintiff is therefore entitled to a 10%

increase in the compensation paid and

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payable to him in this case under the Act.

(Citations omitted).

Defendants admit that OSHA violations occurred and that

such violations resulted in Plaintiff’s injuries. Defendants

contend, however, that the OSHA violations were, at most, due to

negligence, and were not “willful” in nature. In Jenkins, 165

N.C. App. 86, 598 S.E.2d 252, a case upon which the Commission

relied in support of its decision, the plaintiff’s fingers were

crushed by a brake press machine that lacked the proper metal

guards. Id. at 88, 598 S.E.2d at 254. This Court upheld the

Commission’s determination that the defendant-employer had

willfully violated OSHA regulations – thereby warranting penalty

under N.C. Gen. Stat. § 97-12 – where the evidence supported the

Commission’s findings that the employer had failed to bring the

brake press machine into compliance with the relevant OSHA

standards “even though [the employer] had been informed by at

least one employee of problems with the [brake press] machine”

and further found that the employer “had knowledge through its

employees . . . that some [of the brake press] machines were

inadequately guarded.” Id. at 97-98, 598 S.E.2d at 259

(emphasis added).

Here, the Commission determined that the evidence

“establishe[d] that the unprotected, unmarked, and unguarded

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nature of the severe hazard was noticeable by many employees

working in that area of the first floor of [Dillard’s] store on

the morning [of Plaintiff’s injury], yet was not corrected prior

to Plaintiff’s fall”; that “there existed known safety measures

that would have prevented the accident”; and that, aside from

the morning in question, Dillard had consistently implemented

safeguards to protect against such accidents. These

circumstances stand in stark contrast to those presented in

Jenkins, where the employer knew that its equipment was not in

compliance with the OSHA standards, but failed to take

appropriate steps to correct such deficiencies. In the present

case, the Commission found that Dillard had stationed a

maintenance worker at the exposed pit, thus meeting OSHA’s

standard that the opening “shall be constantly attended by

someone.” 29 C.F.R. § 1910.23(a)(7). The Commission found that

the maintenance worker had failed to warn Plaintiff of the

exposed pit, as he had diverted his attention away from the pit

to speak with another individual at the precise time that

Plaintiff was descending the escalator stairs. These findings

do not support a conclusion that Plaintiff’s injuries were

caused by a willful failure on Dillard’s part to comply with the

relevant OSHA regulations; rather, these findings indicate that

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Plaintiff’s injuries resulted from the negligence of the

maintenance worker tasked with attending the hazardous area, a

duty which, if properly discharged, would have brought Dillard

into conformity with the OSHA regulations. Accordingly, we hold

that the Commission’s conclusion that Dillard’s OSHA violations

were willful is unsupported by the Commission’s findings and,

therefore, that the Commission erred in penalizing Defendants

pursuant to N.C. Gen. Stat. § 97-12.

In light of the foregoing, the Commission’s 26 June 2013

opinion and award is hereby

REVERSED.

Judges STROUD and HUNTER, JR. concur.

Report per Rule 30(e).