Pastva v. Naegele Outdoor Advertising, Inc.

Judge Wynn

concurring.

I agree with the majority that this matter should be returned to the trial court because the pleadings allege sufficient facts to overcome a 12(b)(6) motion. However, the opportunity should not be lost to point out the continuing dilemma faced by our trial judges and litigators in trying to assess what is needed to set forth a Woodson claim.

In all candor, plaintiff’s victory may be short lived. In the four occasions that our Supreme Court has applied Woodson, the Court has not recognized a claim that would survive pretrial dismissal. In Pendergrass v. Card Care, Inc., 333 N.C. 233, 239 , 424 S.E.2d 391, 395 (1993), the Supreme Court upheld a Rule 12(b)(6) dismissal finding that plaintiffs allegations did not rise to the level of negligence defined in Woodson. Most recently in the trilogy of Mickles v. Duke Power Co., 343 N.C. 103 , 463 S.E.2d 206 (1995); Powell v. S & G Prestress Co., 342 N.C. 182, 463 S.E.2d 79 (1995); and, Echols v. Zarn, Inc., 342 N.C. 184 , 463 S.E.2d 228 (1995), the Supreme Court found that the claimants had failed to forecast evidence sufficient to set forth a Woodson claim and thus concluded that summary judgment was properly allowed in each case. Significantly, our Supreme Court rejected the Restatement of Tort’s bomb throwing example as an analogy for defining “substantial certainty,” explicitly finding that example defined “actual certainty” which is not required for a successful claim under the Woodson exception. Mickles, 342 N.C. at 110 , 463 S.E.2d at 211 .

In short, since creating the Woodson exception, the Court has consistently pointed out facts that do not establish a Woodson claim. However, it remains an uncertainty as to what facts do allege a Woodson claim sufficient to overcome pretrial dismissal. 1

At this point, as candidly recognized by the counsels during oral argument, we have the Woodson facts and nothing else. As I have *661 stated previously, “[a]fter establishing the ‘substantial certainty’ standard, the Woodson Court did not further define it, except as it found the Woodson facts met it.” Powell v. S & G Prestress Co., 114 N.C. App. 319, 328 , 442 S.E.2d 143, 148 (1994) (WYNN, J., dissenting), aff'd, 342 N.C. 182 , 463 S.E.2d 79 (1995). This in effect means that “the Woodson facts provide the authoritative understanding of ‘substantial certainty’ . . . .” See Id. The problem with this approach is borne out by the difficulty in finding facts that match those in Woodson. That is why we have a continuing dilemma — trial advocates are called upon to compare the facts in their case with those in Woodson, rather than seeking a determination of whether their particular facts meet the definition of “substantial certainty,” irrespective of the Woodson facts. The better approach would be to set forth a more articulate standard of law which would lend itself to an application of facts needed to overcome pretrial dismissal.

To be sure, even the Woodson facts appear to set forth conduct which could be construed as intentional. Whether the Supreme Court has really created a separate exception by the use of the language “substantial certainty” remains to be seen. In any event, the paradox put to trial judges and litigators and eventually to this Court, could easily be remedied by a decisive directive opinion from our Supreme Court. In addition to clarifying the meaning of the term “substantial certainty,” guidance could be gained from articulating factors that the trial court should consider in determining if the evidence is sufficient to be submitted to the jury, e.g., whether there were Federal and State Occupational Safety and Health Acts (OSHA) citations prior to the accident and if so, did the employer respond appropriately; whether the employer willfully failed to enforce either its own safety guidelines or safety measures required by OSHA; whether the employer willfully circumvented specified manufacturer’s safety rules; whether the employer through its supervising personnel had knowledge of the dangerous condition; whether the employer willfully failed to provide adequate safety training for inexperienced personnel; whether the employer was aware that the failure to use safety equipment created an inherently dangerous condition that would be substantially certain to lead to death or great injury; whether the employer required the worker to work without necessary safety equipment; whether the employer encouraged and permitted non-compliance with the safety rules among its employees; etc.

*662 In the alternative, our Supreme Court could revisit Woodson and declare that the employer’s conduct in that case was indeed intentional conduct — an already established exception to the Worker’s Compensation Act.

Regardless of which approach is taken, any direction is better than the uncertainty that currently exists with the state of the law on this issue. To paraphrase an observation made by Justice Stevens in a different context, 2 one need not use Justice Stewart’s classic definition of obscenity — “I know it when I see it” 3 — as an ultimate determinate of what is sufficient to allege a Woodson claim.

. Our Supreme Court has let stand a reversal by this Court of a Rule 12(b)(6) dismissal on the grounds that sufficient facts were alleged by a claimant to set forth a Woodson claim. See Regan v. Amerimark Building Products, Inc. 118 N.C. App. 328 , 454 S.E.2d 849 , disc. review denied, 340 N.C. 359 , 458 S.E.2d 189 (1995).

. Karcher v. Daggett, 462 U.S. 725, 755 , 103 S.Ct. 2653, 2672 , 77 L. Ed. 2d 133 (1983) (Stevens, J., concurring).

. Jacobellis v. Ohio, 378 U.S. 184, 197 , 84 S.Ct. 1676, 1683 , 12 L. Ed. 2d 793 (1964) (Stewart, J., concurring).