Opposition Brief — Stone v. North Carolina Department of Labor

3) FILED

OCT 3.0 1996

CLERK

In the SUPREME COURT, U.S.

Supreme Court of the United States

October Term, 1998

No. 98-378

JANET B. STONE. ef al..

Petitioners.

,

NORTH CAROLINA DEPARTMENT OF LABOR AND

NORTH CAROLINA DEPARTMENT OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH DIVISION,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of North Carolina

BRIEF IN OPPOSITION

MICHAEL F. EASLEY

North Carolina Attorney General

Reginald L. Watkins, Senior Deputy Attorney General

David Roy Blackwell,* Special Deputy Attorney General

Elisha Harry Bunting, Special Deputy Attorney General

Ralf F. Haskell, Special Deputy Attorney Genera!

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

Telephone: (919) 716-6900

*% ‘ounsel of Record

N

av \

TABLE OF CONTENTS

SE EE TARP UMNEU a oe ke co ce ku kak oe ccan iii

SPRPEROWY PURENIINEUUED sec cc vchcivececcheasnnen l

ey oR a RRP Na ie a gt GR Sara ae l

PRP MI ow cect es ccayces OEE ee OP Te 2

me mete yo MEE TERE ONE Ee ae 2

STATUTORY PROVISIONS INVOLVED ............ 2

PUA UMOEENE COE CUM GIROES 8 oc ceca ccaceieetens 3

A. THE PROCEEDINGS BELOW .............. 3

B. WH Wh ee Gi ose hoeb Si ckha ie ens 4

REASONS THE WRIT OUGHT NOT ISSUE .......... 6

I. PETITIONERS FAILED TO PROPERLY

RAISE, BEFORE THE SUPREME COURT

OF NORTH CAROLINA, THE ISSUE THEY

EMENOPTR EAP SEMPRE, cin cic cccesecces 6

Il. PETITIONERS DEMONSTRATE NO

CONFLICT BETWEEN THE DECISION

BELOW, THIS COURT’S DECISIONS, AND

THE DECISION IN IRVING V. UNITED

PE SCRE Rene CAL AwSe Reb kha 11

ii

CORPULAAIOIY, 6 coo b th ecnkbent dauesesr er 15

APPENDIX

Verified Claim of William Kelly, Jr.

CE RR TG, TOPS 66 a8 0 vee ee la

Verified Claim of Mildred Lassiter Moates

Of ART BG, TI0s | 05s 0 neh geen 35a

Motion to Dismiss Claim, Filed

NOWUINGE BE ENO sb Ke cnwccdscuesessewene 67a

ili

TABLE OF AUTHORITIES

CASES

Adams v. Robertson, 117 S. Ct. 1028 (1997) ....

Irving v. United States, Nos. 96-2368

and 96-2369, 1998 WL 152941

(1st Cir. Apr. 8, 1998), opin. withdrawn,

146 F.3d 12 (Ist Cir. June 8, 1998) ......

New York ex rel. Bryant v. Zimmerman,

UUM Scie s ct ccs ce ccsse

Standard Oil Co. v. Johnson,

ee EERE no ens cipecreesccce

Stone v. North Carolina Dep't of Labor,

347 N.C. 473, 495 S.E.2d 711 (1998) ....

United States v. Muniz, 374 U.S. 150 (1963) ....

STATUTES

28 U.S.C. § 1257 (1988 & Supp. 1998) ........

ROR TOR yO) 0) re kee

Be Aes BOO MOI) (LIPO) 6. cece cece

nae Ope

29 U.S.C. § 667 (1990) ....... i audeei. sc 8,9,11,12

29 USC. § GGMe) (ISRO 51 ons ced ceca cee 12

N.C. GEN. STAT. § 1A-1, Rule 12(b)(1),

CE ONE ekg Sobek sy Se Re CR Lae weds 3

N.C. GEN. STAT: § DOSE CIGOT oR OTK OE 8,9,10

N.C. GEN. STAT. § 143-291 ef seq (1996) ...... 8,9,10,11

N.C. GEN. STAT. § 143-291(a) (1994) ................. 2

No. 98-378

In the

Supreme Court of the United States

October Term, 1998

JANET B. STONE, ef al.,

Petitioners,

Vz.

NORTH CAROLINA DEPARTMENT OF LABOR AND

NORTH CAROLINA DEPARTMENT OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH DIVISION,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of North Carolina

BRIEF IN OPPOSITION

QUESTION PRESENTED

Petitioners’ statement of the Question Presented

satisfies Respondents.

LISTING OF PARTIES

Petitioners’ listing of the parties satisfies the

Respondents.

2

OPINIONS BELOW

Petitioners accurately cite the Court to the opinions

below.

JURISDICTION

Petitioners’ citation of jurisdiction satisfies the

Respondents, although Respondents contend that Petitioners

fail to establish jurisdiction.

STATUTORY PROVISIONS INVOLVED

In addition to the statutory provisions cited by

Petitioners, the Respondents contend the issue presented

involves the following statutory provisions:

29 U.S.C. § 653(b)(4) of the Occupational Safety and

Health Act provides that “[nJothing in this Act shall be

construed to supersede or in any manner affect any workmen’s

compensation law or to enlarge or diminish or affect in any

other manner the common law or statutory rights, duties, or

liabilities of employers and employees under any law with

respect to injuries, diseases, or death of employees arising out

of, or in the course of, employment.”

N.C. GEN. STAT. § 143-291(a) governing tort claims

against state departments and agencies, provides, in relevant

part, that “[t]he Industrial Commission shall determine whether

3

or not each individual claim arose as a result of the negligence

of any officer, employee, involuntary servant or agent of the

State while acting within the scope of his office, employment,

service, agency or authority, under circumstances where the

State of North Carolina, if a private person, would be liable to

the claimant in accordance with the laws of North Carolina.”

STATEMENT OF THE CASE

A. THE PROCEEDINGS BELOW

Each of the one hundred eight (108) petitioners timely

. filed a verified affidavit of claim with the North Carolina

Industrial Commission pursuant to the North Carolina Tort

Claims Act, N.C. GEN. STAT. § 143-291 ef seg. The

Respondents timely moved to dismiss for lack of jurisdiction

over the subject and person as well as for failure to state a

claim upon which relief may be granted pursuant to N.C. GEN.

STAT. § 1A-1, Rule 12(b)(1), (2) and (6). (App. at 67a) The

Deputy Commissioner, on 12 June 1995, denied the motion,

and the Respondents appealed to the Full North Carolina

Industrial Commission. On 19 December 1995, the

Commission affirmed the decision of the Deputy

Commissioner.

Respondents timely appealed to the North Carolina

Court of Appeals. On 4 February 1997, that court affirmed the

North Carolina Industrial Commission. Respondents then filed

a Petition for Discretionary Review with the Supreme Court of

4

North Carolina. The Supreme Court of North Carolina granted

the petition on 5 June 1997 and, following briefing and

argument, filed its opinion on 6 February 1998. Petitioners

timely petitioned for rehearing on 13 March 1998. The

Supreme Court of North Carolina denied rehearing on 2 April

1998.

B. THE FACTS

The Supreme Court of North Carolina noted that the

case appeared before it upon a motion to dismiss» That court

examined the verified claims and found the following facts:

Because these claims arise upon

defendants’ motions to dismiss, we treat

plaintiffs’ factual allegations, which follow, as

true. See Sorrelis v. M.Y.B. Hospitality

Ventures of Asheville, 332 N.C. 645, 646, 423

S.E.2d 72, 72 (1992). On 3 September 1991 a

fire started in a hydraulic line near a deep fat

fryer in the Imperial Foods Products chicken

plant (the plant) in Hamlet, North Carolina.

The fire grew in intensity and spread rapidly

through the interior of the plant. Plaintiffs are

either former employees of Imperial Foods who

suffered injury in the fire or personal

representatives of the estates of employees who

died in the fire. They or their decedents

(plaintiffs) were lawfully inside the plant at the

a eT a TTY

5

time of the fire. Plaintiffs could not easily

escape the plant or the fire because the exits in

the plant were unmarked, blocked, and

inaccessible. After the fire the North Carolina

Department of Labor and its Occupational

Safety and Health Division (defendants)

conducted their first and only inspection in the

plant’s eleven-year history of operation. As a

result of this inspection, defendants discovered

numerous violations of the Occupational Safety

and Health Act of North Carolina (OSHANC),

including the plant’s inadequate and blocked

exits and inadequate fire suppression system.

Defendants issued eighty-three citations against

Imperial Foods Products for violations of

OSHANC standards. Plaintiffs alleged, inter

alia, that defendants had a duty under

OSHANC to inspect the plant, defendants

breached that duty by failing to inspect until

after the fire, defendants’ breach caused

plaintiffs’ injuries or deaths, and plaintiffs’

injuries or deaths entitle them to damages in

tort.

Stone v. North Carolina Dep't of Labor, 347 N.C. 473, 477,

495 S.E.2d 711, 713 (1998). Each of the one hundred eight

(108) verified claims alleged essentially the same facts. A

representative claim alleging a wrongful death appears in the

6

Appendix to this brief at pages la-34a. A representative claim

alleging personal injury appears at pages 35a-65a.

REASOiS THE WRIT OUGHT NOT ISSUE

I. PETITIONERS FAILED TO PROPERLY RAISE,

BEFORE THE SUPREME COURT OF NORTH

CAROLINA, THE ISSUE THEY PRESENT TO

THIS COURT.

Petitioners ask this Court to decide:

Did the Supreme Court of North

Carolina violate the Federal OSHA Act when it

concluded that the State of North Carolina

could not be held liable for negligently

enforcing its OSHA program on the ground that

its OSHA enforcement authorities owed no

duties to individual workers injured by their

negligence?

(Petition at i.) Petitioners assert that, in conjunction with the

Federal Tort Claims Act (United States Code Title 28, Chapter

171) and specifically 28 U.S.C. § 2674:

The key to this case is the proposition that

defendants can have no lesser duties than the

federal government would have if it were

operating the occupational safety and health

7

program in North Carolina. 29 U.S.C.S. § 667

(1990).

(Petition at 21.) The Supreme Court of North Carolina never

addressed this issue, and Petitioners failed to present this issue

to that Court. Petitioners establish no jurisdictional federal

question required by 28 U.S.C. § 1257.

This Court reviews state court judgments pursuant to 28

U.S.C. § 1257 only when the case presents a clear federal

question. As this Court noted:

With ‘very rare exceptions,’ Yee v. Escondido,

503 U.S. 519, 533, 112 S.Ct. 1522, 1531, 118

L.Ed.2d 153 (1992), we have adhered to the

rule in reviewing state court judgments under

28 U.S.C. § 1257 that we will not consider a

petitioner’s federal claim unless it was either

addressed by, or properly presented to, the state

court that rendered the decision we have been

asked to review.

Adams v. Robertson, 117 8. Ct. 1028, 1029 (1997). This Court

assumes that Petitioners failed to raise the federal question

when the state court record stands silent on the issue. To defeat

this assumption, Petitioners must demonstrate that the state

court possessed a fair opportunity to address the federal

question presented in the Petition by showing that they

presented the federal claim with fair precision and in due time.

8

Id. at 1030. The Petitioners clearly fail to do so. The record in

the Supreme Court of North Carolina reveals no presentation of

this federal issue.

The Supreme Court of North Carolina never addressed

any federal question in this matter. That court considered this

case as a State tort claim sounding in negligence filed against an

agency of the State of North Carolina pursuant to N.C. GEN.

STAT. §143-291 et seg. This negligence action rested upon the

breach of an alleged duty imposed by N.C. GEN. STAT. § 95-4

(setting forth the authority, powers and duties of the North

Carolina Commissioner of Labor). The Supreme Court of

North Carolina noted that “[p]laintiffsassert that the defendants

owed each claimanta duty under N.C.G.S. § 95-4 to inspect the

Imperial Foods Products plant.” (Petition App. at 11a) In its

opinion, the court below never discussed the applicability to

these claims of any federal statute, and Petitioners point this

Court to nothing before the Supreme Court of North Carolina

which asserted, as they argue here for the first time, that 29

U.S.C. § 667 through the Federal Tort Claims Act requires

North Carolina to recognize a tort claim in favor of individual

workers against the North Carolina Department of Labor for

the failure to prevent job site injuries.

Petitioners assert that the necessary effect of the North

Carolina court’s judgment was to deny the federal claim. Thus,

pursuant to New York ex rel. Bryant v. Zimmerman, 278 U.S.

63, 67 (1928), Petitioners contend they asserted a federal

question now ripe for review by this Court. New York ex rel.

9

Bryant v. Zimmerman involved a constitutional challenge to a

state statute in a habeas proceeding in which the Petitioner

unequivocally asserted a Fourteenth Amendment challenge to

a state statute. The lower of the two state appellate courts

practically rested its decision upon a prior federal case in which

this Court had sustained an equal protection clause challenge to

a New York statute. /d. at 68-69. While New York’s highest

appellate court never mentioned the Fourteenth Amendment in

its opinion, it discussed the case “as if it were considering the

identical claim of invalidity” raised by the petitioner in the

lower state appellate court. /d at 69. Thus, this Court

concluded that Zimmerman properly raised the federal claim.

Here, the record is very different. The Supreme Court

of North Carolina discussed this case only in terms of N.C.

GEN. STAT. § 143-291 ef seg. and N.C. GEN. STAT. § 95-4.

This discussion is consistent with the North Carolina Court of

Appeals’ treatment of the matter. Furthermore, Petitioners

never argued before the Supreme Court of North Carolina that

because, under the Federal Tort Claims Act, workers could

bring a claim for negligent inspection against federal OSHA,

29 U.S.C. § 667 mandated that workers must possess the right

to bring a similar claim pursuant to N.C. GEN. STAT. § 143-291

et seq. against the North Carolina Department of Labor,

Division of Occupational Safety and Health. Thus, the

presumption remains that Petitioners failed to properly present

the federal issue in the court below.

10

Petitioners also assert, citing Standard Oil Co. v.

Johnson, 316 U.S. 481 (1942) that the North Carolina Supreme

Court failed to base its decision upon an adequate and

independent state ground. In Standard Oil, the Supreme Court

of the State of California construed an exemption to-a statute

imposing a state motor vehicle fuel license tax. The California

statute imposed the license tax, measured by gallonage, on the

privilege of distributing any motor vehicle fuel. The statute

exempted from taxation any fuel sold “to the government of the

United States or any department thereof for official use of said

government.” Standard Oil sold fuel to army post exchanges,

and filed suit challenging the constitutionality of the statute if

construed as imposing a tax upon sales to army post exchanges.

Id. at 482.

The Supreme Court of California interpreted the

California statute and determined that army post exchanges did

not constitute the government of the United States or any

department thereof. Thus, Standard Oil was not exempt from

paying the tax upon motor vehicle fuel sold to army post

exchanges.

This Court found a federal question determined by a

state court and subject to review. The California Court, in

deciding the case, determined the relationship between the

government of the United States and post exchanges. Thus, the

decision involved a federal question, not a state law

determination. /d. at 483

1]

Here, the Supreme Court of North Carolina decided this

matter solely upon the North Carolina Tort Claims Act, N.C.

GEN. STAT. § 143-291 ef seq., as well as N.C. GEN. STAT. §

95-4 and North Carolina substantive tort law. Nothing in that

determination of necessity involved a consideration of 29

U.S.C. § 667 or the Federal Tort Claims Act. Thus, Standard

Oil stands inapplicable to a determination of jurisdiction in this

matter.

Petitioners clearly failed to raise in the North Carolina

Supreme Court the purported federal question upon which they

now seek review. This Court should deny the writ.

Il. PETITIONERS DEMONSTRATE NO

CONFLICT BETWEEN THE DECISION

BELOW, THIS COURT’S DECISIONS, AND

THE DECISION IN IRVING V. UNITED STATES.

Petitioners assert that the Supreme Court of North

Carolina’s decision here conflicts with the decision of the

United States Court of Appeals for the First Circuit in Irving v.

United States, Nos. 96-2368 and 96-2369, 1998 WL 152941

(ist Cir. Apr. 8, 1998), opin. withdrawn, 146 F.3d 12 (1st Cir.

June 8, 1998). Pursuant to the Federal Tort Claims Act, Irving

asserted injury based upon a negligent inspection conducted by

federal Occupational Safety and Health inspectors at a New

Hampshire work site. Applying substantive New Hampshire

tort law, the circuit court allowed recovery. Relying upon

Irving, Petitioners contend that, because 29 U.S.C. § 667

requires a state occupational safety and health program to be as

12

effective as the federal program, the Supreme Court of North

Carolina violated 29 U.S.C. § 667 by disallowing claims for

negligent inspection by state inspectors under the North

Carolina Tort Claims Act (N.C. GEN. STAT. § 143-291 ef seq.).

In their Supplemental Brief, Petitioners inform the Court that

the First Circuit, sitting en banc, ordered the 8 April 1998

Irving opinion withdrawn. See 146 F.3d 12. Petitioners argue,

however, that the Supreme Court of North Carolina’s opinion

still conflicts with the law as set forth in earlier Jrving opinions

and as established by other authorities. (Supp. Petition at 6.)

A review of the /rving opinions and other authorities reveals no

conflict. This Court should deny the writ.

As the lynchpin of their argument, Petitionersassert that

29 U.S.C. § 667 imposes upon the Respondents a duty to the

Petitioners, enforceable in tort, to provide an OSHA program

at least as effective as the federal program. 29 U.S.C. § 667

merely sets forth the conditions upon which the Secretary of

Labor shall approve a state plan for OSHA enforcement. See

29 U.S.C. § 667(c)(1990). Any duties a state OSHA program

might owe under that statute clearly stand owed only to the

Secretary of Labor, not to individual workers in North

Carolina. In fact, a review of the entire Occupational Safety

and Health Act reveals no language to suggest that Congress,

by that enactment, intended to affect state tort law and provide

workers a right to sue state agencies in tort for asserted

inadequacies of a state occupational safety and health program.

Indeed, 29 U.S.C. § 653(b)(4) strongly suggests that Congress

mever intended the Occupational Safety and Health Act to

13

affect state tort law in any manner. Petitioners cite this Court

no authority suggesting otherwise. Thus, Petitioners’ argument

fails. :

No law in the prior /rving opinions conflicts with the

law enunciated here by the Supreme Court of North Carolina.

Irving’s federal tort claim rested upon an allegedly negligent

inspection by federal OSHA inspectors of a New Hampshire

work site. 28 U.S.C. § 2674 provides that the United States

shall be liable “in the same manner and to the same extent as a

private individual under like circumstances” In short, the

substantive law of the state which is the site of the alleged

wrongful conduct governs claims under the Federal Tort

Claims Act. See United States v. Muniz, 374 U.S. 150 (1963).

A federal court deciding a federal tort claim arising in North

Carolina would apply North Carolina substantive tort law,

while a federal court deciding a tort claim arising in New

Hampshire would apply New Hampshire substantive tort law.

Significantly,in the now withdrawn opinion, the /rving

court applied substantive New Hampshire tort law and found

liability for the negligent inspection based upon New

Hampshire’s Good Samaritan doctrine. In its 8 June 1998

Order withdrawing the April Opinion, the First Circuit ordered:

The issues for en banc review include both the

applicability of the Federal Tort Claims Act and

its discretionary function exception, and the

question of whether New Hampshire law

14

(particularly that state’s Good Samaritan

doctrine) would hold a private actor liable under

the circumstances of this case.

Thus, recovery for the plaintiff in /rving rests upon New

Hampshire substantive tort law as well as the effect of the

discretionary function exception found in the federal tort claims

statutes. Nothing in the withdrawn /rving opinion, nor in the

earlier opinions, suggests that the federal Occupational Safety

and Health Act itself creates any duty owed to individual

workers enforceable in tort.

In Stone, the Supreme Court of North Carolina applied

North Carolina tort law to a state tort claim, just as a United

States District Court would apply North Carolina tort law to a

claim under the Federal Tort Claims Act where the allegedly

wrongful act occurred in North Carolina. «Such law includes

the common law public duty doctrine. Petitioners fail to

demonstrate how the result in this matter would have been

different had the Federal Occupational Safety and Health

Administration failed to inspect the Imperial Food Products

North Carolina facility and had the Petitioners sued under the

Federal Tort Claims Act. The difference between the /rving

result with the result here reflects the nature of our federal

system, not a violation of federal law. Nothing in the decision

here appears inconsistent with the now withdrawn decision in

Irving.

- wart PEERS aa

+ : .,

15

CONCLUSION

Petitioners establish no federal question reviewable by

this Court. The Supreme Court of North Carolina properly

applied North Carolina law. Petitioners demonstrate no

conflict with any federal statute. This Court should deny the

writ.

Respectfully submitted,

MICHAEL F. EASLEY

North Carolina Attorney General

Reginald L. Watkins

Senior Deputy Attorney General

David Roy Blackwell*

Special Deputy Attorney General

Elisha Harry Bunting

Special Deputy Attorney General

Ralf F. Haskell

Special Deputy Attorney General

October 30, 1998 *Counsel of Record

APPENDIX

TABLE OF CONTENTS

Verified Claim of William Kelly, Jr.

eS 8 EAR nr nt Sir la

Verified Claim of Mildred Lassiter Moates

RE C55 hoes Waa whe sb Oe sve eens 35a

Motion to Dismiss Claim, Filed

i wk deeeiaescaswbacecaave 67a

la

VERIFIED CLAIM OF WILLIAM KELLY, JR. AS FILED

AUGUST 24, 1993

NORTH CAROLINA INDUSTRIAL COMMISSION

1.C. NO. TA-13053

WILLIAM KELLY, JR..,

Administrator of the Estate of

BRENDA -~— GAIL KELLY,

Deceased,

VERIFIED CLAIM

Claimant,

NORTH CAROLINA

DEPARTMENT OF LABOR, and

NORTH CAROLINA

DEPARTMENT OF LABOR,

DIVISION OF OCCUPATIONAL

)

)

)

)

)

)

)

)

)

)

)

)

)

)

SAFETY AND HEALTH, )

)

)

Defendants.

Claimant, William Kelly, Jr., by and through his

undersigned counsel, alleges and says as follows:

THE PARTIES AND DEFENDANTS’ OFFICERS,

EMPLOYEES AND AGENTS

l. Claimant, William Kelly, Jr., is the duly

authorized administrator of the estate of Brenda Gail Kelly,

deceased, and is a resident of Richmond County, North

2a

KELLY VERIFIED CLAIM, CONTINUED...

Carolina. A copy of the Letters of Administration certifying

William Kelly, Jr., as the administrator of the estate of Brenda

Gail Kelly is attached as Exhibit A, Letters of Administration,

Richmond County, 91-E-219.

y Defendant the North Carolina Department of

Labor (sometimes “D.O.L.”) is a political subdivision of the

State of North Carolina.

3. Defendant the Division of Occupational Safety

and Health, also known as the Office of Occupational Safety

and Health (sometimes “North Carolina OSHA”) is a political

subdivision of the State of North Carolina and is an office

within the North Carolina Department of Labor responsible for

promulgation and enforcement of workplace safety standards,

and for the performance of duties under the occupational Safety

and Health Act of North Carolina (sometimes “OSHANC”) and

other applicable laws.

4 Consistent with the mandate of N.C.G.S. 143-

297 and other applicable law, claimant identifies by name in

the following paragraphs the State employees upon whose

negligence the claims stated herein are based. Claimant

identifies these persons without prejudice to his right to name

other individuals whose negligence may be revealed through

discovery as supporting claims under the Tort Claims Act.

3a

KELLY VERIFIED CLAIM, CONTINUED. ..

4: At times relevant to this action, John C. Brooks

was the Commissioner of the North Carolina Department of

Labor acting as an officer, employee and agent for defendants

D.O.L. and North Carolina OSHA (sometimes jointly

“defendants”) acting in the scope of his office, employment,

service, agency and authority and having responsibilities for the

enforcement of OSHANC, including at the Imperial Food

Products, Inc. plant at 40 Bridges Street, Hamlet, Richmond

County, North Carolina (sometimes “Hamlet plant’).

6. Upon information and belief, at times relevant

to this action, Michael D. Ragland was Deputy Commissioner

of Health and Safety of D.O.L. and was an officer, employee

and agent of defendants acting in the scope of his office,

employment, service, agency and authority and having

responsibilities for the enforcement of OSHANC, including at

the Hamlet plant.

»f Upon information and belief, at times relevant

to this action, James A. Oppold was the Director of North

Carolina OSHA and an officer, employee and agent of

defendants acting in the scope of his office, employment,

service, agency and authority and having responsibilities for the

enforcement of OSHANC including at the Hamlet plant.

8. Upon information and belief, at times relevant

to this action, Richard Amos was a Bureau Chief with North

Carolina OSHA and was an officer, employee and agent of

ae

4a

KELLY VERIFIED CLAIM, CONTINUED. ..

defendants acting in the scope of his office, employment,

service, agency and authority, and having responsibilities for

enforcement of OSHANC, including at the Hamlet plant.

9. Upon information and belief, at times relevant

to this action, Frank Trogdon was District Safety Supervisor

with North Carolina OSHA and was an officer, employee and

agent of defendants acting within the scope of his office,

employment, service, agency and authority and having

responsibilities for enforcement of OSHANC, including at the

Hamlet plant.

10. Upon information and belief, at times relevant

to this action, David Poole, Charles W. Johnson, J. A. Bolton,

and Douglas Jones were Compliance Safety and Health

Officers with North Carolina OSHA and were officers,

employees and agents of defendants acting within the scope of

their offices, employments, services, agencies and authorities

and having responsibilities for enforcement of OSHANC,

including at the Hamlet plant.

11. | Upon information and belief, at times relevant

to this action Roseanne Morgan was a Health Supervisor and

was an officer, employee and agent of defendants acting within

the scope of her office, employment, service, agency and

authority, and having responsibilities for enforcement of

OSHANC, including at the Hamlet plant.

Sa

KELLY VERIFIED CLAIM, CONTINUED. ..

12. Upon information and belief, at times relevant

to this action Tom Hayes and Rodger Griffin were officers,

employees and agents of defendants acting in the scope of their

offices, employments, services, agencies and authorities, and

having responsibilities for enforcement of OSHANC,

including at the Hamlet plant.

JURISDICTION

13. Pursuant to N.C.G.S. §143-291, the North

Carolina Industrial Commission is constituted a court for the

purpose of hearing and passing upon tort claims against all

departments, institutions and agencies of the State, including

the defendants. .

THE IMPERIAL FOOD PRODUCTS FIRE

14. __‘ This action arises out of the negligent failure of

the defendants to discharge duties of safety owed to the

decedent, Brenda Gail Kelly, said negligence also amounting

to an unreasonable, oppressive and manifest abuse of discretion

and being a direct and proximate cause of the September 3,

1991 fire at the Hamlet, North Carolina, plant of Imperial Food

Products Inc., which killed at least twenty-five (25) people,

including Brenda Gail Kelly and injured at least fifty-six (56)

others.

6a

KELLY VERIFIED CLAIM, CONTINUED. ..

15. On September 3, 1991, the decedent Brenda

Gail Kelly was an employee of Imperial Food Products, Inc.,

working at a chicken processing plant located in Hamlet,

Richmond County, North Carolina. She worked in the

packaging department.

16. On that date a fire developed in the processing

area at the Imperial Foods plant in Hamlet.

17. Upon information and belief, a hydraulic line

near a deep fat fryer in the processing section of the plant

ruptured, igniting hydraulic fluid just a few feet away from a

natural gas fume cooker used in chicken preparation and

spraying the flammable hydraulic fluid at high pressure against

the floor and the nearby cooker.

18. Upon information and belief, the fire, which

grew in intensity and spread rapidly through the interior and

various work areas of the plant, caused a spread of toxic gases

and black smoke throughout the building.

19. The decedent Brenda Gail Kelly was killed by

this fire. Between the time of the fire and the time of her death

due to smoke inhalation and flames, the decedent Brenda Gail

Kelly incurred extreme pain and suffering from the flames and

smoke inhalation and underwent horrific terror and mental

anguish in an effort to escape from the building.

7a

KELLY VERIFIED CLAIM, CONTINUED. ..

20. This fire was one of the worst industrial

disasters in American history, and could and should have been

prevented by defendants adequately enforcing workplace safety

laws enacted for the protection of the decedent Brenda Gail

Kelly.

21. Defendants negligently failed to fulfill their

duties and unreasonably, oppressively 2n< manifestly abused

their discretion by not taking steps which they were legally

required to take to protect the decedent Brenda Gail Kelly.

22. | Upon informationand belief, the defendants for

the first time inspected the Hamlet plant after the September 3,

1991 fire, and from the ruins of the plant and charred remains

of the fire victims determined that Imperial Food Products,

Inc’. had conditions in violation of OSHANC leading to the

issuance of fifty-four (54) citations for willful violations of

OSHANC standards, twenty-three (23) citations for serious

violations of OSHANC standards, and six (6) citations for other

than serious violations of OSHANC s‘andards, resulting in

penalties being assessed against Imperial Foods totalling

$808,150. RB Stes

23. The death of Brenda Gail Kelly was a direct and

proximate result of the negligent breach by the defendants of

statutory, regulatory, and common law duties described herein,

and amounted to an unreasonable, oppressive and manifest

abuse of discretion.

8a

KELLY VERIFIED CLAIM, CONTINUED. ..

THE DUTIES AND THE NEGLIGENT ACTS

AND OMISSIONS OF THE DEFENDANTS

24. Defendants owed duties to the decedent Brenda

Gail Kelly and to William Kelly, Jr., administrator of her

estate, which were imposed by federal and state statutes and

regulations and by the common law, and which defendants

negligently breached proximately and directly causing the

death of Brenda Gail Kelly and causing the claimant to suffer

damages, amounting to an unreasonable, oppressive and

manifest abuse of defendants’ discretion. The claimant

incorporates the allegations contained in paragraphs | through

23 of this Verified Claim herein, and makes additional

allegations below.

Duties of Defendants

25. In 1970, the Congress of the United States

enacted and the President of the United States signed into law

the Occupational Safety and Health Act of 1970, codified at 29

U.S.C. §651 et seg. (sometimes “Federal OSHA Act”).

26. Under 29 U.S.C. §667, a section of the Federal

OSHA Act, a state may assume responsibility for development

and enforcement of occupational safety and health standards on

certain terms and conditions, provided that the state’s program

(sometimes “State OSHA Program”) is or will be at least as

effective in providing safe and healthful employment and

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KELLY VERIFIED CLAIM, CONTINUED. ..

places of employment as the standards promulgated by

Congress and the United States Department of Labor under the

Federal OSHA Act.

27. Under 28 U.S.C. §667, a State OSHA Program

must provide sufficient legal authority and qualified personnel

necessary for enforcement of such standards.

28. Under 28 U.S.C. §667, a State OSHA Program

must have adequate funds devoted to the administration and

enforcement of such standards.

29. Under the Federal OSHA Act and relevant

federal regulations, including 29 C.F.R. §1901.1 ef seg, it is the

continuing duty of those states with a State OSHA Program to

provide safety standards, funding, and enforcement at least as

effective as the standards, funding and enforcement provided

by the Federal OSHA Act and the regulations promulgated

thereunder.

30. Pursuant to federal regulations located at 29

CFR §1901.1 et seq, a state which has adopted a State OSHA

Program must maintain adequate funding and may not diminish

its level of enforcement activity below that existing at the time

of the agreement with the federal government leading to

adoption of a State OSHA Program.

4

;

4

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KELLY VERIFIED CLAIM, CONTINUED...

31. Under 29 U.S.C. §667 and 29 C.F.R. §1901.1

state with a State OSHA Program must provide for the

development and enforcement of such standards as wili be at

least -as effective in providing safe and healthful employment

and places of employment as the standards promulgated by

Congress and the United States Department of Labor, and state

agents responsible for execution of such programs must have

sufficient legal authority to enforce these standards.

32. Under29 U.S.C. §667and 29 C.F.R. §1902.3 ef

seq, states which have adopted State OSHA Programs are

required to have a sufficient number of adequately trained and

qualified personnel necessary for the enforcement of standards

to be at least as effective as under the Federal OSHA Act.

33. Under 29 C.F.R. §1902.3 et seq states which

have accepted State OSHA Programs are required to provide

sufficient funds to make enforcement of their plans as effective

as enforcement of the Federal OSHA Act.

34. | OnJanuary 26, 1973, North Carolina’sproposed

plan for adopting and enforcing workplace safety and health

regulations under a State OSHA Program received initial

approval.

35. On October 6, 1976, the North Carolina State

OSHA Program plan was certified as having completed all

developmental steps.

On TERE MIR aT oy te eer

lla

KELLY VERIFIED CLAIM, CONTINUED. ..

36. Under N.C.C.S. §95-126(b)(2)m, the North

Carolina Department of Labor is designated as the agency

required by law to administer OSHANC.

37. N.C.G.S. §99-133 creates and establishes within

the North Carolina Department of Labor a division known as

the office of Occupational Safety and Health (sometimes called

“North Carolina OSHA” herein).

38. Under N.C.G.S. §95-133, the Commissioner of

Labor is required by law to appoint a Director to administer

North Carolina OSHA, subject to the direction and supervision

of the Commissioner of Labor.

39. Under N.C.G.S. §95-133, the Director has the

legal duty to carry out the responsibilitiesof the State under the

State OSHA Program.

40. Under N.C.G.S. §99-133, the Director, subject

to the approval of the Commissioner of Labor, is required to

select a professional staff of qualified and competent

employees to assist in the state-wide administration of

OSHANC.

41. Under N.C.G.S. §95-133, subject to the general

supervision of the Commissioner of Labor, the Director is

made legally responsible for the administration and

enforcement of laws, rules and regulations which it is the duty

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KELLY VERIFIED CLAIM, CONTINUED. ..

of North Carolina OS.HA to administer and enforce, including

the power, jurisdiction and authority to, among other actions,

do the following: (1) uniformly superintend, enforce and

administer applicable occupational safety and health laws of the

State of North Carolina; (2) make or cause to be made all

necessary inspections, analyses and research for the purpose of

seeing that all laws and rules and regulations which the office

has the duty, power and authority to enforce are promptly and

effectively carried out; (3) make all necessary investigations,

develop information and reports upon conditions of employee

safety and health, and upon all matters relating to the

enforcement of this Article and all lawful regulations issued

thereunder; and (4) issue all types of notices, citations, orders,

and other pleadings, forms and notices necessary to enforce

compliance with OSHANC.

42. Under N.C.G.S. §95-4, the North Carolina

Commissioner of Labor is required to appoint such employees

in the various divisions of the Department of Labor as may be

necessary to perform the work of the Department.

43. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to make such rules and regulations as shall be

necessary to properly carry out the duties imposed upon the

Commissioner and the Department.

44. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to secure the enforcement of all laws relating

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KELLY VERIFIED CLAIM, CONTINUED. ..

to the inspection of factories, mills, workshops, and other

institutions and to appoint inspectors.

45. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to inspect or cause to be inspected as often as

practicable the factories and other establishments in this State

where goods, wares or merchandise are manufactured,

purchased or sold.

46. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to enforce the laws and prosecute violation of

the laws relating to such inspections.

47. Under N.C.G.S. §95-136, to carry out the

purpose and duties of OSHANC, the Commissioner of Labor,

the Director of North Carolina OSHA, and their duly

authorized agents are entitled to inspect workplaces and

investigate whether violations of OSHANC exist.

48. UnderN.C.G.S. §95-137, the Director of North

Carolina OSHA or his authorized representative has a duty to

issue citations to an employer where there are reasonable

grounds to believe that the employer has not fulfilled his duties

as prescribed in OSHANC and the rules and standards

promulgated thereunder.

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l4a

KELLY VERIFIED CLAIM, CONTINUED. ..

49. Under N.C.G.S. §95-138 and §95-139, civil and

criminal penalties are established for employer violations of

OSHANC.

50. Under N.C.G.S. §95-146, the Commissioner of

Labor is required to furnish to the United States Secretary of

Labor information and assurances that the State OSHA

Program, North Carolina OSHA, is being administered by

adequate methods and by standards and enforcement

procedures which are and will continue to be as effective as

federal standards.

51. Under N.C.G.S. §95-150, the Commissioner of

Labor is required to submit to the General Assembly a budget

and request for appropriations to administer adequately the

Occupational Safety and Health Act of North Carolina and to

give satisfactory assurance that this State will devote adequate

funds to the administration and enforcement of standards as

required by the Federal OSHA Act.

Defendants’ Breaches of Duty

52. | Upon informationand belief, defendants had an

insufficient number of inspectors, inspections, and programs

for planned inspection of industries, as found in an

investigation conducted by the United States Department of

Labor (sometimes “the United States Department of Labor

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KELLY VERIFIED CLAIM, CONTINUED. ..

investigation”)after the September 3, 1991 fire at the Imperial

Food Products, Inc., plant in Hamlet.

53. In violation of the Statutory, regulatory and

common law duties described above, the defendants, through

Commissioner of Labor John C. Brooks and others, failed to

provide or obtain adequate funding for enforcement of

OSHANC. .

54. In violation of the Statutory, regulatory and

common law duties described above, the defendants, through

Commissioner of Labor John C. Brooks and others, failed to

provide adequate personnel and plans for inspection pursuant

to OSHANC.

55. As a result of the acts and omissions of

defendants through their officers, employees and agents John

C. Brooks, Michael D. Ragland, James A. Oppold, and others

who were also required by law to provide adequate staffing for

D.O.L. and North Carolina OSHA, defendants failed to staff,

hire, train and retain an adequate number of inspectors to

discharge the duties of defendants described herein and in the

Federal OSHA Act, OSHANC, and other Statutory and

regulatory laws.

56. Uponinformationand belief, the North Carolina

Department of Labor failed even to use funds made available

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KELLY VERIFIED CLAIM, CONTINUED. ..

by the Federal Government for the hiring and training of

inspectors and the carrying out of inspections.

57. | Upon information and belief, North Carolina

OSHA has a high rate of vacancy among inspectors and many

other performance deficiencies attributable to the acts and

omissions of defendants through their agents in failing to

provide adequate staffing.

58. | Upon informationand belief, defendants did not

maintain the staffing level required by law and commensurate

with available federal and state funding.

59. | Upon informationand belief, and as found in the

United States Department of Labor investigation, defendants

focused inordinate resources on follow up visits to work sites

already inspected, and diverted resources to pre-occupancy

inspection of migrant labor camps, thereby leaving insufficient

time and resources for unannounced general scheduled

inspections of other companies, including the Imperial Foods

plant in Hamlet, North Carolina.

60. Upon information and belief, North Carolina

OSHA had serious operational deficiencies and was less

effective than the federal program, as found in the United

States Department of Labor investigation. Said deficiencies are

a result of the failure of the North Carolina Department of

Labor and North Carolina OSHA, through their agents, to

i

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KELLY VERIFIED CLAIM, CONTINUED. ..

discharge their statutory, regulatory and common law duties,

including those owed to claimant and Brenda Gail Kelly,

deceased.

61. | Upon information and belief, North Carolina

OSHA’s administrative procedures were at the time of the

Hamlet plant fire deficient and inadequate, as found in the

United States Department of Labor investigation.

62. Upon information and belief, the programmed

safety and health inspe_tions conducted by defendant were

insufficient, as found in the United States Department of Labor

investigation.

63. | Uponinformation and belief, defendants failed

to carry out their duties under the Federal OSHA Act, the State

OSHA Program, and OSHANC on a level at least as effective

in providing safe and healthful employment and places of

employment as the standards promulgated by Congress and the

United States Department of Labor under the Federal OSHA

Act.

64. | The defendants’ failure to fulfill their statutory,

regulatory and common law duties was the proximate and

direct cause of the death suffered by Brenda Gail Kelly,

deceased, and the damages suffered by claimant.

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KELLY VERIFIED CLAIM, CONTINUED. ..

65. | The defendants, through their agents and in the

exercise reasonable care, should have conducted regular

inspections of the Imperial Food Products plant in Hamlet,

North Carolina.

66. | Upon information and belief, Imperial Food

Products, Inc. had other facilities, including in the City of

Moosic in the Commonwealth of Pennsylvania. At least two

inspections conducted on the Pennsylvania Imperial Foods

plants in the mid-1980’s by the United States Department of

Labor, Federal OSHA division, led to citations being issued

against Imperial Foods, Inc. for improper safety practices.

67. Upon information and belief, in one 1985

incident at the Imperial Foods plant in Moosic, Pennsylvania,

employees were exposed to hot oil lines running near the floor

between the fryer and the oven which were not protected. One

of said lines burst and caused an employee to sustain burns

over 35% of her body.

68. Upon information and belief, a 1987 inspection

of the Imperial Foods plant in Moosic, Pennsylvaniaby Federal

OSHA revealed that the means of ingress and egress were

improperly constructed, labeled, and had inadequate

accessibility. The OSHA inspector issuing citations for these

violations, E. F. Donnelley, found that Imperial Foods top

management demonstrated hostility and had “utter contempt for

OSHA.”

19a

KELLY VERIFIED CLAIM, CONTINUED. ..

69. In the exercise of reasonable care, the

defendants, through their agents, knew or should have known

of Imperial Food Products’ history of flagrant noncompliance

with Federal OSHA requirements at the Moosic, Pennsylvania

location that were identical or substantially similar to those in

effect under OSHANC. Upon information and belief, said

history of non-compliance was a matter of public record or was

otherwise freely available to defendants who, having a duty to

provide safe and healthful employment and places of

employment at least equal to the standards mandated by the

Federal OSHA Act, should in the exercise of reasonable care

have known and acted upon such information by regularly

inspecting and enforcing OSHANC standards at the Imperial

Foods plant in Hamlet, North Carolina.

70. Upon informationand belief, the conduct which

Imperial Foods was cited for at its plant in Moosic,

Pennsylvania was the same or a similar type of conduct to that

which it was cited for in North Carolina after the September 3,

1991 fire, and which conduct caused the death of Brenda Gail

Kelly.

a Be In the exercise of reasonable care, defendants

should have regularly inspected the Imperial Foods plant in

Hamlet, North Carolina, to determine whether hazards such as

those present at the Imperial Food Products, Inc., plant in

Moosic, Pennsylvania and other hazards were present in

Hamlet. Defendants’ failure to discharge such duties prior to

20a

KELLY VERIFIED CLAIM, CONTINUED. ..

the fire which took the life of Brenda Gail Kelly was the

proximate and direct cause of the injuries and death suffered by

Brenda Gail Kelly and the damages suffered by claimant.

72. | Upon information and belief, the September 3,

1991 fire which resulted in the death of twenty-five persons,

including Brenda Gail Kelly, and the injuries of fifty-six

persons at the Hamlet, North Carolina facility was not the first

fire at that plant. In fact, Imperial Food Products, Inc., had

suffered a fire at its Hamlet plant sometime on or before

November 26, 1980, and yet another fire on or before July 5,

1983. The defendants, in the exercise of reasonable care, knew

or should have known of the previous fires at the same

employer’s facility at the same site, and therefore should have

inspected the employer to protect the decedent Brenda Gail

Kelly from any further such occurrences.

73. | The defendants, through their agents named

herein, owed a duty to Brenda Gail Kelly to inspect the

Imperial Food Products, Inc., plant in Hamlet, North Carolina,

and to require abatement of the hazards there, including of the

hazards that led to the death of Brenda Gail Kelly. The

defendants’ failure to conduct such inspections or cause them

to be conducted proximately and directly caused her death.

74. Upon information and belief, the defendants,

through their agents, Commissioner of Labor John Brooks,

Deputy Commissioner of Labor Michael Ragland, North

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KELLY VERIFIED CLAIM, CONTINUED. ..

Carolina OSHA Director James Oppold, and others, failed to

require that Imperial Food Products, Inc., be inspected despite

all the information available to defendants which demonstrated

that the Imperial Food Products, Inc., plant in Hamlet, North

Carolina was highly likely to have working conditions in gross

deviation from those prescribed by law.

75. | Upon information and belief, the defendants,

through Compliance Bureau Chief Richard Amos and District

Safety Supervisor Frank Trogdon, failed to require that

compliance officers or others in the employment of defendants

inspect the Imperial Food Products, Inc. plant in Hamlet, North

Carolina prior to the fire which gave rise to this action.

Imperial Foods Products, Inc. had a presence in the State of

North Carolina for a period of years before the fire which took

the life of Brenda Gail Kelly, and in that entire time, no

inspection was conducted despite the manifest and patent need

to inspect regularly the Imperial Food Products, Inc., plant in

Hamlet.

76. | Upon information and belief, John Brooks,

Michael Ragland, James Oppold, Richard Amos, and Frank

Trogdon had supervisory and other responsibilities to assign

compliance safety and health officers, including but not limited

to Douglas Jones, Charles Johnson, J. A. Bolton, David Poole,

Tom Hayes, and Rodger Griffin, to inspect industries in

Richmond County and surrounding areas, including the

Imperial Food Products, Inc., plant in Hamlet, but did not direct

22a

KELLY VERIFIED CLAIM, CONTINUED. ..

that said plant be inspected. The defendants, through their

agents, failed to require such inspections, thereby breaching

duties owed to claimant and to the decedent Brenda Gail Kelly.

77. Defendants in the exercise of reasonable care

and by reasonable inspection knew or should have known of

the violative conditions at the Imperial Food Products, Inc.,

plant in Hamlet, including, without limitation, the following:

(1) the failure of Imperial Foods to furnish each of its

employees conditions of employment which were free from

recognized hazards, (2) the failure of Imperial Food Products,

Inc., to maintain a fire suppression sprinkler system as required

by law, (3) the failure of Imperial Foods to provide a proper

evacuation plan and means of egress should the plant catch fire,

(4) the failure of Imperial Foods to provide unlocked,

unblocked, and operable exits as required by law, (5) the failure

of Imperial Foods to require adequate safety precautions

considering the highly flammable substances being used in the

presence of cooking and frying operations and the highly

corrosive materials being used, (6) the failure of Imperial Food

Products, Inc., to label adequately exits or identify doors which

were not exits so employees could find their way out of the

plant in event of a fire, (7) the failure of Imperial Food

Products, Inc., to provide adequate fire alarm facilities to alert

employees to smoke or fire, (8) the failure of Imperial Foods to

conduct fire exit drills in order to create an orderly means of

escape, and (9) the failure of Imperial Food Products, Inc., to

23a

KELLY VERIFIED CLAIM, CONTINUED. ..

train employees in fire extinguisher use and fire containment in

emergencies to protect the lives of employees.

78. The defendantsnegligently acted or failed to act

in all manners alleged in paragraphs 1-77 of this Verified

Claim and thereby unreasonably, oppressively and manifestly

abused their discretion. Defendants were also negligent and

abused their discretion in other manners, including, but not

limited to, the following:

a. Defendants negligently failed to

maintain safety standards at the same level as required by the

Federal Government.

b. Defendants negligently failed adequately

to staff, train, and maintain personnel, despite the availability

of federal and state funds for this purpose, and negligently

maintained an unacceptably high rate of vacancy among

inspectors. |

c. Defendants negligently failed to provide

adequate funding for enforcement of OSHANC in violation of

their statutory, regulatory and common law duties.

d. Defendants negligently failed to provide

adequate plans for inspection pursuant to OSHANC in

violation of their statutory, regulatory and common law duties.

24a

KELLY VERIFIED CLAIM, CONTINUED. ..

e. Defendants negligently failed to use

funds made available by the Federal Government and State

Government for the hiring and training of inspectors and the

carrying out of inspections.

f. Defendants negligently § focused

inordinate resources on follow up visits to work sites already

inspected and negligently diverted resources to pre-occupancy

inspection of migrant labor camps, thereby negligently leaving

insufficient time and resources for unannounced general

scheduled inspections of other companies and work sites,

including the Hamlet plant.

g. Defendants negligently failed to provide

for the safe and healthful employment and places of

employment of the decedent Brenda Gail Kelly at least as

effective as that provided and required by the federal

government pursuant to the Federal OSHA Act.

h. Defendants negligently failed to

discharge their duties of inspection and enforcement under

statutory, regulatory and common law, by not conducting

regular inspection of the Hamlet plant, proximately causing the

injuries and death of decedent, Brenda Gail Kelly.

i. Defendants in the exercise of reasonable

care knew or should have known the history of noncompliance

with the Federal OSHA Act by Imperial Food Products, Inc. in

25a

KELLY VERIFIED CLAIM, CONTINUED. ..

the Commonwealth of Pennsylvania, including as to the

particular types of hazards Imperial Foods was cited for

maintaining there - which hazards were also present at the

Hamlet plant and which were a cause of the September 3, 1991

fire - and therefore should have regularly inspected the Hamlet

plant, but negligently failed to do so at any time prior to the fire

which took the life of Brenda Gail Kelly.

j. Defendants in the exercise of reasonable

care knew or should have known of the previous fires at the

Imperial Food Products, Inc., plant-in Hamlet, North Carolina,

but-negligently failed to inspect said plant prior to the

September 3, 1991 fire to determine whether the safety of the

workers at that plant was being compromised.

k. Defendants negligently failed to conduct

any inspection of the Hamlet plant prior to the September 3,

1991 fire, which inspection, if conducted, would have disclosed

the violative conditions and defects and led to the issuance of

citations and the abatement of hazards or the shutdown of the

Imperial Food Products, Inc., plant in Hamlet, North Carolina.

Defendants’ negligent failure to conduct such inspections was

a breach of their duties to claimant and Brenda Gail Kelly and

was a proximate cause of her death.

79. The acts of negligence complained of herein,

and other acts of negligence by defendants which will or may

be disclosed during discovery and trial of this action, were

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KELLY VERIFIED CLAIM, CONTINUED. ..

breaches of duty to claimant and Brenda Gail Kelly, deceased,

and were the proximate and direct cause of his death, for which

claimant is entitled to recover.

80. William Kelly, Jr., administrator of the estate of

Brenda Gail Kelly, deceased, is entitled under North Carolina

law to recover on behalf of the heirs of Brenda Gail Kelly for

the pain and suffering he underwent as a result of the

negligence and unreasonable, oppressive and manifest abuse of

discretion of defendants, and for the funeral expenses, and the

monetary value of the decedent to the heirs, including but not

limited to loss of net income, services, protection, care,

assistance, society, companionship, comfort, guidance, kindly

offices, and advice.

81. | Uponinformationand belief, Brenda Gail Kelly,

deceased, suffered extreme mental and physical anguish as a

result of the smoke and fire at the Imperial Food Products plant

in Hamlet, North Carolina, for which the claimant is entitled to

recover.

| 82. Brenda Gail Kelly was a much loved and valued

| family member and provided to her heirs at law significant,

substantial, meaningful and valuable services, protection, care,

assistance, society, companionship, comfort, guidance, kindly

offices, and advice which, as a direct and proximate result of

the negligent acts and omissions of the defendants and their

unreasonable, oppressive, and manifest of discretion, were lost

27a

KELLY VERIFIED CLAIM, CONTINUED...

forever to the heirs of Brenda Gail Kelly and for which her

estate is entitled to compensation, for total damages in the

amount of $100,000.00.

WHEREFORE, claimant prays that he: (1) Have and

recover of defendants damages in excess of $100,000.00 as a

result of the negligent acts and omissions and the unreasonable,

oppressive and manifest abuses of discretion by the defendants,

and (2) such other and further relief as may be appropriate.

/s/ Henry L. Kitchin

/s/ Stephan R. Futrell

LEATH, BYNUM, KITCHIN & NEAL, P.A.

111 Washington Street

Post Office Box 1657

Rockingham, North Carolina 28379

Telephone (919) 997-2206

ATTORNEYS FOR CLAIMANT, WILLIAM

KELLY, JR., ADMINISTRATOR OF THE

ESTATE OF BRENDA GAIL KELLY,

Deceased

/s/ Joseph W. Moss

28a

KELLY VERIFIED CLAIM, CONTINUED. ..

/s/ J. Alexander S. Barrett

ADAMS, KLEEMEIER, HAGAN, HANNAH

& FOUTS

Post Office Box 3463

301 N. Elm Street, Suite 500

Greensboro, North Carolina 27401

Telephone: (919) 343 1600

ATTORNEYS FOR CLAIMANT WILLIAM

KELLY, JR., ADMINISTRATOR OF THE

ESTATE OF BRENDA GAIL KELLY,

Deceased

29a

KELLY VERIFIED CLAIM, CONTINUED. ..

NORTH CAROLINA INDUSTRIAL COMMISSION

LC. NO. TA-

WILLIAM KELLY, JR.,

Administrator of the Estate of

BRENDA GAIL _ KELLY,

Deceased,

Claimant,

NORTH CAROLINA

DEPARTMENT OF LABOR, and

NORTH CAROLINA

DEPARTMENT OF LABOR,

DIVISION OF OCCUPATIONAL

SAFETY AND HEALTH,

i ee ee ee ee ee ee a a a a a a

Defendants.

William Kelly, Jr., having first been duly sworn,

deposes and says:

1. The name of the claimant is William Kelly, Jr.,

Administrator of the Estate of Brenda Gail Kelly, deceased.

Mr. Kelly resides at Route 1, Box 214B, Rockingham, North

Carolina.

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KELLY VERIFIED CLAIM, CONTINUED. ..

Z The claims asserted against the North Carolina

Department of Labor, and the North Carolina Department of

Labor, Division of Occupational Safety and Health, and the

names of the individual employees, upon whose negligence the

claims are based, are included in the Verified Claim to which

this Affidavit and Verification is attached.

F The claimant is seeking to recover all damages

permitted under the North Carolina Tort Claims Act, N.C.G:S.

§143-291, et seq.

4. The time and place the injury occurred are

described in the Verified Claim to which this Affidavit and

Verification is attached.

5. The facts and circumstances surrounding the

injury and giving rise to this claim are stated and described in

the Verified Claim to which this Affidavit and Verification is

attached.

6. The contents of the Verified Claim to which this

Affidavit and Verification is attached are adopted and

incorporated herein by reference as though specifically set forth

herein.

7. The contents of the Verified Claim are true to

the knowledge of the undersigned, except as to those matters

3la

KELLY VERIFIED CLAIM, CONTINUED...

stated on information and belief, and as to those matters, he

believes them to be true.

Further affiant sayeth not.

This 24th day of August 1993.

/s/ WILLIAM KELLY, JR.

Subscribed and sworn to

before me this 24th day of August, 1993.

/s/ Pamela S. Griner

Notary Public

My Commission Expires: 3-29-98

ee

32a

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KELLY VERIFIED CLAIM, CONTINUED. ..

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35a

VERIFIED CLAIM OF MILDRED LASSITER MOATES OF

AUGUST 26, 1993

NORTH CAROLINA INDUSTRIAL COMMISSION

L.C. NO. TA-

MILDRED LASSITER MOATES and_)

OLIN DELLANO MOATES, )

)

Claimants, )

)

v. ) VERIFIED

) CLAIM

NORTH CAROLINA DEPARTMENT )

OF LABOR, and NORTH CAROLINA )

DEPARTMENT OF LABOR, )

DIVISION OF OCCUPATIONAL )

SAFETY AND HEALTH,

)

)

Defendants. )

Claimants, Mildred Lassiter Moates and Olin Dellano

Moates by and through his/her undersigned counsel, alleges

and says as follows:

THE PARTIES AND DEFENDANTS’ OFFICERS,

EMPLOYEES AND AGENTS

l. Claimant Mildred Lassiter Moates (sometimes

herein referred to as “claimant”) is a citizen and resident of

Richmond County, North Carolina. Olin Dellano Moates, also

a claimant herein, is a citizen and resident of Richmond

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MOATES VERIFIED CLAIM, CONTINUED. ..

County, North Carolina. Claimant and Olin Dellano Moates

are husband and wife, having married December 29, 1960.

2. Defendant the North Carolina Department of

Labor (sometimes “D.O.L.”) is a political subdivision of the

State of North Carolina.

3. Defendant the Division of Occupational Safety

and Health, also known as the Office of Occupational Safety

and Health (sometimes “North Carolina OSHA”) is a political

subdivision of the State of North Carolina and is an office

within the North Carolina Department of Labor responsible for

promulgation and enforcement of workplace safety standards,

and for the performance of duties under the Occupational

Safety and Health Act of North Carolina (sometimes

“OSHANC”) and other applicable laws.

4. Consistent with the mandate of N.C.G.S. 143-

297 and other applicable law, claimants identify by name in the

following paragraphs the State employees upon whose

negligence the claims stated herein are based. Claimants

identify these persons without prejudice to their right to name

other individuals whose negligence may be revealed through

discovery as supporting claims under the Tort Claims Act.

5. At times relevant to this action, John C. Brooks

was the Commissioner of the North Carolina Department of

Labor acting as an officer, employee and agent for defendants

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MOATES VERIFIED CLAIM, CONTINUED. ..

D.O.L. and North Carolina OSHA (sometimes jointly

“defendants”) acting in the scope of his office, employment,

service, agency and authority and having responsibilities for the

enforcement of OSHANC, including at the Imperial Food

Products, Inc. plant at 40 Bridges Street, Hamlet, Richmond

County, North Carolina (sometimes “Hamlet plant”), a chicken

processing plant that initially began operations in the year

1980.

6. Upon information and belief, at times relevant

to this action, Michael D. Ragland was Deputy Commissioner

of Health and Safety of D.O.L. and was an officer, employee

and agent of defendants acting in the scope of his office,

employment, service, agency and authority and having

responsibilities for the enforcement of OSHANC, including at

the Hamlet plant.

A Upon information and belief, at times relevant

to this action, James A. Oppold was the Director of North

Carolina OSHA and an officer, employee and agent of

defendants acting in the scope of his office, employment,

service, agency and authority and having responsibilities for the

enforcement of OSHANC including at the Hamlet plant.

8. Upon information and belief, at times relevant

to this action, Richard Amos was a Bureau Chief with North

Carolina OSHA and was an officer, employee and agent of

defendants acting in the scope of his office, employment,

38a

MOATES VERIFIED CLAIM, CONTINUED. ..

service, agency and authority, and having responsibilities for

enforcement of OSHANC, including at the Hamlet plant.

9. Upon information and belief, at times relevant

to this action, Frank Trogdon was District Safety Supervisor

with North Carolina OSHA and was an officer, employee and

agent of defendants acting within the scope of his office,

employment, service, agency and authority and having

responsibilities for enforcement of OSHANC, including at the

Hamlet plant.

10. Upon information and belief, at times relevant

to this action, David Poole, Charles W. Johnson, J. A. Bolton,

and Douglas Jones were Compliance Safety and Health

Officers with North Carolina OSHA and were officers,

employees and agents of defendants acting within the scope of

their offices, employments, services, agencies and authorities

and having responsibilities for enforcement of OSHANC,

including at the Hamlet plant.

11. | Upon information and belief, at times relevant

to this action Roseanne Morgan was a Health Supervisor and

was an officer, employee and agent of defendants acting within

the scope of her office, employment, service, agency and

authority, and having responsibilities for enforcement of

OSHANC, including at the Hamlet plant.

39a

MOATES VERIFIED CLAIM, CONTINUED. ..

12. Upon information and belief, at times relevant

to this action Tom Hayes and Rodger Griffin were officers,

employees and agents of defendants acting in the scope of their

offices, employments, services, agencies and authorities, and

having responsibilitiesfor enforcement of OSHANC, including

at the Hamlet plant.

JURISDICTION

13. Pursuant to N.C.G.S. §143-291, the North

Carolina Industrial Commission is constituted a court for the

purpose of hearing and passing upon tort claims against all

departments, institutions and agencies of the State, including

the defendants.

THE IMPERIAL FOOD PRODUCTS FIRE

14. This action arises out of the negligent failure of

the defendants to discharge duties of safety owed to claimants,

said negligence also amounting to an unreasonable, oppressive

and manifest abuse of discretion and being a direct and

proximate cause of the September 3, 1991 fire at the Hamlet,

North Carolina, plant of Imperial Food Products Inc., which

killed at least twenty-five (25) people and injured at least fifty-

six (56) others, including claimant.

15. On September 3, 1991, claimant was an

employee of Imperial Food Products, Inc., working at a chicken

40a

MOATES VERIFIED CLAIM, CONTINUED...

processing plant located in Hamlet, Richmond County, North

Carolina. She worked in the trim room.

| 16. On that date a fire developed in the processing

. area at the Imperial Foods plant in Hamlet.

17. Upon information and belief, a hydraulic line

near a deep fat fryer in the processing section of the plant

ruptured, igniting hydraulic fluid jus: a few feet away from a

natural gas fume cooker used in chicken preparation and

spraying the flammable hydraulic fluid at high pressure against

the floor and the nearby cooker.

18. | Upon information and belief, the fire, which

grew in intensity and spread rapidly through the interior and

various work areas of the plant, caused a spread of toxic gases

and black smoke throughout the building.

19. The claimant Mildred Lassiter Moates was

injured by this fire. Her injuries include diffuse brain damage;

legal blindness; anoxic encephalopathy secondary to smoke

inhalation; cognitive, physical and psychosocial deficits,

severe; post-traumatic stress disorder, severe, chronic and

permanent, manifested by nightmares and hallucinations;

decreased level of awareness to the environment; decreased

level of consciousness, including safety awareness;

tracheobronchial and pulmonary burns secondary to smoke

inhalation, and she was otherwise injured about her

|

4la

MOATES VERIFIED CLAIM, CONTINUED. ..

musculoskeletal and nervous systems. For the necessary

treatment of her injuries, claimant has submitted to multiple

and extensive operations, medical and surgical procedures

including bilateral lower extremity tendon releases which have

resulted in a hobbled gait. As a result of her injuries, claimant

has been caused to endure severe and debilitating pain and

suffering of both body and mind which will continue for the

balance of her life. She has incurred numerous and costly

medical bills in an amount not yet determined, which medical

bills will continue to be incurred over the balance of her life for

her necessary medical care and treatment, attendant nursing

care, and maintenance. Further, because of her injuries,

claimant has been rendered permanently and totally disabled,

has lost a great deal of wages, has suffered a permanent and

total loss of wage-earning capacity, and her enjoyment of life

has been permanently diminished. The fiery explos:on, the

rapid burning of the plant, the mass confusion and total

darkness as to whether claimant would be able to escape this

inferno and even death itself, and the other events immediately

surrounding the occurrence of this industrial workplace tragedy

were sudden, shocking and extraordinarily frightening and |

physically damaging to claimant and her nervous system. She

experienced profound horror, and this experience had a direct

emotional impact upon her. It was reasonably foreseeable that

the defendants’ negligence and abuses of discretion, hereinafter

described, would cause this claimant and others to suffer severe

emotional distress and mental anguish, and the claimant did in

fact suffer severe emotional distress and mental anguish as a

42a

MOATES VERIFIED CLAIM, CONTINUED. ..

direct and proximate result of the defendants’ said conduct. As

a result of the severe emotional distress and mental anguish

which claimant suffered, she has been further caused to suffer

the aforementioned post-traumatic stress disorder, this being a

generally recognized condition by mental health professionals,

and the cleimant has been so diagnosed. As mentioned above,

the claimant's post-traumatic stress disorder is severe, chronic

and permanent.

20. —_ Resulting from the injuries suffered by claimant

Mildred Lassiter Moates, her husband, claimant Olin Dellano

Moates, has been denied the consortium, conjugal services,

society, companionship, affection and sexual relations with his

wife.

21. This fire was one of the worst industrial

disasters in American history, and could and should have been

prevented by defendants adequately enforcing workplace safety

laws enacted for the protection of claimant.

22. Defendants negligently failed to fulfill their

duties and unreasonably, oppressively and manifestly abused

their discretion by not taking steps which they were legally

required to take to protect claimant.

23. | Upon informationand belief, the defendants for

the first time inspected the Hamlet plant after the September 3,

1991 fire, and from the ruins of the plant and charred remains

43a

MOATES VERIFIED CLAIM, CONTINUED. ..

of the fire victims determined that Imperial Food Products, Inc.

had conditions in violation of OSHANC leading to the issuance

of fifty-four (54) citations for willful violations of OSHANC

Standards, twenty-three (23) citations for serious violations of

OSHANC standards, and six (6) citations for other than serious

violations of OSHANC standards, resulting in penalties being

assessed against Imperial Food Products, Inc. totaling

$808,150.

24. The claimant’s injuries, and her spouse’s

damages resulting therefrom, were a direct and proximate resul|

of the negligent breach by the defendants of statutory,

regulatory, and common law duties described herein, and

amounted to an unreasonable, oppressive and manifest abuse of

discretion.

THE DUTIES AND THE NEGLIGENT ACTS

AND OMISSIONS OF THE DEFENDANTS

25. Defendants owed duties to claimant and to her

spouse which were imposed by federal and state statutes and

regulations and by the common law, and which defendants

negligently breached proximately and directly causing the

injuries of claimant, and causing the claimant and her husband

to suffer damages, amounting to an unreasonable, oppressive

and manifest abuse of defendants’ discretion. The claimants

incorporate the allegations contained in paragraphs 1 through

i

44a

MOATES VERIFIED CLAIM, CONTINUED. ..

23 of this Verified Claim herein, and makes additional

allegations below.

Duties of Defendants

26. In 1970, the Congress of the United States

enacted and the President of the United States signed into law

the Occupational Safety and Health Act of 1970, codified at 29

U.S.C. §651 et seg. (sometimes “Federal OSHA Act”).

27. Under 29 U.S.C. §667, a section of the Federal

OSHA Act, a state may assume responsibility for development

and enforcement of occupational safety and health standards on

certain terms and conditions, provided that the state’s program

(sometimes “State OSHA Program”) is or will be at least as

effective in providing safe and healthful employment and

places of employment as the standards promulgated by

Congress and the United States Department of Labor under the

Federal OSHA Act.

28. Under 28 U.S.C. §667, a State OSHA Program

must provide sufficient legal authority and qualified personnel

necessary for enforcement of such standards.

29. Under 28 U.S.C. §667, a State OSHA Program

must have adequate funds devoted to the administration and

enforcement of such standards.

ee

45a

MOATES VERIFIED CLAIM, CONTINUED. ..

30. Under the Federal OSHA Act and relevant

federal regulations, including 29 C.F.R. §1901.1 et seq, it is the

continuing duty of those states with a State OSHA Program to

provide safety standards, funding, and enforcement at least as

effective as the standards, funding and enforcement provided

by the Federal OSHA Act and the regulations promulgated

thereunder.

31. Pursuant to federal regulations located at 29

CFR §1901.1 et seg, a state which has adopted a State OSHA

Program must maintain adequate funding and may not diminish

its level of enforcement activity below that existing at the time

of the agreement with the federal government leading to

adoption of a State OSHA Program.

32. Under 29 U.S.C. §667 and 29 C.F.R. §1901.1 ef

seq, a State with a State OSHA Program must provide for the

development and enforcement of such standards as will be at

least as effective in providing safe and healthful employment

and places of employment as the standards promulgated by

Congress and the United States Department of Labor, and state

agents responsible for execution of such programs must have

sufficient legal authority to enforce these standards.

33. Under 29 U.S.C. §667 and 29 C.F.R. §1902.3 er

seq, States which have adopted State OSHA Programs are

required to have a sufficient number of adequately trained and

46a

MOATES VERIFIED CLAIM, CONTINUED. ..

qualified personnel necessary for the enforcement of standards

to be at least as effective as under the Federal OSHA Act.

34. Under 29 C.F.R. §1902.3 et seg, states which

have accepted State OSHA Programs are required to provide

sufficient funds to make enforcement of their plans as effective

as enforcement of the Federal OSHA Act.

35. | OnJanuary 26, 1973, North Carolina’ sproposed

plan for adopting and enforcing workplace safety and health

regulations under a State OSHA Program received initial

approval.

36. On October 6, 1976, the North Carolina State

OSHA Program plan was certified as having completed all

developmental steps.

37. Under N.C.G.S. §95-126 (b) (2)m, the North

Carolina Department of Labor is designated as the agency

required by law to administer OSHANC.

38. N.C.G.S. §99-133 creates and establishes within

the North Carolina Department of Labor a division known as

the Office of Occupational Safety and Health (sometimes called

“North Carolina OSHA” herein).

39. Under N.C.G.S. §95-133, the Commissioner of

Labor is required by law to appoint a Director to administer

47a

MOATES VERIFIED CLAIM, CONTINUED. ..

North Carolina OSHA, subject to the direction and supervision

of the Commissioner of Labor.

40. Under N.C.G.S. §95-133, the Director has the

legal duty to carry out the responsibilitiesof the State under the

State OSHA Program.

41. Under N.C.G.S. §99-133, the Director, subject

to the approval of the Commissioner of Labor, is required to

select a professional staff of qualified and competent

employees to assist in the state-wide administration of

OSHANC.

42. Under N.C.G.S. §95-133, subject to the general

supervision of the Commissioner of Labor, the Director is

made legally responsible for the administration and

enforcement of laws, rules and regulations which it is the duty

of North Carolina OSHA to administer and enforce, including

the power, jurisdiction and authority to, among other actions,

do the following: (1) uniformly superintend, enforce and

administer applicable occupational safety and health laws of the

State of North Carolina; (2) make or cause to be made all

necessary inspections, analyses and research for the purpose of

seeing that all laws and rules and regulations which the office

has the duty, power and authority to enforce are promptly and

effectively carried out; (3) make all necessary investigations,

develop information and reports upon conditions of employee

safety and health, and upon all matters relating to the

48a

MOATES VERIFIED CLAIM, CONTINUED. ..

enforcement of this Article and all lawful regulations issued

thereunder; and (4) issue all types of notices, citations, orders,

and other pleadings, forms and notices necessary to enforce

compliance with OSHANC.

43. _. Under N.C.G.S. §95-4, the North Carolina

Commissioner of Labor is required to appoint such employees

in the various divisions of the Department of Labor as may be

necessary to perform the work of the Department.

44. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to make such rules and regulations as shall be

necessary to properly carry out the duties imposed upon the

Commissioner and the Department.

45. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to secure the enforcement of all laws relating

to the inspection of factories, mills, workshops, and other

institutions and to appoint inspectors.

46. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to inspect or cause to be inspected as often as

practicable the factories and other establishments in this State

where goods, wares or merchandise are manufactured,

purchased or sold.

49a

MOATES VERIFIED CLAIM, CONTINUED. ..

47. Under N.C.G.S. §95-4, the Commissioner of

Labor is required to enforce the laws and prosecute violation of

the laws relating to such inspections.

48. Under N.C.G.S. §95-136, to carry out the

purpose and duties of OSHANC, the Commissioner of Labor,

the Director of North Carolina OSHA, and their duly

authorized agents are entitled to inspect workplaces and

investigate whether violations of OSHANC exist.

49. Under N.C.G.S. §95-137, the Director of North

Carolina OSHA or his authorized representative has a duty to

issue citations to an employer where there are reasonable

grounds to believe that the employer has not fulfilled his duties

as prescribed in OSHANC and the rules and standards

promulgated thereunder.

50. Under N.C.G.S. §95-138 and §95-139, civil and

criminal penalties are established for employer violations of

OSHANC.

51. Under N.C.G.S. §95-146, the Commissioner of

Labor is required to furnish to the United States Secretary of

Labor information and assurances that the State OSHA

Program, North Carolina OSHA, is being administered by

adequate methods and by standards and enforcement

procedures which are and will continue to be as effective as

federal standards.

Nl

50a

MOATES VERIFIED CLAIM, CONTINUED. ..

52. | Under N.C.G.S. §95-150, the Commissioner of

Labor is required to submit to the General Assembly a budget

and request for appropriations to administer adequately the

Occupational Safety and Health Act of North Carolina and to

give satisfactory assurance that this State will devote adequate

funds to the administration and enforcement of standards as

required by the Federal OSHA Act.

Defendants’ Breaches of Duty

53. | Upon informationand belief, defendants had an

insufficient number of inspectors, inspections, and programs

for planned inspection of industries, as found in an

investigation conducted by the United States Department of

Labor (sometimes “the United States Department of Labor

investigation” after the September 3, 1991 fire at the Imperial

Food Products, Inc. plant in Hamlet, North Carolina.

54. In violation of the statutory, regulatory and

common law duties described above, the defendants, through

Commissioner of Labor John C. Brooks and others, failed to

provide or obtain adequate funding for enforcement of

OSHANC.

55. In violation of the statutory, regulatory and

common law duties described above, the defendants, through

Commissioner of Labor John C. Brooks and others, failed to

Sla

MOATES VERIFIED CLAIM, CONTINUED...

provide adequate personnel and plans for inspection pursuant

to OSHANC.

56. As a result of the acts and omissions of

defendants through their officers, employees and agents John

C. Brooks, Michael D. Ragland, James A. Oppold, and others

who were also required by law to provide adequate staffing for

D.O.L. and North Carolina OSHA, defendants failed to staff,

hire, train and retain an adequate number of inspectors to

discharge the duties of defendants described herein and in the

Federal OSHA Act, OSHAWC, and other statutory and

regulatory laws.

57. | Uponinformationand belief, the North Carolina

Department of Labor failed even to use funds made available

by the Federal Government for the hiring and training of

inspectors and the carrying out of inspections.

58. Upon information and belief, North Carolina

OSHA has a high rate of vacancy among inspectors and many

other performance deficiencies attributable to the acts and

omissions of defendants through their agents in failing to

provide adequate staffing.

59. Upon informationand belief, defendants did not

maintain the staffing level required by law and commensurate

with available federal and state funding.

52a

MOATES VERIFIED CLAIM, CONTINUED. ..

60. | Upon informationand belief, and as found in the

United States Department of Labor investigation, defendants

focused inordinate resources on follow up visits to work sites

already inspected, and diverted resources to pre-occupancy

inspection of migrant labor camps, thereby leaving insufficient

time and resources for unannounced general scheduled

inspections of other companies, including the Imperial Foods

plant in Hamlet, North Carolina.

61. | Upon information and belief, North Carolina

OSHA had serious dperational deficiencies and was less

effective than the federal program, as found in the United

States Department of Labor investigation. Said deficiencies are

a result of the failure of the North Carolina Department of

Labor and North Carlina OSHA, through their agents, to

discharge their statutory, regulatory and common law duties,

including those owed ‘ claimants.

62. | Upon information and belief, North Carolina

OSHA’s administrative procedures were at the time of the

Hamlet plant fire deficient and inadequate, as found in the

United States Department of Labor investigation. _

63. | Upon information and belief, the programmed

safety and health inspections conducted by defendant were

insufficient, as found it the United States Department of Labor

investigation.

53a

MOATES VERIFIED CLAIM, CONTINUED. ..

64. | Upon information and belief, defendants failed

to carry out their duties under the Federal OSHA Acct, the State

OSHA Program, and OSHANC on a level at least as effective

in providing safe and healthful employment and places of

employment as the standards promulgated by Congress and the

United States Department of Labor under the Federal OSHA

Act.

65. The defendants’ failure to fulfill their statutory,

regulatory and common law duties was the proximate and

direct cause of the injuries suffered by claimant, and the

damages suffered by each claimant.

66. The defendants, through their agents and in the

exercise reasonable care, should have conducted regular

inspections of the Imperial Food Products plant in Hamlet,

North Carolina.

67. Upon information and belief, Imperial Food

Products, Inc. had other facilities, including in the City of

Moosic in the Commonwealth of Pennsylvania. At least two

inspections conducted on the Pennsylvania Imperial Foods

plants in the mid-1980’s by the United States Department of

Labor, Federal OSHA division, led to citations being issued

against Imperial Foods, Inc. for improper safety practices.

68. | Upon information and belief, in one 1985

incident at the imperial Foods plant in Moosic, Pennsylvania,

54a

MOATES VERIFIED CLAIM, CONTINUED. ..

employees were exposed to hot oil lines running near the {leor

between the fryerand the oven which were not protected. One

of said lines burst and caused an employee to sustain burns

over 35% of her body.

69. Upon information and belief, a 1987 inspection

of the Imperial Foods plant in Moosic, Pennsylvaniaby Federal

OSHA revealed that the means of ingress and egress were

improperly constructed, labeled, and had inadequate

acc’ 3ibility. The OSHA inspector issuing citations for these

violations, E. F. Donnelley, found that Imperial Foods top

management demonstrated hostility and had “utter contempt for

OSHA.”

70. In the exercise of reasonable care, the

defendants, through their agents, knew or should have known

of Imperial Food Products, history of flagrant noncompliance

with Federal OSHA requirements at the Moosic, Pennsylvania

location that were identical or substantially similar to those in

effect under OSHANC. Upon information and belief, said

history of non-compliance was a matter of public record or was

otherwise freely available to defendants who, having a duty to

provide safe and healthful employment and places of

employment ai least equal to the standards mandated by the

Federal OSHA Act, should in the exercise of reasonable care

have known and acted upon such information by regularly

inspecting and enforcing OSHANC standards at the Imperial

Foods plant in Hamlet, North Carolina.

55a

MOATES VERIFIED CLAIM, CONTINUED. ..

71. | Upon informationand belief, the conduct which

Imperial Foods was cited for at its plant in Moosic,

Pennsylvania was the same or a similar type of conduct to that

which it was cited for in North Carolina after the September 3,

1991 fire, and which conduct caused the claimant’s injuries.

72. In the exercise of reasonable care, defendants

should have regularly inspected the Imperial Food Products,

lnc. plant Hamlet, North Carolina, to determine whether

hazards such as those present at the Imperial Food Products,

Inc. plant in Moosic, Pennsylvania and other hazards were

present in Hamlet. Defendants’ failure to discharge such duties

prior to the fire which injured the claimant was the proximate

anu direct cause of the injuries suffered by claimant and the

damages suffered by each claimant.

73. | Upon information and belief, the September 3,

1991 fire which resulted in the death of twenty-five persons,

and the injuries of fifty-six persons including claimant at the

Hamlet, North Carolina facility was not the first fire ai -hat

plant. In fact, Imperial Food Products, Inc. had suffercu a fire

at its Hamlet plant sometime on or before November 26, 1980,

and yet another fire on or before July 5, 1983. The defendants,

in the exercise of reasonable care, knew or should have known

of the previous fires at the same employer’s facility at the same

site, and therefore should have inspected the employer to

protect claimant from any further such occurrences.

56a

MOATES VERIFIED CLAIM, CONTINUED. ..

74. | The defendants, through their agents named,

herein, owed a duty to each claimant to inspect the Imperial

Food Products, Inc. plant in Hamlet, North Carolina, and to

require abatement of the hazards there, including of the hazards

that led to claimant’s injuries. The defendants’ failure to

conduct such inspections or cause them to be conducted

proximately and directly caused the claimant’s injuries and the

damages suffered by each claimant.

75. | Upon information and belief, the defendants,

through their agents, Commissioner of Labor John Brooks,

Deputy Commissioner of Labor Michael Ragland, North

Carolina OSHA Director James Oppold, and others, failed to

require that Imperial Food Products, Inc. be inspected despite

all the information available to defendants which demonstrated

that the imperial Food Products, Inc. plant in Hamlet, North

Carolina was highly likely to have working conditions in gross

deviation from those prescribed by law.

76. | Upon information and belief, the defendants,

through Compliance Bureau Chief Richard Amos and District

Safety Supervisor Frank Trogdon, failed to require that

compliance officers or others in the employment of defendants

inspect the Imperial Food Products, Inc. plant in Hamlet, North

Carolina prior to the fire which gave rise to this action.

Imperial Foods Products, Inc. had a presence in the State of

North Carolina for a period of years before the fire which

injured claimant, and in that entire time, no inspection was

57a

MOATES VERIFIED CLAIM, CONTINUED. ..

conducted despite the manifest and patent need to inspect

regularly the Imperial Foods plant in Hamlet.

77. Upon information and belief, John Brooks,

Michael Ragland, James Oppold, Richard Amos, and Frank

Trogdon had supervisory and other responsibilities to assign

compliance safety and health officers, including but not limited

to Douglas Jones, Charles Johnson, J. A. Bolton, David Poole,

Tom Hayes, and Rodger Griffin, to inspect industries in

Richmond County and surrounding areas, including the

Imperial Food Products, Inc. plant in Hamlet, but did not direct

that said plant be inspected. The defendants, through their

agents, failed to require such inspections, thereby breaching

duties owed to claimants.

78. Defendants in the exercise of reasonable care

and by reasonable inspection knew or should have known of

the violative conditions at the Imperial Food Products, Inc.

plant in Hamlet, including, without limitation, the following:

(1) the failure of Imperial Food Products, Inc. to furnish each

of its employees conditions of employment which were free

from recognized hazards, (2) the failure of Imperial Foods to

maintain a fire suppression sprinkler system as required by law,

(3) the failure of Imperial Foods to provide a proper evacuation

plan and means of egress should the plant catch fire, (4) the

failure of Imperial Foods to provide unlocked, unblocked and

operable exits as required by law, (5) the failure of Imperial

Foods to require adequate safety precautions considering the

58a

MOATES VERIFIED CLAIM, CONTINUED. ..

highly flammable substances being used in the presence of

cooking and frying operations and the highly corrosive

materials being used, (6) the failure of Imperial Foods to label

adequately exits or identify doors which were not exits so

employees could find their way out of the plant in event of a

fire, (7) the failure of Imperial Foods to provide adequate fire

alarm facilities to alert employees to smoke or fire, (8) the

failure of Imperial Foods to conduct fire exit drills in order to

create an orderly means of escape, and (9) the failure of

Imperial Foods to train employees in fire extinguisher use and

fire containment in emergencies to protect the lives of

employees.

79. The defendants negligently acted or failed to act

in all manners alleged in paragraphs 1-78 of this Verified

Claim and thereby unreasonably, oppressively and manifestly

abused their discretion. Defendants were also negligent and

abused their discretion in other manners, including, but not

limited to, the following:

a. Defendants negligently failed to

maintain safety standards at the same level as required by the

Federal Government.

b. Defendants negligently failed adequately

to staff, train, and maintain personnel, despite the availability

of federal and state funds for this purpose, and negligently

59a

MOATES VERIFIED CLAIM, CONTINUED. ..

maintained an unacceptably high rate of vacancy among

inspectors.

e Defendants negligently failed to provide

adequate funding for enforcement of OSHANC in violation of

their statutory, regulatory and common law duties.

d. Defendants negligently failed to provide

adequate plans for inspection pursuant to OSHANC in

violation of their statutory, regulatory and common law duties.

e. Defendants negligently failed to use

funds made available by the Federal Government and State

Government for the hiring and training of inspectors and the

carrying out of inspections.

f. Defendants negligently —_ focused

inordinate, resources on follow up visits to work sites already

inspected and negligently diverted resources to pre-occupancy

inspection of migrant labor camps, thereby negligently leaving

insufficient time and resources for unannounced general

scheduled inspections of other companies and work sites,

including the Hamlet plant.

g. Defendants negligently failed to provide

for the safe and healthful employment and places of

employment of claimant at least as effective as that provided

60a

MOATES VERIFIED CLAIM, CONTINUED. ..

and required by the federal government pursuant to the Federal

OSHA Act.

h. Defendants negligently failed to

discharge their duties of inspection and enforcement under

statutory, regulatory and common law, by not conducting

regular inspection of the Hamlet plant, proximately causing the

injuries suffered by claimant, and the damages suffered by each

claimant. |

i. Defendants in the exercise of reasonable

care knew or should have known the history of noncompliance

with the Federa! OSHA Act by Imperial Food Products, Inc. in

the Commonwealth of Pennsylvania, including as to the

particular types of hazards Imperial Foods was cited for

maintaining there - which hazards were also present at the

Hamlet plant and which were a cause of the September 3, 1991

fire - and therefore should have regularly inspected the Hamlet

plant, but negligently failed to do so at any time prior to the fire

which injured claimant.

j. Defendants in the exercise of reasonable

care knew or should have known of the previous fires at the

Imperial Food Products, Inc. plant in Hamlet, North Carolina,

but negligently failed to inspect said plant prior to the

September 3, 1991 fire to determine whether the safety of the

workers at that plant was being compromised.

6la

MOATES VERIFIED CLAIM, CONTINUED. ..

k. Defendants negligently failed to conduct

any inspection of the Hamlet plant prior to the September 3,

1991 fire, which inspection, if conducted, would have disclosed

the violative conditions and defects and led to the issuance of

citations and the abatement of hazards or the shutdown of the

Imperial Food Products, Inc. plant in Hamlet, North Carolina.

Defendants’ negligent failure to conduct such inspections was

a breach of their duties to claimants and was a proximate cause

of the injuries suffered by claimant and the damages suffered

by each claimant.

80. The acts of negligence complained of herein,

and other acts of negligence by defendants which will or may

be disclosed during discovery and trial of this action, were

breaches of duty to each claimant and were the proximate and

direct cause of the injuries suffered by claimant, and the

damages suffered by each claimant, for which each claimant is

entitled to recover.

81. That as a result of the negligent acts and

omissions of the defendants, and also resulting from their

unreasonable, oppressive and manifest abuses of discretion,

claimant Mildred Lassiter Moates has been damaged in a sum

in excess of TEN THOUSAND AND NO0/100 DOLLARS ($10,

000. 00) representing her personal injuries.

82. That as a further result of the negligent acts and

omissions of the defendants, and also resulting from their

62a

MOATES VERIFIED CLAIM, CONTINUED. ..

unreasonable, oppressive and manifest abuses of discretion,

claimant Olin Dellano Moates has been damaged in a sum in

excess of TEN THOUSAND AND NO/100 DOLLARS

($10,000.00) representing his loss of consortium.

WHEREFORE, claimants prays that they each: (1)

Have and recover of defendants a sum in excess of TEN

THOUSAND AND NO/100 DOLLARS ($10,000.00) as a

result of the negligent acts and omissions and the unreasonable,

oppressive and manifest abuses of discretion by the defendants,

and (2) such other and further relief as may be appropriate.

WOODROW W. GUNTER, II

By: /s/ George Wayne Goodwin

for Woodrow W. Gunter, II

Attorney for Claimants

Post Office Drawer 249

219 E. Franklin Street

Rockingham, NC 28379

Telephone: (919) 997-5558

63a

MOATES VERIFIED CLAIM, CONTINUED. ..

NORTH CAROLINA INDUSTRIAL COMMISSION

I. C. NO. TA- 13067

MILDRED LASSITER MOATES AND )

OLIN DELLANO MOATES, )

)

Claimants, ) AFFIDAVIT

) AND

v. ) VERIFICATION

)

NORTH CAROLINA DEPARTMENT )

OF LABOR, AND _ NORTH )

CAROLINA DEPARTMENT OF )

LABOR, DIVISION OF )

OCCUPATIONAL SAFETY AND )

HEALTH,

)

)

Defendants. )

Mildred Lassiter Moates and Olin Dellano Moates,

having first been duly sworn, depose and say:

. The name of the claimants are Mildred Lassiter

Moates and Olin Dellano Moates. Mr. and Mrs. Moates reside

at Route 1, Box 152AE, Rockingham, Richmond County,

North Carolina 28379.

2. The claims asserted against the North Carolina

Department of Labor, and the North Carolina Department of

Labor, Division of Occupational Safety and Health, and the

64a

MOATES VERIFIED CLAIM, CONTINUED. ..

names of the individual employees, upon whose negligence the

claims are based, are included in the Verified Claim to which

this Affidavit and Verification is attached.

s Each claimant is seeking to recover all damages

permitted under the North Carolina Tort Claims Act, N.C.G.S.

§ 143-291 through N.C.G.S. §143-300.1. The claimed damages

are described in the Verified Claim to which this Affidavit and

Verification is attached.

4. The time and place the injury occurred are

described in the Verified Claim to which this Affidavit and

Verification is attached.

2 The facts and circumstances surrounding the

injury and giving rise to this claim are stated and described in

the Verified Claim to which this Affidavit and Verification is

attached.

6. The contents of the Verified Claim to which this

Affidavit and Verification is attached are adopted and

incorporated herein by reference as though specifically set forth

herein.

7. The contents of the Verified Claim are true to

the knowledge of the undersigned, except as to those matters

stated on information and belief, and as to those matters, they

believe them to be true.

65a

MOATES VERIFIED CLAIM, CONTINUED. ..

This 26th day of August, 1993.

/s/ MILDRED LASSITER MOATES

/s/ OLIN DELLANO MOATES

Subscribed and sworn to

before me this 26th day of August, 1993.

/s/ Sondra U. Honrese

Notary Public

My Commission Expires: February 26, 1998

66a

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67a

MOTION TO DIsMIss CLAIM, FILED NOVEMBER 30, 1993

NORTH CAROLINA INDUSTRIAL COMMISSION

I. C. NOS. TA-12975 through TA-13076

MU_TIPLE CLAIMANTS,

Plaintiffs,

Vv.

)

)

)

)

)

)

NORTH CAROLINA DEPARTMENT ) CLAIM

OF LABOR, and NORTH CAROLINA )

DEPARTMENT OF LABOR, )

DIVISION OF OCCUPATIONAL )

SAFETY AND HEALTH, )

)

Defendants. )

NOW COME the Defendants pursuant tc Rule T201 of

the Rules of the Industrial Commission and other applicable

law and move the Commission for an order dismissing the

plaintiffs’ claims, on the basis of the failure to state a claim

upon which relief can be granted, pursuant to N.C. R. of Civ.

P. 12(b)(6); and, therefore additionally, on the basis of the

sovereign immunity enjoyed by the defendants pursuant to N.

C. R. Civ. P. 12(6)(1) and 12(b)(2). In support of their motion,

the defendants attach a memorandum of law.

WHEREFORE, for the reasons stated in the attached

memorandum of law, the defendants move the Industrial

Commission for an order dismissing the plaintiffs’ claims; and

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MOTION TO DISMISS CLAIM, CONTINUED. ..

that the defendants have such other further relief as the

Commission deems just and proper.

This the 30th day of November, 1993.

MICHAEL F. EASLEY

North Carolina Attorney General

/s/ Isham B. Hudson, Jr.

Senior Deputy Attorney General

/s/ David Roy Blackwell

Special Deputy Attorney General

/s/ Elisha H. Bunting, Jr.

Special Deputy Attorney General

/s/ Ralf F. Haskell

Special Deputy Attorney General

N. C. Department of Justice

Post Office Box 629

Raleigh, NC 27602

Telephone (919) 733-3786

am)

[Certificate of Service omitted in printing]