According to various reports and advocates for workplace safety, the construction industry in North Carolina has seen the highest number of workplace deaths, nearly 60 between January 2021 and September 2023, according to the North Carolina Department of Labor's Occupational Fatality Inspection Review data. This trend, consistently placing the construction sector at the forefront of […]
Beyond Workers Compensation: Can You Sue a (Not So) Special Employer?
Americans, probably more than almost anyone else on earth, appreciate and admire workers who take daily real risks to get the job done. Most of the time, these risks are anticipated and taken care of. When the work goes wrong, it may be left to a trial attorney to help fight for their clients’ – or in some cases their widows’ – rights.
Gary Anderson probably loved the times that he was given the chance to work on demolition work, and the precision dynamiting that was often involved. It was introduced as evidence that Gary often asked for the special assignments that included dynamiting jobs. On August 19, 1995, Gary fell to his death, as he was working to prepare an abandoned conveyor structure in the quarry for removal by dynamiting.
Gary’s widow was to bring a lawsuit based upon wrongful death and Gary’s accident. But before the trial attorney was able to make this argument, it was important to establish exactly who Gary was working for: this case represented an interesting set of facts around who had hired and supervised Gary. Based on that outcome, the opportunity to actually hold someone responsible for possibly negligent actions beyond workers compensation was on the line. In this case, the defendant argued that Gary’s estate could only file for damages under worker’s compensation. That company filed what’s called a motion for summary judgment to end the wrongful death lawsuit against it.
Legalese around motions for summary judgment are often very confusing to non-legal minds. These motions, and counter-motions, are just one reason it’s so important to hire an experienced trial attorney in wrongful death cases. An experienced trial attorney anticipates and prepares for these procedural tactics of the defendant.
II. workers compensation: Are You In An Exclusive Relationship… or Not?
Gary’s normal employer in Guilford county was Griffin Wrecking. That employment relationship changed a little bit, however, when it came to explosive demolitions. Griffin Wrecking had created a second company to handle demolition projects. Gary’s widow had already worked with a qualified and experienced worker’s compensation attorney to handle the claim of worker’s compensation against Griffin Wrecking. The wrongful death suit took aim at Gary’s rights to have had a safe work environment, while on a job site with Demolition Dynamics, Inc.
Under North Carolina law, there is a fairly bright line of liability between worker’s compensation and wrongful death. Worker’s compensation is the exclusive means by which an injured employee is obliged and able to seek compensation from their regular employer. This case shows this bright line can be blurred. For example, it is possible that a secondary employment relationship may exist outside of this workers comp rule on exclusive recovery. If Gary was the employee of Griffin Wrecking and Demolition Dynamics, then worker’s compensation was the exclusive remedy. In this case, the demolition company sought to argue that Gary was working for both companies at the time of the accident.
III. Types of Employers: Sometimes Beyond Workers Comp
The trial court had dismissed the widow’s lawsuit against Demolition Dynamics. That court had decided worker’s compensation was the exclusive remedy. The North Carolina Court of Appeals disagreed, and reversed that finding. The Appeals judges found that there were genuine issues of fact that needed to be settled. There was, the appeals court said, factual issues whether or not Demolition Dynamics was what is called a “special employer.” If they were not a special employer, then a wrongful death claim outside of worker’s compensation was allowed. The exclusivity requirement of worker’s compensation is designed to deal with an employer/employee relationship, and not necessarily subcontractors or non-employer/employee situations. The Court of Appeals applied North Carolina’s “three pronged” test for defining special employers.
The trial attorney successfully proved that Gary was very possibly the employee only of Griffin Wrecking, regardless of Demolition Dynamics being the contractor for the dynamiting portion of the job. By proving that, the trial attorney could go on to show that Demolition Dynamics was potentially legally liable outside of the worker’s compensation system… and that a wrongful death suit could go ahead. The key was the self-perception of Gary himself as to his “boss.” To get to the evidence, Gary’s wife was going to have special significance in recalling what Gary believed about his employee status.
IV. A Widow Testifies
When someone loses a family member and a wrongful death action, it is one of the most difficult cases to present. The emotional toll alone often prevents people, in shock and grief, from seeking legal help. The special skills and abilities of a trial attorney help address these most difficult cases and emotional challenges. In this case, one can only imagine the difficulty of the widow in testifying. At the same time, her remarks during a deposition suggest genuine her determination that justice was going to be done. The widow was strong, direct, and concise. She was decisively certain about Demolition Dynamics having “employed” Gary. Following is her compelling testimony in answering her trial attorney:
Q: At all times that you talked to Gary, did he tell you and others that he was employed by Griffin Wrecking?
Q: Did you talk to Gary about who he believed he was employed by?
A: Yes, sir.
Q: What did he tell you?
A: D. H. Griffin Wrecking company.
Q: Did Gary in your presence ever tell other people by whom he was employed?
A: Yes, sir.
Q: And what did he say?
A: D. H. Griffin Wrecking Company.
Q: Had Gary ever told you that he was employed by (Demolition Dynamics)?
A: No, sir.
Conclusions: Genuine Issues and Hiring an Experienced Trial Attorney
Often, an appeals court will simply settle on one specific issue and reverse. This can be a very technical point of law, or as here, a chance to actually develop a larger part of the facts in a case. The Court of Appeals actually spent quite a bit of time addressing the evidence that was presented concerning the employment relationship with demolition dynamics Inc. It seemed to be saying, between the lines, that the trial attorney had already introduced enough facts to establish a basic case of wrongful death by a non-employer. By addressing the three-prong test, and concluding a “prong” was missing, a trial court would have real difficulty finding that Demolition Dynamics was factually shielded from a wrongful death lawsuit by the widow’s trial attorney.
Admittedly, the successful operation of worker’s compensation makes for difficult choices in how injured employees can address being harmed by an employer. The system requires maximum exclusive enrollment and participation by employers and employees. Having a truly experienced, worker’s compensation and trial attorney on your side can make all the difference. Some people have noted that worker’s compensation seems to create some unfair situations – such as in this case, if the widow had not been allowed to take her case against a “special” employer. Even wanton and willful negligence by the regular employer doesn’t change that. If you, a family member or a loved one have been hurt in a workplace accident—or have questions involving related subcontractor claims, your legal rights or at compensation hearings, please contact us. You will speak with an expert in wrongful death/ workers compensation cases, who can best answer your questions about how your personal injury, wrongful death, or workers comp cases may relate to each other. There is never a fee for this initial consultation.
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