North Carolina

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Pendergrass v. Card Care Inc.,
424 S.E.2d 391 (N.C. 01/08/1993)

SUPREME COURT OF NORTH CAROLINA

No. 335PA91

1993.NC.41862; 424 S.E.2d 391; 333 N.C. 233

Filed: January 8, 1993.

DONALD RAY PENDERGRASS AND SARAH PERRY PENDERGRASS

v.

CARD CARE, INC.; CARROLL H. GIBSON; KEITH LAKE; AND TEXFI INDUSTRIES, INC.

On discretionary review of the decision of the Court of Appeals, in an unpublished opinion, 103 N.C. App. 526, 407 S.E.2d 624 (1991), affirming judgments by Winberry, J., at the 10 April 1989 term of Superior Court, Nash County and by Butterfield, J., at the 27 July 1990 term of Superior Court, Nash County.

For Plaintiffs Appellants: BLANCHARD, TWIGGS, ABRAMS & STRICKLAND, P.A., by DOUGLAS B. ABRAMS.

For Texfi Industries, Inc., Defendant Appellee: HEDRICK, EATMAN, GARDNER & KINCHELOE, by EDWARD L. EATMAN, JR. and G. LEE MARTIN. For Gibson and Lake, Defendants Appellees: HAYNSWORTH, BALDWIN, JOHNSON and GREAVES, P.A., by CHARLES P. ROBERTS, III and GREGORY P. McGUIRE. For Card Care, Inc., Defendant Appellee: PATTERSON, DILTHEY, CLAY, CRANFILL, SUMNER & HARTZOG, by GRADY S. PATTERSON, JR., DAVID H. BATTEN and KARI L. RUSSWURM.

PATTERSON, HARKAVY, LAWRENCE, VAN NOPPEN & OKUN, by DONNELL VAN NOPPEN III, for North Carolina Academy of Trial Lawyers, amicus curiae.

Webb

Webb

WEBB, Justice.

We consider first the case against the defendants Gibson and Lake. Gibson and Lake were employees of Texfi, as was Mr. Pendergrass, at the time of the accident. Ordinarily, the plaintiffs' exclusive remedy would be a claim pursuant to the Workers' Compensation Act and they would not have a claim against Gibson or Lake in tort. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977).

The plaintiffs contend that they have claims against Gibson and Lake under Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), which held that there is an exception to the exclusivity rule as to actions against fellow employees in the case of injury caused by the willful, reckless and wanton negligence of the fellow employees. We adopted such a rule in Pleasant and the superior court was in error in dismissing the case against Gibson and Lake under Rule 12(b)(6), unless the complaint affirmatively disclosed

[333 NC Page 238]

that the plaintiffs had no cause of action against them. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

The plaintiffs alleged that Gibson and Lake were grossly and wantonly negligent. They alleged that the acts of negligence were in directing Mr. Pendergrass to work at the final inspection machine when they knew that certain dangerous parts of the machine were unguarded, in violation of OSHA regulations and industry standards. The question we face is whether these allegations support a finding of willful, wanton, and reckless negligence pursuant to Pleasant.

In Pleasant, we defined willful, wanton and reckless negligence, which will support a claim independently of the Workers' Compensation Act. In that case, a fellow employee drove a truck in a parking lot with the intention of getting as close to the plaintiff as he could without hitting him. The plaintiff was struck by the truck and we said the defendant's action constituted willful, wanton and reckless negligence. In defining such negligence, we said a constructive intent to injure may be inferred when the conduct of the defendant is manifestly indifferent to the consequences of the act. We held that driving a truck as close to the plaintiff as possible was manifestly indifferent to the consequences of the act.

The negligence alleged as to Gibson and Lake does not rise to the level of the negligence in Pleasant. Although they may have known certain dangerous parts of the machine were unguarded when they instructed Mr. Pendergrass to work at the machine, we do not believe this supports an inference that they intended that Mr. Pendergrass be injured or that they were manifestly indifferent to the consequences of his doing so. The motion to dismiss was properly allowed as to Gibson and Lake.

The plaintiffs contend they have stated a good claim against Texfi on the ground of dual capacity and on the ground that the pleadings show that the injury was caused by intentional conduct, which Texfi knew was substantially certain to cause the injury. See Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). We deal first with the dual capacity claim.

The plaintiffs rely on Tscheiller v. Weaving Co., 214 N.C. 449, 199 S.E. 623 (1938), to argue that we should allow the action against Texfi because it was acting in a dual capacity in regard to Mr. Pendergrass. They contend that in one capacity it was

[333 NC Page 239]

acting as a textile manufacturer and Mr. Pendergrass was hired to work for it in that capacity. The plaintiffs say that Texfi acted in the capacity of a manufacturer of textile machinery when it modified the final inspection machine and it should be liable to the plaintiffs for negligence as would be a third party manufacturer of such a machine.

In Tscheiller, the plaintiff was employed in a textile mill. She sued her employer for selling her a sandwich unfit to eat which caused her to become ill. The defendant in Tscheiller sold food and drinks to its employees during the course of employment for their refreshment and the plaintiff based her action on such a purchase. This Court affirmed the dismissal of the action and said that while it was alleged that the defendant was engaged in the textile manufacturing business and also in the business of selling sandwiches and cold drinks, it was not alleged that the sandwiches and cold drinks were offered for sale to the public. We said that under these circumstances the plaintiff was limited to her claim under the Workers' Compensation Act.

The risk to Mr. Pendergrass from the alteration of the machine by Texfi was not a risk shared by the public and he does not have a claim under Tscheiller. If there is a dual capacity doctrine which allows a claim when an employer is acting in a capacity other than the business for which a person is employed, it does not apply in this case. The defendant Texfi modified the machine as part of its engagement in the textile business. Mr. Pendergrass was employed in that business.

We also hold that the plaintiffs do not have a claim under Woodson. In that case, we held that a person could maintain a claim in tort against his employer, although the parties were subject to the Workers' Compensation Act, if the evidence shows that the injury was caused by intentional conduct of the employer which the employer knew was substantially certain to cause an injury. The conduct must be so egregious as to be tantamount to an intentional tort. We made it clear in that case that there had to be a higher degree of negligence than willful, wanton and reckless negligence as defined in Pleasant. The plaintiffs contend that they have a tort claim against Texfi under the Woodson exception to the exclusivity rule.

The plaintiffs rely on the same allegations of negligence to support their claim against Texfi that they relied upon

[333 NC Page 240]

in their claim against Gibson and Lake. We have held, in affirming the dismissal as to Gibson and Lake, that the negligence alleged did not rise to the level of willful, wanton, and reckless as defined in Pleasant. By this token, it does not rise to the higher level of negligence as defined in Woodson of substantial certainty of injury.

The appellants also argue it was error to dismiss their claim against Card Care, Inc. Card Care was not incorporated until after the accident occurred and it argues it should not be liable for something that happened before it was incorporated. The entity which sold the final inspection machine to Texfi was a partnership. After the sale of the machine, the principals in the partnership formed a corporation which continued the business in which the partnership had been engaged. It is undisputed that the members of the partnership had no knowledge of the accident at the time Card Care was incorporated.

The plaintiff relies on Budd Tire Corp. v. Pierce Tire Co., 90 N.C. App. 684, 370 S.E.2d 267 (1988), a case in which a corporation was held liable to a creditor for a fraudulent transfer of the assets of another corporation. In that case, the Court of Appeals said that a corporation is liable to a creditor of the other corporation if the transfer of the assets was fraudulent or if the purchasing corporation is a mere continuation of the selling corporation.

The plaintiffs contend that Card Care, Inc. is a mere continuation of the business conducted by the partnership and it should be liable for torts committed by the partnership. We cannot find a case in this state applying the mere continuation rule. The plaintiffs have cited cases from other jurisdictions which deal with this rule. Stratton v. Garvey Intern, Inc., Kan. App. 2d 254, 676 P.2d 1290 (1984); Tift v. Forage King Industries, Inc., 108 Wis. 2d 72, 322 N.W.2d 14 (1982); Rawlings v. D.M. Oliver, Inc., 97 Cal. App. 3d 890, 159 Cal. Rptr. 119 (1979).

Assuming the mere continuation rule would apply as to corporations, we do not believe it should apply to this transfer of the assets of a partnership. If all the assets of a corporation are transferred, a claim against the transferring corporation might be worthless. When a partnership transfers its assets, the partners remain liable. We do not believe this is a case in which the mere continuation rule should apply.

[333 NC Page 241]

The plaintiffs contend that Card Care is liable to them under N.C.G.S. § 59-71(d). That section is part of the Uniform Partnership Act and it provides that when all of a partnership's assets are assigned and the person or persons to whom the assignment is made promise to pay the assigning partnership's debts and continue the business of the dissolved partnership, creditors of the dissolved partnership are creditors of the person or partnership continuing the business. In this case, Card Care did not promise to pay the creditors of the dissolved partnership. Card Care is not liable under N.C.G.S. § 59-71(d).

Finally, the plaintiffs argue that Card Care is liable to them because it did not comply with the Uniform Commercial Code-Bulk Transfers. N.C.G.S. § 25-6-105 provides that a bulk transfer is void if notice is not given to creditors before a transfer is made. The plaintiffs assert that this makes Card Care liable. If we held the transfer of the assets from the partnership to Card Care was void, we are not sure this would help the plaintiffs in an action against Card Care. See Goldman and Co. v. Chank, 200 N.C. 384, 156 S.E. 919 (1931) and Rubber Co. v. Morris, 181 N.C. 184, 106 S.E. 562 (1921). Assuming the transfer of assets from the partnership to the corporation was voidable by creditors of the partnership, it is not helpful to the plaintiffs. N.C.G.S. § 25-6-107(3) provides that notice of the transfer must be sent to all creditors known to the transferee. In this case, the papers filed in regard to the motion for summary judgment showed the transferee had no knowledge at the time of the transfer that the plaintiffs were asserting a claim against the partnership. Card Care is not liable under the Bulk Sales Act.

AFFIRMED.

Disposition

AFFIRMED.

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