North Carolina: Intentional Tort Action Against Wal-Mart Related to Death of Wal-Mart “Greeter” Barred by Exclusivity

On Tuesday, the Court of Appeals of North Carolina affirmed a trial court’s order granting various defendants’ motions for summary judgment on exclusivity grounds in a wrongful death action filed by the administratrix of the estate of a Wal-Mart employee against the defendant Wal-Mart Stores and one of the decedent’s co-employee’s [see Pender v. Lambert, 2013 N.C. App. LEXIS 122 (Feb. 5, 2013)]. The circumstances surrounding the decedent employee’s death were somewhat bizarre.  

The co-employee defendant (“Respass”) was employed as a loss prevention associate. His duties included the detection and apprehension of suspected shoplifters. On the day of the incident, Respass approached a “shopper” (Lambert), whom Respass suspected of shoplifting and asked Lambert to follow him to the back of the store for further investigation. Lambert agreed. Once they reached the back, however, Lambert turned and sprinted toward the entrance. Respass proceeded to chase Lambert and as the two neared the entrance, they collided with the decedent, a Wal-Mart greeter, knocking her to the floor. As a result of the collision, the decedent sustained a fatal head injury.

Plaintiff filed a wrongful death action against Lambert, Wal-Mart, Respass, and others, contending Wal-Mart and Respass were liable under the intentional tort theory. Wal-Mart and Respass filed motions for summary judgment, contending the action was barred by the exclusive remedy provisions of the North Carolina Workers’ Compensation Act.

Respass testified that all loss prevention associates were expected to reach a goal or “quota” of eight apprehensions per month. This “quota” was not provided for in a written policy but communicated to him by his supervisor. Failure to meet the purported quota could result in verbal warnings or transfer to a different department. Additionally, Wal-Mart implemented a written policy requiring all loss prevention associates to (1) never chase a shoplifter more than ten feet (no-chase policy) and (2) to never engage in a physical confrontation with a customer or shoplifter. The stated purpose of the policy was to ensure the safety of all persons on Wal-Mart’s premises. Plaintiff pointed out that following the fatal accident, Wal-Mart terminated Respass for violating the no-chase policy.

Plaintiff argued that employer misconduct existed based on (1) the fact that Respass chased Lambert and (2) the implementation of Wal-Mart’s quota system. The quota system, contended the plaintiff, amounted to employer misconduct as it created an “incentive for Respass to engage in conduct (the chase) that was substantially certain to cause serious injury or death[.]”

Observing that in Woodson v. Rowland, the N.C. Supreme Court recognized an exception to the general exclusivity provisions of the Act whereby an employee might pursue a civil action against the employer if the employer “intentionally engage[d] in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct” [the Woodson exception, 329 N.C. 330, 340, 407 S.E.2d 222, 228 (1991)], the Court of Appeals agreed that the plaintiff had not alleged sufficient facts to avoid the exclusivity bar. The court stressed that superimposed on top of the purported quota system, was Wal-Mart’s no-chase policy. The fact that Wal-Mart had implemented such a policy evidenced that it prioritized the safety of its employees and customers. Wal-Mart’s termination of Respass for violating the policy further indicated its commitment to safety. The court added that the record indicated that no prior injuries had resulted from the imposition of the quota system. The court held that the Woodson exception was inapplicable and the trial court did not err in granting Wal-Mart’s motion for summary judgment.

The court acknowledged a second exception to the exclusivity of remedy provision was recognized in Pleasant v. Johnson, whereby the Supreme Court held that an injured employee may maintain an action against a co-employee for acts of willful, wanton, and reckless negligence [312 N.C. 710, 717, 325 S.E.2d 244, 250 (1985)]. The court indicated this was akin to the commission of an intentional tort, and, as such, the employee must form the constructive intent to injure. Here there was no such evidence. Accordingly, Wal-Mart was not liable under Woodson and Respass was not liable under Pleasant.

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