NC COA Addresses Exception to Workers' Comp Preemption

In Trivette v. Yount the defendant, a middle school principle, had a fire extinguisher removed from a classroom after a student had removed the safety pin and discharged the extinguisher. The fire extinguisher was brought to the front office to avoid any further incident. The following day the defendant placed the fire extinguisher on or around the plaintiff''s desk in the front office. The plaintiff alleged that he was joking around with the fire extinguisher and when asked to stop joking "before it went off" said to the plaintiff, "Oh, you're being such a baby, nothing is going to happen." The fire extinguisher discharged and sprayed the plaintiff's body and face aggravating her preexisting neuro-muscular condition and causing extensive injury.

At issue in this case is the plaintiff's attempt to seek damages from the defendant directly in a personal injury action under the Pleasants exception. The defendant contends that he was Ms. Trivette's employer and thus her relief is limited only to the Workers' Compensation Act. The Court of Appeals affirmed the trial court's decision, stating that though the defendant was Ms. Trivette's immediate supervisor and an administrator, he is not given the authority to "employ" any person as outlined in N.C. Gen. Stat. §115C-288. Therefore, the defendant was a co-employee and not the employer. The Court also found sufficient evidence that he acted in a willful, wanton and recklessly negligent manner because he knew that there was a risk of the extinguisher accidentally discharging and was asked not to joke around with it, but continued to do so causing harm to the plaintiff.