An employee who was injured while doing an “ultrahazardous” job sought to sue their employer for their injuries, and argued that his case was an exception to the exclusive remedy provisions of the state’s workers’ compensation laws. The petitioner argued that his case was an extension of the “substantial certainty” exception to the rule set in Woodson v. Rowland, in which the North Carolina Supreme Court decided that injured workers could sue their employers if their employers engaged in misconduct, and knowingly acted in a way that could cause serious injury or death even if the job itself was dangerous. The worker argued that his job entailed “ultrahazardous” work and that his employer should be strictly liable for his injuries.

Francisco Fagundes was performing rock crushing services for the company East Coast Drilling & Blasting, Inc. on July 25, 2013 when debris were ejected from the site and struck Fagundes. He sued the company, the president and CEO Scott Carle and the supervisor at the time Juan Albino.

Since he was injured on the job, the defendants argued that his claim should be handled by the Industrial Commission as it was a workers’ compensation issue. Fagundes argued that part of the Woodson opinion discussed a general contractor who could be held strictly liable for injuries caused by a subcontractor who was performing ultrahazardous activity like blasting. The Court of Appeals pointed out that that specific part of the Woodson case which he referenced did not have anything to do with their Woodson test of exclusive remedies for workplace injuries. That test asked whether the employer had prior knowledge and intent of a dangerous situation, and not whether the job was inherently dangerous. The job was dangerous yes, but just because he was injured working in a dangerous occupation did not mean he could seek benefits in a court.

Fagundes also pointed out that blasting is recognized as an ultrahazardous job in North Carolina, and at common law, anyone who causes an injury while engaged in ultrahazardous activity can be held strictly liable. He argued that he should be allowed to pursue his strict liability claim in court.

The Court of Appeals said that the only difference between arguing his case in court versus with the Industrial Commission might be that he would receive a larger monetary payment in court. The Court opinion stated that they could not change the laws, and if he thought the state’s Workers’ Compensation Act should have an exception for employees working in ultrahazardous jobs, he should seek a policy change. The Court of Appeals in North Carolina did not allow him to proceed.

Read the case here