North Carolina Teacher’s Tort Action Against Principal Who Prankishly Sprayed Her in Face With Fire Extinguisher May Move Forward

In a split decision, the Court of Appeals of North Carolina, in Trivette v. Yount, 2011 N.C. App. LEXIS 2598 (Dec. 20, 2011), has affirmed an order of a state trial court that denied a motion to dismiss and alternatively a motion for summary judgment filed by a defendant middle school principal in a tort action brought against him by a school office employee and her husband. The worker alleged she had sustained permanent injury as a result of the defendant’s gross negligence when, apparently as part of a prank, he discharged a fire extinguisher in her face, causing her to inhale harmful chemicals and particles that caused breathing problems and also an aggravation of her preexisting myasthenia gravis, a neuromuscular condition that had been dormant for a number of years. Plaintiff’s husband alleged he had also been damaged through loss of consortium. 

While there was some dispute about the underlying facts, it appeared that a student discharged a fire extinguisher in one of the school’s classrooms, that defendant determined that the safety pin for the extinguisher had been removed, and that the principal directed the school custodian to put the extinguisher in the front office, where plaintiff worked, in order to avoid further incident. The next day, defendant placed the extinguisher on or near the plaintiff’s desk. According to the plaintiff, the defendant began joking around and pretended to spray her with the extinguisher. It discharged, covering plaintiff with a power-like chemical. Defendant admitted handling the extinguisher, but contended he intended only to put it in his office for “safety precautions.”

Subsequently, plaintiff experienced pain in her chest. She sought medical treatment and later contended that in addition to breathing difficulties, she suffered an aggravation of the preexisting neuromuscular condition. Defendant contended, among other things, that he could not be liable in tort since he was plaintiff’s employer, that plaintiff’s injuries arose out of and in the course of her employment and that the exclusive remedy provisions of the workers’ compensation act barred recovery.

The majority carefully explained that the principal was not plaintiff’s employer. That explanation was necessary since in North Carolina, unlike most states, there is a significant difference between the exclusive remedy defense enjoyed by employers and that afforded co-employees. Employers generally may not be sued unless the injured worker can establish that the employer intentionally sought to harm the worker or that harm was substantially certain to flow from the actions of the employer. A co-employee may be held liable, however, for “willful, wanton, and recklessly negligent conduct” [see Pleasant v. Johnson, 312 N.C. 710, 713, 325 S.E.2d 244, 247 (1985)]. The majority of the court held that plaintiff was employed by the school board, not the school principal, that instead of being the plaintiff’s employer, defendant was properly classified as her immediate supervisor, and as such, he was her co-employee and subject to suit under the Pleasant rule.

The majority continued that viewing the evidence in the light most favorable to plaintiffs, the defendant picked up the fire extinguisher and pretended to spray plaintiff in a joking manner. In her affidavit plaintiff stated that she warned defendant “to stop joking around and to put the extinguisher down before it went off” and that defendant replied: “Oh, you’re being such a baby, nothing is going to happen.” The fire extinguisher then discharged. The evidence when viewed in the light most favorable to plaintiffs indicated the defendant was aware of the risks posed by his “joke,” but proceeded to act at plaintiff’s expense. This was evidence from which a jury could reasonably conclude the defendant’s practical joke manifested a reckless disregard for plaintiff’s safety, thereby constituting willful, wanton, and recklessly negligent conduct. Summary judgment was not appropriate at this stage of the proceedings, said the majority, and the trial court correctly denied Defendant’s motion.

Justice Elmore dissented, noting that a principal was the “top person” in the school in which he or she was employed, that as such, defendant was the “alter-ego” of the employer school board and should have been afforded the same immunity as an employer with regard to the exclusive remedy provisions of the state’s workers’ compensation law. Justice Elmore indicated that since plaintiffs had not alleged intentional conduct on the part of the defendant, the case should have been dismissed.