Lawsuit Not Allowed for Heat-Stricken Worker Despite Previous Death, NC Court Says

One farm worker died from heat exposure in 2020, resulting in a fine and citation from the U.S. Occupational Safety and Health Administration.

Two years later, the employer failed to follow its remedial safety guidelines for heat exposure, failed to have a supervisor in the field, failed to have a buddy system in place for scorching hot days, and failed to provide relief to workers before another worker suffered debilitating injury from heat stroke.

Yet that was not enough to overcome the exclusive remedy of North Carolina’s workers’ compensation statute, the state’s Court of Appeals decided in a case that highlights the growing threat of heat injuries to farm workers and the limited recourse most of them have.

The employer’s “failure to fully implement its heat stress prevention plan may have been negligent, but we cannot say this failure made it substantially certain death or serious injury would occur,” the court said in its Aug. 5 opinion in Moreno vs. Florida Orange Gold et al.

The appellate court upheld a Wake County judge, finding that the lower court did not err in granting summary judgment to the employer defendants, essentially dismissing the suit.

The facts are these, the court explained: The farm worker, Carlos Vargas Moreno, collapsed in a field on July 19, 2022, almost two years to the day after the previous worker had died under similar circumstances. Moreno had been pulling weeds all day as the heat index approached 103 degrees. A co-worker telephoned a supervisor, but no one called 9-1-1. When the supervisor arrived, Moreno was transported to the hospital in the back of a pickup truck, not in the air-conditioned cab.

Moreno was hospitalized for a year and remains permanently disabled, requiring a wheelchair and daily assistance, the court said. The man received worker’s compensation benefits. Under North Carolina law, farm operations with 10 or more non-seasonal, full-time workers are required to secure workers’ comp insurance for their workers.

The employer was Florida Orange Gold LLC, a Bowling Green, Florida-based company. In 2023, Moreno’s guardian ad litem filed a tort lawsuit against Florida Orange Gold, referred to by the court as FOG, and against a supervisor, a manager and the North Carolina farm operation.

Among other arguments, the plaintiff contended that state law and case law, like most states’ compensation rules, allow an exception to the grand bargain exclusivity when an employer engages in misconduct that it knows is substantially certain to cause injury or death.

A 1991 court decision known as Woodson vs. Rowland helped establish the exclusivity exception, the Court of Appeals noted: “The conduct must be so egregious as to be tantamount to an intentional tort,” the court wrote, quoting from previous decisions.

The appellate court acknowledged that there seems to be some gray area in the case law and statutes on what constitutes deliberate or wanton disregard for worker safety.

“We do not have much—if any—more clarity as to what facts are necessary to, as it relates to this case, survive summary judgment proceedings,” appeals court Judge Toby Hampson wrote in the opinion.

But courts have generally given a very narrow interpretation to the exclusivity exception through the years.

“In 2013, this Court noted it was ‘unaware of a single litigant in any case which has been subject to appellate review who has successfully pursued a Woodson claim since the exception to the exclusivity provisions was set out in 1991,” the appeals court noted. “Our review of the caselaw indicates the state of things has not changed in the years since.”

The court said that the employer and farm operation did not willfully put Moreno in harm’s way, nor did they seem to know what the temperature was that day or that extreme heat could cause severe injury. Despite the 2020 OSHA citation, the evidence showed that there were multiple other days when the crew was working under similar conditions, yet no one suffered from heat-related illness in those instances, the court said.

Mere negligence does not establish a tort claim.

One Florida Orange Gold manager, Gilberto Gutierrez, likewise was absolved. “We cannot say the evidence, on the record before us, is such that a jury could find Gilberto’s actions were so willful, wanton, and recklessly negligent so as to be ‘equivalent in spirit to actual intent,'” the appellate judges concluded.

The full opinion can be seen here. It’s uncertain at this point when or if the plaintiff will ask the state Supreme Court for further review.

Moreno’s heat stroke injury is one of many across the United States, though actual incidents are probably underreported. The National Institutes of Health and the Federation of American Scientists have said that as many as 170,000 outdoor workers suffer heat stress injuries and as many as 2,000 deaths happen each year.

Topics Lawsuits North Carolina