Opinion
2:99cv28-T
March 25, 1999
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendant's Motion to Dismiss. Having carefully considered that motion and reviewed the pleadings, including plaintiff's response and defendant's reply, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
Defendant, in having this action removed from the North Carolina General Court of Justice for Graham County, alleged that the amount in controversy exceeded $75,000 and that there existed complete diversity. It has properly invoked the diversity jurisdiction of this court.
At issue is an on-the-job accident that occurred at defendant's furniture plant in Graham County. While plaintiff was operating a piece of machinery at that plant, the tip of her middle finger was severed and disappeared into the machine. Thereafter, defendant arranged for plaintiff's transportation and the securing of medical attention for her injuries.
Well after the accident, employees of defendant discovered the severed finger tip. Plaintiff alleges that it was not wrapped and secured for disposition and was, instead, displayed to others in the workplace when a supervisory employee placed the severed digit end on a cart. Apparently, the finger tip was eventually thrown out without prior consultation with plaintiff. Plaintiff makes no claim that the tip could have been reattached, but has attempted to assert the following three causes of action under North Carolina law:
(1) conversion of a body part;
(2) intentional infliction of emotional distress; and
(3) the mishandling of a body part.
In moving to dismiss those claims, defendant argues that to the extent plaintiff has asserted a cause of action, which it denies, her exclusive remedy is found before the Industrial Commission under the Workers' Compensation Act.
II. Standard
Defendant has moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, and contended that plaintiff has failed to state a cognizable claim. Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989); Hishon v. King Spalding, 467 U.S. 69, 73(1984);Conley v. Gibson, 355 U.S. 41(1957). As the Court discussed in Neitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts. . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."Id., 109 S.Ct., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendant's motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to her.
III. Discussion
Without question, North Carolina recognizes a cause of action for intentional infliction of emotional distress, Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488, disc. rev. denied, 317 N.C. 334(1986); and absent the preclusive workers compensation laws, discussed infra, it is arguable whether a North Carolina court would let plaintiff's second cause of action go forward based on the allegations contained in the complaint. As to plaintiff's first and third causes of action, she attempts to allege the torts of conversion of her finger (first claim) and mishandling of a body part (second claim). Not surprisingly, there are no reported cases recognizing causes of action for conversion or mishandling of a severed and otherwise useless body part. There is, however, case law dealing with the mishandling of a corpse in violation of state laws governing the appropriate disposition of human remains. N.C. Gen. Stat. Chapter 90-210.25(e)(2); see Dumouchelle v. Duke University, 69 N.C. App. 471(1984). Whether those laws could be stretched to recognize a claim for the mishandling of a dismembered extremity is an issue this court need not reach because it appears that all of plaintiffs claims are barred as a matter of law.
According to the Hogan court, the elements of the tort are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress."
The ultimate issue presented by the pending motion is whether plaintiff's tort claims against her employer are barred. Turning to North Carolina's Workers' Compensation Act, plaintiff is precluded from bringing a civil tort action against her employer for the acts of its employees and supervisors. Specifically, Chapter 97-10.1 of the North Carolina General Statutes provides, as follows:
If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.
Indeed, North Carolina courts have held that even where a complaint alleges willful and wanton negligence and seeks punitive damages, the remedies under the Act are exclusive. McAllister v. Cone Mills Corp., 88 N.C. App. 577(1988). This court, too, has held that civil claims against an employer for the tortious acts of coworkers arising out of the employment relationship are barred by Chapter 97-10.1. Herring v. F. N. Thompson. Inc., 866 F. Supp. 264, 266 (W.D.N.C. 1994). While this court agrees with plaintiff that the alleged conduct was juvenile, disrespectful, and unnecessarily insensitive, North Carolina law appears to foreclose a civil action in favor of an administrative determination. For these reasons, plaintiffs claims must be dismissed
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant's Motion to Dismiss be ALLOWED.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to defendant's Motion to Dismiss (#3).