NO. COA13-620

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

JANET MAY and CURTIS HILL, CoAdministrators of the Estate Of

Mark Curtis Hill,

Plaintiffs,

v. Wayne County

No. 10 CVS 2651

MELROSE SOUTH PYROTECHNICS, INC.,

and OCRACOKE CIVIC & BUSINESS

ASSOCIATION d/b/a OCRACOKE ISLAND 

CIVIC AND BUSINESS ASSOCIATION,

Defendants.

JUDY B. GRAY, Administrator of the

Estate of Melissa Annette Simmons,

 Plaintiff,

 v.

EAST COAST PYROTECHNICS, INC.,

formerly known as MELROSE SOUTH

PYROTECHNICS, INC.,

 Defendant.

 

KEVIN F. MACQUEEN, Administrator

of the Estate of Charles Nathaniel

Kirkland, Jr.,

 Plaintiff,

 v.

EAST COAST PYROTECHNICS, INC.,

formerly known as MELROSE SOUTH

PYROTECHNICS, INC.,

 Defendant.

Wayne County

11 CVS 1376

Wayne County

11 CVS 1377
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MARTEZ HOLLAND,

 Plaintiff,

 v.

EAST COAST PYROTECHNICS, INC.,

formerly known as MELROSE SOUTH

PYROTECHNICS, INC.,

 Defendant.

Wayne County

11 CVS 1379

Appeal by Defendants from order entered 1 October 2012 by 

Judge Arnold O. Jones, II in Superior Court, Wayne County. 

Heard in the Court of Appeals 7 January 2014.

Farris & Farris, PA, by Robert A. Farris, Jr. and Rhyan A. 

Breen, and Thomas & Farris, PA, by Albert S. Thomas, Jr., 

for Plaintiffs-Appellees Janet May and Curtis Hill, CoAdministrators of the Estate of Mark Curtis Hill; Donald E. 

Clark, Jr., PLLC, by Donald E. Clark, Jr., and The Wright 

Law Firm, by Paul M. Wright for Plaintiff-Appellee Judy B. 

Gray, Administrator of the Estate of Melissa Annette 

Simmons; Riddle & Brantley, LLP, by Gene A. Riddle and 

Jonathan M. Smith, for Plaintiff-Appellee Kevin F. 

MacQueen, Administrator of the Estate of Charles Nathaniel 

Kirkland, Jr.; and Jerry Braswell for Plaintiff-Appellee

Martez Holland.

Cranfill Sumner Hartzog LLP, by Daniel G. Katzenbach and M. 

Denisse Gonzalez, for Defendants-Appellants.

McGEE, Judge.

This case is before us on remand from the North Carolina 

Supreme Court. Our Court originally dismissed the appeal in 

this matter as interlocutory on 8 August 2013. Melrose South 
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Pyrotechnics, Inc. (“Melrose”) and East Coast Pyrotechnics, Inc. 

petitioned our Supreme Court for writ of certiorari, and the

Supreme Court, in an order entered 3 October 2013, allowed the 

petition “for the limited purpose of remanding to the Court of 

Appeals for consideration of the merits.” This Court therefore 

reviews the merits of Defendants’ appeal.

This action arises out of a fireworks explosion in which 

several people were killed or seriously injured. Janet May 

(“May”) and Curtis Hill (“Hill”), co-administrators of the 

estate of Mark Curtis Hill, filed a complaint on 2 December 2010 

against Melrose and Ocracoke Civic & Business Association d/b/a 

Ocracoke Island Civic and Business Association (“Ocracoke”)

(together, “Defendants”), alleging negligent hiring, gross 

negligence, and strict liability.

May and Hill alleged that Melrose was “in the business of 

providing fireworks displays[;]” that Terry Holland “had been a 

part-time employee of . . . Melrose since 2000;” that Ocracoke 

“contracted with . . . Melrose to provide a fireworks 

display[;]” that Terry Holland “received some training 

from . . . Melrose as ‘Chief Pyrotechnician’ to work on its 

behalf conducting fireworks displays in North Carolina;” and 

that Terry Holland “was advanced sums of money to retain the 
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independent services of a crew to assist him in performing 

fireworks displays” by Melrose.

Judy B. Gray (“Gray”), as administrator of the estate of 

Melissa Annette Simmons, and Kevin F. MacQueen (“MacQueen”), as 

administrator of the estate of Charles Nathaniel Kirkland, Jr.,

filed separate complaints on 1 July 2011 against East Coast 

Pyrotechnics, Inc., formerly known as Melrose, alleging 

negligence, gross negligence, strict liability, and, in the 

alternative, a Woodson claim. Martez Holland filed a complaint 

on 1 July 2011 against Melrose, alleging negligent hiring, gross 

negligence, and strict liability.

The trial court, in an order entered 15 November 2011, 

consolidated the actions of May and Hill, Gray, MacQueen, and 

Martez Holland (together, “Plaintiffs”). Defendants filed a 

motion for summary judgment on 24 August 2012. The trial court 

denied Defendants’ motion for summary judgment in an order 

entered 1 October 2012 because “there do exist genuine issues of 

fact[.]”

I. Standard of Review

“We review a trial court’s order granting or denying 

summary judgment de novo. Under a de novo review, the court 

considers the matter anew and freely substitutes its own 

judgment” for that of the trial court. D.G. II, LLC v. Nix, 213 
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N.C. App. 220, 229, 713 S.E.2d 140, 147 (2011) (internal 

quotation marks omitted).

II. Rule

A trial court should grant a motion for summary judgment 

only “if the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and 

that any party is entitled to a judgment as a matter of law.” 

N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013); see also D.G. II, 213 

N.C. App. at 228, 713 S.E.2d at 147.

The purpose of N.C.G.S. § 1A-1, Rule 56 “is to eliminate 

formal trials where only questions of law are involved.” Lowe 

v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). “An 

issue is ‘genuine’ if it can be proven by substantial evidence 

and a fact is ‘material’ if it would constitute or irrevocably 

establish any material element of a claim or a defense.” Id.

III. Relationship Between Plaintiffs and Defendants

Defendants first argue the trial court erred in denying 

their motion for summary judgment because “[t]he issue of 

whether Plaintiffs are employees or independent contractors can 

be decided as a matter of law.” We disagree.

As stated above, summary judgment requires that (1) “the 

pleadings, depositions, answers to interrogatories, and 
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admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact” and 

(2) “any party is entitled to a judgment as a matter of law.” 

N.C.G.S. § 1A-1, Rule 56(c). In the present case, there remain 

several genuine issues of fact that are material to determining 

the nature of the relationship between Plaintiffs and 

Defendants.

Defendants contend there are some undisputed facts that 

“show conclusively that Plaintiffs were employees” of Melrose. 

Defendants cite Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 

137 (1944), for support of their argument. However, in Hayes, 

there was “no substantial controversy as to the facts.” Id. at 

15, 29 S.E.2d at 139. By contrast, in the present case, there 

is substantial controversy as to the facts, as will be shown in 

this section. We therefore cannot determine the nature of the 

relationship between Plaintiffs and Defendants at this stage in 

the proceedings.

In their complaint, May and Hill alleged that Terry Holland 

“had been a part-time employee of . . . Melrose since 2000[.]” 

They further alleged that the “crew members selected by [Terry] 

Holland were not employees of . . . Melrose but were contracted 

by [Terry] Holland for . . . Melrose on a job by job basis[.]” 

Melrose denied this allegation in its answer.
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Similarly, in her complaint, Gray alleged that “Simmons and 

the other crew members were not employees of Defendant but were 

contracted by [Melrose] by and through its employee, [Terry] 

Holland, to work on the July 4, 2009, fireworks display for” 

Ocracoke. Melrose denied this allegation in its answer.

Likewise, in his complaint, MacQueen alleged that Charles 

Nathaniel Kirkland, Jr. “and the other crew members were not 

employees of Defendant but were independent contractors retained 

by Defendant by and through its employee, [Terry] Holland, to 

work on the July 4, 2009, fireworks display for” Ocracoke. 

Melrose denied this allegation in its answer.

In his complaint, Martez Holland alleged that the “crew 

members selected by [Terry] Holland were not employees of 

[Melrose] but were contracted by [Terry] Holland for [Melrose] 

on a job by job basis[.]” Melrose denied this allegation in its 

answer.

To determine “whether the relationship of employeremployee, or that of independent contractor, exists, our Supreme 

Court has stated, ‘The vital test is to be found in the fact 

that the employer has or has not retained the right of control 

or superintendence over the contractor or employee as to 

details.’” Morales-Rodriguez v. Carolina Quality Exteriors, 

Inc., 205 N.C. App. 712, 714, 698 S.E.2d 91, 93-94 (2010). 
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Factors to consider in determining whether the relationship of 

employer-employee exists include that the person employed:

(a) is engaged in an independent business, 

calling, or occupation; (b) is to have the 

independent use of his special skill, 

knowledge, or training in the execution of 

the work; (c) is doing a specified piece of 

work at a fixed price or for a lump sum or 

upon a quantitative basis; (d) is not 

subject to discharge because he adopts one 

method of doing the work rather than 

another; (e) is not in the regular employ of 

the other contracting party; (f) is free to 

use such assistants as he may think proper; 

(g) has full control over such assistants; 

and (h) selects his own time.

Id. at 714, 698 S.E.2d at 94.

Thomas Thompson, president of Melrose, testified in a 

deposition that the lead technician is paid ten percent of the 

value of the show and has the “choice to decide how he wants to 

split that up” among his crew. However, May stated in an 

affidavit that at no time “did Mark [Curtis] Hill ever represent 

to [her] that he was working for Melrose[.]” May further stated 

that Melrose “never issued any compensation for the work 

performed by Mark [Curtis] Hill.” Furthermore, Ronnie Tessenner

(“Tessenner”), who worked for Melrose in 2009, testified that 

Mark Curtis Hill, in his past work experience, had repaired 

items in homes. Tessenner also testified that Charles Nathaniel 

Kirkland, Jr. was an electrician and that “it would be helpful 
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to have an assistant that had some electrical experience” in a 

fireworks display.

The pleadings and depositions show that there is 

substantial controversy as to the facts that define the nature 

of the relationship between Plaintiffs and Defendants. Because 

there is a substantial controversy as to the facts, at this 

stage in the proceedings, we cannot determine the nature of the 

relationship. Defendants have not shown that the trial court 

erred in denying Defendants’ motion for summary judgment on this 

basis.

IV. Negligence, Gross Negligence, Strict Liability, and 

Negligent Hiring

Defendants also argue the trial court erred in denying 

Defendants’ motion for summary judgment “as to Plaintiffs’ 

claims for negligence, gross negligence, strict liability, and 

negligent hiring because no issues of fact exist to support any 

of those claims.” We disagree.

Defendants contend that “[e]ven if Plaintiffs are found to 

be independent contractors, they fail to set forth evidence to 

support any recognized exception to the ‘no liability’ rule for 

general contractors.” However, Defendants’ argument overlooks 

the fact, discussed in the previous section, that genuine issues 

of material fact remain as to the nature of the relationship 

between Plaintiffs and Defendants.
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“Negligence claims are rarely susceptible of summary 

adjudication, and should ordinarily be resolved by trial of the 

issues.” Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 

S.E.2d 868, 871 (1983); see also Goodman v. Wenco Foods, Inc., 

333 N.C. 1, 27, 423 S.E.2d 444, 457 (1992) (“Summary judgment 

‘is a drastic measure, and it should be used with caution.’”). 

Because genuine issues of material fact remain to be determined 

in the trial court as to the nature of the relationship between 

Plaintiffs and Defendants, the trial court did not err in 

denying Defendants’ motion for summary judgment.

V. Woodson Claims

Defendants also argue the trial court erred in denying 

Defendants’ motion for summary judgment as to the alternative 

Woodson claims “because no issue of fact exists to support the 

higher standard required for such a claim.”

When an “employer intentionally engages in misconduct 

knowing it is substantially certain to cause serious injury or 

death to employees and an employee is injured or killed by that 

misconduct, that employee, or the personal representative of the 

estate in case of death, may pursue a civil action against the 

employer.” Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 

222, 228 (1991).
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Defendants argue on appeal that Plaintiffs failed to allege 

certain elements of a Woodson claim. However, as stated above, 

the issue on a motion for summary judgment is whether the 

“pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that 

any party is entitled to a judgment as a matter of law.” 

N.C.G.S. § 1A-1, Rule 56(c).

As in the previous section, because genuine issues of 

material fact remain to be determined in the trial court 

regarding the nature of the relationship between Plaintiffs and 

Defendants, Defendants have not shown that the trial court erred 

in denying Defendants’ motion for summary judgment.

Affirmed.

Judges HUNTER, Robert C. and ELMORE concur.