Alford v. Catalytica Pharmaceuticals6/4/2002
e plaintiff's will." Id. at 439, 531 S.E.2d at 279 (citing Ormond v. Crampton, 16 N.C. App. 88, 94, 191 S.E.2d 405, 410, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)). Battery does not require malice, willfulness or wantonness. Id. at 439-40, 531 S.E.2d at 279 (citing Myrick v. Cooley, 91 N.C. App. 209, 215, 371 S.E.2d 492, 496, disc. review denied, 323 N.C. 477, 373 S.E.2d 865 (1988)). The intent required for battery may be established by grossly or culpably negligent conduct, see Jenkins v. Averett, 424 F.2d 1228, 1231 (1970), wanton and reckless negligence, see Pleasant, 312 N.C. at 715, 325 S.E.2d at 248, as well as one's belief that certain consequences are substantially certain to follow from an action, see Jones v. Willamette Industries, 120 N.C. App. 591, 594, 463 S.E.2d 294, 297 (1995) (emphasis supplied).
Our Supreme Court has repeatedly held that a successful Woodson claim does not require actual certainty but substantial certainty. See Rose v. Isenhour Brick & Tile Co., Inc., 344 N.C. 153, 159, 472 S.E.2d 774, 778 (1996); Mickles v. Duke Power Co., 342 N.C. 103, 110, 463 S.E.2d 206, 211 (1995); see also Regan v. Amerimark Bldg. Products, Inc., 127 N.C. App. 225, 227, 489 S.E.2d 421, 423 (1997). We conclude that the additional language in Owens was to qualify the dissent's use of "intentional tort" and does not classify a Woodson claim as an additional cause of action separate and apart from an intentional tort.
Both parties point out that the North Carolina General Assembly has extended the statute of limitations for intentional torts. See N.C. Session Laws 2001-175. However, the statute in effect at the time plaintiffs' alleged Woodson claim arose subjects the claim to the oneyear statute of limitations.
We reject plaintiffs' argument that "the expression of one thing is the exclusion of another," and conclude that section 1-54(3) applies to all actions substantially similar to those enumerated constituting intentional torts. We hold that plaintiffs' Woodson claim is equivalent to an intentional tort and we affirm the trial court's dismissal of this claim as time-barred by N.C.G.S. § 1-54(3).
Affirmed.
Judge MARTIN concurs.
Judge THOMAS dissents.
THOMAS, Judge, dissenting.
Because our courts have not consistently held that an action forming the basis of a Woodson claim is an intentional tort "in the true sense of that term," I respectfully dissent.
The one-year statute of limitations as prescribed in N.C. Gen. Stat. § 1-54(3) (1999) is inapplicable even if a Woodson claim is 99.9% an intentional tort. The standard is not flexible under any circumstances-- it must be an intentional tort in every sense of the word, absolutely, or there is no room in that section for Woodson.
Statutes of limitation are inflexible and unyielding and the trial court has no discretion when considering whether a claim is barred by the applicable statute of limitations. Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E.2d 870 (1970).
In Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), our Supreme Court held there is an exception to the exclusivity clause of the North Carolina Workers' Compensation Act where an employer had knowledge that an injury was substantially certain to occur under the circumstances. The Woodson court allowed a separate civil action, stating: the legislature did not intend to relieve employers of civil liability for intentional torts which result in injury or death to employees. In such cases the injury or death is considered to be both by accident, for which the employee or personal representative may pursue a compensation claim under
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