IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA26-172
Filed 7 October 2026
Mecklenburg County, No. 25CV024249-590
RANDY HEMBREE, Plaintiff,
v.
HENDRICK AUTOMOTIVE GROUP, LLC, HENDRICK CORPORATION, LLC,
HENDRICK MANAGEMENT, LLC, and ERIC WILLIAM WRIGHT, Defendants.
Appeal by defendant from order entered 26 November 2025 by Judge David
Strickland in Mecklenburg County Superior Court. Heard in the Court of Appeals 27
August 2026.
O’Malley Tunstall, PC, by Peter J. Tomasek and Joseph P. Tunstall, III, and
The Sumwalt Group, by Vernon Sumwalt, for plaintiff-appellee.
McAngus Goudelock & Courie, PLLC, by Jeffrey B. Kuykendal, for defendantappellant.
FLOOD, Judge.
Defendant Eric William Wright appeals the trial court’s order denying his
motion to dismiss on the basis that the North Carolina Industrial Commission had
exclusive jurisdiction over Plaintiff Randy Hembree’s claims. On appeal, Defendant
Wright argues Plaintiff’s claim did not fall within the narrow spectrum of cases
pursued by an employee against an employer that are not subject to the exclusive
jurisdiction of the Industrial Commission. As discussed below, however, Plaintiff’s
claim did fall within a recognized exception to the Industrial Commission’s exclusive
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jurisdiction; thus, we affirm the trial court’s order.
I. Factual and Procedural Background
On 15 May 2025, Plaintiff filed a complaint in superior court alleging, in
relevant part, that, between 2015 and January of 2025, Plaintiff was an employee of
Defendant Hendrick Automotive Group, LLC, directly supervised by Defendant
Wright. Plaintiff alleged that, during the time Defendant Wright acted as his
supervisor, he would, “[a]s a form of motivation, . . . physically strike his subordinates,
including [Plaintiff], in the head and neck.” According to Plaintiff, the physical abuse
“continued to ramp up” through 2022 despite Defendant Wright being aware that
Plaintiff had undergone a neck surgery in 2015. This allegedly resulted in Plaintiff
“experiencing a variety of severe neurological symptoms, including vertigo, dizziness,
blurred vision, numbness, and fatigue,” as well as ongoing treatment for a severe
cervical spinal condition, which had since escalated into a state of total disability.
In his complaint, Plaintiff characterized his claims for relief as three different
causes of action: “willful, wanton, and reckless negligence by Defendant Wright”;
“intentional misconduct substantially certain to cause injury by the Hendrick
defendants”; and “negligence and gross negligence against Defendant Hendrick
Corporation and Defendant Hendrick Management[.]” All three claims were pled
substantially in the form of negligence actions.
Alongside their answer, the three corporate defendants moved to dismiss, and
Defendant Wright separately moved to dismiss the claims against him on the grounds
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that “there is no dispute that [] Defendant [Wright] was a co-employee of Plaintiff at
all relevant times, and the Workers’ Compensation Act vests exclusive jurisdiction
over claims against [] Defendant [Wright] with the Industrial Commission.” While
the corporate defendants’ motion was still pending, the trial court denied Defendant
Wright’s motion to dismiss, and Defendant Wright appealed.
II. Jurisdiction
The order from which Defendant Wright appealed is interlocutory. Under Rule
54(b) of our Rules of Civil Procedure,
any order . . . which adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or
parties and shall not then be subject to review either by
appeal or otherwise except as expressly provided by these
rules or other statutes.
N.C.G.S. § 1A-1, Rule 54(b) (2025); see also Turner v. Hammocks Beach Corp., 363
N.C. 555, 558 (2009) (“As a general rule, interlocutory orders are not immediately
appealable.”). “[I]mmediate appeal of interlocutory orders and judgments is available
in at least two instances: when the trial court certifies, pursuant to N.C.G.S. § 1A-1,
Rule 54(b), that there is no just reason for delay of the appeal; and when the
interlocutory order affects a substantial right . . . .” Williams v. Devere Const. Co., 215
N.C. App. 135, 137 (2011) (citations and internal quotation marks omitted).
As Defendant Wright correctly argues, our caselaw establishes that appeals
from an order ruling on the exclusivity of the Industrial Commission’s jurisdiction
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are automatically deemed to affect a substantial right. See, e.g., Fagundes v. Ammons
Dev. Grp., Inc., 251 N.C. App. 735, 737 (2017); Blue v. Mountaire Farms, Inc., 247
N.C. App. 489, 495 (2016). Thus, appellate review of this interlocutory order is proper.
III. Analysis
Having determined that the appeal is jurisdictionally proper, we now turn to
the merits; specifically, whether the trial court erred in denying Defendant Wright’s
motion to dismiss on the basis that the Industrial Commission had exclusive
jurisdiction over Plaintiff’s claims. Defendant Wright argues that the trial court erred
in its determination because, as a default rule, the Workers’ Compensation Act (“the
Act”) provides the exclusive remedy for work-related injuries, and none of the
exceptions to that default rule apply. For the reasons explored at greater length
below, Plaintiff’s complaint did articulate claims that fall within recognized
exceptions to the exclusivity provision of the Act; thus, we affirm. “We review de novo
the grant of a motion to dismiss.” Davis v. Urquiza, 233 N.C. App. 462, 463 (2014)
(quoting Lea v. Grier, 156 N.C. App. 503, 507 (2003)).
Defendant correctly identifies the general rule that the Act is the exclusive
remedy for injured workers—and, in particular, that the availability of relief under
the Act precludes workers from recovering from their employers or co-employees in
ordinary negligence actions for workplace injuries. N.C.G.S. § 97-9 (2025) (“Every
employer subject to the compensation provisions of this Article shall . . . only be liable
to any employee for personal injury or death by accident to the extent and in the
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manner herein specified.”); Abernathy v. Consol. Freightways Corp. of Del., 321 N.C.
236, 239 (1987). As a consequence of the rule limiting avenues for recovery, Workers’
Compensation claims are subject to the exclusive jurisdiction of the Industrial
Commission. See, e.g., Chambers v. Transit Mgmt., 360 N.C. 609, 611 (2006); Clark v.
Wal-Mart, 360 N.C. 41, 42 (2005).
This rule, however, is subject to two exceptions: first, the Woodson exception,
which permits an employee to pursue a negligence action against his or her employer
when the 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,” Woodson v. Rowland, 329 N.C. 330, 340 (1991); and,
second, the Pleasant exception, which allows an employee to pursue a civil action
against a co-employee for their willful, wanton, and reckless negligence, Pleasant v.
Johnson, 312 N.C. 710, 717 (1985).
Here, there is no meaningful dispute that the alleged injury is a workplace
injury of the type that would be subject to the Act if no specific exception applies, nor
is there any meaningful contention that the Woodson exception—which applies to the
actions of employers, rather than co-employees—applies to the claims brought
against Defendant Wright personally. As such, we devote the rest of the analysis to
whether the complaint, as pled with respect to Defendant Wright, properly invoked
the Pleasant exception to the Act’s exclusivity provision.
In Pleasant v. Johnson, our Supreme Court articulated one of the two
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aforementioned exceptions to the exclusivity provision of the Act with respect to
negligence suits arising out of a workplace injury. There, the defendant, who worked
in the same construction site as the plaintiff, attempted a high-risk practical joke
with the aim “to scare the plaintiff by blowing the horn” of a truck he was operating
and by “operating the truck close to him.” Id. at 711. Rather than simply alarming
the plaintiff, however, the defendant struck him with the truck, seriously injuring
the plaintiff’s knee and disabling him. Id. The plaintiff, after receiving disability
benefits under the Act, brought a subsequent action in superior court alleging, in
relevant part, that the
[d]efendant was willfully, recklessly and wantonly
negligent in that he was operating the motor vehicle in
such a fashion so as to see how close he could operate the
said motor vehicle to the plaintiff without actually striking
him but, misjudging his ability to accomplish such a prank,
actually struck the plaintiff with the motor vehicle he was
operating.
Id. The defendant successfully moved for a directed verdict on the basis that the Act
was the plaintiff’s sole vehicle for recovery, and we affirmed. Id. at 710.
Our Supreme Court reversed, however. Id. at 717–18. While acknowledging a
general rule that co-employees, like employers, are typically free from liability in
ordinary negligence by virtue of the Act’s exclusivity provision, our Supreme Court
observed that recognized exceptions to the exclusivity provision existed for
intentional torts committed by employers and co-employees. Id. at 713. Reasoning
that “willful, reckless[,] and wanton negligence inhabits a twilight zone which exists
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somewhere between ordinary negligence and intentional injury[,]” our Supreme
Court held that willful, reckless, and wanton negligence created a “[c]onstructive
intent to injure . . . .” Id. at 714–15. Accordingly, it held that “the Workers’
Compensation Act does not shield a co-employee from common law liability for willful,
wanton[,] and reckless negligence[,] . . . consistent with the distinction which has
previously been made in such cases between ordinary negligence and intentional
torts.” Id. at 716.
Defendant Wright contends that, in the instant case, the Pleasant standard
was not met because Plaintiff’s complaint has not shown that Defendant Wright acted
with actual or constructive intent. To support this contention, Defendant Wright
directs us to Pender v. Lambert, 225 N.C. App. 390 (2013). In Pender, the defendant
was employed as a loss-prevention associate at a Wal-Mart location where the
decedent worked as a greeter. Id. at 391. During an incident in which the defendant
pursued a shoplifter toward the front of the store, the defendant collided with the
decedent, causing her to suffer a fatal head wound. Id. at 391–92. The decedent’s
estate brought a claim for willful, wanton, and reckless negligence in superior court,
and the trial court granted summary judgment in the defendant’s favor. Id. at 390,
395.
The decedent’s estate, invoking Pleasant on appeal, argued that the claim was
sufficient to withstand summary judgment. Id. at 394. We affirmed, however, noting
that the uncontroverted evidence established the defendant “engaged in a foot-chase
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and accidentally collided with a co-employee[.]” Id. at 395 (emphasis added). “[S]uch
conduct,” we held, “does not evidence a reckless or manifest disregard for the
consequences so as to warrant a finding of willfulness and wantonness equivalent in
spirit to actual intent.” Id. at 395–96.
Defendant Wright argues that Plaintiff, like the decedent’s estate in Pender,
failed to establish the equivalency to actual intent necessary to fall within the
Pleasant exception; however, his argument fails for two reasons. First, while it is true
that North Carolina courts have often been reticent to hold that a given case’s facts
fall within our caselaw’s narrow exceptions to the Act’s exclusivity provision, Pender
was—like the overwhelming bulk of the cases Defendant Wright cites in his brief—
an appeal from an order denying summary judgment, not from an order denying a
motion to dismiss. Id. at 396; see also Trivette v. Yount, 366 N.C. 303, 311 (2012);
Regan v. Amerimark Bldg. Prods., Inc., 127 N.C. App. 225, 229 (1997), aff’d, 347 N.C.
665 (1998). This difference is substantial, as summary judgment requires that the
actual facts, in the light most favorable to the nonmovant, reveal that judgment is
appropriate as a matter of law, whereas dismissal is only appropriate when no
conceivable set of facts that could follow from the face of the complaint would permit
recovery. Compare Integon Nat. Ins. Co. v. Maurizzio ex rel. Langley, 240 N.C. App.
38, 40 (2015) (“Summary judgment is proper where ‘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
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entitled to judgment as a matter of law.’” (quoting N.C.G.S. § 1A-1, Rule 56(c))) with
Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 28 (2002) (“A motion to dismiss
pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure tests the
legal sufficiency of the complaint. . . . Thus, a claim should not be dismissed unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief.”), disc. rev. denied, appeal dismissed, 357 N.C.
163 (2003). Even if our precedent establishes that evidence, even in the light most
favorable to the nonmovant, “rarely meets the high standard of ‘willful, wanton[,] and
reckless’ negligence established in Pleasant[,]” Trivette, 366 N.C. at 312, we are
unable to say the complaint in this case establishes that no set of possible facts would
demonstrate actual or constructive intent such that the trial court’s jurisdiction
would be appropriate.
Second, even if the instant case were of a comparable procedural posture to
Pender, Defendant’s argument appears to misunderstand the nature of intent as
expressed in our jurisprudence concerning intentional torts. In Pender, our decision
to reverse the trial court’s denial of summary judgment was based on the fact that
the evidence forecast indicated the defendant, even in the light most favorable to the
decedent’s estate, did not intend to make contact with the decedent or intend to create
the apprehension thereof. Pender, 225 N.C. App. at 395–96. While Defendant Wright
attempts to draw a comparison between his behavior and that of the defendant in
Pender on the basis that neither party intended to cause the resulting harm, our
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caselaw governing intentional torts reveals that Defendant Wright’s behavior, in
actuality, materially contrasts with the defendant in Pender because, unlike the
latter, Defendant Wright intended to make contact.
Our Workers’ Compensation jurisprudence has long recognized that the
principal exception to the exclusivity provision of the Act is intentional torts, with
other exceptions such as Woodson and Pleasant announcing their holdings as
derivative of that core exception:
Where the employer[1] is guilty of a felonious or [willful]
assault on an employee he cannot relegate him to the
compensation act for recovery. It would be against sound
reason to allow the employer deliberately to batter his
helper, and then compel the worker to accept moderate
workmen’s compensation benefits, either from his
insurance carrier or from himself as self-insurer. The
weight of authority gives the employee the choice of suing
the employer at common law or accepting compensation.
Essick v. City of Lexington, 232 N.C. 200, 210–11 (1950) (citation omitted); see also
Woodson, 329 N.C. at 340–341 (“We hold that 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
1 While the language in Essick specifies that actions for intentional torts may be maintained
against an employer, our Supreme Court has recognized this principle as extending to co-employees as well. Pleasant, 312 N.C. at 713 (“We [] have said that an injured worker may maintain a tort action against a co-employee for intentional injury.” (citation omitted)).
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civil action against the employer. Such misconduct is tantamount to an intentional
tort, and civil actions based thereon are not barred by the exclusivity provision[] of
the Act.”); Pleasant, 312 N.C. at 715 (“[I]njury to another resulting from willful,
wanton[,] and reckless negligence should also be treated as an intentional injury for
purposes of our Workers’ Compensation Act.”). Following the common law, in our
assault and battery jurisprudence, “[t]he interest protected by the action for battery
is freedom from intentional and unpermitted contact with one’s person[,] [and] the
interest protected by the action for assault is freedom from apprehension of a harmful
or offensive contact with one’s person.” Dickens v. Puryear, 302 N.C. 437, 445 (1981)
(citations omitted). For this reason, while both torts have an intent component, the
intent referenced in our caselaw is not the intent that whatever harm results come
about, but the intent to cause the physical contact or apprehension thereof. See
McCracken v. Sloan, 40 N.C. App. 214, 216–17 (1979) (“The gist of the action for
battery is not the hostile intent of the defendant, but rather the absence of consent to
the contact on the part of the plaintiff.”); Lynn v. Burnette, 138 N.C. App. 435, 440
(2000) (“When intent to act is shown, the tortfeasor will be held liable for the results,
even if they were not foreseen.” (citation omitted)); see also Wilkerson v. Duke Univ.,
229 N.C. App. 670, 675 (2013) (“The elements of assault are intent, offer of injury,
reasonable apprehension, apparent ability, and imminent threat of injury. A battery
is made out when the person of the plaintiff is offensively touched against his will[.]”
(citations and internal quotation marks omitted)).
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Here, unlike in Pender, the allegations in Plaintiff’s complaint indicate that
Defendant Wright did intentionally strike Plaintiff. Regardless of whether he
intended the contact to cause the harm that allegedly resulted, it was his intent to
make the unwanted contact that supplied the requisite intent permitting the
invocation of the Pleasant exception. Sloan, 40 N.C. App. 214, 216–17; Lynn, 138 N.C.
App. at 440. Indeed, our caselaw discussing the exclusivity provision of the Act
contains multiple examples of tortious conduct in which the conduct or apprehension
was intended but the harm was not. See, e.g., Pleasant, 312 N.C. at 711 (intended
action was to scare coworker with proximity to a moving vehicle; intended result was
a prank); Andrews v. Peters, 55 N.C. App. 124, 124 (1981) (intended action was to
buckle a coworker’s knee; intended result was a prank). Far from Pender, Plaintiff’s
complaint evinces conduct that amounts to an intentional tort. The fact that the
complaint styled the claim as one for “willful, wanton, and reckless negligence by
Defendant Wright” does not remove it from the Pleasant exception; rather, it places
the claim on all fours with Pleasant. See Pleasant, 312 N.C. at 710–11 (holding that
assaultive conduct styled as a negligence action was exempt from the exclusivity
provision of the Act). Therefore, the trial court correctly denied Defendant Wright’s
motion to dismiss.
IV. Conclusion
Plaintiff’s complaint alleged behavior by Defendant Wright that amounted to
an intentional tort. Pursuant to Pleasant, the exclusivity provision of the Act does not
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apply to such a claim. Accordingly, we affirm the trial court’s order denying
Defendant Wright’s motion to dismiss.
AFFIRMED.
Judges ARROWOOD and GORE concur.
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