I am often asked, “can I sue my employer in North Carolina?” If the employer and the employee are both covered by the North Carolina Workers’ Compensation Act then the workers’ compensation system in North Carolina provides the “exclusive remedy” for the employee’s workplace injuries and illnesses. The injured employee is generally prohibited from suing his employer in civil court.  The employee is also generally prohibited from suing his or her co-workers in civil court for workplace injuries in NC that arise as a result of the co-employee’s negligence.

This is the “grand compromise.”  The employer is protected from unpredictable jury verdicts and the employee receives certain, if limited, compensation for workplace injuries. Injured employees must pursue their workplace injury claims under the workers’ compensation system before the North Carolina Industrial Commission.

In order to receive the exclusive remedy protection the employer must have complied with the NC Workers’ Compensation Act by purchasing insurance or qualifying as a self-insured employer.  An employer who fails to meet its obligation to provide workers’ compensation coverage may open itself up to the more expansive remedies and less predictable results of the civil jury system.

As with literally everything involving workers’ compensation in NC, there are exceptions.  In very limited circumstances employees may be allowed to sue their employer in civil court. Each of these exceptions involves bad conduct, something more than simple carelessness or negligence.

First, employees may sue their employer for injuries that arise from their employer’s intentional acts.  So if an employer purposefully causes physical harm to an employee then the employee may sue the employer in civil court.  Claims for intentional acts are frequently not covered by insurance so the employee’s actual recovery may be frustrated even if he or she prevails.

Second, an employee may sue a co-worker for injuries that arise from the co-worker’s intentional acts.  An employee may also sue a co-worker for injuries caused by the co-employees conduct that is “willful, wonton or reckless.”  Reckless conduct falls somewhere between simple carelessness and intentional conduct.  Reckless conduct is often describe as a complete disregard of or indifference to the safety of another person.  Note the civil claim here is against the co-employee, not the employer.

Finally when an employer engages in intentional conduct that is “substantially certain” to cause serious injury or death an injured NC employee may sue his employer for injuries arising out of such misconduct.  This is often referred to as a Woodson claim, after the North Carolina Supreme Court’s decision in Woodson v. Rowland, 329 NC 330, 407 S.E. 2d 222 (1991).  A Woodson claim is limited to the most egregious employer conduct.  The standard is so high in fact that most experienced workers’ compensation lawyers in North Carolina believe there is almost no such thing as a viable Woodson claim.  Appellate courts have consistently dismissed case after case brought in civil court under Woodson.

So in general the answer to the question “can I sue my employer in North Carolina” is no.  But don’t let that prevent you from pursuant the important benefits provided by the NC Workers’ Compensation system.

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Top Ten Tips and Traps for North Carolina Workers’ Compensation Claims

After twenty years of practicing workers’ compensation law in North Carolina I have seen just about every mistake an injured worker can make.  These mistakes range from failing to file their claim, to settling when they should not have, and everything in between. Download my Top Ten Tips and Traps for North Carolina Workers’ Compensation Claims

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