- Associated Press - Tuesday, February 4, 2014

RALEIGH, N.C. (AP) - Negligence lawsuits filed by representatives of three workers who died and one person who survived an explosion inside a truck carrying July 4 fireworks to a North Carolina barrier island display can continue, the state Court of Appeals ruled Tuesday.

The three judges unanimously sided with the estates of Mark Hill, Lisa Simmons and Charles Kirkland Jr. and with the injured Martez Holland. They are seeking damages against a pyrotechnics company hired to put on the show on Ocracoke Island in 2009.

The case will return to court for possible trials barring a change. The state Supreme Court isn’t required to hear an appeal of Tuesday’s opinion.

Four workers inside the truck containing nearly 700 pounds of fireworks died, while Holland was blown out of the back of the truck and suffered third-degree burns. Federal investigators blamed a small explosion involving electric igniters being pushed into the fireworks for triggering a larger explosion inside the truck.

The estates’ administrators and Holland sued South Carolina-based East Coast Pyrotechnics Inc., formerly known as Melrose South Pyrotechnics, the company that was hired by an Ocracoke community group to put on the show.

The plaintiffs said those killed and Holland received no safety training from Holland’s uncle, Terry, who was also among those killed. He planned to put on the Ocracoke Island show for Melrose, had put on previous shows for the company, and should have known not to work in the back of the truck, the plaintiffs argue. Melrose South agreed to pay $42,000 in penalties through a settlement with the state Department of Labor for safety citations.

“The families have had a very difficult time,” said Al Thomas Jr., a Wilson attorney representing the administrators of Hill’s estate. “They are eager to tell their story and let a … jury listen to them, and that’s the only way they’re going to approach closure.”

A trial judge in Wayne County denied motions by East Coast Pyrotechnics to reject the plaintiffs’ claims. The company appealed, saying there were no facts to support claims of negligence or negligent hiring of the crew for that project.

Writing for the panel, Judge Linda McGee said there were unresolved issues over the facts in the case, in particular whether Hill, Simmons, Kirkland and Martez Holland were company employees or independent contractors.

The difference is important because if they are determined as employees, the estates and injured worker would be obliged to use the state’s workers’ compensation system. The compensation is based on the workers’ employee income, which would be small in this case. Even if they are labeled employees, the plaintiffs’ attorneys argue, they should be allowed to seek damages because the company still intentionally engaged in misconduct that was very likely to cause death or serious injuries.

“Genuine issues of material fact remain to be determined in the trial court as to the nature of the relationship between plaintiffs and defendants,” McGee wrote. Judges Robert C. Hunter and Rick Elmore agreed with the opinion.

Daniel Katzenbach, an attorney representing East Coast Pyrotechnics, said he had not read the case and declined comment. A phone message left at company headquarters in Catawba, S.C., wasn’t immediately returned.

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