Opinion
I.C. NO. TA-18536.
Filed 21 March 2011.
The Full Commission reviewed this matter administratively, without oral argument, pursuant to Tort Claim Rule T310 on January 27, 2011, upon the appeal of plaintiff from the Decision and Order of former Deputy Commissioner Robert Wayne Rideout, Jr. filed on August 10, 2010 following a pretrial video conference on July 13, 2010 in Raleigh, North Carolina.
Plaintiff: Pro se.
Defendants: Roy Cooper, Attorney General of North Carolina, North Carolina Department of Justice, Raleigh, North Carolina; Christina S. Hayes, Associate Attorney General, Counsel of Record.
***********The Full Commission reviewed the prior Decision and Order, based upon the record of the proceedings before former Deputy Commissioner Rideout, and the assignments of error and/or briefs before the Full Commission. The appealing party has shown good grounds to reconsider the evidence. Having reviewed the competent evidence of record, the Full Commission reverses
the Decision and Order of former Deputy Commissioner Rideout and enters the following Interlocutory Decision and Order.
***********Based upon the competent evidence of record, the Full Commission makes the following:
FINDINGS OF FACT1. On May 14, 2010, former Special Deputy Commissioner Abigail M. Hammond entered an Interlocutory Order setting forth the following sanctions pursuant to Rule 37(b)(2) of the N.C. Rules of Civil Procedure for defendant's failure to comply with plaintiff's discovery requests and prior Interlocutory Orders of the Commission:
a. It SHALL be established for the limited purposes of litigating the above captioned tort matter that there was negligence on the part of an officer, employee, involuntary servant, or agent of the State while acting within the scope of his office, employment, service, agency or authority that was the proximate cause of the injury.
b. Plaintiff SHALL bear the burden of establishing any damages caused by said negligence.
c. Defendant SHALL be limited to only the presentation of proof that Plaintiff's actions amount to contributory negligence and proof of any damages caused by said negligence.
2. On December 3, 2003, plaintiff was an inmate incarcerated in the custody of the North Carolina Department of Correction (hereinafter "NCDOC").
3. On that date, Corrections Officer Blue was stationed at the control booth in Unit 1 Maximum Control Segregation of Central Prison, where plaintiff was housed.
4. When plaintiff noticed that his cell had been opened, he proceeded to the control booth, which was located on the level below his cell, in order to ask Officer Blue why his cell door had been opened.
5. It was then that Inmate Jermaine Davis appeared suddenly and proceeded to assault plaintiff.
6. Plaintiff fell to the floor and Inmate Davis continued to assault him.
7. Thereafter, a number of corrections officers entered the cell block and became involved in the incident.
8. As a result of the incident involving Inmate Davis and the correctional officers, plaintiff sustained broken third and fourth fingers, as well as minor cuts and scrapes.
9. Plaintiff has undergone surgery on one of his broken fingers, and was told by the physician that, due to plaintiff's diabetes, he would have to wait until that finger healed to have surgery on the other finger.
10. There is no evidence in the record that supports the fact that plaintiff was contributorily negligent in the events of December 3, 2003. As such, the Full Commission finds that plaintiff was not contributorily negligent.
11. Plaintiff was not provided with all of the medical records which were the subject of his discovery request to defendant, and which plaintiff intended to use to prove his damages.
***********Based upon the foregoing findings of fact, the Full Commission enters the following:
CONCLUSIONS OF LAW1. The North Carolina Tort Claims Act permits individuals to sue State departments or agencies for injuries caused by the negligence of State employees. A plaintiff must also show that the injuries sustained were the proximate result of a negligent act of a named state employee acting within the course and scope of his employment. See N.C. Gen. Stat. § 143-291. The terms of the Tort Claims Act must be strictly construed. Northwestern Distrib., Inc. v. N.C. Dept. Of Transp., 41 N.C. App. 548, 255 S.E.2d 203, cert. denied, 298 N.C. 567, 261 S.E.2d 123 (1979).
2. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties. Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).
3. Negligence cannot be presumed or inferred from mere occurrence of injury or accident. Fleming v. Twiggs, 244 N.C. 666 (1956); Sabol v. Parrish Realty of Zebulon, Inc., 77 N.C. App. 680 (1985).
4. In order to recover on a civil claim for negligence, a claimant must prove: (1) the existence of a duty to him; (2) a breach of that duty by the defendant (the named employees thereof in a tort claim); (3) injury sustained; and (4) that the injury sustained was a proximate result of the breach of duty. Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990). Plaintiff has the burden of proof on all these elements and must prove his case by a preponderance of the evidence.
5. The Department of Correction is not an insurer of the safety of every inmate and will not be found liable every time one inmate assaults another. See Taylor v. NC Dep't of Correction, 88 N.C. App. 446, 363 S.E.2d 868 (1988).
6. Pursuant to the Interlocutory Order of former Special Deputy Commissioner Abigail M. Hammond filed on May 14, 2010, it was established that for the limited purposes of litigating the instant claim that there was negligence on the part of an officer, employee, involuntary servant, or agent of the State while acting within the scope of his office, employment, service, agency or authority that was the proximate cause of the injury.
7. The Full Commission concludes as a matter of law that plaintiff was not contributorily negligent regarding the events of December 3, 2003. Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967).
***********Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following:
ORDER1. This matter is hereby REMANDED to Chief Deputy Commissioner Wanda Blanche Taylor for assignment to a Deputy Commissioner for taking of further evidence on the issue of plaintiff's damages.
2. Defendant shall pay the costs.
This the 12th day of March, 2011.
S/___________________ LINDA CHEATHAM COMMISSIONER
CONCURRING:
S/_____________ PAMELA T. YOUNG CHAIR
S/_____________ STACI T. MEYER COMMISSIONER