*1 IN THE OF APPEALS COURT BLACKMON v. N.C. DEPT. OF CORRECTION
[118 N.C. App. (1995)] counselor, attorney may tant of the intake the assistant district role complainant. sign petition juvenile argues petition properly was not ver- that the fully However, supports finding signature record that the
ified.
attorney
deputy
of the assistant district
was verified before the
clerk
juvenile
alleged
has not
that the verification was false or
of court.
unsupported by
knowledge
Green,
In
sufficient
of the facts.
re
App. 501,
juvenile relies,
Affirmed.
Judges MARTIN, EAGLES JOHN C. concur. MARY B. Administratrix the Estate of BOBBY T. BLACKMON, BLACKMON, v. NORTH DEPARTMENT OF CAROLINA Deceased, CORRECTION, DEPARTMENT and/or NORTH CAROLINA OF Employer; TRANSPORTATION, Defendants
No. 9410IC558 May (Filed 1995) Compensation (NCI4th)— Workers’ §§ inmate —entitlement to workers’ benefits— wrongful death claim under Tort Claims Act barred an inmate suffered accidental death out of
Because and in the course and to which he had by Corrections, plaintiff been Compensation entitled to under the Workers’ Act pursuing barred 97-10.1 from her and was thus N.C.G.S. wrongful death claim under the Tort Claims Act. N.C.G.S. 97-13(c). 2d, 62, 64-66, 162. §§
Am Jur dissenting. Judge Greene
Appeal by from order filed 15 March 1994 defendants Appeals North Carolina Industrial Commission. Heard the Court of 4 October 1994.
IN THE OF APPEALS COURT BLACKMON v. N.C. DEPT. OF CORRECTION *2 plaintiff-appellee. Hugh B. Lewis for Easley, by
Attorney Attorney F. General Michael Assistant Griffin, defendant-appellants. L. General Richard JOHN, Judge. appeal an
Defendants award North Carolina Industrial damages plaintiff under (the Commission) Commission Act). North Tort Claims Tort For the (the Carolina Act Claims reasons herein, we of the set forth reverse the decision Commission. procedural and Pertinent facts information are follows: Bobby (Blackmon) Decedent Blackmon an inmate incarcerated (DOC) Yancey Carolina within the North Correction custody with a Correctional Center. Blackmon worked medium road County Section North Carolina crew to Madison Department Transportation (DOT). supervising foreman
On 6 November the DOT Blackmon’s up and from crew to break remove road salt instructed inmates bin, a built lumber storage wooden structure of treated and double immediately of a the DOT main- on the side mountain above located stilts, feet yard. eight (8) ground The bin is raised from the tenance back, side, 17feet 34 feet from side to from front to measures top large compartments, of two from bottom. It consists feet holding approximately 75 tons road salt. Access to capable each through plywood doors. Removal of salt is accom- top of the bin metal plished by backing opening a truck beneath the bin and doors through as to to fall a chute. on the bottom so allow salt waterproofed, airtight bin is nor salt stored Because the neither readily crystallize and will not fall therein to harden and often tends procedure dealing with this cir- chute. Standard DOT through the atop the hardened for workers stand inside bin cumstance is evenly. the salt flows smashing salt it with crowbars until salt in to loosen and another inmate were directed Blackmon surface, it along the salt crust As Blackmon moved foregoing manner. pile. dropped the salt he into suddenly beneath him and broke Blackmon, he eventu- attempted to extricate inmates Although other ineffectual, rescue efforts were ally disappeared from view. Further asphyxiation. subsequently died from and Blackmon DEPT. OF CORRECTION Mary Blackmon, Blackmon’s mother and administratrix of his estate, February filing instituted this action an affidavit alleging with the against Commission tort claim DOT and DOC and $100,000.00 in seeking wrongful for the death of Blackmon. any liability, disavowing Defendants answered March 1991 and fur- upon subject jurisdiction ther moved to dismiss based lack of matter April 1991. The motion asserted that of the Workers’ (the Act) proceeding Act barred the Tort Claims Act for death. Defendants’ motion was by Deputy Garner, denied Commissioner Edward August Jr. 13 1992, plaintiffs On 18 March claim was heard on its merits before Deputy Gregory Commissioner M. “[p]laintiff Willis. He concluded *3 prove employees] injured has failed to the decedent as a [state negligence result of their acting while within the of their Department Transportation Department with the or ,” . . . plaintiff. Correction and awarded no appealed this decision to the full Commission. Commission, by in an order written Commissioner James J.
Booker, following: concluded the
1. §97-13(c) N.C.G.S. is not a bar to an wrongful action for prisoner brought death of a under the North Carolina Tort Claims Dept., v. North Act. Carolina Prison 252 N.C. (1960).
4.The North Carolina Industrial Commission is to determine
by
negligence under the Tort Claims Act
using the same rules as
applicable
private parties.
§143-291;
those
N.C.G.S.
Bolkhir v.
Univ.,
North Carolina State
(1988).
321 N.C.
6.The investiga- accident report by procedure tion Ed Preston which concluded that the posed injury cleaning used for the salt bins a serious risk of such, negligent using death to workers. As defendants were in procedure, bins, safety given design such a that no THE APPEALS
IN COURT OF BLACKMON v. N.C. DEPT. OF CORRECTION equipment workers, was used or was even made available to possible way that there was no to rescue someone without in putting danger the rescuers serious themselves. negligence wrongful Because defendants’ caused the decedent, the claimant is entitled to present
North Carolina Tort Claims Act at the value loss of earn- ings, fringe benefits, and household services of decedent. determinations, plain- Based on these the Commission awarded $73,685.00 tiff in damages. gave appeal Defendants notice of to this Court 30 March 1994. assignment upon
Defendants’ basic of error focuses 97-13(c) Commissioner Booker’s conclusion that N.C. Gen. Stat. § operate plaintiff’s brought does to bar death action under the Tort Claims Act. provides pertinent part:
The statute at issue apply This being Article shall not worked , except any prisoner State . . . following extent: Whenever to the State of Correction shall suffer . . . employ- accidental death out of and the course of the ment which he if . assigned, had been there be death . . the may or next of kin . . . have the benefit of this Article employee; applying to the Industrial Commission as other provided, application such is made within 12 months from the *4 discharge; provided date of the maximum and further that the compensation any to . . . kin the or next of thirty per ($30.00) deceased shall not exceed dollars period compensation week and the shall relate to the date of provi- . . . discharge his rather than the date of the accident. apply prisoners sions of G.S. 97-10.1and 97-10.2shall and dis- prisoners charged entitled to under this subsection applies and to the State in same manner as said section the employees employers. and 97-13(c) (1991).
N.C. Gen. Stat. §
N.C. Gen. Stat. 97-10.1 states: employer subject to and have com- If the and the plied Article, rights and reme- with the of this then the employee, dependents, kin, his next of granted dies herein v. N.C. DEPT. OF CORRECTION representative rights personal or shall exclude all other kin, repre- employee, dependents, next of remedies of the his employer against at common law or otherwise sentative injury of such or death. account indisputably pari materia, the terms of these statutes
Read in major consequences judice: 1) in the circumstances sub dictate two Blackmon suffered accidental death out of and because plaintiff “may assigned, to which he was course of the Compensation Act; 2) if such have the benefit” of the Workers’ compensa- opportunity being to seek redress constitutes “entitled to Act, plaintiff maintaining wrongful is excluded from tion” under i.e., otherwise,” law or against death action defendants “at common against Tort Claims Act. Should the latter issue be resolved plaintiff’s plaintiff, appeal fails. We conclude action is indeed her barred. emphasizes “may” the word in the statute and asserts use permissive option, allowing
of the term constitutes a her choice Tort Claims Act. claiming proceeding under the Act or “may” indisputably regarding While leaves the decision whether or plaintiff, argu- her not to file workers’ claim with “may” ignores out of context and further ment takes implications word phrase compensation.” “entitled to prohibitory statement that it 97-13(c) commences with the apply prisoners Only there- being “shall not worked the State.” “may prisoners have the after does it set out those instances which remedy provides pro- benefit” of the Act. it that the exclusive apply to . . . entitled to com- visions of G.S. 97-10.1“shall pensation" under the section. acquired have not a technical
“Where the words of statute they in accordance with their common meaning, must be construed apparent or ordinary meaning meaning unless a different and clearly they are used.” State v. indicated the context in which 601, 605, (1983) (citing Koberlein, 309 N.C. County Robeson, Lafayette Transportation Service, Inc. v. “qualify as to (1973)). S.E.2d 770 “Entitle” is defined *5 proper seeking for something” grounds or to “furnish with (one) for Dictionary International claiming something.” Webster’sThird New or (1966). OF APPEALS IN THE COURT CORRECTION v. N.C. DEPT. OF non-applicability of the Act statutory exceptions the When kin of a dependents or next of met, 9743(c) in G.S. § set out “proper seeking or claim- possess grounds inmate deceased specifi- qualified, or more are therefore thereunder and ing” benefits Blackmon the Act. Because cally “entitled" of and death out prisoner who suffered “accidental was a assigned,” his he had been to which the course of the statutorily specific bene- “entitled” to next of kin are consequence of G.S. Therefore, plaintiff, as a the Act. fits under against action defend- 97.-10.1,may maintain a Tort Claims Act. ants under the Commission, assert, as did
However,
and the dissent
615,
Department,
S.E.2d
Ivey v. Prison
that
camp
Ivey was ordered
contrary result. Inmate
requires a
employee transport a
help department
Superintendent to
Assistant
at 813.
prison hospital.
at
114 S.E.2d
prisoner
Id.
sick
to slow for
department truck,
failed
in a
While en route
severe
Id.
sustained
lost control of the vehicle.
a turn and
617, 114 S.E.2d at
eventually
death. Id. at
injuries which
caused his
claim
Ivey’s
initiated a civil tort
estate
The administrator
Department
wrongful death.
North Carolina Prison
against the
grounds
dismissal of the action
Department sought
at
remedy was exclusive. Id.
prisoner’s workers’
and the dismissal
This motion was allowed
At the time as follows: 9743(c) read the State Prison any prisoner assigned to Whenever and in the course injury arising out of accidental shall suffer if the results assigned, had been employment to which he discharge of the lawful injury until after the date continue such disability as to a as to amount prisoner to such an extent of such may have article, discharged in this then such defined the Industrial by applying to article of this the benefit application is provided, such employee; other Commission pro- discharge; the date of months from within twelve made vided, be shall burial further, ... award other than no .... in death results any prisoner whose accident made for *6 THE 672 IN COURT OF APPEALS v. N.C. DEPT. OF CORRECTION ’ App. (1995)] N.C. 666 [118 (emphasis added). The statute been 97-13(c) (1958) §G.S. had provide N.C. 97-10 amended in 1957 to further that Gen. Stat. § applied prisoners compensation.” 97-10,prede- § to “entitled to G.S. 97-10.1, remedy plaintiffs cessor to stated that G.S. § Compensation Act was of all other remedies. exclusive emphasized applied Ivey The that the 1957 amendment Court only prisoners compensation,” to to and that the term “com- “entitled pensation” money payable to an to meant “the allowance article, provided for in his this includes funeral provided Ivey, 252 97-2(11) (1958); § benefits herein.” N.C. Gen. Stat. payment 619, N.C. at 114 at 815. The of burial S.E.2d Court concluded expenses only provided part in G.S. was at of 97-13(c) best a compensation: sure, compensation]
To be definition burial includes [of expenses, compensation and but it takes the whole to constitute parts. part clothes, not A a suit vest one of its vest is a of of but a Surely compensation cannot be a suit. for called body. involves more than the burial of the 620, Id. at 114 Accordingly, S.E.2d 815. the Court ruled was compensation” pro- remedy a “entitled to éxclusive apply. in visions G.S. did not § 97-10
However, 97-13(c) G.S. amended in thereafter 1971 delete relief the burial limitation of workers’ killed with DOC. provides payment per depend- $30.00 statute now week to the comports provision ents a prisoner, or next of kin of deceased which statutory compensation. with the unamended definition See “ ‘Compensation,’ it is 97-2(11) (1994). in the connection in which money Act, according used in the a scale means relief afforded persons Act,” v. designated established and for the Branham 233, 865, Co., 236, 867 and the Panel 223 N.C. 25 S.E.2d capacity, earning amount to be awarded claimant is on lost based Co., Ashley 76, 83, 755, (1967) 271 155 S.E.2d v. Rent-A-Car (citation omitted).
“
interpret
upon
[statutes],
words
‘When courts are called
accepted
given
generally
selected
should be
their
Legislature
will
meaning unless it is manifest that such definition
do violence
”
498,
518,
legislative
Bear,
App.
504,
v.
intent.’ Bear
3 N.C.
S.E.2d
Johnson,
Revenue,
Bleacheries Co. v.
Comm’r
(quoting
BLACKMON v. N.C. DEPT. OF CORRECTION
177,
692, 694,
266 N.C.
179 (1966)). Construing
the 1971
providing
amendment as
under the Act does no vio
legislative
lence intent. “It well
settled that the intent of the
interpretation
controls the
Pipeline
statute.”
Co. v.
Neill,
S.E.2d 457,
296 N.C.
(1979) (citing
Underwood
Howland,
Moreover,
appropriate
it
legislature
to assume the
is aware of
any judicial construction of a statute. Watson v. N.C. Real Estate
Comm.,
App. 637,
87 N.C.
648,
294,
362
(1987),
S.E.2d
301
cert.
denied,
746,
321 N.C.
(citation
The Act between the employee’s right interests. The surrenders his to com- mon law guaranteed, though limited, return for com- pensation. relinquishes deny liability employer right liability employee’s earning return limited to the loss of capacity. Co., 98-99,
Whitley Mfg. 89, v. Columbia Lumber 318 N.C. 348 S.E.2d 336, (1986). Restricting “compensation” 341 to loss of the decedent earning capacity, inmate’s however limited the fact of incarcera- tion, statutory compromise employer effectuates the between employee. APPEALS IN THE COURT OF OF CORRECTION v. N.C. DEPT. App. (providing 1971 amendment nevertheless insists the per week) $20.00 affords deceased
compensation in the amount of clothes, suit of but with Blackmon a “full prisoners in the situation of Correction, Dept, I.C. No. v. pants,” and cites Oxendine short challenge support for her 16, 1992)as (December TA-12513at 4 sufficiency emphasize that conclusions of such benefits. Wefirst Hayes upon appellate courts, binding see Commission are not S,E.2d point 137, 11, 15, (1944), and also College,224 N.C. Elon of benefits are matters policy such as the amount out that decisions judicial. Gardner government and not the legislative branch 517, (1986) (cita S.E.2d Bar, 316 N.C. v. N. C. State omitted). tion a constitutional addition, plaintiff passing reference to
In
makes
Equal
alleging
rights guaranteed
of her
argument
denial
amendment. As this issue was
of the Fourteenth
Protection Clause
10(b)(1).
P.
it here. N.C.R.
below, we do not consider
not raised
no claim under Woodson v.
Further,
has asserted
do not
Rowland,
we likewise
*8
exclusivity provisions
§
of G.S. 97-10.1 on
the
address the effect of
such claim.
Dept.
plaintiff
opinion in Tanner v.
cites this Court’s
support
in
of her
App. 689,
Correction, 19 N.C. pursue negligence to claim proposition that she is entitled way the First, in no addresses Act. the Tanner decision Tort Claims Moreover, Tanner’s claim was question herein. fundamental at issue whether he was “dis death, and it is unclear injury, not accidental impli arguably claim so as to charged” pursuing the time of his tort at inapposite is to Tanner thus 97-13(c) and G.S. 97-10.1. cate G.S. only judice. because DOC inmate Wehold the circumstance sub in course out of and suffered accidental death Blackmon by assigned DOC, he had been of the to which is thus compensation” under the Act and plaintiff is “entitled to by wrongful death claim under pursuing her barred G.S. 97-10.1 the Tort Claims Act. the Commission foregoing, on the award
Based is reversed. the Tort Claims Act Reversed.
Judge WYNNconcurs.
Judge GREENE dissents. N.C. DEPT. OF CORRECTION
Judge dissenting. Greene
I disagree majority’s opinion with that the Compensation plaintiffs Workers’ Act bar death claim under the Tort Claims Act. majority correctly points Ivey decided, out that when only
Section 97-13(c) expenses . prisoner allowed “burial . . for whose Although accident results in Supreme death.” our Court did expenses determine that burial compensation, this determi- Supreme nation was not the basis for the Ivey Court’s decision in prisoner accidentally allow a who while assigned died work to bring a claim under the Tort Claims explicit Act. The Court was holding: plaintiff’s right have passed the tort claim heard and on has [by
not been withdrawn provided the amendment to 97-13which exclusivity provisions apply of 97-10 “entitled to compensation”]. Legislature If the prisoners, intended to exclude all it pass simple had to do was amendment to the Tort Claims “prisoners saying, Act the courts to work under the State Prison are excluded.” Intention to withdraw a prisoner’s right to presumed assert a tort claim cannot be aas result of the Compensation amendment to the Act in Work[er]’s present its setting. form and
Ivey,
252 N.C.
Although Act has been amended to delete the burial accidentally limitation when killed, this amendment does expressed by not address the concerns Ivey Court in or the Despite reasons for its decision. the decision which makes a clear call to the to amend the Tort *9 prisoners Claims ifAct it wants to exclude coverage, despite having Compensation amended both the Workers’ Act and the Ivey, Tort Legislature, thirty years Claims Act since for more than Ivey decision, prisoners since the has not acted to exclude from the Garrett, of the Tort Claims Act. See Hewitt v. (1968) (failure Legislature change thirty years statute in following Supreme interpre- more than Court’s body tation suggest of statute that the “law-making is satisfied with interpretation). Furthermore, Legislature has not [Court’s] altered the of 9743(c) exception basic framework which an creates Compensation prisoners coverage Act to allow APPEALS IN THE COURT OF v. CITY OF DURHAM
BURTON then assigned work and which accidentally injured or killed while on coverage. 97-13(c). N.C.G.S. Section that places limitations on “jumbled Ivey, and con- today, it was at the time 9743(c) is exception provisos followed two which is an fusing subsection Ivey, N.C. at Act.” the section Work[er]’s Therefore, if desires the 619, 114 S.E.2d 815. remedy prisoners Compensation Act to be the exclusive Workers’ accidentally injured work, either needs it or killed while on Ivey by the suggested Act as Court the Tort Claims to amend employ- working prisoners regular 9743(c) to treat change Section Compensation Act. exception as an to the Workers’ than ees rather Tort Claims Act to Legislature has not amended the Because working working prisoners, and the treatment exclude exception place, still in Compensation Act as an the Worker’s For expressed the Court in continue exist. the concerns decision I affirm the Industrial Commission’s reasons, would these compensation under the Tort Claims the claimant is entitled Act. Appellant C. M. TREVOR HAMPTON, THE CITY OF DURHAM,
DONALD BURTON, official and individual capacities, T. TAYLOR and C. M. ALLEN in their M. TIFFIN, Appellees
No. 9414SC366 1995) (Filed 16 May estop- Judgments (NCI4th)— defense of collateral 1. parties required pel mutuality — estoppel Mutuality parties required when collateral is not defensively. is used Judgments 2d, 514-523. §§ Jur
Am rights (NCI4th)— action —matters Judgments civil proceeding in criminal previously determined — collateral applicable estoppel preclude may relitigation estoppel be used to Collateral prior crim- previously determined in issues rights action of civil proceeding. inal seq. Judgments 614 et 2d, §§ Jur
Am