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Prisoner Awarded $25,000 in Tort Claim Action

In a recent tort claim decision, the failure of officers to protect a prisoner from an assault and the infliction of serious injury resulted in an award of $25,000.

On January 6, 2000, plaintiff was a prisoner assigned to protective custody at Hoke Correctional Institution. Plaintiff was attacked by another prisoner who slashed and injured plaintiff with a razor blade. The attacker was demoted to close custody and placed on six months long-term segregation. However, the attacker was not transferred to another part of the prison, but was instead returned to the same block where Plaintiff was assigned.

On April 2, 2000, the attacker was taken out of his cell for recreation and a shower. At trial, there was conflicting testimony as to whether the escorting officer ordered other inmates in the common area to move to the far end of the room.

The attacker finished his shower and was handcuffed (hands in front), and escorted by two officers. DOC procedure in effect at that time required officers to place all prisoners into their locked cells prior to moving a segregated prisoner. Defendants admitted that procedure was not followed. And again, the testimony differed as to whether the prisoners were ordered to the far end of the common area, but it was undisputed that Plaintiff was near the center of the day room picking up newspapers.

The attacker, unrestrained except with handcuffs, rushed the Plaintiff and threw him against a podium that was bolted to the wall. Upon impact, Plaintiff momentarily lost consciousness. Apparently, the attacker was brought under control, but when he regained consciousness, Plaintiff reported back and neck pain. At the health clinic, Plaintiff was examined and was given medication to control the pain.

Plaintiff subsequently suffered persistent back and neck pain. On January 23, 2001, an MRI showed that Plaintiff suffered from a "central broad based cervical disc herniation of C5-C6 without a defined mass effect on the [spinal] cord. The cervical disc herniation extends to the ventral cord surface." [The C5-C6 cervical disc is at the bottom of the neck where the neck joins with the lumbar spine at the shoulders. A "herniated" disc is a protrusion of a spinal vertebrae also called a ruptured disc.]

On the date the case was heard, August 29, 2007, Plaintiff continues to suffer from back and neck pain. Surgery has been recommended, but doctors predict no more than a 50% chance of improvement.

The court cited established case law that the DOC has a duty to exercise ordinary care to keep its premises in reasonably safe condition, and failure to do so constitutes negligence. The court found that the officer who escorted the attacker had been negligent, and that Plaintiff was attacked and seriously injured as a result of that negligence. The court found no credible evidence that Plaintiff had been "contributorily negligent" (as he might have been if he had refused a direct order to return to his cell and be locked back). The court found that the injury was lasting, painful, and would require continuing medical treatment. On that basis, the court awarded Plaintiff $25,000 for pain, suffering, and future medical needs.

The law affords any party 15 days from receipt of the order to appeal in writing for review of the decision by the Full Industrial Commission. N.C. Gen. Stat. §97-85. The Order becomes final if no appeal is filed within the time allowed by law.

[Editor's Note: In order to establish a claim of negligence, a plaintiff must show that (1) he was injured as a (2) direct and immediate result of (3) the negligence of a person who owed him some duty (4) which was breached (or was not fulfilled). To put it another way, a plaintiff must allege that: (A) the defendants had a specific duty [for example, to protect your safety]; (B) the defendants breached their duty (that is, that they failed to protect you); (C) that you were injured as a "proximate" result (that is, as a direct result); and (D) that the injury plaintiff suffered was "foreseeable," that is, such an injury should have been anticipated by the defendants.

You should also be aware that, under the law of North Carolina , the doctrine of "contributory negligence" is a complete defense to a claim of negligence. That doctrine allows defendants to argue that plaintiff was himself negligent, and that the plaintiff's negligence contributed to the injury which he ultimately suffered. In such a case, even if the defendants were negligent, they would be excused from paying any money because the plaintiff was also partly at fault.]

This case was litigated by NCPLS Senior Staff Attorney and Civil Team Leader J. Phillip Griffin, with support and assistance from Staff Attorney Sarah H. Blair. Bagley v. NC Dept. of Correction, TA-17703 (2007).