TORT CLAIMS BEFORE THE
NORTH CAROLINA INDUSTRIAL COMMISSION
(A Guide for Persons Incarcerated by the North Carolina Department of Correction)
By: Michael S. Hamden
Executive Director
North Carolina Prisoner Legal Services, Inc.
Published in 1990 by the Prison Issues Committee
of the North Carolina Bar Association
Young Lawyers Division
with the assistance of
Kristine Lannin
Staff Attorne
Governor's Crime Commission
Louis B. Meyer, III
Chairperson
YLD Prison Issues Committees
* Due to changes in certain aspects of the law and tort claim procedures, the staff at NCPLS has updated the 1990 Tort Claims Packet. The revisions incorporated into this document have not been approved by the Young Lawyer's Division Prison Issues Committee, the North Carolina Industrial Commission, or the North Carolina Department of Correction.
Copyright 1990, 1993, 1995, 1997, 1998, 1999 & 200
(Revised January 1993)
(2d Revision June 1995)
(3d Revision January 1997)
(4th Revision January 1998)
(5th Revision March 1998)
(6th Revision April 1999)
(7th Revision June 2000)
North Carolina Industrial Commission Home Page
Introduction
If you are injured or your property is damaged by someone performing a job for the state, you may be able to recover money damages for your loss. North Carolina General Statute (N.C. Gen. Stat.) Section 143-291 (and following sections) makes exceptions to the general rule preventing lawsuits against the state.
N.C. Gen. Stat. Section 143-291 directs the North Carolina Industrial Commission to hear claims which arise "as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority . . .." Where the Commission determines there was such negligence which was the direct and immediate cause of the injury, and where the person bringing the claim was not at fault in bringing about the injury, "the Commission shall determine the amount . . . and . . . direct the payment of . . . damages . . . [not to] exceed the sum of five hundred thousand dollars ($500,000) . . . ." N.C. Gen. Stat. Section 143-291.
Elements of a Tort Claim
In order to succeed in an action before the Industrial Commission, a "claimant" must show that (1) he was injured as a (2) direct and immediate result of (3) the negligence of an officer, employee, involuntary servant or agent of the state who was (4) acting within the scope of his employment, and (5) the claimant was not at fault in bringing about the injury. N.C. Gen. Stat. Section 143-291.
(1) For purposes of a tort claim, an injury should probably be thought of as damage to, or loss of, personal property. Injury could also be bodily injury, including physical pain, illness or any impairment of physical condition. See, for example, Guthrie v. North Carolina State Ports Authority, 307 N.C. 522, 299 S.E.2d 618 (1983) (personal injury); Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183 (1963) (property damage).
(2) The injury or damage complained of must be a "proximate" result of (see, for example, Register v. Administrative Office of the Courts, 70 N.C. App. 763, 321 S.E.2d 24 (1984)).
(3) the negligence of a state employee (see, Register, cited just above
(4) who was acting within the scope of his employment (Mason v. North Carolina State Highway Commission, 7 N.C. App. 644, 173 S.E.2d 515 (1970)), and
(5) the claimant must not have been "contributorily negligent." Huff v. Northampton County Board of Education, 259 N.C. 75, 130 S.E.2d 26 (1963). Contributory negligence is the legal term for the idea that the claimant was at fault in bringing about the injury he suffered. The issue of contributory negligence must be pleaded and proved by the defendant. N.C. Gen. Stat. Section 143-299.1; N.C. Gen. Stat. Section 1A-1 Rule 8(c); Stith v. Perdue, 7 N.C. App. 314, 172 S.E.2d 246 (1970).
One note of caution - the Tort Claims Act (N.C. Gen. Stat. Section 143-291) does not permit a claimant to recover damages for intentional acts by a defendant. The Tort Claims Act allows a claimant to recover damages only for negligent acts by a defendant. See, for example, Braswell v. North Carolina A & T State University, 5 N.C. App. 1, 168 S.E.2d 24 (1969).
Procedure
The North Carolina Rules of Civil Procedure (N.C. Gen. Stat. Section a-1) and the North Carolina Rules of Evidence (N.C. Gen. Stat. Sections 8-1 and following sections, and N.C. Gen. Stat. Section 8C-1) apply to tort claims. Additionally, the Industrial Commission has a set of newly revised rules (effective 1 May 2000) that specifically govern tort claims. A copy of the Tort Claims Rules of the North Carolina Industrial Commission is included in the Appendix at 1. From this point forward, these rules will be referred to as "Tort Claims Rule T___."
To begin a tort claim, you'll need a copy of Industrial Commission Form T-1, Tort Claim Affidavit (Claim for Damages Under Tort Claims Act). The form is available by writing to:
Docket Department
N.C. Industrial Commission
430 North Salisbury Street
Raleigh, NC 27611
It is very important to describe in detail what the defendant did to harm you in paragraph 6 of Form T-1. It is also important to name the defendant as a state employee. Where there is more than one possible negligent employee, name them all. You must show each of the basic elements of the tort claim (except the absence of contributory negligence) when you describe the claim in paragraph 6 of Form T-1. Form T-1 is also known as a Tort Claim Affidavit.
To file the claim, you have to mail the original and four copies of your completed Form T-1 to the Docket Department of the Industrial Commission (address given previously). There is a filing fee of $71.00, payable by certified check or money order. If you do not have $71.00, you may apply to file your claim in forma pauperis. Such an application is governed by Tort Claims Rule T202 (3), and must include: (a) An affidavit stating that the plaintiff is unable to pay the filing fee; and (b) A report completed by an official of the Department of Correction stating the balance of your prison trust account, "with an accounting of all credits to and withdrawals from that trust account during the prior six months." See Appendix 3 (sample Petition to File Claim as a Pauper).
Remember that when you file a tort claim, you are suing a state agency (usually the Department of Correction) for the negligence of its employee, agent, involuntary servant, or officer. The state agency is therefore the defendant (or respondent) in the action, and you are the plaintiff (or claimant). If you appeal your claim to the Full Commission, you are the appellant. If the other party appeals, you become the appellee.
Under N.C. Gen. Stat. Section 143-291, the maximum amount that you can recover is $500,000. If you believe that you are entitled to recover $10,000 or more, you must not state the specific amount on your tort claim affidavit. Instead, you should fill in the blank on paragraph 4 of form T-1 with "more than $10,000." N.C. Rule of Civil Procedure 8 (a)(2).
Defense of State Tort Claims
Under N.C. Gen. Stat. Section 143-298, it is the duty of the Attorney General to defend the state agency in connection with claims asserted against its employees. Once the Attorney General receives a copy of your affidavit from the Industrial Commission, he has 30 days to file an answer on Form T-4 (copy not included). This time can be extended by the Commission under Rule 6 of the North Carolina Rules of Civil Procedure (N.C. R. Civ. P.).
The Attorney General has authority to settle claims in amounts less than $25,000 without review and approval by the Industrial Commission. Settlements in greater amounts must be reviewed and approved by the Industrial Commission. See, N.C. Gen. Stat. Section 143-295.
Discovery in Tort Claims
Discovery is a procedure through which a party to a lawsuit may get information from his opponent about facts related to the claim. N.C. R. Civ. P. 26 through 37 govern state tort claims. In tort claims, you can get information from your opponent through discovery, but you also have a duty to answer your opponent's discovery requests.
For tort claims, two methods of discovery are effective and practical. Under N.C. R. Civ. P. 33, written questions about the case ("interrogatories") may be mailed by either party at anytime after filing the claim. The rule requires that each interrogatory be answered in writing and under oath, within a maximum period of 45 days. The Commission may allow a longer time. Another useful method of discovery in tort claim actions is the request for production of documents. N.C. R. Civ. Pro. 34 allows either party to request documents from any other party. Documents such as medical records, incident reports, or disciplinary write-ups are examples of the types of documents that may be requested. The party requesting documents must be allowed to inspect and copy the documents, or must be given copies of them within a maximum of 45 days.
A party may object to any interrogatory or any request for documents, but only for the reasons set out in N.C. R. Civ. Pro. 26. If answering the request would be unreasonably burdensome or expensive, for example, the objection may be sustained. An objection to a discovery request must be served on the requestor within the time allowed for your answer (usually within 30 days, but when the request is filed with the Tort Claim Affidavit, a period of 45 days is allowed). Upon motion, the Commission may allow a longer time for response.
In the event that a party fails to provide requested discovery, or objects to a discovery request, the requesting party can ask the Commission to force or "compel" discovery. N.C. R. Civ. Pro. 37 establishes the procedure for filing a motion to compel discovery. A party should be given reasonable notice of his opponent's intention to file a motion to compel discovery, and he must have a chance to respond to such a motion. Such a motion should be used only to get necessary information when the other party has not responded fairly to a discovery request.
Preparation for Hearing
The hearing is usually set by the Industrial Commission in the county, and at the prison unit, where the alleged negligence occurred. N.C. Gen. Stat. Section 143-297. In any case, you must take certain steps to ensure that you and your witnesses will be allowed to attend the hearing.
Getting Witnesses to the Hearing
Prisoner Witnesses
If you want other prisoners to appear as witnesses at the hearing, you will need to complete Form AOC-G-112, Application and Writ of Habeas Corpus Ad Testificandum. A copy of this form is attached at Appendix 4. Complete one form for yourself and one for each necessary prisoner witness. You should write a letter that states the name and docket number of your case, the date and time of the hearing, and it should explain why you and your witnesses need to attend the hearing. The letter should be entitled "Motion for Writ of Habeas Corpus Ad Testificandum." (A change in the law makes it clear that the Industrial Commission may issue writs of habeas corpus ad testificandum. N.C. Gen. Stat. § 97-101.1.) If your case has not been set for hearing, mail the letter to the Docket Department of the Industrial Commission. If the case has been set (that is, if the hearing has been calendared), mail the letter to the Deputy Commissioner or the Commissioner who will hear your case. Tort Claims Rule T206(4).
If the Deputy Commissioner is willing to sign the writ, the signed form(s) should be returned to you. You will then need to prepare a subpoena for each witness. (A copy of a subpoena is included at Appendix 5.) Forward the form(s) with a completed subpoena for each witness to:
Writ Coordinator
831 West Morgan Street
Raleigh, NC 27603
This process may take up to six weeks to complete, so be sure to allow plenty of time so that your hearing can proceed on schedule. Should you have any difficulty in the process, notify the Deputy Commissioner assigned to your case. Be sure to send the state's attorney a copy of all your correspondence with the Deputy Commissioner. N.C. Gen. Stat. Sections 17-41 to 17-46, and 97-101.1 govern the issuance of writs of habeas corpus ad testificandum.
Non-Prisoner Witnesses
The procedure described above is not used for witnesses who are not in the custody of the Department of Correction. For every non-prisoner witness, you must complete the subpoena (attached at Appendix 5) and serve it on your witnesses.
You can serve a subpoena by sending the completed form to the witness at his home or work address by registered or certified mail, return receipt requested; or you can send the completed form to the sheriff in the county where the witness lives or works. If you want the sheriff to serve the subpoena for you, you will be required to pay a fee (usually about $5.00 for each subpoena served). The rule that governs subpoenas is N.C. R. Civ. P. 45.
Tort Claim Hearings
The Industrial Commission ordinarily sets hearings within a correctional facility where the inmate plaintiff is incarcerated, but hearings may be set in another prison. Hearings may also be conducted by telephone or video teleconference. Tort Claims Rule T206 (3).
Tort claim hearings are fairly informal and there are no technicalities to trip you up. First, you will be given a chance to testify about how the incident happened and what your injuries were. Just tell your story plain and simple. If you have a visible wound, show it to the Deputy Commissioner. You must also describe your injury, the pain it caused you, and the medical treatment you received. You will also want to show the Deputy Commissioner all of the documents and other physical evidence that supports your case.
The state's attorney will then question you, trying to show why you should not recover damages. He will probably try to show that (1) you were "contributorily negligent" (that you were at fault in bringing about the injury), or (2) the state employee had no reason to know of any danger and no reason to suspect that an incident might result in injury. Along these lines, you would need to point out any similar incidents or injuries or anything that gave warning of a possible incident or injury.
After the state's attorney has questioned you, you can call your witnesses. The state's attorney may then call witnesses, whom you will be allowed to question. You may also be allowed to show the Deputy Commissioner any discovery responses or documents you received from the state that contradicts what the witnesses say, and you can ask the witnesses about the contradictions.
The hearing will end once the Deputy Commissioner has heard all of the evidence. You will be notified of his decision, usually within six months.
Right to Appeal
If the Deputy Commissioner decides the case against you and you think that he made a mistake, you may want to appeal to the Full Commission. Such an appeal is governed by N.C. Gen. Stat. Section 143-292 and Article III of the Tort Claims Rules.
If you decide to go forward, you must notify the Industrial Commission and the state's attorney within fifteen (15) days after receiving the decision of the Deputy Commissioner. You may notify the Industrial Commission of your appeal by sending a letter stating your case number, that you want to appeal your case, and that you have notified the state's attorney of your decision to appeal. Tort Claims Rule T301.
The Commission will prepare a transcript of the hearing and send you a copy. Tort Claims Rule T302. Within twenty-five (25) days after receiving the transcript, the party who appealed (the appellant) must provide the Industrial Commission a written statement (with two extra copies) of the specific grounds for the appeal, including an explanation of the errors that were committed, and the pages of the transcript where those errors are shown. The statement must certify service of a copy on the opposing party. Tort Claims Rule T303.
Within twenty-five (25) days after receiving the transcript, the party who appealed (the appellant) must also submit three copies of his brief to the Industrial Commission. Twenty-five days later, three copies of the appellee's brief must be filed. (The appellee is the party who won in the lower court, and against whom the appeal was filed.) Tort Claims Rule T305.
A decision of the Full Commission may be appealed to the North Carolina Court of Appeals. See N.C. Gen. Stat. Section 143-293 and Article IV, Tort Claims Rules. See also, North Carolina Rules of Appellate Procedure.
Statute of Limitations
It is important that you file your tort claim as soon as possible after you are able to determine how badly you were injured. At any rate, you must file the claim within three (3) years after the incident about which you are complaining. See N.C. Gen. Stat. Section 143-299. If you fail to do so, you will not be able to recover damages. [Note: The statute of limitation is only two (2) years in wrongful death actions. See N.C. Gen. Stat. Section 143-299.]
Legal Assistance
It may be possible for you to obtain legal representation for your claim. North Carolina Prisoner Legal Services, Inc. (NCPLS), provides legal assistance to prisoners at no cost in matters that relate to conditions of confinement and which lie within the priorities of the program. NCPLS does not generally accept requests for representation in tort claims because prisoners are usually able to handle such claims on their own, and because the program targets issues that will have a positive impact on large numbers of prisoners rather than isolated issues which affect only the individuals involved. Still, in particularly complex cases involving serious injury, or when a case could have a beneficial impact on the prison population, NCPLS has made exceptions to this general rule. You can contact NCPLS at the following address:
NCPLS
P.O. Box 25397
Raleigh, NC 27611
Special Rules Governing Claims of Medical Negligence
Tort Claims Rule T201(2) sets out special procedures governing inmate claims that a health care provider was negligent. In such cases, when the defendant files a motion to dismiss, all discovery is halted until a Deputy Commissioner decides the motion. Once such a motion is filed, the parties will have 30 days to submit medical records about the case. Tort Claims Rule T201(2)(b). Before reaching a decision, the Deputy Commissioner will conduct an informal recorded hearing by telephone to determine:
(1) whether a claim for medical malpractice has been stated;
(2) whether expert testimony is necessary for the plaintiff to prevail; and
(3) if expert testimony is deemed necessary, whether the plaintiff will be able to produce such testimony on the applicable standard of care.
Tort Claims Rule T201(2)(a).
"If the defendant's Motion to Dismiss is granted, an appeal lies to the Full Commission. If defendant's Motion to Dismiss is denied, the case will proceed as any other Tort Claims case." Tort Claims Rule T201(2)(c).
Notice to Prisoners Injured on Prison Jobs
If you were injured while working on a prison work assignment, you probably will not be allowed to prosecute a tort claim action. Richardson v. North Carolina Department of Correction, 345 N.C. 128, 478 S.E.2d 510 (1996)(prisoner disabled on prison job and eligible for workers' compensation could not prosecute a tort claim - the remedy for his injury was provided by the Workers' Compensation Act); and Blackmon v. North Carolina Department of Correction, 343 N.C. 259, 470 S.E.2d 8 (1996)(accidental death of inmate on work assignment provided no basis for wrongful death action under Tort Claims Act; workers' compensation was the exclusive remedy of the inmate's dependents and next of kin). Under these cases, you may be limited to filing a claim under the Workers' Compensation Act (North Carolina General Statute Section 97-13(c)).
Under N.C. Gen. Stat. Section 97-13(c), Workers' Compensation provides for a maximum payment of $30 per week for a limited period of time, provided the prisoner applies for such benefits within twelve (12) months after the date of his discharge from prison and all other conditions are satisfied. Eligible people may also qualify for continuing medical care and vocational training.
North Carolina Prisoner Legal Services has prepared a packet that further explains the Richardson and Blackmon decisions, as well as procedures for filing a claim under the Workers' Compensation Act. To request a copy of that packet, you need only send a written request and the packet will be forwarded to you.
Before you file any workers' compensation or tort claim arising from a prison work-related injury, we advise you to write to NCPLS for an evaluation of your case and a determination of whether you have a tort claim or a workers' compensation claim.
Resources
The following groups and organizations are available to provide information and assistance to North Carolina inmates with certain legal problems or needs:
N.C. Prisoner Legal Services, Inc.
P.O. Box 25397
Raleigh, NC 27611
NAACP Legal Defense Fund
99 Hudson Street, 16th Floor
New York, NY 10013
National Prison Project
ACLU Legal Foundation
1 875 Connecticut Ave., NW Suite 410
Washington, DC 20009
Revised 6/00
Appendix
Tort Claim Rules of the Industrial Commission
To view the following links, you must have Adobe Acrobat on your computer:
North Carolina Industrial Commission Affidavit
