Robinson v. N.C. D.O.C.

***********The Full Commission reviewed the prior Decision and Order, based upon the record of the proceedings before Deputy Commissioner Glenn, and the briefs before the Full Commission. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Decision and Order. Accordingly, the Full Commission affirms the Decision and Order of Deputy Commissioner Glenn.

***********Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following:

FINDINGS OF FACT1. In his Tort Claim Affidavit filed with the North Carolina Industrial Commission, plaintiff alleges that he injured his leg because of uneven ground while playing basketball.

2. At the hearing before the Deputy Commissioner, defendant NCDOC moved to dismiss Robinson's claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief can be granted, in that plaintiff's allegations are not sufficient to establish negligence on the part of any employee of Defendant.

***********Based upon the foregoing findings of fact, the Full Commission reaches the following:

CONCLUSIONS OF LAW1. N.C. Gen. Stat. § 143-291(a) confers the Industrial Commission with jurisdiction to hear tort claims against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State.

2. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties. Bolkir v. N.C. StateUniversity, 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).

3. Plaintiff's Affidavit and argument at hearing before the Deputy Commissioner fails to show negligence or any negligent acts by employees of defendant, and thus fails to state a claim upon which relief can be granted. Rule 12(b)(6), N.C. Rules of Civil Procedure.

***********Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following:

ORDER

1. Plaintiff's claim under the State Tort Claims Act must be and is hereby DISMISSED WITH PREJUDICE.

2. No costs are taxed as plaintiff was permitted to file this civil action in forma pauperis.

This 10^th day of August 2005.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

S/_______________ DIANNE C. SELLERS COMMISSIONER