Judge v. N.C. Dep't of Pub. Safety ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-688
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
THURMAN M. JUDGE, JR.,
Plaintiff,
v. North Carolina
Industrial Commission
I.C. No. TA-21612
N.C. DEPARTMENT OF PUBLIC SAFETY,
formerly N.C. DEPARTMENT OF
CORRECTION,
Defendant.
Appeal by Plaintiff from order entered 26 March 2013 by the
North Carolina Industrial Commission. Heard in the Court of
Appeals 7 November 2013.
Thurman M. Judge, Jr., pro se.
Attorney General Roy Cooper, by Associate Attorney General
Adrian W. Dellinger, for Defendant.
STEPHENS, Judge.
Factual and Procedural Background
This case arises out of an act of violence that occurred on
14 November 2009. At that time, Plaintiff Thurman M. Judge, Jr.,
was an inmate in the custody of the North Carolina Department of
Public Safety (“Defendant”) at Tabor Correctional Institution
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(“the Prison”), where he worked as a barber. According to
Plaintiff, the attack occurred while he was working as a barber.
A high-security inmate was having his hair cut by another barber
when the inmate stood up from his chair and punched Plaintiff in
the face. Plaintiff alleges that security personnel were not
present at the time and that the high-security inmate was not
properly restrained.
On 12 February 2010, Plaintiff initiated a civil action
against Defendant under the North Carolina State Tort Claims
Act, asserting that Defendant negligently allowed this attack to
occur. On 9 March 2010, Defendant filed a motion to dismiss the
action because “Plaintiff’s [a]ffidavit discloses facts which
necessarily defeat the asserted tort claim, insofar as his
exclusive remedy, if any, would be under the Workers’
Compensation Act.” A deputy commissioner with the North Carolina
Industrial Commission denied that motion on 25 June 2010 and set
the matter for hearing. On 9 December 2011, Defendant moved for
summary judgment, again asserting that Plaintiff’s tort claim
was necessarily defeated because “his exclusive remedy would be
under the Workers’ Compensation Act.” Plaintiff’s case was heard
before a deputy commissioner on 17 April 2012, and the deputy
commissioner granted Defendant’s motion for summary judgment.
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Plaintiff appealed that decision to the full North Carolina
Industrial Commission (“the Commission”), which dismissed his
tort claim. In doing so, the Commission provided the following
rationale:
Plaintiff alleges that he was injured in the
course and scope of his employment as a
barber while incarcerated by Defendant.
Plaintiff’s exclusive remedy lies under the
Workers’ Compensation Act[,] not the Tort
Claims Act, and Plaintiff’s present tort
claim must be dismissed.
Plaintiff appeals the Commission’s decision.
Discussion
On appeal, Plaintiff contends that the Commission erred in
dismissing his claim, arguing that he was not acting in the
scope of his employment at the time of the attack and that the
Commission’s failure to address the merits of his claim was a
violation of his due process rights. In conclusion, Plaintiff
asserts:
The purpose of [the] Worker’s [sic]
Compensation Act is remedy for prisoners
injured for their loss of earning capacity
by accidental circumstances; however, a suit
in “tort” is remedy for neglegence [sic] /
misconduct of state employees which gives
rise to injury due to dangerous working
conditions as is the central issue in the
case at bar.
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Consequently, Plaintiff contends that the members of the prison
staff violated their legal duty and requests that we overturn
the Commission’s order and remand for further proceedings as a
result. We cannot grant that request.
“The Tort Claims Act was enacted in order to enlarge the
rights and remedies of a person who is injured by the negligence
of a State employee who was acting within the course of his
employment.” Simmons v. N.C. Dep’t of Transp., 128 N.C. App.
402, 405, 496 S.E.2d 790, 792–93 (1998). Separate and distinct
from that enactment, the Workers’ Compensation Act (“the Act”)
provides “compensation for an employee in this [S]tate who has
suffered an injury by accident1 which arose out of and in the
course of his employment . . . without regard to whether the
accident . . . was caused by the negligence of the employer.”
Lee v. Am. Enka Corp., 212 N.C. 455, 461–62, 193 S.E. 809, 813
(1937). The Act explicitly provides that the rights and remedies
granted therein exclude those that an employee might otherwise
have at common law. N.C. Gen. Stat. § 97-10.1 (2011).
1
“An accident is an unlooked for and untoward event which is not
expected or designed by the person who suffers the injury.”
Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App.
112, 115, 519 S.E.2d 61, 63 (1999) (citation and internal
quotation marks omitted), disc. review denied, 351 N.C. 351, 543
S.E.2d 124 (2000).
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Discussing the rationale behind the Act, our Supreme Court
has stated that it “provides for an injured employee’s certain
and sure recovery without having to prove employer negligence or
face [certain] affirmative defenses . . . .” Woodson v. Rowland,
329 N.C. 330, 338, 407 S.E.2d 222, 227 (1991). As a consequence,
the Act severely limits “the employee’s right to pursue
potentially larger damages awards in civil actions.” Id. In
addition to traditional employees, the Act applies to working
prisoners who suffer “accidental injury . . . arising out of and
in the course of [their assigned] employment . . . .” N.C. Gen.
Stat. § 97-13(c) (“The [exclusivity provision] shall apply to
prisoners and discharged persons entitled to compensation under
this subsection and to the State in the same manner as said
section applies to employees and employers.”).
Here, Plaintiff’s claim occurred while he was working as a
barber for the Prison. In his tort claim affidavit, Plaintiff
described the incident as follows:
Me and [another inmate] was cutting hair on
Gray Unit Lock-Up . . . we was both cutting,
when [two security personnel] came [to]
escort [my client] back [to his cell]. [I
was] alone with the other barber and his
client[, the high-security inmate.] A couple
of seconds later I see the [high-security
inmate] stand up, come out of his hand . . .
which was behind his back and attack me
without notice. During the attack I was
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punched in the mouth [and] face by the
inmate that was supposed to be cuffed and
escorted by two officers.
On appeal, Plaintiff argues that the accident and his injury did
not arise out of and in the course of his employment and, thus,
that the Act does not apply. For support, Plaintiff notes that
he was not engaged in cutting hair at the moment of the attack
and points out that another barber was cutting the hair of the
high-security inmate on that day. These facts do not save
Plaintiff’s claim.
As we have previously noted,
[a]n injury arises out of . . . employment
when it comes from the work the employee is
to do, or out of the service he is to
perform, or as a natural result of one of
the risks of the employment; the injury must
spring from the employment or have its
origin therein. For an accident to arise out
of the employment there must be some causal
connection between the injury and the
employment.
Harless v. Flynn, 1 N.C. App. 448, 455, 162 S.E.2d 47, 52
(1968). The attack on Plaintiff occurred while he was serving as
a barber for the prison. The fact that it was not perpetrated at
the moment Plaintiff was involved in cutting someone’s hair or
by Plaintiff’s particular client is irrelevant because it was
causally connected to Plaintiff’s employment. Accordingly,
Plaintiff’s first argument is overruled.
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Plaintiff also argues that the Commission violated his due
process rights because it failed to reach the underlying merits
of his claim. For support, Plaintiff contends that Defendant
violated the doctrine of collateral estoppel by making the same
argument in its motions to dismiss and for summary judgment.
This is a misinterpretation of the doctrine.
Collateral estoppel2 was developed to prevent repetitious
lawsuits on questions that have already been decided and remain
“substantially static, factually and legally.” State v. Summers,
351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000). Thus, the doctrine
prevents the re-litigation of identical issues in a new,
separate case, when (1) the issue was actually litigated and
determined, (2) the issue was necessary to the outcome in the
original case, and (3) there was a final judgment on the merits.
Id.; see also Youse v. Duke Energy Corp., 171 N.C. App. 187,
193, 614 S.E.2d 396, 401 (2005) (“Collateral estoppel will apply
when: (1) a prior suit resulted in a final judgment on the
merits; (2) identical issues were involved; (3) the issue was
actually litigated in the prior suit and necessary to the
2
Collateral estoppel is also referred to as “issue preclusion”
or “estoppel by judgment.” See, e.g., King v. Grindstaff, 284
N.C. 348, 355, 200 S.E.2d 799, 805 (1973); Williams v. Peabody,
__ N.C. App. __, __, 719 S.E.2d 88, 93 (2011).
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judgment; and (4) the issue was actually determined.”)
(citations, internal quotation marks, and brackets omitted). The
United States Supreme Court has described a final judgment as
one that “terminates the litigation between the parties on the
merits of the case[] and leaves nothing to be done but to
enforce by execution what has been determined.” St. Louis, I.M.
& S. Ry. Co. v. S. Express Co., 108 U.S. 24, 28–29, 27 L. Ed.
638, 639 (1883).
The denial of Defendant’s motion to dismiss did not
constitute a final judgment on the merits because the suit was
not disposed of and could continue to proceed below. See, e.g.,
Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d
770, 773 (2009) (noting that the denial of the defendant’s
motion to dismiss was “made during the pendency of the action
[and did] not dispose of the case, but instead [left] it for
further action by the trial court in order to settle and
determine the entire controversy”) (citations and internal
quotation marks omitted). Collateral estoppel can only preclude
the re-litigation of an issue in a subsequent case, after that
same issue was finally resolved in a prior suit. Here, the issue
of the applicability of the Tort Claims Act was still pending
when Defendant moved for summary judgment. Therefore, the fact
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that the issue was raised again in the same case did not — and
could not — implicate the doctrine of collateral estoppel.
Accordingly, Plaintiff’s second argument is overruled, and we
affirm the Commission’s 26 May 2013 order dismissing his tort
claim with prejudice.3
AFFIRMED.
Judges GEER and ERVIN concur.
Report per Rule 30(e).
3
As the Commission noted in its order, however, Plaintiff may
file a workers’ compensation claim within twelve months of his
discharge from Defendant’s custody.