Bunch v. N.C. Dept. of Correction ( 2010 )

*********** The Full Commission reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Hall and the assignments of error and/or briefs before the Full Commission. The appealing party has not shown good grounds to reconsider the evidence. Accordingly, the Full Commission AFFIRMS the Decision and Order of Deputy Commissioner Hall and enters the following Decision and Order. *********** Based upon the competent evidence of record, the Full Commission makes the following: FINDINGS OF FACT 1. A hearing on the Defendant's Motion for Judgment on the Pleadings was held on February 5, 2009.

2. Plaintiff James Bunch (hereinafter "Bunch") alleges in his complaint that he was exposed to second hand smoke since his incarceration in 1990.

3. NCDOC moved to Dismiss Bunch's claim for failure to allege negligence, for failure to state a claim upon which relief may be granted, and for lack of subject matter jurisdiction.

*********** Based upon the foregoing Findings of Fact, the Full Commission makes the following: CONCLUSIONS OF LAW 1. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties.Bolkir v. N.C. State University, 321 N.C. 706, 709,365 S.E.2d 898, 900 (1988).

2. 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.

3. Bunch has failed to allege any negligence on the part of any named officer, employee, involuntary servant, or agent of the state while acting within the scope of his or her office, employment, service, agency, or authority that proximately caused plaintiff an injury. N.C. Gen. Stat. § 143-291 et seq.

*********** Based on the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following: ORDER 1. Bunch's claim under the State Tort Claims Act is hereby DISMISSED WITH PREJUDICE.

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

This the 27th day of January, 2010.

S/_______________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_______________ PAMELA T. YOUNG CHAIR

S/_______________ DANNY LEE McDONALD COMMISSIONER