Sanders v. N.C.D.O.C. ( 1996 )

Upon review of all of the competent evidence of record with reference to the errors assigned, and finding no good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the order, the Full Commission AFFIRMS and ADOPTS the Decision and Order of the deputy commissioner with minor technical modifications as follows.

The Full Commission adopts the findings of fact of the deputy commissioner with minor technical modifications and finds as follows

FINDINGS OF FACT

This matter involves a personal injury claim under the Tort Claims Act for the fungal infection plaintiff allegedly developed in both feet due to being provided with worn out steel-toed shoes to wear while working around chemicals in the sign plant at Franklin County Prison Unit. Upon his transfer to the same prison unit plaintiff was assigned to work in the facility's sign plant requiring him to wear steel-toed shoes, which he obtained from the prison unit's clothes house.

Because of the large number of inmates transferring in and out, prison policy required steel-toed shoes that were still serviceable to be used after they were disinfected with a disinfectant provided by the unit nurse. Plaintiff admitted that the used shoes provided to him were properly sized. He contends, however that the used shoes provided to him by the clothes house had not only been painted with a paint used in the sign plant and personalized by the inmate that had previously worn them, but that they had cuts in them and were essentially worn out as well as smelly. Plaintiff's testimony on this point is not accepted as credible because it is contrary to the fact that all shoes were first sprayed with a disinfectant before they were reused and non-serviceable shoes such as the ones described by plaintiff would not have been reused.

Plaintiff was in fact provided with properly fitting, used, size eleven steel-toed shoes to wear that were still in serviceable condition and had been sprayed with a disinfectant provided by the unit nurse. Further, there is no medical or other scientific evidence that the shoes plaintiff was provided caused him to develop the fungal infection claimed.

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Based upon the foregoing findings of fact, the Full Commission concludes as follows

CONCLUSION OF LAW

For the reasons stated in the above findings of fact, plaintiff has failed in his burden of establishing actionable negligence at the time complained of by any named or unnamed, employee, agent, servant or representative of defendant North Carolina Department of Correction proximately resulting in the injuries or damages claimed by the plaintiff.

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Based on the foregoing findings of fact and conclusion of law, the Full Commission enters the following

ORDER

IT IS THEREFORE ORDERED that plaintiff have and recover nothing from the defendant and that this claim be DISMISSED with prejudice.

Each side shall bear its own costs.

S/ _______________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/ _______________________ THOMAS J. BOLCH COMMISSIONER

S/ _______________________ LAURA K. MAVERTIC COMMISSIONER

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