Baker v. North Carolina Department of Correction , 85 N.C. App. 345 ( 1987 )

354 S.E.2d 733 (1987)

Robert E. BAKER, Jr., Claimant,
v.
NORTH CAROLINA DEPARTMENT OF CORRECTION, Defendant.

No. 8610IC920.

Court of Appeals of North Carolina.

April 21, 1987.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Randy Meares, Raleigh, for the State.

N.C. Prisoner Legal Services, Inc. by Marvin Sparrow, Raleigh, for plaintiff, appellant.

HEDRICK, Chief Judge.

The one question presented on this appeal is whether the Commission erred in concluding that Willingham "was not negligent in his closing of the window of the sick room."

The law imposes upon every person who enters upon an active cause of conduct the positive duty to exercise ordinary care to protect others from harm and a violation of such duty constitutes negligence. Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727 (1956); Abner Corp. v. City Roofing & Sheetmetal Co., 73 N.C.App. 470, 326 S.E.2d 632 (1985).

The Commission in the present case made the finding that Willingham "had no reason to know that plaintiff was at the very window Willingham was shutting," and based on this finding concluded that Willingham was not negligent in closing the window. The evidence and other findings made by the Commission do not support the finding that Willingham had no reason to know that plaintiff was at the window. The findings made by the Commission disclose that Willingham knew that plaintiff and others were cleaning the windows outside the building and particularly the windows in the sick room. Indeed, Willingham closed the window in the sick room to keep the water being used to clean the windows from getting into the sick room.

The only conclusion to be drawn from the findings of fact already made by the Commission is that Willingham failed to exercise ordinary care to protect plaintiff from harm when he closed the window to the sick room on plaintiff's finger without first determining whether his course of action in closing the window could be done without injuring anyone when he knew or should have known that plaintiff and others were washing the windows outside the sick room. The uncontroverted findings of fact dictate the conclusion that Willingham was negligent and that such negligence was a proximate cause of the injury to plaintiff's finger. Thus, the order of the Commission must be reversed and the cause remanded for an entry of an order concluding that Willingham was negligent and such negligence was a proximate cause of the injury to plaintiff's finger. The Commission must conduct a further hearing to determine the amount of damages plaintiff is entitled to recover for such injuries as were proximately caused by Willingham's negligence.

Reversed and remanded.

EAGLES and PARKER, JJ., concur.