Blackmon v. North Carolina Dept. of Correction

• Decision Date: 16 May 1995
• Docket Number: No. 9410IC558,9410IC558
• Citation: 457 S.E.2d 306,118 N.C.App. 666
• Court: North Carolina Court of Appeals
• Parties: Mary B. BLACKMON, Administratrix of the Estate of Bobby T. Blackmon, Deceased, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Employer; and/or North Carolina Department of Transportation, Defendants.

Page 306

457 S.E.2d 306

118 N.C.App. 666

Mary B. BLACKMON, Administratrix of the Estate of Bobby T Blackmon, Deceased, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Employer; and/or North Carolina Department of Transportation, Defendants.

No. 9410IC558.

Court of Appeals of North Carolina.

May 16, 1995.

Hugh B. Lewis, Charlotte, W. David Lee, Griffin, Caldwell, Helder, Lee & Helms, P.A., Monroe, for plaintiff-appellee.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Richard L. Griffin, Asheville, for defendants-appellants.

JOHN, Judge.

Defendants appeal an award by the North Carolina Industrial Commission (the Commission) of damages to plaintiff under the North Carolina Tort Claims Act (the Tort Claims Act). For the reasons set forth herein, we reverse the decision of the Commission.

Pertinent facts and procedural information are as follows: Decedent Bobby Blackmon (Blackmon) was an inmate incarcerated within the North Carolina Department of Correction (DOC) at Yancey Correctional Center. Blackmon worked with a medium custody road crew assigned to the Madison County Section of the North Carolina Department of Transportation (DOT).

On 6 November 1990, the DOT foreman supervising Blackmon's crew instructed the inmates to break up and remove road salt from a double storage bin, a wooden structure built of treated lumber and located on the side of a mountain immediately above the DOT maintenance yard. The bin is raised eight (8) feet from the ground on stilts, and measures 34 feet from side to side, 17 feet from front to back, and 14 feet from top to bottom. It consists of two large compartments, each capable of holding approximately 75 tons of road salt. Access to the top of the bin is through plywood doors. Removal of salt is accomplished by backing a truck beneath the bin and opening metal doors on the bottom so as to allow salt to fall through a chute.

Because the bin is neither airtight nor waterproofed, salt stored therein tends to harden and crystallize and often will not fall readily through the chute. Standard DOT procedure for dealing with this circumstance is for workers to stand inside the bin atop the hardened salt smashing it with crowbars until the salt flows evenly.

Blackmon and another inmate were directed to loosen salt in the foregoing manner. As Blackmon moved along the salt crust surface, it suddenly broke beneath him and he dropped into the salt pile. Although other inmates attempted to extricate Blackmon, he eventually disappeared from view. Further rescue efforts were ineffectual, and Blackmon subsequently died from asphyxiation.

Mary Blackmon, Blackmon's mother and administratrix of his estate, instituted this action 11 February 1991 by filing an affidavit with the Commission alleging a tort claim against DOT and DOC and seeking $100,000.00 in damages for the wrongful death of Blackmon. Defendants answered 11 March 1991 disavowing any liability, and further moved to dismiss based upon lack of subject matter jurisdiction 4 April 1991. The motion asserted that provisions of the Workers' Compensation Act (the Act) barred plaintiff from proceeding under the Tort Claims Act for wrongful death. Defendants' motion was denied by Deputy Commissioner Edward Garner, Jr. 13 August 1991.

On 18 March 1992, plaintiff's claim was heard on its merits before Deputy Commissioner Gregory M. Willis. He concluded "[p]laintiff has failed to prove that [state employees] injured the decedent as a result of their negligence while acting within the scope of their employment with the Department of Transportation or Department of Correction ...," and awarded no damages to plaintiff. Plaintiff appealed this decision to the full Commission.

The Commission, in an order written by Commissioner James J. Booker, concluded the following:

1. N.C.G.S. § 97-13(c) is not a bar to an action for wrongful death of a prisoner brought under the North Carolina Tort Claims Act. Ivey v. North Carolina Prison Dept., 252 N.C. 615, 114 S.E.2d 812 (1960).

. . . . .

4. The North Carolina Industrial Commission is to determine negligence under the Tort Claims Act by using the same rules as those applicable to private parties. N.C.G.S. § 143-291; Bolkhir v. North Carolina State Univ., 321 N.C. 706, 365 S.E.2d 898 (1988). Negligence is the failure to exercise the degree of care for others' safety which a reasonably prudent person, under like circumstances, would exercise. Sparks v. Phipps, 255 N.C. 657, 122 S.E.2d 496 (1961).

. . . . .

6. The undersigned are persuaded by the accident investigation report by Ed Preston which concluded that the procedure used for cleaning the salt bins posed a serious risk of injury or death to workers. As such, defendants were negligent in using such a procedure, given the design of the bins, that no safety equipment was used or was even made available to workers, and that there was no possible way to rescue someone without putting the rescuers in serious danger themselves.

7. Because defendants' negligence caused the wrongful death of decedent, the claimant is entitled to compensation under the North Carolina Tort Claims Act at the present value loss of earnings, fringe benefits, and household services of decedent.

Based on these determinations, the Commission awarded plaintiff $73,685.00 in damages. Defendants gave notice of appeal to this Court 30 March 1994.

______

Defendants' basic assignment of error focuses upon Commissioner Booker's conclusion that N.C.Gen.Stat. § 97-13(c) does not operate to bar plaintiff's wrongful death action brought under the Tort Claims Act.

The statute at issue provides in pertinent part:

This Article shall not apply to prisoners being worked by the State ..., except to the following extent: Whenever any prisoner assigned to the State Department of Correction shall suffer ... accidental death arising out of and in the course of the employment to which he had been assigned, if there be death ... the dependents or next of kin ... may have the benefit of this Article by applying to the Industrial Commission as any other employee; provided, such application is made within 12 months from the date of the discharge; and provided further that the maximum compensation to ... the dependents or next of kin of any deceased prisoner shall not exceed thirty dollars ($30.00) per week and the period of compensation shall relate to the date of his discharge rather than the date of the accident.... The provisions of G.S. 97-10.1 and 97-10.2 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said section applies to employees and employers.

N.C.Gen.Stat. § 97-13(c) (1991).

N.C.Gen.Stat. § 97-10.1 (1991) states:

If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.

Read in pari materia, the terms of these statutes indisputably dictate two major consequences in the circumstances sub judice: 1) because Blackmon suffered accidental death arising out of and in the course of the employment to which he was assigned, plaintiff "may have the benefit" of the Workers' Compensation Act; and 2) if such opportunity to seek redress constitutes being "entitled to compensation" under the Act, plaintiff is excluded from maintaining a wrongful death action against defendants "at common law or otherwise," i.e., under the Tort Claims Act. Should the latter issue be resolved against plaintiff, her appeal fails. We conclude plaintiff's action is indeed barred.

Plaintiff emphasizes the word "may" in the statute and asserts use of the term constitutes a permissive option, allowing her a choice of claiming under the Act or proceeding under the Tort Claims Act. While "may" indisputably leaves the decision regarding whether or not to file any workers' compensation claim with plaintiff, her argument takes the word "may" out of context and further ignores the implications of the phrase "entitled to compensation."

G.S. § 97-13(c) commences with the prohibitory statement that it "shall not apply to prisoners being worked by the State." Only thereafter does it set out those instances in which prisoners "may have the benefit" of the Act. Finally, it provides that the exclusive remedy provisions of G.S. § 97-10.1 "shall apply to prisoners ... entitled to compensation " under the section.

"Where the words of a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning unless a different meaning is apparent or clearly indicated by the context in which they are used." State v. Koberlein, 309 N.C. 601, 605, 308 S.E.2d 442, 445 (1983) (citing Lafayette Transportation Service, Inc. v. County of Robeson, 283 N.C 494, 196 S.E.2d 770 (1973)). "Entitle" is defined as to "qualify (one) for something" or to "furnish with proper grounds for seeking or claiming something." Webster's Third New International Dictionary 758 (1966).

When the statutory exceptions to non-applicability of the Act as set out in G.S. § 97-13(c) are met, the dependents or next of kin of a deceased inmate possess the "proper grounds for seeking or claiming" benefits thereunder and are therefore qualified, or more specifically "entitled," to compensation under the Act. Because Blackmon was a prisoner who suffered "accidental death arising out of and in the course of the employment to which he had been assigned," his dependents or next of kin are statutorily "entitled" to specific benefits under the Act. Therefore, plaintiff, as a consequence of G.S. § 97-10.1, may not maintain a wrongful death action against defendants under...