# Richardson v. North Carolina Department of Correction

> Court of Appeals of North Carolina · May 16, 1995 · 118 N.C. App. 704

URL: https://www.frixlaw.com/law-library/cases/9618613

## Case

- **Full name:** PERCELL RICHARDSON, Employee, Plaintiff v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Defendant
- **Court:** Court of Appeals of North Carolina
- **Decided:** May 16, 1995
- **Citations:** 118 N.C. App. 704; 457 S.E.2d 325; 1995 N.C. App. LEXIS 377
- **Precedential status:** Published
- **Opinion:** Dissent by Greene
- **Judges:** Martin, Mark, Greene
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9618613

## Opinion text

Judge Greene
dissenting.
I disagree with the majority’s opinion that the Industrial Commission’s dismissal of plaintiff’s claim under the Tort Claims Act was proper.
North Carolina General Statute § 97-13(c) of the Worker’s Compensation Act provides:
*708 This Article shall not apply to prisoners being worked by the State or any subdivision thereof, except to the following extent: Whenever any prisoner assigned to the State Department of Correction shall suffer accidental injury or accidental death arising out of and in the course of the employment to which he had been assigned, if there be death or if the results of such injury continue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability as defined in this Article, then such discharged prisoner or the dependents or next of kin of such discharged prisoner may have the benefit of this Article by applying to the Industrial Commission .... 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.G.S. § 97-13(c) (1991) (emphases added). North Carolina General Statute § 97-10.1 provides:
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.
N.C.G.S. § 97-10.1 (1991). By the terms of Section 97-13(c), a prisoner who survives an accidental injury amounting to a disability that occurred while on assigned work cannot bring a claim under the Workers’ Compensation Act until he is discharged. Horney v. Pool Co., 267 N.C. 521, 527 , 148 S.E.2d 554, 559 (1966) (“[w]hether the prisoner, if he had survived his injury, would be entitled to compensation under G.S. 97-13(c) could not be determined until the date of his discharge”). Therefore, because a prisoner accidentally injured while on assigned work cannot be “entitled to compensation under this subsection [97-13(c)]” while he is incarcerated, the exclusivity provision of Section 97-10.1 does not apply. An incarcerated prisoner should thus be allowed to pursue a claim under the Tort Claims Act for accidental injury occurring while on assigned work and resulting from the negligence of “any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority” N.C.G.S. § 143-291 (1993).
*709 In this case, there was no evidentiary hearing; therefore, the question presented on the pleadings is whether the Workers’ Compensation Act is plaintiffs exclusive remedy. The pleadings do not show whether plaintiff was still incarcerated or discharged when he filed his claim under the Tort Claims Act. If incarcerated, plaintiff, in fact, has no remedy under the Workers’ Compensation Act pursuant to the provisions of Section 97-13(c), and his only remedy while he is in prison is under the Tort Claims Act. See Brewington v. North Carolina Dep’t of Correction, 111 N.C. App. 833 , 433 S.E.2d 798 (appeal by prisoner injured while working in Central Prison kitchen from decision of Industrial Commission on plaintiff’s claim under Tort Claims Act that there was no negligence on part of named employees and officers), disc. rev. denied, 355 N.C. 552 , 439 S.E.2d 142 (1993); Baker v. North Carolina Dep’t of Correction, 85 N.C. App. 345 , 354 S.E.2d 733 (1987) (appeal by prisoner injured while washing dormitory windows on assigned work from decision of Industrial Commission under Tort Claims Act that there was no negligence on part of another inmate). Therefore, the Industrial Commission’s dismissal of plaintiff’s claim under the Tort Claims Act was improper, and that order must be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9618613. Public record. Not legal advice.