Appendix — Christopher v. North Carolina State University (No. 08-834)
Supreme Court brief2008
Ask Donna
What actually matters in this document.
Text
-la-
APPENDIX A
NORTH CAROLINA INDUSTRIAL COMMISSION
No. TA-1938838
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF
Vy
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT
DECISION AND ORDER
BEFORE WANDA BLANCHE TAYLOR,
DEPUTY COMMISSIONER
BY WANDA BLANCHE TAYLOR,
DEPUTY COMMISSIONER
FILED FEBRUARY 9, 2007
«2a
Based on the forecast of evidence by the parties at
the November 9, 2006 hearing, and_ the
representations of the parties and evidence of record,
the Undersigned makes the following
Findings of Fact
: Plaintiff filed his Tort Claim Affidavit, Form
T-1, on December 30, 2005, with the Industrial
Commission alleging, in pertinent part, that during
September through November 2003, he was an
employee and Resident Advisor for Defendant, and
allegedly was exposed to a “substandard and
unhealthy indoor environment, primarily mold, in
Wood Hall”.
2. Defendant timely answered and moved to
dismiss Plaintiffs tort claim on basis that 1t was
barred by the North Carolina Workers’
Compensation Act, and that Plaintiffs exclusive
remedy was to file a Workers’ Compensation claim.
3. Defendant also filed a motion for summary
judgment, which was heard before the Undersigned
in Raleigh on November 9, 2006.
4. Attached to Defendant’s motion for summary
judgment was a sworn Affidavit of Timothy S. Blair,
Associate Director of University Housing for
Defendant, with Exhibits.
D. The sworn statements made by Mr. Blair in
his Affidavit are found to be credible and competent
evidence in a summary judgment proceeding, along
with the documents and exhibits attached to the
-3a-
motion, and the same are incorporated into this
Decision and Order by reference and made findings
of fact as if set out fully herein.
6. Plaintiff was employed with Defendant as a
Resident Advisor during the time period that
Plaintiff allegedly was exposed to a mold; Plaintiff
was compensated financially for residing in the
residence hall where he allegedly was exposed to
mold; and Plaintiff would not have resided in Wood
Hall but for his employment status as a Resident
Advisor with Defendant.
4 An employment relationship existed between
Plaintiff and Defendant at the time Plaintiff was
allegedly exposed to the allegedly “substandard and
unhealthy indoor environment” set out in Plaintiffs
Tort Claim Affidavit.
8. Plaintiff did not submit to the court any sworn
Affidavits by witnesses, or any other competent
evidence during the summary judgment hearing, to
rebut Defendant’s contention that Plaintiff was an
employee of Defendant at all relevant times.
Based on the foregoing Findings of Fact, the
Undersigned makes the following
Conclusions of Law
1. Summary Judgment is appropriate when “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, who that there is no genuine issue as to any
material fact and that any party is entitled to a
-4a-
judgment as a matter of law.” N.C. Gen. Stat. § 1A-
1, Rule 56(c). In making this determination, “the
evidence presented by the parties must be viewed in
the light most favorable to the non-movant.” Sruce-
Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729,
733, 504 S.E.2d 574, 577 (1998).
2. The party moving for summary judgment has
the burden of establishing the absence of any triable
issue of fact, which may be satisfied by showing that
the party cannot overcome an affirmative defense
which would bar the claim. Vaylor v. Ashburn, 112
N.C. App. 604, 606-607, 436 S.E.2d 276, 278 (1993),
cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994).
3. The moving party meets this burden if it can
show that an essential element of the nonmoving
party’s claim does not exist, or that the nonmoving
party cannot produce evidence of an_ essential
element of his claim, or cannot overcome an
affirmative defense which would bar the claim. Once
the party moving for summary judgment meets its
burden, it is the nonmoving party’s burden to
produce a forecast of evidence showing that it will be
able to establish at least a prima facie case at trial.
Forsyth Mem. Hosp. v. Armstrong World Indus., Jnc.,
122 N.C. App. 413, 470 S.E.2d 826 (1996).
4. Under the Tort Claims Act, the State has
expressly waived its sovereign immunity in certain
circumstances. N.C. Gen. Stat. §§ 143-291, 143-297.
This waiver of immunity shall be strictly construed.
Floyd v. N.C. State Highway Comm’n,, 241 N.C. 461,
464, 85 S.E.2d 703, 705 (1955). The Industrial
Commission has jurisdiction under N.C. Gen. Stat. §
143-291, et seq., to hear tort claims arising as a
-5a-
result of the alleged negligence of an _ officer,
employee, involuntary servant, or agent of the State
while acting within the scope of his employment or
agency, or authority under circumstances where the
State, if a private person, would be lable to the
Plaintiff under state laws. Guthrie v. North Carolina
State Ports Auth., 307 N.C. 522, 299 S.E.2d 618
(1983).
5. The question of whether an _ employer-
employee relationship exists is jurisdictional. Askew
v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280
(1965). “An employee is one who works for another
for wages or salary, and the right to demand pay for
his services from his employer would seem to be
essential to his right to receive compensation under
the act.” Lucas v. Li] Gen. Stores, 289 N.C. 212, 221
S.E.2d 257 (1976). “When an inmate is injured while
working at his prison job, his exclusive remedy for
any injury is a workers’ compensation claim... .”
Vereen v. N.C. Dep't of Corr., 168 N.C. App. 588, 608
S.E.2d 412 (2005).
6. In claims by employees involving injuries by
accident arising out of and in the course of
employment, and occupational illnesses allegedly
contracted through employment, a_ plaintiffs
exclusive remedy is to file a claim under the North
Carolina Workers’ Compensation Act. N.C. Gen.
Stat. § 97-10.1 (2006); See also Ryles v. Durham Co.
Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, cert.
denied, 333 N.C. 169, 424 S.E.2d 406 (1992) (holding
that college respiratory therapist student was
limited to Workers’ Compensation remedy in slip and
fall at college).
-6a-
‘3 Defendant has met its burden of proof by
forecasting sufficient, competent evidence to show
that Plaintiff was an employee of Defendant at the
time he was allegedly exposed to a “harmful” indoor
environment, which in turn allegedly caused him to
sustain a respiratory illness.
8. Plaintiff has failed to forecast sufficient,
competent evidence to show that the Industrial
Commission has subject-matter jurisdiction to hear
Plaintiffs claim under the Tort Claims Act. Plaintiff
has further failed to show there is a genuine issue as
to a material fact.
9. Though the Undersigned makes _ no
determination as to the merits of Plaintiff's claim,
Plaintiff's exclusive remedy is to seek recourse under
the North Carolina Workers’ Compensation Act.
10. Plaintiffs Tort Claim should be dismissed with
prejudice.
Based on the foregoing Findings of Fact and
Conclusions of Law, the Undersigned makes the
following ... Decision and Order: , , , 1. Plaintiff's
Tort Claim is dismissed with prejudice. . . . 2.
Plaintiff shall pay the costs of this matter. , , , 3. This
Tort Claim is taken off of the active docket.
/s/ WANDA BLANCHE TAYLOR
APPENDIX B
NORTH CAROLINAAINDUSTRIAL COMMISSION
No. TA-19383
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF
¥.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT
DECISION AND ORDER
BEFORE THE FULL COMMISSION REVIEW
PANEL, CHRISTOPHER SCOTT, PANEL
CHAIRMAN AND COMMISSIONER, BUCK
LATTIMORE, CHAIR AND COMMISSIONER, AND
DIANNE C. SELLERS, COMMISSIONER
BY CHRISTOPHER SCOTT, COMMISSIONER
FILED AUGUST 10, 2007
-8a-
Based upon all of the competent evidence of record
and reasonable inferences flowing therefrom, the
Full Commission makes the following
Findings of Fact
i. The Plaintiff filed his Tort Claim Affidavit,
Form T-1, on December 30, 2005, with the Industrial
Commission alleging, in pertinent part, that during
September through November 2003, he was an
employee and Resident Advisor for Defendant, and
allegedly was exposed to a “substandard and
unhealthy indoor environment, primarily mold, in
Wood Hall”.
2: The Defendant timely answered and moved to
dismiss Plaintiff's tort claim on basis that it was
barred by the North Carolina Workers’
Compensation Act, and that Plaintiffs exclusive
remedy was to file a Workers’ Compensation claim.
3. The Defendant also filed a motion for
summary judgment, which was heard before the
[North Carolina Industrial Commissionj on
November 9, 2006.
4. Attached to Defendant’s motion for summary
judginent was a sworn Affidavit of Timothy S. Blair,
Associate Director of University Housing for
Defendant, with Exhibits. The sworn statements
made by Mr. Blair in his Affidavit are found to be
credible and competent evidence in a summary
judgment proceeding.
-Ja-
5. Based upon the evidence of record, the Full
Commission finds that the Plaintiff was employed
with the Defendant as a Resident Advisor during the
time period that the Plaintiff allegedly-was exposed
to a mold. The Full Commission further finds that
the Plaintiff was compensated financially for residing
in the residence hall where he allegedly was exposed
to mold. Moreover, the Plaintiff would not have
resided in Woo!’ Hall but for his employment status
as a Resident Aavisor with Defendant.
6. The Full Commission finds that = an
employment relationship existed between the
Plaintiff and the Defendant at the time Plaintiff was
allegedly exposed to the allegedly “substandard and
unhealthy indoor environment” set out in Plaintiffs
Tort Claim Affidavit.
7. The Full Commission finds that the Plaintiff
has not provided sufficient evidence to rebut the
Defendant’s contention that the Plaintiff was an
employee of the Defendant at all relevant times.
Based on the foregoing Findings of Fact, the Full
Commission reaches the following
Conclusions of Law
1. Summary Judgment is appropriate when “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, who that there is no genuine issue as to any
material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-
1, Rule 56(c). In making this determination, “the
-10a-
evidence presented by the parties must be viewed in
the light most favorable to the non-movant.” Fruce-
Terminix Co. v. Zurich Ins. Co., 130 N.©. App. 729,
733, 504 S.E.2d 574, 577 (1998).
2. The party moving for summary judgment has
the burden of establishing the absence of any triable
issue of fact, which may be satisfied by showing that
the party cannot overcome an affirmative defense
which would bar the claim. TVaylor v. Ashburn, 112
N.C. App. 604, 606-607, 436 S.E.2d 276, 278 (1993),
cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). The
moving party meets this burden if it can show that
an essential element of the nonmoving party’s claim
does not exist, or that the nonmoving party cannot
produce evidence of an essential element of his claim,
or cannot overcome an affirmative defense which
would bar the claim. Id. The defendant has met its
burden of proof by forecasting sufficient, competent
evidence to show that the plaintiff was an employee
of the defendant at the time he was allegedly exposed
to a “harmful” indoor environment, which in turn
allegedly caused him to sustain a respiratory illness.
Id.
3. Once the party moving for summary judgment
meets its burden, it is the nonmoving party’s burden
to produce a forecast of evidence showing that it will
be able to establish at least a prima facie case at
trial. Forsyth Mem. Hosp. v. Armstrong World
Indus., Inc., 122 N.C. App. 413, 470 S.E.2d 826
(1996). The plaintiff has failed to forecast sufficient,
competent evidence to rebut the defendant’s
evidence, and has failed to show that the Plaintiff
-lla-
was not an employee of the defendant at the time of
the alleged exposure. Id.
4. Under the Tort Claims Act, the State has
expressly waived its sovereign immunity in certain
circumstances. N.C. Gen. Stat. §§ 1438-291, 143-297.
This waiver of immunity shall be strictly construed.
Floyd v. N.C. State Highway Comm'n, 241 N.C. 461,
464, 85 S.E.2d 703, 705 (1955). The Industrial
Commission has jurisdiction under N.C. Gen. Stat. §
143-291, et seq., to hear tort claims arising as a
result of the alleged negligence of an officer,
employee, involuntary servant, or agent of the State
while acting within the scope of his employment or
agency, or authority under circumstances where the
State, if a private person, would be liable to the
Plaintiff under state laws. Guthrie v. North Carolina
State Ports Auth., 307 N.C. 522, 299 S.E.2d 618
(1983). The plaintiff has failed to forecast sufficient,
competent evidence to show that the Industrial
Commission has subject-matter jurisdiction to hear
the plaintiff's claim under the Tort Claims Act. Id.
The plaintiff has further failed to show there is a
genuine issue as to a material fact. N.C. Gen. Stat. §
1A-1, Rule 56(c).
5. The question of whether an _ employer-
employce relationship exists is jurisdictional. Askew
v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280
(1965). “An employee is one who works for another
for wages or salary, and the right to demand pay for
his services from his employer would seem to be
essential to his mght to receive compensation under
the act.” Lucas v. Lr] Gen. Stores, 289 N.C. 212, 221
S.E.2d 257 (1976).
6. In claims by employees involving injuries by
accident arising out of and in the course of
employment, and occupational illnesses allegedly
contracted through employment, a_ plaintiffs
exclusive remedy is to file a claim under the North
Carolina Workers’ Compensation Act. N.C. Gen.
Stat. § 97-10.1 (2006); See also Ayles v. Durham Co.
Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, cert.
denied, 333 N.C. 169, 424 S.E.2d 406 (1992) (holding
that college respiratory therapist student was
limited to Workers’ Compensation remedy in slip and
fall at college).
‘# Based on the competent evidence of record, the
Full Commission concludes that the plaintiffs
present tort claim should be dismissed with
prejudice. N.C. Gen. Stat. § 143-291 et seg. Though
the Full Commission makes no determination as to
the merits of the Plaintiffs claim, the Full
Commission concludes that the Plaintiffs exclusive
remedy is to seek recourse under the North Carolina
Workers’ Compensation Aci. N.C. Gen. Stat. § 97-1
et seq. The Plaintiff shall be granted leave to duly
file a workers’ compensation claim pursuant to the
Workers’ Compensation Act within one year of the
entry of this Order. Id.
8. Plaintiffs Tort Claim should be dismissed with
prejudice.
Based on the foregoing Findings of Fact and
Conclusions of Law, the Full Commission enters the
following
Order:
x The Plaintiffs Tort Claim must be, and is
hereby, dismissed with prejudice.
- The Plaintiff is hereby granted leave to duly
file a workers’ compensation claim with the
Industrial Commission pursuant to the N.C.
Workers’ Compensation Act within one year of the
entry of this Order.
3. Plaintiff shall pay the costs of this matter.
This the 23rd day of July 2007.
/s/ CHRISTOPHER SCOTT
CONCURRING:
{s/ BUCK LATTIMORE
/s) DIANNE C. SELLERS
-14a-
APPENDIX C
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA P07-907
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT-PETITIONER
Vv.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE-RESPONDENT
ORDERS
BEFORE THE
COURT OF APPEALS OF NORTH CAROLINA
KILED NOVEMBER 14, 2007
-15a-
The petition filed in this cause on the 30th day of
October 2007 and designated “Petition for Writ of
Mandamus’ is denied.
The petition filed in this cause on the 30th day of
October 2007 and _ designated “Petition for
Prohibition” is denied.
The petition filed in this cause on the 30th day of
October 2007 and designated “Petition for Writ of
Supersedeas’ is denied.
By order of the Court this the 14th day of November
2007.
[Orders certified by]
/s/ JOHN H. CONNELL
CLERK OF [COURT]...
NORTH CAROLINA COURT OF APPEALS
-16a-
APPENDIX D
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT
be
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE
OPINION
BEFORE
TYSON, MCCULLOUGH and STROUD, Judges
BY TYSON, Judge
FILED MAY 20, 2008
-17a-
Appeal by plaintiff from decision and order
entered 10 August 2007 by Commissioner
Christopher Scott for the North Carolina Industrial
Commission.
Heard in the Court of Appeals 1 May 2008.
[Appearances are] Joseph Kamau Christopher Bey,
pro se, for plaintiff-appellant |and| Attorney General
Roy Cooper, by Assistant Attorney General Dahr
Joseph Tanoury, for the defendant-appellce.
J. Kamau Christopher (‘plaintiff’) appeals
from the Full Commission of the North Carolina
Industrial Commission’s (“the Commission”) order
dismissing his tort claim action against North
Carolina State University (“defendant”). We affirm.
I. Background
Plaintiff was enrolled as a student at North
Carolina State University from August 1999 to May
2004. In July 2002, plaintiff enlisted in the U.S.
Naval Reserve and attained the status of serving as
an Active Duty member in the Nuclear Propulsion
Officer Candidate Program. Plaintiffs initial
enlistment physical revealed he was “fit for full
service.” In August 2002, plaintiff was hired as a
Resident Advisor for Wood Residence Hall (“Wood
Hall”) for the 2002-2003 term. Plaintiff was
subsequently rehired as Resident Advisor for the
fullowing 2003-2004 term. On 18 September 2003,
plaintiff resigned from his position due to “mold and
mildew growing in visible areas in the living space of
residents [sic] and a lack of responsiveness from the
University Administration[.!” In November 2003,
plaintiff was diagnosed with a permanent asthmatic
and respiratory condition. Despite these medical
-18a-
conditions, plaintiff was granted a waiver by the
Navy Recruiting Command. After graduation,
plaintiff was transferred to the Naval Air Station in
Pensacola, Florida. Upon plaintiffs arrival, a
commissioning physical was conducted, plaintiffs
medical waiver was revoked, and further analysis of
plaintiffs medical condition and fitness to serve was
ordered.
Such analvsis revealed plaintiffs respiratory
condition had further progressed. On 5 May 2005,
the Navy Medical Command Physical Evaluation
Board issued an order finding plaintiff had acquired
a medical condition, asthma, which was a physically
disqualifying factor. Plaintiff was released from his
military obligation with an honorable discharge,
which terminated his commitment five years early.
On 30 December 2005, plaintiff filed an
affidavit under the Tort Claims Act alleging he was
damaged in the amount of $150,000.00 from
“exposure to substandard and unhealthy indoor
environment” while he was employed as a Resident
Advisor in Wood Hall. On 9 March 2006, defendant
filed a motion to dismiss and answer. Defendant
asserted plaintiff alleged he was injured while
employed with defendant and therefore his exclusive
remedy was to assert a claim under the North
Carolina Workers’ Compensation Act.
On 20 July 2006, defendant filed a motion for
summary judgment. Plaintiff filed a response to
defendant’s motion for summary judgment and
asserted plaintiffs injury “did not arise out of and in
the course of employment, nor ts the = injury
compensable under the North Carolina Workers’
Compensation Act, and thus the Plaintiff... can
only seek compensation for damages under the Tort
-19a-
Claims Act as filed.” On 9 February 2007, Deputy
Commissioner Wanda Taylor filed an_ order
dismissing plaintiffs tort claim with prejudice and
entered the following conclusions:
F Defendant has met its burden of proof
by forecasting sufficient, competent evidence
to show that Plaintiff was an employee of
Defendant at the time he was allegedly
exposed to a “harmful” indoor environment,
which in turn allegedly caused him to sustain
a respiratory illness.
8. Plaintiff has failed to forecast sufficient,
competent evidence to rebut Defendant’s
evidence, and has failed to show that Plaintiff
was not an employee of Defendant at the time
of the alleged exposure.
9. Plaintiff has failed to forecast sufficient,
competent evidence to show that’ the
Industrial Commission has_ subject-matter
jurisdiction to hear Plaintiff's claim under the
Tort Claims Act. Plaintiff has further failed to
show there is a genuine issue as to a material
fact.
On 10 August 2007, the Full Commission
affirmed the Deputy Commissioner’s order and
dismissed plaintiffs tort claim with prejudice.
Plaintiff appeals.
Il. Issues
-20a-
Plaintiff argues the Industrial Commission
erred by: (1) failing to make findings of fact
concerning all crucial issues, including the alleged
injury; (2) hearing defendant’s motion for summary
judgment and finding no genuine issues of material
fact exist; and (3) dismissing plaintiff's tort claim
based upon the assertion that a claim under the
North Carolina Workers’ Compensation Act was
plaintiff's exclusive remedy.
III. Standard of Review
[Wlhen reviewing Industrial Commission
decisions, appellate courts must examine whether
any competent evidence supports the Commission’s
findings of fact and whether those findings
support the Commission’s conclusions of law. The
Commission’s findings of fact are conclusive on
appeal when supported by such competent evidence,
even though there is evidence that would support
findings to the contrary. McRae v. Toastmaster, Inc.,
358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004)
(internal quotations omitted). However, our
Supreme Court has” repeatedly held “that
jurisdictional facts found by the _ Industrial
Commission, even when supported by competent
evidence, are not binding upon the courts on appeal,
and that the reviewing court has the duty to make its
own independent findings.” Lemmerman v. Williams
Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986)
(citations omitted).
IV. Subject Matter Jurisdiction
-21la-
The dispositive issue before us is whether the
North Carolina Workers’ Compensation Act provides
plaintiff his exclusive remedy for his alleged injury
and divests the Industrial Commission of subject
matter jurisdiction to adjudicate plaintiffs tort claim.
The determinative factor that subjects the
parties to the provisions of the North Carolina
Workers’ Compensation Act is whether an employee-
employer relationship exists. Cox v. Transportation
Co., 259 N.C. 38, 42, 129 S.E.2d 589, 592 (1963); see
also Askew v. Tire Co., 264 N.C. 168, 170, 141 S.E.2d
280, 282 (1965) (‘The question whether the
employer-employee relationship exists is clearly
jurisdictional.”).
Here, plaintiff conceded numerous times in his
pleadings and before the Industrial Commission that
he was an employee of defendant while he attended
classes during the 2002-2003 school term and briefly
for the 2003-2004 term. Plaintiff specifically states in
his Response to Defendant’s Motion for Summary
Judgment, “Plaintiff admits and acknowledges that
his relationship with the Defendant included a
employer-employee arrangement, as defined by the
Statutes, and thus he was employed with the
Defendant during a period in which the alleged
injury manifested itself[] ....”
It is well settled in this jurisdiction that the
North Carolina Workers’ Compensation Act is the
exclusive remedy when an employee is injured by
accident arising out of and in the course and scope of
employment. Wood v. Guilford Cty., 355 N.C. 161,
164, 558 S.E.2d 490, 493 (2002) (citing N.C. Gen.
Stat. § 97-10.1).
Because the North Carolina Workers’
Compensation Act is plaintiff's exclusive remedy for
-22a-
the alleged injury that occurred during his
employment, the Industrial Commission properly
dismissed plaintiff's tort claim with prejudice. This
assignment of error is overruled. In lhght of our
holding, it is unnecessary to address plaintiffs
remaining assignments of error.
V. Conclusion
The North Carolina Workers’ Compensation
Act provides plaintiffs exclusive remedy for his
alleged injury that arose out of and in the course and
scope of employment. The Industrial Commission’s
order dismissing plaintiffs tort claim with prejudice
is affirmed.
Affirmed.
Judges MCCULLOUGH and STROUD concur.
-23a-
APPENDIX E
SUPREME COURT OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. 246-P07
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT-PETITIONER
V.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE-RESPONDENT
ORDERS
BEFORE
SUPREME COURT OF NORTH CAROLINA
BY HUDSON, JUDGE
FILED SEPTEMBER 4, 2008
-24a-
Upon consideration of the notice of appeal from the
North Carolina Court of Appeals, filed by the
Plaintiff on the 30th day of May 2008 in this matter
pursuant to G.S. 7A-30, and the motion to dismiss
the appeal for lack of substantial constitutional
question filed by the Defendant, the following order
was entered and is hereby certified to the North
Carolina Court of Appeals: the motion to dismiss the
appeal is “Allowed by order of the Court in
conference, this the 26th day of August 2008. /s/
Hudson, J.; [f]or the Court.”
Upon consideration of the petition filed on the 30th
day of May 2008 by Plaintiff in this matter for
discretionary review of the decision of the North
Carolina Court of Appeals pursuant to G.S. 7A-31,
the following order was entered and is hereby
certified to the North Carolina Court of Appeals:
“Denied by order of the Court in conference, this the
26th day of August 2008. /s/ Hudson, J.; [flor the
Court.”
Upon consideration of the petition filed by Plaintiff
on the 30th day of May 2008 for Writ of Supersedeas
of the judgment of the Court of Appeals, the
following order was entered and is hereby certified to
the North Carolina Court of Appeals: “Denied by
order of the Court in conference, this the 26th day of
August 2008. /s/ Hudson, J.; [flor the Court.”
The following erder has been entered on the motion
filed on the 22nd day of August 2008 by Plaintiff for
Temporary Stay: “Motion Denied by order of the
Court in conference this the 26th day of August 2008.
/s/ Hudson, J.; [flor the Court.”
-25a-
The following order has been entered on the motion
filed on the 22nd day of August 2008 by Plaintiff to
Amend the Record on Appeal: “Motion Denied by
order of the Court in conference this the 26th day of
August 2008. /s/ Hudson, J.; [f]or the Court.”
The following order has been entered on the motion
filed on the 22nd day of August 2008 by Plaintiff to
Expedite Appeal: “Motion Denied by order of the
Court in conference this the 26th day of August 2008.
/s/ Hudson, J.; [flor the Court.”
WITNESS my hand and the seal of the Supreme
Court of North Carolina, this the 4th day of
September 2008.
Christie Speir Cameron
Clerk, Supreme Court of North Carolina
/s/ SHAULA A. BRANNAN
Assistant Clerk
-26a-
APPENDIX F
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT
We
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE
RECORD ON APPEAL
APPEAL FROM
NORTH CAROLINA INDUSTRIAL COMMISSION,
NO. TA-19383
FILED DECEMBER 14, 2007
INDEX
[Index Item Number] 1. Statement of Organization of
Trial. [Page} 1
[Index Item Number] 2. Statement of Jurisdiction.
[Page] 1
{Index Item Number] 3. Statement of Appeal Bond.
[Page] 1
[Index Item Number] 4. Affidavit of Claim, Form T-1,
filed with the North Carolina Industrial Commission
on 30 December 2005. [Page] 2
[Index Item Number] 5. Letter from the North
Carolina Industrial Commission to Plaintiff dated 3
January 2006. [Page] 4
[Index Item Number] 6. Defendant’s Motion to
Dismiss and Answer, filed and served 9 March 2006.
[Page] 6
[Index Item Number] 7. Defendant’s Motion for
Summary Judgment and Motion to Suspend
Discovery, with Supporting Affidavit and Exhibits,
filed and served 20 July 2006. [Page] 10
[Index Item Number] 8. Plaintiff's Response to the
Defendant’s Motion for Summary Judgment and
Plaintiffs Cross-Motion to Compel, with Supporting
Affidavit and List of Exhibits, filed and served 11
August 2006. [Page] 32
[Index Item Number] 9. Exhibit A to the Plaintiff's
Response to Defendant’s Motion for Summary
-28a-
Judgment, Administrative Memorandum submitted
by Plaintiff to representative of the Defendant,
former Wood Hall Resident Director Matthew P.
Long of the Department of University Housing, dated
8 October 2002. [Page] 62
[Index Item Number] 10. Exhibit B to the Plaintiff's
Response to Defendant’s Motion for Summary
Judgment, Article entitled Dorm mold concerns
students: Students allege mold caused health
problems in dorms, published in the Technician, a
student publication of North Carolina State
University, authored by Benjamin Akroyd dated 17
September 2003. [Page] 64
[Index Item Number] 11. Exhibit C to the Plaintiffs
Response to Defendant’s Motion for Summary
Judgment, Letter of Resignation from Employment
from Plaintiff to Defendant delivered 18 September
2003. [Page] 66
[Index Item Number] 12. Exhibit D to the Plaintiffs
Response to Defendant’s Motion for Summary
Judgment, Article entitled University Housing
responds to students’ mold complaints:
Administration speaks out after students allege mold
was found in their rooms, published in the
Technician, a student publication at North Carolina
State University, authored by Benjamin Akroyd
dated 24 September 2003. [Page] 67
[Index Item Number] 13. Exhibit F to the Plaintiff's
Response to Defendant’s Motion for Summary
Judgment, Letter sent to Plaintiff from the
Epidemiology Section of the Division of Public Health
-29a-
in the North Carolina Department of Health and
Human Services, signed by Pat Curran, CIH,
Manager of the Health Hazards Control Unit and
noted as a response on behalf of the Office of the
Governor, the Honorable Michael Easley, dated 20
January 2004. [Page] 69
[Index Item Number] 14. Exhibit G to the”Plaintiff’s
Response to Defendant’s Motion for Summary
Judgment, Memorandum’ entitled “Disability
Evaluation Findings of the Physical Evaluation
Board (PEB) in the case of OC Joseph K Bey, USN”
authored by the Secretary of the Navy Council of
Review Boards, Department of the Navy dated 5 May
2005. [Page] 7€
[Index Item Number] 15. Exhibit H to the Plaintiffs
Response to Defendant’s Motion for Summary
Judgment, Department of Defense Form 214
(DD214), Certificate of Release or Discharge from
Active Duty, issued by the Navy Bureau of Personnel
for the discharge of the Plaintiff dated 9 June 2005.
[Page] 74
[Index Item Number] 16. Exhibit J to the Plaintiffs
Response to Defendant’s Motion for Summary
Judgment, Plaintiffs Response to the Defendant’s
First Set of Interrogatories and Request for
Production of Documents served 1 May 2006. [Page]
75
[Index Item Number] 17. Exhibit K to the Plaintiffs
Response to Defendant’s Motion for Summary
Judgment, Plaintiffs First Set of Interrogatories and
Request for Production of Documents to Defendant
served 1 May 2006. [Page] 108
-30a-
[Index Item Number] 18. Exhibit Q to the Plaintiffs
Response to Defendant’s Motion for Summary
Judgment, Article entitled Students, administrators
discuss indoor air quality, published in the
Technician, a student publication of North Carolina
State University, authored by Rachael Rogers dated
21 January 2004. [Page] 128
[Index Item Number] 19. Exhibit R to the Plaintiffs
Response to Defendant's Motion for Summary
Judgment, North Carolina State University Facility
Profile and Ten-Year Capital Plan dated December
1999, which is primarily cited as a reference, as this
document is public record, but a copy of which is
included as an Exhibit for the convenience of the
North Carolina Industrial Commission. [Page] 130
[Index Item Number] 20. Order issued by the
Honorable Wanda _ Blanche’ Taylor, Deputy
Commissioner, North Carolina Industrial
Commission, filed and served 14 November 2006.
[Page] 176
[Index Item Number] 21. Plaintiff's Response to the
Defendant’s Motion for Summary Judgment and
Motion to Suspend Discovery and Cross-Motion to
Compel, and Proposed Decision and Order, filed and
served 14 December 2006. [Page] 177
[Index Item Number] 22. Defendant’s Proposed
Decision and Order filed and served 14 December
2006. [Page] 214
[Index Item Number] 23. Order issued by the
Honorable Wanda Blanche Taylor, Deputy
-3la-
Commissoner, North Carolina Industrial
Commissiva, filed and issued 30 January 2007.
[Page] 219
[Index Item Number] 24. Decision and Order and
Order of Dismissal, issued by the Honorable Wanda
Blanche Taylor, Deputy Commissioner, North
Carolina Industrial Commission, Raleigh, North
Carolina, filed and issued 9 February 2007. |Page]
220
[Index Item Number] 25. Plaintiff's Notice of Appeal
of the Decision and Order and Order of Dismissal,
issued by the Honorable Wanda Blanche ‘Taylor,
Deputy Commissioner, filed and served 20 February
2007. [Page] 224
[Index Item Number] 26. Letter from the North
Carolina Industrial Commission to Plaintiff dated 22
February 2007. [Page] 226
[Index Item Number} 27. Notice of Appeal and
Application for Review, Form T-44, Plaintiffs Legal
Brief, Questions of Law and Assignments of Error in
Support of Appeal of the Decision and Order and
Order to Dismiss of Wanda Blanche Taylor, Deputy
Commissioner, filed and served 19 April 2007. [Page]
227
[Index Item Number] 28. Order by the Honorable
Buck Lattimore, Chairman and Commissioner,
North Carolina Industrial Commission, filed and
issued 26 April 2007. [Page] 251
-32a-
(Index Item Number] 29. Defendant’s Reply Brief to
the Full Commission, filed and served 29 May 2007.
[Page] 252
[Index Item Number] 30. Decision and Order and
Order of Dismissal issued by the Full Commission of
the North Carolina Industrial Commission, the
Honorable Christopher Scott, Commissioner and
Chair, the Honorable Buck Lattimore, Commissioner
and Chairman, and the Honorable Diane Sellers,
Commissioner, presiding, filed and issued 10 August
2007. [Page] 262
[Index Item Number] 31. Plaintiff's Notice of Appeal
from the Decision and Order and Order of Dismissal
issued by the Full Commission of the North Carolina
Industrial Commission, the Honorable Christopher
Scott, Commissioner and Chair, the Honorable Buck
Lattimore, Commissioner and Chairman, and the
Honorable Diane Sellers, Commissioner, presiding,
filed and served 10 September 2007. [Page] 268
[Index Item Number] 32. Letter from the North
Carolina Industrial Commission to Plaintiff dated 24
September 2007. [Page] 270
[Index Item Number] 33. Plaintiff's Proposed Record
on Appeal to Defendant, served 10 October 2007.
[Page] 271
[Index Item Number] 34. Plaintiffs Motion for
Extension of Time to Order the Transcript and
Plaintiffs Notice of Order of Transcript, filed and
served 10 October 2007. {Page] 274
-33a-
[Index Item Number] 35. Plaintiff's Petition for Writ
of Mandamus and Prohibition, Petition for Writ of
Supersedeas and _ Incorporated Petition for
Immediate Change of Venue and New Trial to the
North Carolina Court of Appeals filed and served 30
October 2007. [Page] 280
{Index Item Number] 36. Letter from the Honorable
Pamela Young, Chairwoman and Commissioner,
North Carolina Industrial Commission, to the
Plaintiff, postmarked 5 November 2007. [Page] 281
{Index Item Number] 37. Orders on Plaintiff's
Petition for Writ of Mandamus and Prohibition,
Petition for Writ of Supersedeas by the North
Carolina Court of Appeals filed and issued 14
November 2007. [Page] 283
[Index Item Number] 38. Plaintiffs Motion for
Intervention to Settle the Record to the North
Carolina Industrial Commission, filed and served 21
November 2007. [Page] 286
[Index Item Number] 39. Order by the Honorable
Danny Lee McDonald, Commissioner, North
Carolina Industrial Commission filed and issued 10
December 2007. [Page] 289
[Index Item Number] 40. Statement of Verbatim
Transcript of Proceedings. [Page] 291
[Index Item Number] 41. Stipulation of Service and
Settlement of Record on Appeal in the matter of J.
Kamau Christopher a/k/a Joseph Kamau
Christopher Bey v. North Carolina State University,
-34a-
Tort Claim, North Carolina Industrial Commission,
File No. TA-19383 by and between the Plaintiff and
Defendant, dated 13 December 2007. [Page] 292
[Index Item Number] 42. Assignments of Error for
Appeal. [Page] 293
[Index Item Number] 43. Identification of Counsel for
the Appeal. [Page] 298
[Index Item Number] 44. Certificate of Filing and
Service of Record on Appeal. [Page] 299
STATEMENT OF ORGANIZATION OF TRIAL
COURT
From the 19 July 2007 Review and Appeal
Session for the Full Commission of the North
Carolina Industrial Commission, Raleigh, North
Carolina, the Honorable Christopher Scott,
Commissioner and Chair, the Honorable Buck
Lattimore, Commissioner and Chairman, and the
Honorable Diane Sellers, Commissioner, presiding.
From 10 August 2007 Decision and Order and Order
of Dismissal dismissing the Plaintiff's Claim without
prejudice, the plaintiff appealed.
The record of appeal was filed in the Court of
Appeals on 14 December 2007, and was docketed on
18 December 2007.
STATEMENT OF JURISDICTION
This action was commenced by the filing of an
Affidavit of Claim under the North Carolina Tort
Claims Act, Form T-1, on 30 December 2005, with
-35a-
the North Carolina Industrial Commission. The
North Carolina General Statutes provide that proper
jurisdiction for Tort Claims against the State, or any
subdivision thereof, rest with the North Carolina
Industrial Commission, and the proper jurisdiction
from appeals therefrom rests with the North
Carolina Court of Appeals. Defendant timely
answered and moved to dismiss Plaintiff's Claim on
the basis that it was barred by the exclusivity
provisions of the North Carolina Workers’
Compensation Act, Statute of Limitations and
Repose, and Contributory Negligence, which
Certificate of Service is dated 9 March 2006. There
is no agreement between the parties on the issue of
the competent and proper subject-matter jurisdiction
of the North Carolina Industrial Commission in this
matter.
STATEMENT OF APPEAI, BOND
The North Carolina Industrial Commission
has not set a monetary amount for an appeal bond
due to the North Carolina Industrial Commission for
this appeal. The standard appeal bond due to the
North Carolina Court of Appeals is in the amount of
TWO HUNDRED FIFTY ($250.00) DOLLARS.
STATEMENT OF TRANSCRIPT
Per Appellate Rule 9(c), the transcript of the
entire proceedings in this case, prepared and
certified by Susan V. Thomas, Notary Public, of
Graham Erlacher & Associates, for the hearing held
9 November 2006, consisting of sixteen (16) pages,
-36a-
numbered 1 through 16, bound in one volume, is filed
contemporaneously with this record (T pp. 1-16).
The Plaintiff requested an order of the
transcript for the hearing held before the Full
Commission of the North Carolina Industrial
Commission, the Honorable Christopher Scott,
Commissioner and Chair, the Honorable Buck
Lattimore, Commissioner and Chairman, and the
Honorable Diane Sellers, Commissioner, presiding,
on 19 July 2007 (R pp. 274-279), however, no court
reporter was present to document the record or take
audio of the hearing (R pp. 281-282).
No other requests for verbatim transcript of
these proceedings were made by either party hereto
and there are no other hearings, depositions or
testimony was taken on record.
STIPULATION OF SERVICE AND SETTLEMENT
OF THE RECORD ON APPEAL
The parties hereto represent and warrant as
follows:
1. The Plaintiff Appellant’s Proposed Record on
Appeal was duly served on 10 October 2007, within
the statutory time limit established.
a Objections were duly served on 26 October
2007. The certificate showing service of the
objections is omitted from the settled record.
3. These proceedings were stayed from 30
October 2007, upon the filing of the Plaintiffs
Petition for Writ Mandamus, Prohibition and
Supersedeas to the North Carolina Court of Appeals,
-37a-
until 14 November 2007, the Orders from the North
Carolina Court of Appeals denying all three
petitions.
4. The Plaintiff Appellant timely requested a
settlement conference from the North Carolina
Industrial Commission on 21 November 2007. The
Honorable Danny Lee McDonald, Commissioner,
North Carolina Industrial Commission set a hearing
on 3 December 2007 for settling the record. The
order therefrom and this corresponding stipulation
are dated thereafter.
5. All captions, signatures, headings of papers,
certificates of service and documents filed with the
trial court that are not necessary for an
understanding of the appeal may be omitted from the
record, except as required by Rule 9 of the Rules of
Appellate Procedure.
6. The foregoing (R pp. 2-289), including the
transcript described in the Statement of Verbatim
Transcript of Proceedings (T pp. 1-16) accompanying
this record, constitutes the final Record on Appeal
upon mutual agreement of counsel for the parties
hereto.
This 12th day of December, 2007.
PLAINTIFF-APPELLANT
/s/ JOSEPH KAMAU CHRISTOPHER BEY
[Pro Se]
DEFENDANT-APPELLEE
/s/ DAHR JOSEPH TANOURY
-38a-
[By Attorney General of North Carolina]
ASSIGNMENTS OF ERROR
Bie...
The Plaintiff assigns as error:
‘. The failure of the Commission to make explicit
and conclusive findings of fact on every crucial issue,
included the alleged injury of the Plaintiff, and to
explicitly and conclusively find that the evidence
presented shows the injury arose by accident out of
and in the course of the employment with Defendant,
and resulted in a compensable disability. R pp. 32-
175, 177-213, 220-223, 227-250, 262-267. T pp. 2-15.
2. The failure of the Commission to acknowledge
that the law requires a finding of fact as to the
alleged injury in question to be made in every claim,
or pleading, brought forth under the exclusivity
provisions of the North Carolina Workers’
Compensation Act and that the standard of review
requires the alleged injury to arise by accident out of
and in the course of the employment and result in a
compensable disability in order for the parties to be
the subject to and in comphance with the North
Carolina Workers’ Compensation Act, and for the
provisions thereof to apply. R pp. 220-223, 227-250,
262-267. T pp. 2-15.
3. The Commission’s Finding of Fact #4, which
found the sworn statements presented in the
Affidavit of Timothy S. Blair to be “credible and
competent evidence in this summary judgment
proceeding’, making no reference to evidence
presented by the Plaintiff contending and objecting
-39a-
to the admission of these statements on the grounds
of questionable character and the standard of
evidence for expert testimony. R pp. 32-175, 177-
213, 220-223, 227-250, 262-267. T pp. 2-15.
4. The Commission’s Conclusion of Law #2 and
Conclusion of Law #4, which concluded that the
“Defendant has met the burden of proof by
forecasting sufficient and competent evidence to
show that the [P]laintiff was an employee of the
{[Djefendant at the time he was allegedly exposed toa
‘harmful’ indoor environment, which in_ turn
allegedly caused him to sustain a respiratory illness”
and “[t]he [P]laintiff has further failed to show there
is a genuine issue as to a material fact”, despite the
suspension of discovery proceecings to reveal further
evidence as to the nature of the allege injury, and an
absence of sufficient, competent, conclusive and
substantiating evidence as to the connection and
correlation between the employment and the alleged
injury to support the conclusion, and that said
absence presents a genuine issue of material fact. R
pp. 32-175, 177-213, 220-223, 227-250, 262-267. T
pp. 2-15.
5. The Commission’s Conclusion of Law #3 and
Conclusion of Law #4, which concluded that the
“[P}laintiff has failed to forecast sufficient, competent
evidence to rebut the [D]Jefendant’s evidence, and has
failed to show that the [P]laintiff was not an
employee of the [D]efendant at the time of the
alleged exposure” and “[t]he [P]laintiff has further
failed to show there is a genuine issue as to a
material fact”, despite legal argument presented by
the Plaintiff which asserts that the foregoing is not
-40a-
the standard of review for the North Carolina
Worker’s Compensation Act and that the Defendant
never fulfilled the burden of proof to show that the
alleged injury “arose by accident out of and in the
course of” the employment with Defendant and that
same presents a genuine issue of material fact. R pp.
227-250, 262-267. T pp. 2-15.
6. The Commission’s Conclusion of Law #4,
which concluded that the “[P]laintiff has failed to
forecast sufficient, competent evidence to show that
the Industrial Commission has _ subject-matter
jurisdiction to hear the [P]laintiffs claim under the
Tort Claims Act” and “[t]he [P]laintiff has further
failed to show there is a genuine issue as to a
material fact”, despite legal argument presented by
the Plaintiff which asserts tiat the Defendant never
fulfilled the burden of proof to show that the Plaintiff
and Defendant were subject to and complied with the
provisions of the North Carolina’ Workers’
Compensation Act, and, thus, the _ exclusivity
provisions apply. R pp. 227-250, 262-267. T pp. 2-15.
YZ The Commission’s Conclusion of Law #6 and
the Commission’s Conclusion of Law #7, which
concluded that “In claims by employees involving
injuries by arising out of and in the course of the
employment, the claimant’s exclusive remedy is to
file a claim under the North Carolina Workers’
Compensation Act” and “the [Plaintiff's exclusive
remedy is to seek recourse under the North Carolina
Workers’ Compensation Act” without making explicit
and conclusive findings of fact as to the—ateged
injury of the Plaintiff. R pp. 227-250, 262-267. T pp.
2-15
-4la-
8. The Commission disregarded the Plaintiff's
legal argument, together with supporting sufficient
and competent evidence, to show that the alleged
injury of the Plaintiff did not arise by accident out of
and in the course of the employment with Defendant
and thus the Plaintiff and Defendant were not
subject, nor complied with, the provision of the North
Carolina Workers’ Compensation Act, and the Act,
and the exclusivity provisions thereof, do not apply.
R pp. 32-175, 177-213, 220-223, 227-250, 262-267. T
pp. 2-15
9. The Commission disregarded the Plaintiff's
legal argument, together with supporting sufficient
and competent evidence, to show that the injury did
not arise from the employment relationship whereas
the Plaintiff was a student using facilities’
maintained by the Defendant and the Plaintiff was a
tenant of facilities maintained by the Defendant
before, during and after employment, and said
facilities are the alleged primary direct and
proximate cause of the injury in question. R pp. 32-
175, 177-213, 220-223, 227-250, 262-267. T pp. 2-15
10. The Commission disregarded the Plaintiff's
legal argument, together with supporting sufficient
and competent evidence, to show that the alleged
injury of the Plaintiff is not compensable under the
North Carolina Workers’ Compensation Act where
the alleged injury did not result in a disability, which
is defined as an inability to earn wages at the time of
the injury in the same or any other employment. R
pp. 32-175, 177-213, 220-223, 227-250, 262-267. T
pp. 2-15
-42a-
11. The Commission disregarded the Plaintiff's
legal argument, together with supporting sufficient
and competent evidence, to show that the alleged
injury of the Plaintiff is one which the general public
is equally exposed, and thus there is no statutory
correlation or relationship for the purposes of the
North Carolina Workers’ Compensation Act or
grounds to conclude that the parties hereto are
subject to the Workers’ Compensation Act. R pp. 32-
175, 177-213, 220-223, 227-250, 262-267. T pp. 2-15
12. The Commission disregarded the Plaintiffs
legal argument, together with supporting sufficient
and competent evidence, to show that the Defendant
was guilty of gross negligence and intentional
misconduct which the Defendant knew was
substantially certain to cause serious injury or death
to the Plaintiff and others similarly situated, and
that the Plaintiff was allegedly injured due to the
gross negligence and intentional misconduct of the
Defendant, and the gross neghgence and intentional
misconduct of the Defendant was the direct and
proximate cause of the alleged injury to the Plaintiff.
R pp. 32-175, 177-213, 220-223, 227-250, 262-267. 'T
pp. 2-15
13. The Commission, given the alleged genuine
issue of material fact and triable issues of fact
present in the instant case, erred in hearing the
Defendant’s Motion for Summary Judgment while
the Plaintiff was seeking discovery in order to obtain
evidence in order to address these claims. R pp. 177-
213, 227-250, 262-267. T pp. 2-15
-43a-
14. The Commission’s Conclusion of Law #6 and
the Commission’s Conclusion of Law #7, whereas the
Commission failed to explicitly find the evidence
presented sufficient and competently shows that the
four (4) elements of a claim of a member of the class
subject to the Workers’ Compensation Act are
present and controlling, and in full force and effect,
the Commission failed to find adequate grounds to
conclude that the Plaintiff is a member of the class
subject to the Workers’ Compensation Act. R pp.
177-213, 227-250, 262-267. T pp. 2-15
15. The Commission’s Conclusion of Law #6 and
Conclusion of Law #7, whereas failure of the
Commission to strictly and explicitly find that the
Plaintiff is a member of the class subject to and in
compliance with the North Carolina Workers’
Compensation Act is a violation of principles of equal
protections explicitly incorporated into the
Fourteenth Amendment of the United States of
America and Article I, Section 19 of the Constitution
of North Carolina, whereby all persons similarly
situated must have equal protection under the law.
R pp. 177-213, 227-250, 262-267. T pp. 2-15.
-44a-
APPENDIX G
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT
¥.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE
PLAINTIFF-APPELLANT’S
BRIEF IN SUPPORT OF APPEAL, AND
APPEAL INFORMATION STATEMENT
APPEAL FROM
NORTH CAROLINA INDUSTRIAL COMMISSION,
NO. TA-19383
FILED DECEMBER 28, 2007
-45a-
QUESTIONS PRESENTED
8 DOES THE STANDARD OF REVIEW FOR
ANY JUDICIAL AUTHORITY TO DENY THE
RIGHT OF A PARTY TO MAINTAIN A COMMON
LAW CLAIM FOR CIVIL REMEDY PURSUANT TO
THE WORKERS’ COMPENSATION ACT REQUIRE
ANY PRESIDING JUDICIAL AUTHORITY TO
MAKE FINDINGS OF FACT AS TO ALL CRUCIAL
ISSUES, INCLUDING THE ALLEGED INJURY IN
QUESTION?
Il. DID THE NORTH CAROLINA INDUSTRIAL
COMMISSION ERR IN HEARING THE
DEFENDANTS MOTION FOR SUMMARY
JUDGMENT WHILE THE PLAINTIFF WAS
SEEKING DISCOVERY RESPONSES?
Ill. DID THE CLAIMANT PRESENT
SUFFICIENT AND COMPETENT EVIDENCE TO
SHOW THAT THERE IS A GENUINE ISSUE OF
MATERIAL FACT AND TRIABLE ISSUES OF
FACT?
~~. DEED THE CLAIMANT PRESENT
SUFFICIENT AND COMPETENT EVIDENCE TO
SHOW THAT THE ALLEGED INJURY IS NOT
COMPENSABLE UNDER THE WORKERS’
COMPENSATION ACT?
V. DID THE NORTH CAROLINA INDUSTRIAL
COMMISSION ERR IN DISREGARDING
EVIDENCE PRESENTED BY THE CLAIMANT TO
SHOW THAT THE CLAIMANT IS NOT SUBJECT
TG THE WORKERS’ COMPENSATION ACT?
-46a-
VI. MUST THE CLAIMANT BE ELIGIBLE TO
RECEIVE COMPENSATION FOR AN ALLEGED
INJURY BEFORE THE PROVISIONS OF THE
WORKERS’ COMPENSATION ACT APPLY TO
EXCLUDE ALL OTHER REMEDIES UNDER THE
LAW?
VII. DID THE NORTH CAROLINA INDUSTRIAL
COMMISSION ERR AND VIOLATE THE
FOURTEENTH AMENDMENT OF THE UNITED
STATES DENYING THE CLAIMANT THE RIGHT
TO MAINTAIN A COMMON LAW CLAIM FOR
CIVIL REMEDY?
STATEMENT OF THE CASE
J. Kamau Christopher a/k/a Joseph Kamau
Christopher Bey (the “Plaintiff’) commenced this
action against North Carolina State University (the
“Defendant’) by the filing of an Affidavit of Tort
Claim with the North Carolina _ Industrial
Commission (the “Commission”) on 30 December
2005 (R pp. 2-3). On 9 March 2006, the Defendant
filed an Answer and Motion to Dismiss (R pp. 6-9).
On 20 July 2006, the Defendant also filed a Motion
for Summary Judgment moving the Commission to
dismiss this claim (R pp. 10-31). The matter was
heard before the Honorable Wanda Blanche Taylor,
Deputy Commissioner, on 9 November 2006, and was
also heard before the Full Commission Panel, the
Honorable Christopher Scott, Chair and
Commissioner, the Honorable Buck Lattimore,
Chairman and Commissioner, and Dianne Sellers,
Commissioner, presiding, on 19 July 2007 (R pp. 220-
-47a-
223, 262-267, 274-279, 281-282, 291; T pp. 1-14). The
Commission ruled in favor of the Defendant and a
final judgment and order dismissing the claim was
entered by the Commission on 10 August 2007 (R pp.
262-267). The Plaintiff filed and served a notice of
appeal to the Honorable North Carolina Court of
Appeals on 10 September 2007 (R pp. 268-269). The
record was settled by order of the court entered 10
December 2007 and confirmed by _ stipulation
between the Plaintiff and Defendant dated 13
December 2007 (R pp. 289-290, 292). The record was
filed with the Clerk of the North Carolina Court of
Appeals on 14 December 2007, docketed 14
December 2007 and the printed record was served
upon all parties on 18 December 2007.
STATEMENT OF # THE GROUNDS FOR
APPELLATE REVIEW
The judgment and order entered by the Full
Commission Panel, by the Honorable Christopher
Scott, Commissioner and Chair, the Honorable Buck
Lattimore, Commissioner and Chairman, and the
Honorable Diane Sellers, Commissioner, presiding, of
the Commission is a final judgment, therefore,
appellate review rests with the North Carolina Court
of Appeals pursuant to N.C. Gen. Stat. §7A-27(b).
STATEMENT OF THE FACTS
The Plaintiff enrolled as a student at the
university maintained by Defendant in August 1999
(R pp. 58-60). In December 1999, the Defendant
published a Facility Profile and Ten-Year Capital
Plan (R pp. 130-175). The documentation disclosed
-48a-
that the deficiencies and health and safety code
violations present in the facilities owned, operated
and maintained by the Defendant presented risks
and hazards to student, staff and faculty alike (R pp.
155-157). Said documentation further stated that
these risks and hazards include asbestos, lead paint
and environmental hazards (R pp. 155-157). From
January 2001 until May 2001, the Plaintiff resided
Metcalf Hall, a facility maintained by Defendant (R
pp. 58-60, 80-86). In October 2001, the Plaintiff
suffered from aé_ respiratory infection from an
unknown cause (R pp. 58-60, 80-86). On 19 July
2002, Plaintiff enlisted with the United States Navy
in the Reserve Corps (R pp. 58-60, 70-74, 80-86).
On 9 August 2002, the Plaintiff commenced a
period of residency and tenancy in facilities
maintained by Defendant and Plaintiff commenced
employment as a temporary employee, Resident
Advisor, with Defendant at Wood Hall (R pp. 58-60,
80-86). In September 2002, the Plaintiff was again
diagnosed with a respiratory infection, however, this
condition was severe and persistent until September
2003 (R pp. 58-60, 80-86). The Plaintiff began to
experience a severe shortness of breath, asthmatic
conditions and rhinitis (R pp. 58-60, 80-86). After
completion of a personal investigation, the medical
experts and the Plaintiff discovered reason to believe
the adverse health conditions were caused by
conditions present in the facilities maintained by the
Defendant (R pp. 58-60, 80-86). Immediately
thereafter, the Plaintiff notified Defendant of the
conclusions of his personal investigation (R pp. 58-
60, 62-63, 80-86). The Defendant immediately made
efforts to remedy the alleged conditions causing such
adverse health conditions (R pp. 58-60, 80-86). In
-49a-
May 20038, the Plaintiff continued employment and
tenancy with the Defendant by transfer to Metcalf
Hall (R pp. 58-60, 80-86). During said summer,
extremely heavy rainfall cause flooding in numerous
facilities owned, operated and maintained by the
Defendant (R pp. 58-60, 80-86). In August 2003, the
Plaintiff continued employment and tenancy with the
Defendant by transfer back to Wood Hall (R pp. 58-
60, 80-86). The water damage caused the presence of
environmental hazards, namely mold, to be present
in numerous facilities maintained by the Defendant,
including Wood Hall (R pp. 58-60, 80-86). A dispute
arose between the Plaintiff and the Defendant
regarding the actions of the Defendant addressing
conditions present in facilities maintained by the
Defendant (R pp. 58-60, 64-65). Shortly thereafter,
the Plaintiff resigned from his. position of
employment and vacated the premises terminating
his tenancy effective 18 September 2003 (R p. 66).
Persistence of the adverse health conditions after
termination of employment and tenancy led the
medical experts to belive the condition to be
permanent in November 2003 (R pp. 58-60, 70-74,
890-86). In December 2003, the Plaintiff presented
documentation as evidence of the failure of the
Defendant to safeguard student, staff and faculty
health against risks and hazards present in facilities
maintained by the Defendant to the Honorable
Michael F. Easley, Governor of North Carolina (R pp.
58-60, 80-86). On 20 January 2004, the North
Carolina Department of Health and Human Services
confirmed receipt of said documentation on behalf of
the Governor of North Carolina (R p. 69). On 20
January 2004, the Plaintiff met with certain agents
and officers of the Defendant regarding these claims
-50a-
without any mutual agreement of publication of a
plan of action to address the concerns (R pp. 128-
129).
The Plaintiff graduated from the university
maintained by Defendant in May 2004 (R pp. 58-60).
In November 2004, the Plaintiff was transferred to
the Naval Air Station in Pensacola, Florida for Navy
Officer Candidate School (R pp. 58-60, 70-74, 80-86).
A full medical examination conducted immediately
after the transfer, and subsequent’ medical
examination, found the Plaintiff unfit for military
service, with official findings issued on 5 May 2005
(R pp. 70-73). The Plaintiff was discharged from the
United States Navy on 9 June 2005 (R p. 74). The
enlistment contract was terminated five (5) years
early (R pp. 58-60, 70-74, 80-86). The Plaintiff lost
the associated employment benefits, including
salary, additional compensation, bonuses and hazard
pay, subsidized health insurance and life insurance,
subsidized tuition assistance programs and the
integrated subsidized educational assistance
program (R pp. 86-87).
LEGAL ARGUMENT
I. THE COMMISSION FAILED TO UPHOLD
THE STANDARD OF REVIEW REQUIRING
EXPLICIT AND CONCLUSIVE FINDINGS OF
FACT ON EVERY CRUCIAL ISSUE, INCLUDING
THE ALLEGED INJURY OF THE PLAINTIFF.
ASSIGNMENT OF ERROR No. 1: R pp. 220-223,
262-267
ASSIGNMENT OF ERROR No. 2; R pp. 220-223,
262-267
This Court has held that the North Carolina
Industrial Commission's findings of fact are
conclusive on appeal of an employee's claim if they
are supported by competent evidence. Aierson vy.
Commercial Serv., 116 N.C. App. 420, 448 S.E.2d
285. However, the North Carolina Industrial
Commission's judgment is subject to appellate
review. N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P.
60(b)(6) allows that the court may relieve a party
from a final judgment or order for any other reason
justifying relief from the operation of the judgment.
N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 60(b)(6) is
equitable in nature and authorizes the trial judge to
exercise his discretion in granting or withholding the
relief sought. ‘The North Carolina Supreme Court has
indicated that the appellate court cannot substitute
what it considers to be }ts own better judgment for a
discretionary ruling of a trial court, and that the
appellate court should not disturb a discretionary
ruling unless it probably amounted to a substantial
miscarriage of justice. Further, a judge is subject to
reversal for abuse of discretion only upon a showing
by a hitigant that the challenged actions are
manifestly unsupported by reason. Generally, on
review, awards entered in cases under the North
Carolina Workers' Compensation Act shall be
conclusive and binding as to all questions of fact.
Appeal to the court shall concern only questions of
law. N.C. Gen. Stat. §97-86. When the assignments
of error bring up for review the findings of fact of the
North Carolina Industrial Commission, the court
reviews the evidence to determine as a matter of law
whether there 1s any competent evidence tending to
support the findings; if so, the findings of fact are
-52a-
conclusive. If a finding of fact is a mixed question of
fact and law, it is conclusive also if there is sufficient
evidence to sustain the facts involved. If a question of
law alone, the court reviews. Hogan v. Cone Mills
Corp., 94 N.C. App. 640; 381 S.E.2d 151.
The standard of review for an appeal from the
Full Commission's decision under the Tort Claims
Act shall be for errors of law only under the same
terms and conditions as govern appeals in ordinary
civil actions, and the findings of fact of the
Commission shall be conclusive if there is any
competent evidence to support them. N.C. Gen. Stat.
§ 143-293 (2003). Under N.C. R. Civ. P. 52(a)(1), in
all actions tried upon the facts without a jury the
court shall find the facts specially and_ state
separately its conclusions of law thereon and direct
the entry of the appropriate judgment. Our Supreme
Court has noted that while Rule 52(a) does not
require a recitation of the evidentiary and subsidiary
facts required to prove the ultimate facts, it does
require specific findings of the ultimate facts
established by the evidence, admissions and
stipulations which are determinative of the questions
involved in the action and essential to support the
conclusions of law reached. ARPR & Assocs. v.
University of N.C.-Chapel Hill, 153 N.C. App. 342,
355-56, 570 S.E.2d 510, 519 (2002). Rule 52 apphes
to cases heard by the Industrial Commission under
the Tort Claims Act. Parker v. State Department of
Transp., 122 N.C. App. 279, 468 S.E.2d 589 (1996).
A trial court's duty pursuant to N.C. Gen.
Stat. § 1A-1, Rule 52 to find facts and state its
conclusions separately merely serves to provide a
basis for appellate review. The appellate review this
Court must be able to conduct consists of a
-53a-
determination of whether the trial court's findings of
fact are supported by competent evidence and the
trial court's conclusions of law are supported by its
findings of fact. Department of Transp. v. Byerly,
154 N.C. App. 454, 459, 573 S.E.2d 522, 525 (2002).
Thus, in making findings of fact, the trial court is
required only to make brief, pertinent and definite
findings and conclusions about the matters in issue.
Fortis Corp. v. Northeast Forest Products, 68 N.C.
App. 752, 753, 315 S.E.2d 537, 538 (1984).
The Workers' Compensation Act (the "Act") is
a compromise arrived at through the concessions of
employees and employers alike. Nothing in it
supports the notion that it was enacted just for the
protection of careful, prudent employees, or that
employees that do not stick strictly to their business
are beyond its protection. By its terms, with certain
exceptions the Act applies to all employees who work
for employers with the requisite number of
employees and are injured by accident during the
course of and arising from their employment. Bare v.
Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534
(1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484
(1985).
The social policy behind the Act is twofold.
First, the Act provides employees swift and certain
compensation for the loss of earning capacity from
accident or occupational disease arising in the course
of employment. Second, the Act insures limited
hability for employers. Although the Act should be
hberally construed to effectuate its intent, the courts
cannot judicially expand the employer's liability
beyond the statutory parameters. Hendrix v. Linn-
Corriher (orp., 317 N.C. 179, 345 S.E.2d 374 (1986).
The threefold conditions antecedent to the right to
-54a-
compensation under the Act are: (1) That claimant
suffered a personal injury by accident; (2) that such
injury arose in the course of the employment; and (3)
that such injury arose out of the employment. Wi/son
v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907
(1942). An employee must also establish a fourth
essential element, that his injury caused him
disability, unless it is included in the schedule of
injuries made compensable by G.S. 97-31 without
regard to loss of wage-earning power. Hollman v.
City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968).
The primary purpose of workers' compensation is to
compensate injured employees for their loss of
earning capacity at approximately their present
standard of living and maintain said standard of
hving so long as the injury continues to effect
earning capacity, not to compensate for pain and
suffering. Richardson v. North Carolina Department
of Correction, 345 N.C. 128, 478 S.E.2d 501. Also see
Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586,
157 S.E.2d 1 (1967).
The fact that plaintiff sustained an injury is a
critical fact upon which her right to compensation
depends; thus, a specific finding of that fact is
required by the Commission. Jackson v. Fayetteville
Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d
110 (1985). More must be shown than an injury
while at work to sustain a claim for compensation.
Hargus v. Select Foods, Inc., 271 N.C. 369, 156
S.E.2d 737 (1967). To be compensable an injury
must spring from the employment or have its origin
therein. Perry v. American Bakeries Co., 262 N.C.
272, 136 S.E.2d 643 (1964). Also see McNeely v.
Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509
(1934).
-55a-
The intent of the Act is to base compensation
upon the normal income which the employee derived
from his employment. Lovette v. Reliable Mfg. Co.,
262 N.C. 288, 136 S.E.2d 685 (1964). It seems
reasonable that the legislature, having placed the
economic loss caused by a worker's injury upon the
employer for wom he was working at the time of the
injury, would also relate the amount of that loss to
the average weekly wages which that employer was
paying the employee. Wa//ace v. Music Shop, IT, Inc.,
11 N.C. App. 328, 181 S.E.2d 237 (1971).
The specific traumatic incident provision of
G.S. 97-2(6) requires plaintiff to prove an injury ata
judicially cognizable point in time. Judicially
cognizable does not mean "ascertainable on an exact
date,” but instead should be read to describe a
showing by plaintiff which enables the Commission
to determine when, within a reasonable period, the
specific injury occurred; the evidence must show that
there was some event that caused the injury, not a
gradual deterioration, and if the window during
which the injury occurred can be narrowed to a
judicially cognizable period, then the statute is
satisfied. Ruffin v. Compass Group USA, 150 N.C.
App. 480, 563 S.E.2d 633 (2002). The question of
whether compensation is recoverable under the Act
depends upon whether the accident complained of
arises out of and in the course of the employment of
the one injured, and its determination depends
largely upon the facts of each particular case as
matters of fact and conclusions of law. Harden v.
Thomasville Furn. Co, 199 N.C. 733, 155 S.E. 728
(1930). Where there is no conflicting evidence and
the Industrial Commission decides as a matter of law
that there is no sufficient competent evidence that
-56a-
the injury to plaintiff was "by accident arising out of
and in the course of employment," the question is one
of law and is reviewable by the court upon appeal.
Massey v. Board of Educ., 204 N.C. 193, 167 S.E. 695
(1933). The determination of whether an accident
arises out of and in the course of employment under
this section is a mixed question of law and fact, and
the appellate court may review the record to
determine if the findings and conclusions are
supported by sufficient evidence. Gallimore v.
Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529
(1977).
Whereas the Plaintiff filed a Tort Claim
against the Defendant (R pp. 2-3), the Defendant
moved to dismiss the claim (R pp. 6-9) and
subsequently filed a motion for summary judgment
(R pp. 10-31), the Defendant became the claimant in
a claim under the Act in order to invoke the
exclusivity provisions as legal authority to preclude,
prohibit and deny the Plaintiff the right to maintain
this common law claim for civil remedy sought before
the Commission.
The Plaintif* responded to the Defendant's
motion by contending that the Defendant failed to
provide sufficient and competent evidence to support
the affirmative defense that the alleged injury was
subject to the jurisdiction of the Act and called the
Defendant’s evidence into question (R pp. 40-54; T
pp. 1-6). The Plaintiff also presented evidence to
contend that the record and evidence supports the
Plaintiffs position the injury is not compensable nor
subject to the Act (R pp. 40-54; T pp. 4-6, 10-13). The
Plaintiff further contended that the suspension of the
discovery proceedings denied the Plaintiff access to
evidence relevant to the proceedings and the
-57a-
Defendant’s affirmative defense (R p. 54; T pp. 5, 9-
13).
The Plaintiff presented the documentation and
evidence provided through the discovery proceedings
before the filing of the Defendant’s motion, which the
Plaintiff asserts present numerous genuine issues of
material fact and triable issues of facts, and
presented numerous questions of law and fact (R pp.
32-175; 'l pp. 4-6, 10-13). Primarily, the Plaintiff
presented the question of law as to the if the injury
arose by accident out of and in the course of the
employment, if the injury resulted in a compensable
disability under the Act, if the injury was connected
to the employment and not one which the general
public was equally exposed, and if the injury was
directly and proximately caused by the intentional
misconduct which the Defendant knew’ was
substantially certain to cause serious injury to the
Plaintiff and others similarly situated (R pp. 43-53,
187-198, 236-248; T pp. 4-6, 10-13). The Commission
found in favor of the Defendant and dismissed the
Plaintiffs claim after the initial hearing and on
appeal to the Full Commission (R pp. 220-223, 262-
267).
The Plaintiff asserts that the order issued by
the Full Commission is absent of any competent or
sufficient findings of fact as to the alleged injury in
question, makes no reference to the alleged genuine
issues of material fact and triable issues of fact or the
documentation and evidence presented in support
thereof. In addition, the Plaintiff further contends
that the injury did not result in a disability and is
not compensable under the Act (R pp. 220-223, 262-
267).
-58a-
Where the Plaintiff has contended on appeal
that the Commission has made various errors of law,
this Court is authorized to review the evidence and
the questions of law and to determine if the
questions of law were properly adjudicated and the
findings of fact and conclusions of law proper and
just. The Plaintiff further asserts that this is a
substantial miscarriage of justice as the Commission
failed to address or make an appropriate finding of
fact and corresponding conclusion of law for every
crucial question upon which the mght te remedy of
the Plaintiff depends.
IT. THE COMMISSION FAILED TO VIEW THE
EVIDENCE IN THE LIGHT MOST FAVORABLE
TO THE PLAINTIFF AND FURTHER FAILED TO
EXERCISE THE APPROPRIATE STANDARD OF
REVIEW AND SCOPE OF REVIEW OF THE
EVIDENCE PRESENTED.
ASSIGNMENT OF ERROR NO. 3; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 4; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 5; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 6; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 7; R pp. 220-223,
262-267
Without a substantial evidence review in the
findings of fact, any final judgment should be
remanded for a new order characterizing the issues
before the court and setting forth the standard of
-59a-
review applied by the court in resolving each of those
issues. If an appeal is based on an error of law, then
"de novo" review is required. If, however, the appeal
questions whether the decision was supported by the
evidence or (2) whether the decision was arbitrary or
capricious, then the reviewing court must apply the
"whole record" test. "De novo" review requires a
court to consider a question anew, as if not
considered or decided by the trial court. The "whole
record" test requires the reviewing court to examine
all competent evidence in order to determine whether
the decision is supported by "substantial evidence”.
In examining the trial court's order for error of law,
the process has been described as a twofold task of
determining whether the trial court exercised the
appropriate scope of review and, if appropriate,
deciding whether the court did so properly. Willis v.
City of Southport Board of Adjustment, 129 N.C.
App. 499, 500 S.E.2d 723. The proper standard of
review for motions to dismiss require a substantial
evidence review. State v. Scott, 356 N.C. 591, 573
S.E.2d 866.
In consideration of the foregoing, the Plaintiff
shows that the only evidence that the Defendant
presented in order to support the Defendant’s Motion
to Dismiss and Motion for Summary Judgment was
an Affidavit of Timothy S. Blair, an agent and
employee of the Defendant with knowledge of facts
relevant to this matter, and certain documentation
from the Plaintiffs employment file confirming that
the Plaintiff was employed with the Defendant from
9 August 2002 until 18 September 2003 (R pp. 17-
19). The Plaintiff has not disputed this claim and
admits and confirms the aforementioned period of
employment with the Defendant (R pp. 42-45, 58-60,
-60a-
185-186, 238-239). However, the Plaintiff has
contested and objected to the admission of the
Affidavit of Timothy S. Blair on the grounds that his
character has been called into question by the record
(R pp. 42-45, 62-68, 80-86, 102-103, 117, 128-175; T
p. 5, lines 7-13) and that he is not a qualified expert
to make representations with respect to the
Plaintiffs medical condition or the indoor air quality
of the facilities in question maintained by the
Defendant (R pp. 42-45, 185-186, 238-239; T p. 5,
lines 7-13). In addition, the Plaintiff showed that the
Plaintiff made request for production of documents
from the Plaintiffs employment file with the
Defendant and interrogatories for the testimony from
Timothy S. Blair, and no response was received (R
pp. 117, 121).
These contentions and _ objections were
disregarded by the Commission in the initial hearing
and on appeal, despite the fact that both the
Defendant and the Commission confirmed on the
record that no expert testimony is currently on
record in these proceedings (R pp. 220-223, 262-267;
T pp. 9-13). In defense of the Defendant’s Motion for
Summary Judgment, the Plaintiff presented
evidence to show genuine issues of material fact and
triable issues of fact as to if the injury in question
arose out of and in the course of the employment, to
show that the Plaintiff was denied the substantial
right to seek discovery in these proceedings, and the
Plaintiff was improperly denied the right to maintain
this common law claim for civil remedy (R pp. 32-
175, 177-213, 227-251).
lil. THE COMMISSION FAILED TO ADDRESS
THE CRUCIAL QUESTION OF THE PLAINTIFF'S
-61la-
OUTSTANDING DISCOVERY REQUEST
PENDING RESPONSE FROM THE DEFENDANT
AND DENIED THE PLAINTIFF A SUBSTANTIAL
RIGHT TO SEEK DISCOVERY IN SUPPORT OF
HIS CLAIMS AND DEFENSE AGAINST THE
DEFENDANT'S MOTION TO DISMISS.
ASSIGNMENT OF ERROR NO. 4; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 13; R pp. 220-223,
262-267
Ordinarily it is error for a court to hear and
rule on a motion for summary judgment when
discovery procedures, which might lead to the
production of evidence relevant to the motion, are
still pending and the party seeking discovery has not
been dilatory in doing so. The general purpose of
discovery is to assist in the disclosure prior to trial of
any relevant unprivileged materials and information.
Such exchanges help the parties narrow and sharpen
the basic facts and issues prior to tnal. Surge v.
Integon General Ins. Co., 104 N.C. App. 628, 630,
410 S.E.2d 396, 398 (1991). ‘Thus, motions for
summary judgment generally should not be decided
until all parties are prepared to present their
contentions on all the issues raised. See American
Travel Corp. v. Central Carolina Bank, 57 N.C. App.
437, 441, 291 S.E.2d 892, 895, disc. review denied,
306 N.C. 555, 294 S.E.2d 369 (1982).
In consideration of the foregoing, the Plaintiff
shows that the Plaintiff duly, timely and properly
served the Defendant with a request for discovery, a
response to which has not yet been provided (R pp.
108-127). Given the alleged genuine issues of
-62a-
material fact and triable issues of fact existing in this
matter, the Plaintiff alleges that a substantial right
was denied the Plaintiff in obtaining responses to
discovery in order to provide a legal position with
respect to the Defendant’s Motion for Summary
Judgment based upon all unprivileged evidence and
documentation in existence at this time requested in
the Plaintiff's discovery (R pp. 54, 196-206, 241-242).
The Plaintiff acknowledges that the issue of
outstanding discovery is interlocutory with the
contention of the existence of alleged genuine issues
of material fact and triable issues of fact, and, the
Plaintiff has no substantial right to seek further
discovery without the existence of genuine issues of
material fact and triable issues of fact. However,
given the proper standard of review, the failure of
the Commission to make proper findings of fact, and
the lack of expert testimony on the record, the
Plaintiff has been denied a substantial mght and
should be allowed to proceed with discovery in these
proceedings. The Plaintiff further contends that the
suspension of discovery was not in the interest of
justice.
IV. THE FINDINGS OF FACT AND THE
CONCLUSIONS OF LAW MADE BY THE
COMMISSION ARE NOT IN ACCORDANCE WITH
THE STANDARD OF REVIEW AND ARE NOT
SUPPORTED BY THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 8; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 9; R pp. 220-223,
262-267
-63a-
ASSIGNMENT OF ERROR NO. 10; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 11; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 12; R pp. 220-223,
262-267
The Plaintiff objects to the Commission’s
Finding of Fact #1, which finds that the alleged
injury occurred between September and November
2003 during employment with the Defendant and at
the time of the injury in Wood Hall (R p. 263). First,
the Plaintiff resigned from employment with the
Defendant on 18 September 2003 (R pp. 58-60).
Second, there exists evidence, and same was duly
presented to the Commission, that the injury
allegedly arose from the negligence of the Defendant
both before and after the terms of employment (R pp.
43-53, 58-60, 80-86, 130-175). The Plaintiff further
contended that the circumstances of the injury
during the term of employment did not hold that the
injury arose out of and in the course of the
employment in the facility indicated and other
facilities unrelated to the employment owned,
operated and maintained by the Defendant (R pp. 40-
54, 187-198).
The Plaintiff objects to the Commission’s
Finding of Fact #5, which finds, based upon Finding
of Fact #1 disregarding certain evidence and
contentions and limiting the scope of these claims,
further found that the Plaintiff would not have been
exposed to the alleged conditions caused by
negligence if not for empleyment with the Defendant.
The Plaintiff objects to the Commission’s
Finding of Fact #6, based upon Findings of Fact #1
-64a-
and #5, which found that an employment
relationship existed at the alleged time of injury.
The Plaintiff objects to the Commission’s
Finding of Fact #7, based upon Findings of Fact #1,
#5 and #6, which found that the Plaintiff was an
employee of the Defendant at all relevant times.
The Plaintiff objects to the Commission’s
Conclusion of Law #2, based upon the Findings of
Fact, which found that the Plaintiff was an employee
of the Defendant at the time he was allegedly
exposed to the allegedly negligent conditions, which
is contrary to the evidence (R pp. 32-175).
The Plaintiff objects to the Commission’s
Conclusion of Law #3, based upon the Findings of
Fact, which found that the Plaintiff failed to forecast
evidence to show that the Plaintiff was not an
employee of the Defendant at the time of alleged
exposure, which is not supported by the forecast of
evidence (R pp. 32-175).
The Plaintiff objects to the Commission’s
Conclusion of Law #4, based upon the Findings of
Fact, which found that the Plaintiff failed to show
that the Commission has subject matter jurisdiction
to hear this claim under the Tort Claims Act and
that the Plaintiff has further failed to show there is a
genuine issue as to a material fact (R p. 265). The
Plaintiff shows that the Plaintiff presented evidence
to show alleged genuine issues of material fact and
triable issues of fact (R pp. 32-175).
The Plaintiff objects to the Commission’s
Conclusion of Law #7, based upon the Findings of
Fact, which found that the Plaintiffs claim should be
dismissed with prejudice, that the Commissions
make no determination as to the merits of plaintiffs
claim and that the Plaintiffs exclusive remedy is to
-65a-
seek recourse under the Act (R p. 266). The Plaintiff
asserts that the Finding of Fact and the standard
and scope of review does not support this conclusion
(R pp. 236-248).
When an employee who holds two separate
jobs is injured in one of them, his compensation is
based only upon his average weekly wages earned in
the employment producing the injury. Joyner v. O1/
Co., 266 N.C. 519, 521, 146 S.E.2d 447, 449 (1966).
Also see Richardson v. N.C. Dept. of Correction, 345
N.C. 128, 136, 478 S.E.2d 501, 506 (1996). The loss
of wages in the position previously held in the
military by the Plaintiff is not subject to the Act
whereas this injury occurred under a_ separate
employment relationship (R pp. 58-60, 80-86).
Payment of medical or hospital expenses
constitutes no part of compensation to an employee
or his dependents under the provisions of the act.
Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d
109 (1948). Also see Vhompson v. Virginia &
C.S.R.R., 216 N.C. 554, 6 S.E.2d 38 (1939); Morris v.
Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484
(1940). The medical expenses are also not subject to
the Act whereas medical expenses are in no way a
part of compensation under the Act (R pp. 80-87).
The Plaintiff has presented evidence to show
that the injury did not occur at a judicially
recognizable point in time and did not arise by
accident by definition under the Act (R pp. 236-248).
The Plaintiff has also presented evidence to show
that the injury did not arise out of and in the course
of the employment, where the injury was caused by
the facilities maintained by the Defendant, tenancy
in the facilities was a preliminary and postliminary
activity of the employment, a hazard to which the
-66a-
general public was equally exposed, not related or
correlated to the employment or a risks of the
employment, and arose from causes unrelated to the
employment before, during and after the term of
employment (R pp. 236-248)
At no time from and after August 1999 did the
Plaintiff see a loss of wages or wage earning capacity
due to the alleged injury in the same employment or
any other employment. Following the discharge of
the Plaintiff from military service on 9 June 2005,
the Plaintiff was provided $12,675 in disability
severance pay and obtained a new employment
position on 26 June 2005. The Plaintiff, at all times
from 26 June 2005 until the present, has earned and
continues to earn more than the base pay provided at
the time of discharge from the military (R pp. 76-79).
The Plaintiff has presented evidence that
other student, staff and faculty similarly situated
were also subject to the same conditions, hazards,
risks and threats to health and safety, and that
student, staff and faculty experienced and suffered
from the same afflictions and adverse health
conditions as the Plaintiff. The Plaintiff has also
shown that the alleged injury was, by statutory
definition, a disease, which does not meet the
requirements for compensability under the Act (R pp.
236-248).
The Plaintiff has asserted that the Defendant
is guilty of w:!iful and intentional misconduct which
the Defendant knew was substantially certain to
cause serious injury or death to the Plaintiff and
others similarly situated (R pp. 236-248). The
Plaintiff presented evidence that the Defendant
knew that the facilities owned, operated and
maintained by the Defendant posed a risk and
-67a-
hazard to the health and safety of student, staff,
faculty and visitors and invitees alike in December
1999 (R pp. 130-175). The Defendant further knew,
in detail, the building and safety code violations
which existed in various facilities owned, operated
and maintained by the Defendant (R pp. 130-175).
In addition, the Defendant knowingly’ and
intentionally delayed the remediation to correct said
violations for a period of five (5) years from 2000
until 2005 (R pp. 130-175). In that time, various
between 2000 and 2005, the Defendant was made
aware, failed to properly remedy and_ even
intentionally attempted to conceal or deny, the
existence of said conditions (R pp. 62-69). The
Plaintiff is a member of the class which were subject
to said conditions which the Defendant had
knowledge from and after December 1999 (R pp. 62-
69, 80-86, 128-175). The failure of the Defendant to
remedy same and to intentionally, willfully and
consciously delay the remediation of same is
intentional misconduct, but the intent to remedy
same shows that the Defendant knew that same was
substantially certain to cause serious injury or death
to those exposed to said hazards, risks and threats to
health and safety, including the Plaintiff. The
Plaintiff was injured as a result said conditions and
the intentional misconduct of the Defendant was the
direct and proximate cause of the Plaintiffs injury (R
pp. 58-60, 80-86).
¥. THE COMMISSION VIOLATED THE
FOURTEENTH AMENDMENT OF THE UNITED
STATES BY DENYING THE PLAINTIFF THE
RIGHT TO MAINTAIN A COMMON LAW CLAIM
-68a-
FOR CIVIL REMEDY WITHOUT ADEQUATE
GROUNDS.
ASSIGNMENT OF ERROR NO. 14; R pp. 220-223,
262-267
ASSIGNMENT OF ERROR NO. 15; R pp. 220-223,
262-267
When an effective administrative remedy
exists, that remedy is exclusive. However, when the
relief sought differs from the statutory remedy
provided, an administrative remedy will not bar a
claimant from pursuing an adequate remedy in civil
court. Johnson and Smith vy. First Union
Corporation, 128 N.C. App. 450, 496 S.E.2d 1 (1998).
With regard to the Act, the incidence of the
law is on the status created by the contract of
employment. It deals with the incidents and risks of
that employment, in which concededly is included
the negligence of the employer in that relation. It has
no application outside the field of industrial accident;
and does not intend, by its general terms, to take
away common law or other rights which pertain to
the parties only as members of the general public,
disconnected with the employment. Expressions in
the Act regarding the surrender of the right to
maintain common law or statutory actions against
the employer are not absolute -- not words of
universal import, making no contact with time,
place, or circumstance. They must be construed
within the framework of the Act, and as qualified by
its subject and purposes. The North Carolina
Workmen's Compensation Act relates to the rights
and liabilities of employee and employer by reason of
injuries and disabilities arising out of and in the
-69a-
course of the employment relation. Where that
relation does not exist the Act has no application.
Where the employer and the employee are subject to
and have accepted and complied with the provisions
of the Act, the rights and remedies therein granted to
the employee exclude all other rights and remedies
in his favor against the employer. N.C. Gen. Stat. §
97-10.1. The Act does not, however, take away any
common law right of the employee, even as against
the employer, provided the right be one which is
disconnected with the employment and pertains to
the employee, not as an employee but as a member of
the public. Brown v Motor Inns of Carolina, Inc., 47
N.C. App. 115, 266 S.E.2d 848 (1984).
The principle of equal protection of the law is
explicit in both the Fourteenth Amendment to the
United States Constitution and Article I, Section 19
of the Constitution of North Carolina. This principle
requires that all persons similarly situated be
treated alike. North Carolina courts use the same
test as federal courts in_- evaluating’ the
constitutionality of challenged classifications under
an equal protection analysis. Richardson v. N.C.
Dept of Correction, 345 N.C. 128, 478 S.E.2d 501
(1996).
Whereas the Defendant failed to meet the
burden of proof required by the standard of review
for claims under the Act or the provisions of the Act,
and the Plaintiff has presented evidence to show that
the Act has no application, the Plaintiff is not subject
to or in comphance with the terms of the Act and is
not a member of the class subject to the Act (R pp.
32-175)
Whereas it has been determined that the
Plaintiff is subject to and in comphance with the Act
-70a-
and that the Plaintiff is a member of the class subject
to the Act, without the proper evidence and findings
and conclusions therefrom, the Plaintiff contends
that this is a violation of the principles of equal
protection under the law. The Plaintiff contends that
this adverse action will leave the Plaintiff with no
remedy in equity or law for this injury (R pp. 236-
248).
The Plaintiff further asserts that the
unjustified failure of the Defendant to provide
discovery in these proceedings as well as the
Defendant’s Motion for Summary Judgment to
facilitate the delay and suspension of the discovery in
these proceedings is a gross miscarriage of justice
and entitles the Plaintiff to extraordinary remedy for
which the Plaintiff prayed to the Commission (R pp.
236-248).
CONCLUSION
In conclusion, the Plaintiff prays the
Honorable Court of Appeals reviews the record and
makes the appropriate findings and order of remand
in these proceedings in accordance with the standard
of review, the scope of review for the evidence
presented and controlling law.
This the 27th day of December 2007.
PLAINTIFF
/s/ JOSEPH KAMAU CHRISTOPHER BEY
[Pro Se]
-71la-
NORTH CAROLINA COURT OF APPEALS
APPEAL INFORMATION STATEMENT
COA DOCKET NO. 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY
v.
NORTH CAROLINA STATE UNIVERSITY [ET AL.]
FROM THE
NORTH CAROLINA INDUSTRIAL COMMISSION
TRIAL DOCKET NO. TA-19383
TRIAL JUDGE: FULL COMMISSION PANEL BY
COMMISSIONER CHRISTOPHER SCOTT,
CHAIRMAN, CHAIR BUCK ~~ LATTIMORE,
COMMISSIONER DIANNE SELLERS
KREERREREREKREERERRERREKREREERREKRER
Party filing appeal: J. KAMAU CHRISTOPHER
a/kia JOSEPH KAMAU CHRISTOPHER BEY,
Plaintiff
1. Date Judgment Entered: 10 August 2007.
2. Date of Notice of Appeal: 10 September 2007.
3. (a). Is this a final judgment as to all claims and all
parties? Yes; (b). If no, state the basis on which the
judgment/order is immediately appealable: N/A
-72a-
4. (a). Check the appropriate line(s) best describing
the nature of the case: Attorney’s fees, Contempt,
Employment and Labor, Environmental Law,
Landlord/Tenant, Negligence, Sanctions, Tort Claims
Act, Workers’ Compensation
(b). Check the appropriate line(s) to show the
ruling being appealed: Administrative Ruling,
Dismissal, Summary Judgment
5. State issues to be raised on appeal:
The Plaintiff Appellant will raise the following issues
on appeal:
a. The standard of review for invoking the
authority of the exclusivity provisions of the
Workers’ Compensation Act to preclude a common
law claim for civil remedy.
b. The standard of review and scope of review for
evidence presented in summary judgment
proceedings and in invoking the authority of the
exclusivity provisions of the Workers’ Compensation
Act to preclude a common law claim for civil remedy.
c. The right of any party to an action to seek
discovery in order to refine the allegations,
assertions, contentions and defenses, and to collect
evidence and support for genuine issues of material
fact and triable issues of fact in summary judgment
proceedings and in invoking the authority of the
exclusivity provisions of the Workers’ Compensation
Act to preclude a common law claim for civil remedy.
-73a-
d. The standard of review, threshold questions,
crucial questions and scope of review for evidence in
making findings of fact and conclusions of law in
summary judgment proceedings and in invoking the
authority of the exclusivity provisions of the
Workers’ Compensation Act to preclude a common
law claim for civil remedy.
e. The interlocutory issues of the alleged crrors
of law, disregard of evidence, and the denial of the
Plaintiff to continue to seek discovery in this matter
and the alleged genuine issues of material fact and
triable issues of fact
f. The equal protection against preclusion and
prohibition under the law afforded to claimants in
maintaining a common law claim for civil remedy in
summary judgment proceedings and in invoking the
authority of the exclusivity provisions of the
Workers’ Compensation Act to preclude a common
law claim for civil remedy.
g. The appropriate remedy for aggrieved parties
entitled to attorneys fees and other extraordinary
remedies for responding to an inappropriate and
unjustified motion for summary judgment and
unjustified failure to receive satisfactory responses to
discovery.
6. (a). Has any prior appeal in this case been
filed in either appellate courts? Yes
If yes, please provide appellate court docket number:
Petition for Writ of Mandamus, Prohibition and
Supersedeas, COA No. P07-907.
-74a-
(b). Are any other appeals in this case pending
before either state appellate court? No.
(c). To your knowledge, are there any other
appeals raising substantially related issues pending
before either appellate court? No.
If yes, provide case name(s) and docket number(s), if
known, and explain the manner in which the appeals
are related: [N/A]
7. (a). Are there essential questions raised by
this appeal that cannot be adequately
presented by the written briefs alone and therefore
require oral argument? No.
(b). Do you request oral argument on this
appeal? No.
8. Has this appeal, or the matters with which the
appeal is concerned, been settled or rendered moot?
No. If yes, please explain: [N/A]
9, Is there any reason why this appeal should be
expedited’? Yes.
If yes, please explain: This appeal should be
expedited because the North Carolina Industrial
Commission has not enforced the suspension and
stay of discovery in these proceedings pending appeal
from and after the filing of the Defendant’s Motion
for Summary Judgment and Motion to Suspend
Discovery on 20 July 2006. The Defendant has
renovated portions of the premises and facilities in
-75a-
question. The Plaintiff asserts that the present
conditions existing in said facilities are discoverable
in these proceedings in the state on the date of
service of the Plaintiffs discovery request served 1
May 2006. The Plaintiff responded to the
Defendant’s Motion for Summary Judgment with a
Cross-Motion to Compel and _ presenting legal
argument and evidence that the Defendant
scheduled renovations for said premises and facilities
on 11 August 2006. The North Carolina Industrial
Commission did not rule on the Motion to Compel,
but instead dismissed the Plaintiff's action on 9
February 2007 and affirmed the decision on 10
August 2007. The matter of the Plaintiffs right to
seek discovery was interlocutory with the crucial
question of fact and law pertaining to the existence of
genuine issues of material fact and triable issues of
fact in these proceedings before the North Carolina
Industrial Commission until 10 September 2007,
when the Plaintiff filed a notice of appeal to the
North Carolina Court of Appeals. On 30 October
2007, the Plaintiff filed a Petition for Writ of
Mandamus, Prohibition and Supersedeas with the
North Carolina Court of Appeals (COA File No. P07-
907), seeking, among other things, rehef and
intervention to restore the rights of the Plaintiff to
seek discovery in this matter. The North Carolina
Court of Appeals denied the petition by order entered
14 November 2007. The Plaintiff asserts a
fundamental and substantial right has been denied
to collect unprivileged evidence through discovery to
refine and specify these claims. The Plaintiff
requests that this appeal be expedited as a matter of
law to adjudicate the claim of the Plaintiff pertaining
to the right to seek discovery. Expedition is
-76a-
appropriate as same is interlocutory with the crucial
question of fact and law pertaining to the existence of
genuine issues of material fact and triable issues of
fact in these proceedings.
10. Has the execution or enforcement of the order,
judgment or other determination from which the
appeal has been taken been stayed pending
disposition of the appeal? No.
The undersigned attorney for the appellant(s), or the
pro se appellant, hereby certifies that the
information provided herein is true to the best of
his/her own knowledge.
Signed this the 27th day of December 2007.
[PLAINTIFF-APPELLANT]
/s/ JOSEPH KAMAU CHRISTOPHER BEY
[Pro Se]
-l7Ta-
APPENDIX H
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT
Vs
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE
DEFENDANT-APPELLEE’S REPLY BRIEF
APPEAL FROM
NORTH CAROLINA INDUSTRIAL COMMISSION,
NO. TA-19383
FILED FEBRUARY 27, 2008
-78a-
Statement of the Case
This tort claim was filed with the North
Carolina Industrial Commission on December 30,
2005. Defendant timely answered and filed a motion
to dismiss, and a motion for summary judgment, on
the grounds that Plaintiffs exclusive remedy was to
file a claim under the North Carolina Workers’
Compensation Act, not the Tort Claim[s] Act (R p[p].
6-9, 10-31). Plaintiff filed a response to the summary
judgment motion. (R p[p]. 32-177).
On February 9, 2007, Deputy Commissioner
Taylor granted Defendant’s motion for summary
judgment, dismissing with prejudice Plaintiff's tort
claim. (R p. 220) Plaintiff timely appealed to the
Full Commission of the Industrial Commission. (R p.
224)
On [review of] the Full Commission affirmed
the Deputy’s ruling. (R p. 262) Plaintiff appealed to
the North Carolina Court of Appeals (R p. 268) The
printed record was filed on December 14, 2007.
Plaintiff filed his brief with the Court of Appeals on
December 28, 2007. Defendant was granted
additional time to file its brief, up to and including
xebruary 27, 2008.
Statement of the Facts
Plaintiff filed this tort claim with the
Industrial Commission on December 30, 2005,
alleging, in pertinent part, that while he was
enrolled at Defendant’s university as a student and
working as a Resident Advisor during September
through November 2003, he was exposed to mold
from an air conditioning system, and subsequently
-79a-
contracted a mold related respiratory illness.
Plaintiff alleged that he was a_ student at
Defendant’s university and he “subsequently became
an employee and resident of University Housing
facility as a Resident Advisors at Wood Hall.” (R p. 2)
Defendant timely answered and moved to
dismiss Plaintiffs tort claim for failure to state a
claim for relief and lack of personal and subject
matter jurisdiction, on the basis that Plaintiffs
exclusive remedy was under the North Carolina
Workers’ Compensation Act, not the Tort Claims Act.
(R p. 6) Defendant subsequently filed a motion for
summary judgment on July 20, 2006. Plaintiff filed
responses to Defendant’s motion on August 11, 2006
and December 14, 2006.
On November 9, 2006, Deputy Commissioner
Wanda Blanche Taylor, heard the parties’ arguments
regarding Defendant’s motion for summary
judgment. On February 9, 2007, Deputy
Commissioner Taylor granted Defendant’s motion for
suminary judgment, dismissing with prejudice
Plaintiffs tort claim, holding that Plaintiffs
exclusive remedy is under the North Carolina
Workers’ Compensation Act. (R p. 220)
No evidentiary hearing was held in this
matter.
ARGUMENT
I. PLAINTIFF'S TORT CLAIM WAS PROPERLY
DISMISSED BECAUSE PLAINTIF’S EXCLUSIVE
REMEDY FALLS UNDER THE £NORTH
CAROLINA WORKERS’ COMPENSATION ACT,
NOT THE TORT CLAIMS ACT.
-80a-
Assignments of Error 1-10 (R p. 293-297)
Plaintiffs allegations in his tort claim
affidavit, and his responses to Defendant’s summary
judgment motion, all indicate that Plaintiff was an
employee of Defendant’s when he allegedly was
exposed to mold in his dormitory where he was
working as a resident advisor.
Indeed, Plaintiff even admitted during the
summary judgment proceeding that he was an
employee of Defendant at the time of the alleged
exposure to mold. (T p. 4, Lines 12-15; T p. 5, 18-19)
The Industrial Commission was correct in concluding
that there was no genuine dispute as to a material
fact regarding Plaintiffs employee status with
Defendant.
Once the material fact that Plaintiff indeed
was an employee of Defendant when Plaintiff was
allegedly exposed to mold and injured, the Industrial
Commission lost “Tort Claim” jurisdiction over this
matter, and Plaintiffs sole remedy was under the
Workers’ Compensation Act. Plaintiffs tort claim
was properly dismissed with prejudice and judgment
entered in favor of Defendant.
A. The Commission Applhed the Correct Standard of
Review
Plaintiff argues through out his assignments
of error that the Industrial Commission applied the
incorrect standard. But this argument is without
merit, where the Commission properly applied the
summary judgment standard. Summary judgment is
appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file,
-8la-
together with the affidavits, if any, who that there is
no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law.”
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). In making
this determination, “the evidence presented by the
parties must be viewed in the hght most favorable to
the non-movant.” Bruce-Terminix Co. v. Zurich Ins.
Co., 130 N.C. App. 729, 733, 504 S.E.2d 574,577
(1998).
Evidence which may be considered under this
rule includes admissions in the pleadings,
depositions on file, answers to interrogatories,
admissions on file with the court, sworn affidavits,
and any other material which would be admissible at
trial. Kessing v. National Mtg. Corp., 278 N.C. 528,
180 S.E.2d 823 (1971).
Once a_ defendant forecasts competent
evidence which will be available at trial, and tends to
show his right to judgment as a matter of law,
Plaintiff must present a forecast of evidence which
will be available for presentation at trial that will
support his claim for relief. If Plaintiff fails to
respond to the Defendant’s motion with a forecast of
such evidence, summary judgment should be entered
for the defendant. Best v. Perry, 41 N.C. App. 107,
254 S.E.2d 281 (1979).
The party moving for summary judgment has
the burden of establishing the absence of any triable
issue of fact, which may be satisfied by showing that
the party cannot overcome an affirmative defense
which would bar the claim. Taylor v. Ashburn, 112
N.C. App. 604, 606-07, 436 S.E.2d 276, 278 (1993),
cert. dented, 336 N.C. 77, 445 S.E.2d 46 (1994).
The moving party meets this burden if it can
show that an essential element of the nonmoving
-82a-
party’s claim does not exist, or that the nonmoving
party cannot produce evidence of an _ essential
element of his claim, or cannot overcome an
affirmative defense which would bar the claim. Once
the party moving for summary judgment meets its
burden, it is the nonmoving party’s burden to
produce a forecast of evidence showing that it will be
able to establish at least a prima facie case at trial.
Forsyth Mem. Hosp. v. Armstrong World Indus., Inc.,
112 N.C. App. 413, 470 S.E.2d 826 (1996).
“If the movant’s buren is carried, the burden is
on the opposing party to show that there is a
question of material fact that can only be resolved by
proceeding to trial.” Branch Banking & Trust Co. v.
Kenyon Inv. Corp., 76 N.C. App. 1, 332 S.E.2d 186,
cert. denied, 314 N.C. 662, 335 S.E.2d 902 (1985).
B. The Tort Claims Act Does Not Apply In This Case
Under the Tort Claims Act, the State has
expressly waived its sovereign immunity 1n certain
circumstances. N.C. Gen. Stat. §§ 143-291, 143-297
(2007). This waiver of immunity shall be strictly
constued. Floyd v. N.C. State Highway Comm'n, 241
N.C. 461, 464, 85 S.E.2d 703, 705 (1955). The
Industrial Commission has jurisdiction under N.C.
Gen. Stat. § 143-291, et seq., to hear tort claims
arising as a result of the alleged negligence of an
officer, employee, involuntary servant, or agent of
the State while acting within the scope of his
employment or agency, or authority under
circumstances where the State, if a private person,
would be hable to the Plaintiff under state laws.
Guthrie v. North Carolina State Ports Auth., 307
N.C. 522, 299 S.E.2d 618 (1983).
JS
-83a-
C. The Workers’ Compensation Act Applies In This
Case
In claims by employees involving injuries by
accident arising out of and in the course of
employment, and occupational illnesses allegedly
contracted through employment, a_ plaintiffs
exclusive remedy is to file a claim under the North
Carolina Workers’ Compensation Act. N.C. Gen.
Stat. § 97-10.1 (2007); See also Ryles v. Durham Co.
Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, cert.
denied, 333 N.C. 169, 424 S.E.2d 406 (1992) (holding
that college respiratory therapist student was
limited to Workers’ Compensation remedy in slip and
fall at college).
The question of whether an_ employer-
employee relationship exist is jurisdictional. Askew
v. Leonard Tire Co., 264 N.C. 168, 141 S.E. 2d 280
(1965). “An employee is one who works for another
for wages or salary, and the right to demand pay for
his services from his employer would seem to be
essential to his right to recerve compensation under
the act.” Lucas v. Lil Gen. Stores, 289 N.C. 212, 221
S.E.2d 257 (1976). “When an inmate is injured while
working at his prison job, his exclusive remedy for
any injury is the workers’ compensation claim... “
Vereen v. N.C. Dep't of Corr., 168 N.C. App 588, 608
S.E.2d 412 (2005).
D. Workers’ Compensation Act Is _ Plaintiffs
Exclusive Remedy
Plaintiffs exclusive remedy in this case is
under the North Carolina Workers’ Compensation
-84a-
Act. Plaintiff openly admitted in his pleadings and
before the Industrial Commission that he was an
employee of Defendant’s during the time period he
was allegedly exposed to mold, te., September
through November 2003. To wit:
1. In his tort claim Affidavit, Plaintiff
alleged that he “became an employee and resident of
University Housing facility as a Resident Advisor at
Wood Hall.” (R p. 2) emphasis added)
2. During oral arguments at the summary
judgment hearing on November 9, 2006, when asked
by the Deputy Commission if he were a student while
at N.C. State University, Plaintiff stated, “[yes], I
was. I was- I was a student, as well as an employce.”
(T p. 18-19) (emphasis added)
3. On pages 16-17 of Plaintiffs August 11,
2006, brief, he admitted in several placed that he
was a temporary Resident Assistant employee of
Defendant at the time of exposure. Plaintiff appears
to make the argument that he was not required to
file a “claim” until after he left employment with
Defendant and was later diagnosed with a health
condition. (R p. 47-48) But Plaintiff misses the point,
that because he was working in the course and scope
of employment with Defendant while he allegedly
contracted his health condition, his right to file a tort
claim were estinguished; however, he continued to
have the right to file a workers’ compensation claim.
N.C. Gen. Stat. § 97-10.1 (2007).
4, On Page 21, third paragraph, of
Plaintiffs August 11, 2006, brief, he admits that,
“While the Plaintiff does claim he is physically
disabled ... by an injury which manifested itself
during the period of employment for the Defendant.”
(R p. 52)
-85a-
5. On Page 3 of Plaintiff's Response to
Defendant's Motion for Summary Judgment,
Plaintiff states, “. . . while enrolled as a student at
Defendant’s university resident as a tenant and
resident in facilities maintained by the Defendant,
and employed as a temporary employee in the
capacity of a Resident Advisor.” (R p. 179)
6. On Page 9 of Plaintiff's Response to
Defendant’s Motion for Summary Judgment Plaintiff
does not dispute that he had an Employment File
with Defendant, and that certain documents
presented by Defendant to the court came from his
file. (R p. 185) Also, on Page 15, second pararaph,
Plaintiff admits that, he “voluntarily terminated and
resigned from the position of Resident Advisor on
September 18, 2003, which resignation occurred
before the Plaintiff received verifable medical
evidence .. . “ regarding his alleged medical
condition. (R p. 191)
A In the last paragraph of Plaintiffs
December 14, 2006, brief, he again admits to being
employed with Defendant during the relevant time
period: While Plaintiff admits and acknowledges that
his relationship with the Defendant included a (sic)
employer-employee arrangement, as defined by the
Statutes, and thus he was employed with the
Defendant during a period in which the alleged
injury manifest itself, Plaintiff denies that his
exclusive remedy is under’ the Workers’
Compensation Act. (R p. 191)
Plaintiff was offered and accepted employment
with Defendant as a Resident Advisor for the terms
of August 9, 2002, through May 17, 2003; and again
from August 5, 2003, through May 16, 2004.
®
-86a-
Attached to Plaintiffs reply briefs to
Defendant's summary judgment motion, Plaintiff
submitted inadmissible material, which included
newspaper articles on mold, that may not be
considered in a summary judgment proceeding.
In contrast, Defendant submitted with its
summary judgment motion admissible material
supporting the fact that Plaintiff was an employee
working in the course and scope of employment with
Defendant while he was alleged exposed to harmful
mold in the dormitory on Defendant’s campus.
Defendant submitted the sworn affidavit of Timothy
S. Blair, Associate Director of University Housing,
confirming this fact. (R p. 17)
According to Mr. Blair, an integral part of
Plaintiffs compensation package was to reside in
Wood Hall, where Plaintiff alleged that he was
exposed to air-borne contaminants. Plaintiff would
not have been in close proximity to the alleged mold
or air-borne contaminants were it not for his
employment with Defendant and him residing in
Wood Hall as a Resident Advisor. (R p. 17-19)
In addition, Plaintiff was offered a Resident
Advisor appointment in Wood Hall with Defendant
on February 7, 2002, for the 2002-2003 academic
year; he was paid an annual rate by Defendant to
reside in Wood Hall; he signed a Resident Advisor
Contract; and completed an “Employee’s Withholding
Allowance Certificate,” and he responded to the
needs of fellow students in Wood Hall, was on-call for
emergencies in Wood Hall 24 hours a day, and
carried out the general responsibilities of a Resident
Advisor during the period complained of. (R p. 20-31)
In addition, Plaintiff even completed W-4
Employee Withholding Allowance forms, along with
-87a-
Employment Eligibility Verification forms for
Defendant. (R p. 28-31)
Both Defendant and Plaintiff benefited from
the Resident Advisor employment relationship where
Defendant received the services of Plaintiff around
the clock, and Plaintiff received a set salary of
$1,200.00 a year for the first year as a Resident
Advisor, and a rent-free, single occupancy room,
telephone and internet service, among other perks.
(R p. 17)
In response to Defendant’s motion for
summary judgment, Plaintiff presented no evidence
that is competent in a summary judgment proceeding
to rebut Defendant’s forecast of evidence that will
show that Plaintiff was in fact an employee with
Defendant during the relevant time periods. In
response to Defendant’s motion, Plaintiff filed his
brief, which in turn makes reference to documents he
produced to Defendant during discovery, for example:
an administrative memvrandum; and article about
mold; a letter of resignation; an independent case
study; a Department of Defendant DD 214 discharge
document, etc. (R p. 32-105).
Once a_ defendant forecasts competent
evidence which will be available at trial, and tends to
show his right to judgment as a matter of law,
Plaintiff must present a forecast of evidence which
will be available for presentation at trial that will
support his claim for relief. If Plaintiff fails to
respond to the Defendant’s motion with a forecast of
such evidence, summary judgment should be entered
for the defendant. Best v. Perry, 41 N.C. App. 107,
254 S.E.2d 281 (1979). Plaintiff has failed to present
any competent evidence that would be available to
him at trial that rebuts Defendant’s contention that
-88a-
he was allegedly injured while working in the course
and scope of employment with Defendant. Plaintiff
has failed to present any sworn affidavits,
admissions, or other competent evidence in response
to Defendant’s motion, which is required if Plaintiff
seeks to counter Defendant's forecast of evidence.
There is no genuine issue on the material fact that
Plaintiff was an employee with Defendant. This is
undisputed. Defendant was entitled to judgment as
a matter of law in its favor.
The Industrial Commission does not have
jurisdiction to hear Plaintiffs tort claim because
Plaintiffs exclusive remedy is to file a claim under
the North Carolina Workers’ Compensation Act.
CONCLUSION
lor the reasons stated above, Defendant
respectfully requests that this Court affirm the
decision and order of the Industrial Commission.
This is the 27th day of February 2008.
ROY COOPER
ATTORNEY GENERAL
/s/ DAHR JOSEPH TANOURY
DAHR JOSEPH TANOURY
-89a-
APPENDIX I
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT
v.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE
PLAINTIFF-APPELLANT’S REPLY BRIEF
APPEAL FROM
NORTH CAROLINA INDUSTRIAL COMMISSION,
NO. TA-19383
FILED MARCH 7, 2008
LEGAL ARGUMENT
I. ALL EVIDENCE SUBMITTED BY THE
PLAINTIFF WAS PROPERLY SUBMITTED AND
IS ADMISSIBLE
North Carolina Rules of Civil Procedure Rule
26 embodies the general provisions relating to all of
the discovery rules. Rule 26(e) provides, in pertinent
part: (e) Supplementation of Responses. — A party
who has responded to a request for discovery with a
response that was complete when made is under no
duty to supplement his’ response to _ include
information thereafter acquired, except as follows: (2)
A party is under a duty seasonably to amend a prior
response if he obtains information upon the basis of
which (i) he knows that the response was incorrect
when made, or (ii) he knows that the response
though correct when made is no longer true aid the
circumstances are such that a failure to amend the
response is in substance a knowing concealment.
N.C. Gen. Stat. 1A-1, N.C. R. Civ. P. 26(e)(2). The
purpose behind N.C. R. Civ. P. 26(e) is to prevent a
party with discoverable information from making
untimely, evasive, or ineomplete responses to
requests for discovery. The trial court not only has
the inherent authority to regulate trial proceedings,
but it has the express authority under N.C. R. Civ. P.
37, to impose sanctions on a party who balks at
discovery requests. A party’s failure to comply with
the limited duty imposed by N.C. R. Civ. P. 26(e) is a
ground for the trial court to impose such sanctions as
exclusion of evidence, continuance, or other
appropriate measures on the defaulting party. The
sanction provision permits the court to make such
-9la-
orders as are “just” upon a party’s failure to obey an
order to provide or permit discovery, including
refusing to permit the disobedient party to introduce
the matters in question into evidence. Bumgarner v.
Reneau, 332 N.C. 624; 422 S.E.2d 686.
In the Defendant’s Reply Brief, the Defendant
presented two new and additional questions in this
matter. First, the Defendant argues that the
Plaintiff submitted evidence with the Plaintiffs
Reply Brief to the Detendant’s Motion for Summary
Judgment which was improperly submitted and is
inadmissible in these proceedings (See Page 10 of the
Defendant-Appellee’s Brief). Second, the Defendant
further argues that the Plaintiff's Response to the
Defendant’s First Set of Interrogatories and
Requests for Production of Documents is irrelevant
in these proceedings (See Page 11 of the Defendant-
Appellee’s Brief).
With respect to the Defendant’s first
contention, the Plaintiff did not submit any evidence,
discovery or sworn affidavits together with the
Plaintiffs Reply Brief to the Defendant’s Motion for
Summary Judgment (R pp. 177-213, 227-250). The
Plaintiff did, however, submit six (6) sets of exhibits
of documentation with the Plaintiffs Response to the
Defendant’s First Set of Interrogatories and Request
for Production of Documents (R pp. 32-175). These
sets of exhibits were (i) a sworn affidavit from the
Plaintiff with testimony made based upon the
Plaintiffs personal knowledge and belief, (1) the
Plaintiffs Response to the Defendant’s First Set of
Interrogatories and Request for Production of
Documents, together with documents presented
therewith, (111) a newspaper article entitled Students,
administrators discuss indoor air quality, published
-92a-
in the Technician, a student publication of North
Carolina State University, authored by Rachael
Rogers, dated January 21, 2004 (the “Technicic::
Article”), (iv) North Carolina State University
Facility Profile and Ten-Year Capital Pian, dated
December, 1999 (the “Facility Profile”), (v) copies of
the discovery exchange between the Plaintiff and
Defendant March 9, 2006 and May 1, 2006, and (vi)
exchange of correspondence between counsel for the
Plaintiff and Defendant exchanged between May 1,
2006 and July 24, 2006 (R pp. 56-57). The Plaintiff
also made reference to various records maintained by
the Defendant of which the Plaintiff nad knowledge
of existence, but which had not been provided
through discovery proceedings (R pp. 56-57).
The Plaintiff asserts that all of the
documentation submitted with the Plaintiffs
Response to the Defendant’s First Set of
Interrogatories and Request for Production of
Documents were properly submitted and are
admissible evidence in these proceedings.
Pursuant to the North Carolina Rules of Civil
Procedure, the sworn affidavit from Plaintiff with
testimony made from personal knowledge and belief
and the discovery response submitted therewith were
properly submitted and admissible evidence in these
proceedings (R pp. 58-60). The Plaintiff submitted
the Defendant’s First Set of Interrogatories and
Request for Production of Documents to Plaintiff in
order to certify that a complete response was
provided to the Defendant (R pp. 75-107). The
Plaintiff submitted the Plaintiffs First Set of
Interrogatories and Request for Production of
Documents to Defendant in order to certify that the
Plaintiff did serve a discovery request upon the
-93a-
Defendant (R pp. 108-127). The Plaintiff submitted
evidence of the exchange of correspondence between
counsel for t»e Plaintiff and the Defendant to show
that the VPleimtiff granted the Defendant an
additional thity (30) days to respond to the
Plaintiffs discovery request and that, as of the date
of filing of the Defendant’s Motion for Summary
Judgment, the Plaintiff had not received a response
to same (R pp. 56-57).
With respect to the Technician Article and the
Facility Profile, the Plaintiff shows that the Plaintiff,
Defendant, and other’ representatives of the
Government of the State of North Carolina and the
Governor of North Carolina (hereinafter collectively
referred to as the “State”) mutually agreed to meet in
order to discuss various issues related to his matter
in 2003 and 2004 (R pp. 84, 128-175). Before the
initiation of these legal proceedings and before the
parties hereto obtained legal counsel to solely
represent all interests in this matter, in said
meetings, the Plaintiff and the Defendant exchanged
a number of documents and information, including,
but not limited to, the Technician Article and the
Facility Profile (R pp. 84, 128-175). Said meetings
are evidenced by the Technician Article as well as a
certain letter certifying the receipt of documentation
by the Office of the Governor of North Carolina (R
pp. 69, 84, 128-175).
The Plaintiff has not relied solely on the
submission of the Technician Article or the Facility
Profile to substantiate any of the claims asserted in
this matter. The Plaintiff has submitted same to
substantiate the sworn. affidavit, notarized
verification and narrative provided in response to the
Defenant’s discovery request Interrogatory Number
-94a-
4, which requested that the Plaintiff “[s]tate the
approximate dates when you first allegedly became
exposed to the mold problem at Defendant’s campus,
along with the names of the locations, buildings, and
rooms where alleged mold existed” (R pp. 58-60, 80-
86, 107). In addition, in response to Request for
Production of Document Number 3 requesting the
Plaintiff “[p]Jrovide copies of all documents,
memoranda, notes, reports, investigate documents,
statements, and testimony, or other forms of
documents from any person, including witnesses and
parties to this action, that support your claim for
negligence,” the Plaintiff responded by stating that
“Injotwithstanding the aforementioned exhibits
detailed in Request for Production Item No. 2,
Plaintiff has not provided copies of the References
cited in this Request for Production of Documents
Item No. 3 because said References are either public
record or information disseminated by the
[Defendant]. The following documents, files or
reports have been identified as public records or
information maintained or disseminated by the
[Defendant}” (R p. 103).
With respect to the legal authority of the
North Carolina Rules of Civil Procedure over these
discovery proceedings, the Plaintiff asserts that the
response was not incorrect when made, nor was the
response, though correct when made, no longer true
and the circumstances are such that a failure to
amend the response is in substance a knowing
concealment. The verified exchange’ of
documentation between the Plaintiff and Defendant
prior to the commencement of these proceedings
shows that the Plaintiff is net knowingly concealing
any information pertinent to this matter. At no time
-95a-
did the Defendant present an objection to this
response to said recuest for production of documents.
Moreover, the Defendant consented to the inclusion
of said dccumentation in the Record on Appeal,
which consent is confirmed by the Stipulation and
Settlement Agreement settling the Record on Appeal
(R p. 292).
Given that the discovery proceedings in this
matter were suspended, the Plaintiff was not
afforded the opportunity to obtain § additiona!
evidence in support of these claims, and, in heu
thereof, has presented the aforementioned evidence
in good faith to substantiate and support the
discovery responses and sworn testimony presented
therewith (R pp. 32-61, 128-175). Further, the North
Carolina Industrial Commission did not rule on the
Plaintiffs Cross-Motion to Compel the Defendant to
provide discovery responses, nor did the North
Carolina Industrial Commission intervene, enter an
injunction, or deny the application for summary
judgment on the grounds that the Plaintiff currently
has a pending discovery request served upon the
Defendant and that the Plaintiff could not provide
sworn testimony as to certain matters relevant to
these proceedings from personal knowledge and
belief (R pp. 32-61, 108-127). In leu thereof, the
Plaintiff provided various evidence from
documentation previously exchanged between the
Plaintiff and Defendant (R pp. 32-175).
Therefore, the Plaintiff prays the Court accept
all evidence submitted by the Plaintiff as properly
submitted and admissible in these proceedings.
IT. ALL EVIDENCE SUBMITTED BY THE
PLAINTIFF WAS SUBMITTED IN GOOD FAITH
-96a-
AND IS APPROPRIATE IN THESE SUMMARY
JUDGMENT PROCEEDINGS
Summary judgment is a device whereby
judgment is rendered if the pleadings, depositions,
interrogatories, and admissions on file, together with
any affidavits, show that there is no genuine issue as
to any material fact and that a party is entitled to
judgment as a matter of law. Johnson v. Phoenix
Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610
(1980). The goal of this procedural device is to allow
penetration of an unfounded claim or defense before
trial. Asheville Contracting Co. v. City of Wilson, 62
N.C. App. 329, 303 S.b.2d 365 (1983). It is not the
purpose of the summary judgment procedure to
resolve disputed material issues of fact. Patterson v.
Reid, 10 N.C. App. 22, 178 S.E.2d 1 (1970). The
office of summary judgment is not to test the
sufficiency of the evidence. Mitchell v. Mitchell, 12
N.C. App. 54, 182 S.E.2d 627 (1971). Summary
judgment is a drastic measure, and it should be used
with caution, especially in a negligence case in which
a jury ordinarily applies the reasonable person
standard to the facts of each case. Williams v.
Carolina Power & Light Co., 296 N.C. 400, 250
S.E.2d 255 (1979). Summary Judgment may not be
used to resolve factual disputes which are material to
the disposition of the action. Robertson v. Hartman,
90 N.C. App. 250, 368 S.E.2d 199 (1988). An issue is
material if the facts alleged are such as to constitute
a legal defense or are of such nature as to affect the
result of the action, or if the resolution of the issue is
so essential that the party against whom it is
resolved may not prevail. AKessing v. National Mtg.
Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). Motion
-97a-.
for summary judgment must be denied if the
opposing party submits material which casts doubts
upon the existence of a material fact or upon the
credibility of a material witness, or if such doubts are
raised by movant's own evidentiary material. Aizdd
v. Larly, 289 N.C. 3438, 222 S.£.2d 392 (1976). Asa
general proposition issues of negligence are
ordinarily not susceptible of summary adjudication
either for or against the claimant, but should be
resolved by trial in the ordinary manner. Fuge v.
Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). In
ruling on a motion for summary judgment, the court
does not resolve issues of fact, and must deny the
motion if there is any genuine issue of material fact.
Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163,
336 S.E.2d 699 (1985).
The nature of summary judgment procedure,
coupled with the generally liberal rules relating to
amendment of pleadings, require that unpleaded
affirmative defenses be deemed part of the pleadings
where such defenses are raised in a hearing on
motion for summary judgment. Indeed, in proper
cases, it is desirable to treat the pleading as though
it were amended to conform to the evidence
presented at the hearing. Cooke v. Cooke, 34 N.C.
App. 124; 237 S.E.2d 323. The Court is authorized to
use the citation, reference and _ existence of
newspaper articles as a record of events for the
purposes of establishing the facts. See Capps v. The
City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527.
Notwithstanding the legal argument
presented by the Defendant in the Defendant’s Reply
Brief, the Plaintiff shows that all of the
documentation submitted as evidence in support of
the Plaintiff's Response to the Defendant’s Motion for
-98a-
Summary Judgment was properly submitted and
admissible in these proceedings, and submitted for
the purpose of supporting the Plaintiffs legal
argument concerning (i) the Woodson exception claim
in this matter, (ii) the nature of the injury for
appropriate findings of fact as to the injury in
question, (iii) the scope of the employment with
relation to the injury and the relationship between
the employment and the injury and the time frame
relevant to the injury, (iv) the character and
admissibility of the sworn testimony from Timothy S.
Blair and the lack of expert testimony in this matter,
and (v) the failure by Defendant to adequately state
an affirmative defense against this claim in
illustrating that this claim is compensable under the
Worker’s Compensation Act due to the fact that there
was no loss of wages resulting in a disability under
the Worker’s Compensation Act. Specifically with
respect to the Technician Article in question, the
Court is authorized to accept evidence presented
simultaneously with the filing of a motion for
summary judgment or a response thereto, and to
consider same as part and parcel of the pleadings of
record. The Court is further authorized to utilize
newspaper articles to substantiate sworn testimony
to establish a record of the facts in the instant case
(R pp. 128-175).
In addition, the Technician Article and the
Facility Profile substantiates that the requests
presented in the Plaintiffs First Set of
Interrogatories and Request for Production of
Documents were served upon the Defendant in good
faith and were not served for dilatory or improper
purposes, or for unduly or burdensome purposes (R
pp. 108-175).
-99a-
Whereas the Defendant presupposes, and the
North Carolina Industrial Commission agreed, that
(i) the Plaintiff was an employee of the Defendant “at
all relevant times” or “during the relevant time
period”, and that (11) the Plaintiffs injury occurred
while the Plaintiff was working “in the course and
scope of’ employment and the injury “arose by
accident out of and in the course of the employment”
or was an “occupational disease” allegedly contracted
through employment without finding of facts
explicitly substantiating same, the Plaintiff contends
that the mixed question or law and fact heretofore
presented requires a substantial review of the record
by the Court (R pp. 262-267). The Plaintiff contends
that this substantial review of the record includes,
but is not limited to, all materials properly submitted
and admissible in summary judgment proceedings,
and that all of the evidence presented in the instant
case by the Plaintiff was properly submitted and
admissible in these summary judgment proceedings.
Conclusion
Given that the case at bar before the Court
presents a mixed question of law and fact, the
Plaintiff prays the Court review the record and make
the appropriate findings and conclusions, and
remand this matter to the trial court for review and
new findings.
This the 6th day of March 2008,
PLAINTIFF-APPELLANT
/s/ JOSEPH KAMAU CHRISTOPHER BEY
-100a-
APPENDIX J
COURT OF APPEALS OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
No. COA 07-1516
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT
V.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE
ORDER
APPEAL FROM
NORTH CAROLINA INDUSTRIAL COMMISSION,
NO. TA-19383
FILED MARCH 10, 2008
-10la-
The following order was entered:
The motion filed in this cause on the 7th day of
March 2008 and designated “Motion to Allow
Plaintiff Appellant to Submit a Reply Brief’ is
allowed. The reply brief for plaintiff-appellant filed
contemporaneously with this motion shall be deemed
filed.
By order of the Court this the 10th day of March
2008.
Witness my hand and official seal this the 10th day
of March 2008.
/s/ JOHN H. CONNELL
CLERK OF [COURT]) ...
NORTH CAROLINA COURT OF APPEALS
-102a
APPENDIX K
SUPREME COURT OF NORTH CAROLINA
GENERAL COURT OF JUSTICE OF
NORTH CAROLINA
-_-—
No. 246-P08
J. KAMAU CHRISTOPHER a/k/a
JOSEPH KAMAU CHRISTOPHER BEY,
PLAINTIFF-APPELLANT-PETITIONER
V.
NORTH CAROLINA STATE UNIVERSITY, ET AL.,
DEFENDANT-APPELLEE-RESPONDENT
NOTICE OF APPEAL OF RIGHT FROM THE
NORTH CAROLINA COURT OF APPEALS TO THE
NORTH CAROLINA SUPREME COURT UNDER
G.S. 7A-30 AND PETITION FOR DISCRETIONARY
REVIEW ON CERTIFICATION BY THE NORTH
CAROLINA SUPREME COURT UNDER GS. 7A-31
APPEAL FROM
NORTH CAROLINA INDUSTRIAL COMMISSION,
NO. TA-19383
FILED MAY 29, 2008
-103a-
NOTICE OF APPEAL OF RIGHT FROM THE
NORTH CAROLINA COURT OF APPEALS TO THE
NORTH CAROLINA SUPREME COURT UNDER
G.S. 7A-30
TO THE HONORABLE SUPREME COURT OF
NORTH CAROLINA:
The Plaintiff, JOSEPH KAMAU
CHRISTOPHER BEY (hereinafter the “Plaintiff’),
pursuant to Rule 14 of the North Carolina Rules of
Appellate Procedure, hereby respectfully notifies the
Supreme Court of North Carolina, the Court of
Appeals of North Carolina, the North Carolina
Industrial Commission and the Defendant of the
intent to invoke the right to appeal the order entered
20 May 2008 (North Carolina Court of Appeals File
No.: COA07-1516), a copy of which order is attached
hereto, affirming the Decision and Order and Order
of Dismissal issued by the Ful! Commission Review
Panel, by Christopher Scott, Commissioner and
Chair of the Review Panel, Buck Lattimore,
Chairman of the Commission, and Dianne C. Sellers,
Commissioner, entered 10 August 2007 (North
Carolina Industrial Commission File No.: TA-19383).
The Plaintiff makes this Notice of Appeal of Right on
grounds that the subject matter of this case involves
substantial questions and alleged violations of the
rights of the Plaintiff under the Constitution of the
United States and the Constitution of the State of
North Carolina. In further support of this Notice of
Appeal of Right, Plaintiff shows unto the North
Carolina Supreme Court that this Notice of Appeal
was timely filed and same was served upon the
North Carolina Court of Appeals, Chair of the North
-104a-
Carolina Industrial Commission and the Defendant
as prescribed by the aforementioned Rule. This
Notice of Appeal of Right is further supported by the
following incorporated Memorandum of Law.
PETITION FOR DISCRETIONARY REVIEW ON
CERTIFICATION BY THE NORTH CAROLINA
SUPREME COURT UNDER G:S. 7A-31
TO THE HONORABLE SUPREME COURT OF
NORTH CAROLINA:
In addition, the Plaintiff, pursuant to Rule 15
of the North Carolina Rules of Appellate Procedure,
hereby respectfully petitions and moves the Supreme
Court of North Carolina, with notice to the Court of
Appeals of North Carolina, the North Carolina
Industrial Commission and the Defendant, to certify
for discretionary review the judgment of the North
Carolina Court of Appeals entered 20 May 2008
(North Carolina Court of Appeals File No.: COA07-
1516), a copy of which order is attached hereto,
affirming the Decision and Order and Order of
Dismissal issued by the Full Commission, by
Christopher Scott, Commissioner, Buck Lattimore,
Chairman of the Commission and Dianne C. Sellers,
Commissioner, entered 10 August 2007 (North
Carolina Industrial Commission File No.: TA-19383)
for all other subject matter not pertaining to the
substantial questions and alleged violations of the
rights of the Plaintiff under the Constitution of the
United States of America and the Constitution of the
State of North Carolina. The Plaintiff makes this
Petition for Discretionary Review on grounds that
said subject matter of this case not pertaining to the
-105a-
aforementioned substantial questions and alleged
violations has significant public interest, and this
cause involves legal principles of major significance
to the jurisprudence of the State. The Plaintiff also
contends that the decision of the North Carolina
Court of Appeals is in contradiction to precedents
established by the North Carolina Court of Appeals
and the North Carolina Supreme Court. The
Plaintiff further contends that this decision appears
likely to conflict with a decision of the North
Carolina Supreme Court. In further support of this
Petition for Discretionary Review, Plaintiff shows
unto the North Carolina Supreme Court that this
Petition for Discretionary Review was timely filed
and same was served upon the North Carolina Court
of Appeals, Chair of the North Carolina Industrial
Commission and the Defendant as prescribed by the
aforementioned Rule. This Petition for Discretionary
Review is further supported by the following
incorporated Memorandum of Law.
In an interlocutory matter, the Plaintiff,
pursuant to Rule 15 of the North Carolina Rules of
Appellate Procedure, hereby respectfully petitions
and moves the Supreme Court of North Carolina,
with notice to the Court of Appeals of North
Carolina, the North Carolina Industrial Commission
and the Defendant, to certify for discretionary review
the judgment of the North Carolina Court of Appeals
entered 14 November 2007 (North Carolina Court of
Appeals File No.: PO7-907) denying the Plaintiff's
Petition for Writ of Mandamus, Prohibition and
Supersedeas. The Plaintiff makes this Petition for
Discretionary Review on grounds that the subject
matter of this case has sigmficant public interest,
and this cause involves legal principles of major
-106a-
significance to the jurisprudence of the State. The
Plaintiff also contends that the decision of the North
Carolina Court of Appeals is in contradiction to
precedents established by the North Carolina Court
of Appeals and the North Carolina Supreme Court.
The Plaintiff further contends that this decision
appears likely to conflict with a decision of the North
Carolina Supreme Court. This Petition for
Discretionary Review is further supported by the
following incorporated Memorandum of Law.
PETITION FOR WRIT OF SUPERSEDEAS
TO THE HONORABLE SUPREME COURT OF
NORTH CAROLINA:
The Plaintiff, pursuant to Rule 23 of the North
Carolina Rules of Appellate Procedure, hereby
respectfully petitions and moves the Supreme Court
of North Carolina, with notice to the Court of
Appeals of North Carolina, the North Carolina
Industrial Commission and the Defendant, to issue a
Writ of Supersedeas in order to preserve the record
pending this appellate review. In support of this
petition, the Plaintiff shows that immediate and
irreparable harm has occurred which prejudices the
rights of the Plaintiff in this matter before the
Plaintiff could duly be heard in opposition, and the
appeal bond submitted herewith is not adequate
security to prevent further prejudice and any
additional immediate and irreparable harm. The
Plaintiff further shows’ that extraordinary
circumstances make it impracticable to obtain a stay
by deposit of security or application to the North
Carolina Court of Appeals or the North Carolina
-107a-
Industrial Commission. To show good cause in
support of this motion, the Plaintiff shows that this
petition and the aforementioned Notice of Appeal of
Right and Petition for Discretionary Review are
before the North Carolina Supreme Court and proper
jurisdiction for this Petition for Writ of Supersedeas
is with the North Carolina Supreme Court. The
Plaintiff further shows that this matter was already
duly presented . efore the North Carolina Court of
Appeals and the North Carolina Court of Appeals
has ruled on the matter by order entered 14
November 2007 (North Carolina Court of Appeals
File No.: PO7-907), a copy of which is attached
hereto. This Petition for Writ of Supersedeas is
further supported by the following incorporated
Memorandum of Law.
MEMORANDUM OF LAW IN SUPPORT OF
THIS NOTICE OF APPEAL OF RIGHT FROM THE
NORTH CAROLINA COURT OF APPEALS TO THE
NORTH CAROLINA SUPREME COURT UNDER
G.S. 7A-30 AND PETITION FOR DISCRETIONARY
REVIEW ON CERTIFICATION BY THE
NORTIL CAROLINA SUPREME COURT UNDER
G.S. 7A-31
STATEMENT OF THE CASE
Plaintiff filed an Affidavit of Tort Claim with
the North Carolina Industrial Commission asserting
damages incurred as a result of the negligent actions
of North Carolina State University, et al.,
represented by the Office of the Attorney General of
North Carolina (hereinafter the “Detendant”), on 30
December 2005.
-108a-
On 9 March 2006, the Defendant served the
Plaintiff with the Defendant’s First Set of
Interrogatories and Request for Production of
Documents to the Plaintiff (the “Defendant’s
Discovery Request’). The Plaintiff served the
Defendant with the Plaintiffs Response to the
Defendant’s First Set of Interrogatories and Request
for Production of Documents (the “Plaintiffs
Discovery Response”) and also served the Defendant
with the Plaintiff's First Set of Interrogatories and
Request for Production of Documents to Defendant
(the “Plaintiffs Discovery Request”) on 1 May 2006.
At the time of service, the Plaintiff invited the
Defendant, in writing, to create a plan _ for
outstanding discovery and the disclosure of certain
medical records requested by the Defendant, which
were not provided with the Plaintiffs Discovery
Response. The Plaintiff also made reference to a
press release, dated 31 January 2006, announcing
the renovation of certain facilities owned, operated
and maintained by the Defendant, which were
repeatedly the subject of requests in the Plaintiff's
Discovery Request. The Defendant did not respond
to this invitation or make any reference to the
allegation of the planned renovation. On 31 May
2006, the Defendant contacted the Plaintiff and the
parties mutually agreed, in writing, to extend the
Defendant's time to respond to the Plaintiff's
Discovery Request up to and until 30 June 2006.
The Defendant did not, however, provide any
response.
The Defendant filed a Motion for Summary
Judgment and Motion to Suspend Discovery on 20
July 2006. In pertinent part, the Defendant
presented the legal argument that the employer-
-109a-
employee relationship that existed between the
Plaintiff and the Defendant in this matter barred the
jurisdiction of this claim under the North Carolina
Tort Claims Act and provided that the exclusive
jurisdiction of this claim is under the North Carolina
Workers’ Compensation Act. The Plaintiff filed a
Cross-Motion to Compel the Defendant to respond to
the Plaintiffs Discovery Request, as well as a
Respense to the Defendant’s Motion on 11 August
2006. In pertinent part, the Plaintiff contended that
the Defendant failed to show that the injury “arose
by accident out of and in the course of the
employment”, the Plaintiff was denied the right to
continue to collect evidence to show the true nature
of the injury in question through discovery and that
the injury in fact did not “arise by accident out of and
in the course of the employment”. The Plaintiff also
noted that the Defendant planned the renovation of
certain facilities, and that, without adequate
discovery responses from the Defendant, the
renovation would prejudice the Plaintiff in this
matter. The North Carolina Industrial Commission
did not rule on the Plaintiff's Cross-Motion to
Compel.
On 9 February 2007, the North Carolina
Industrial Commission, by Wanda Blanche Taylor,
Deputy Commissioner, dismissed this action with
prejudice. The Plaintiff appealed of right for Full
Commission review. On 10 August 2007, the North
Carolina Industrial Commission, by and through the
Full Commission Review Panel, by Christopher
Scott, Chair of the Review Panel and Commissioner,
Buck Lattimore, Chairman and Commissioner, and
Dianne Sellers, Commissioner, presiding, affirmed
the dismissal of this claim, which was modified to
-110a-
dismiss this claim without prejudice and provide the
Plaintiff leave of one (1) year to file a claim under the
North Carolina Workers’ Compensation Act.
Plaintiff timely filed a notice of appeal of right to the
Court of Appeals from said order on 10 September
2007. Confirmation of receipt and timely and proper
filing of the notice of appeal was sent to the attention
of all parties hereto on 24 September 2007. On 30
October 2007, the Plaintiff filed a Petition for Writ of
Mandamus, Prohibition and Supersedeas, with an
Incorporated Petition for an Immediate Change of
Venue and New Trial with the North Carolina Court
of Appeals. The Court of Appeals denied the
Plaintiff's Petition by order entered on 14 November
2007. On 20 May 2008, the Court of Appeals entered
an order which affirmed the dismissal of this claim.
STATEMENT OF THE FACTS
Prior to 1999, the University of North Carolina
System General Administration and Board of
Governors, which presides over. sixteen (16)
constituent institutions, one of which is_ the
Defendant's university, North Carolina State
University (the “UNC System Administration”)
proposed more than $3 BILLION DOLLARS .in
capital improvements to said constituent institutions
under the jurisdiction thereof. The North Carolina
General Assembly required the UNC System
Administration to prepare a comprchensive profile of
facilities and a detailed budget proposal for a ten (10)
year capital plan for each of said constituent
institutions. In December 1999, North Carolina
State University published a certain Facility Profile
and Ten-Year Capital Plan, compiled by Eva Klein &
-llla-
Associates, Ltd., in December 1999 (heveafter
referred to as the “Facility Profile” or “NCSU Facility
Profile’), in compliance with this mandate. In
pertinent part, independent building inspectors
found that “...[t]wenty-five years is when a building
needs major renovations...[flifty-eight [58%] percent
of the buildings on-campus are older than [twenty-
five] 25 years and only [ten] 10[%] percent of them
have been renovated {leaving over fifty (50%) percent
of buildings in need of major renovations].” This
document also notes that “...[t]wenty-six [26%]
percent of the buildings have no air conditioning,
[thirty-two] 32[%] percent are air conditioned with
inefficient air conditioning systems and these are
primarily on the Centennial Campus”, “[a]sbestos
removal, environmental controls, and safety issues
are the biggest problems we need to address”, “[wle
prepare teachers on this campus in facilities that are
not comparable to the facilities they will have in the
high schools”, “[wJe are allowing programs to exist
that have serious safety issues...[wJe need the right
facilities to take care of current enrollments”. Along
with budget estimates of over $46 million dollars to
remedy and renovate deficiencies in the dormitories
alone, as a portion of the proposed estimate of over
$500 million to address the deficiencies in over fifty
(50%) percent of the University facilities, it is noted
that exposure to hazards, be they asbestos, mold,
lead paint or other identified and known hazards,
pursuant to the independent investigation mandated
by the General Assembly for all schools under the
jurisdiction of the Board of Governors, were and are
documented in various facilities which were
frequented by the Plaintiff in his tenure at North
Carolina State University, including, but not limited
-112a-
to, D.H. Hill Library, Withers Hall, Daniels Hall,
Tompkins Hall, and Metcalf Hall.
In August 1999, the Plaintiff became a student
at the Defendant’s University, and frequently
utilized various facilities, including, but not limited
to, D.H. Hill Library, Withers Hall, Daniels Hall,
Tompkins Hall, and Metcalf Hall. "*rom January
2001 until May 2001, the Plaintiff resided in Metcalf
Hall as a tenant and resident. From August 2002
until May 2003 and again from August 2003 until
September 2003, the Plaintiff resided in Wood Hall
as a tenant and resident and was simultaneously
employed as a Resident Advisor in the same facility.
At all times between August 1999 and May 2004, the
Plaintiff was a student at the Defendant's
University. In October 2001, the Plaintiff suffered an
acute respiratory infection. On 11 July 2002, the
Plaintiff enlisted as an Active Duty member of the
United States Navy Reserve. Physical evaluation of
the Plaintiff conducted immediately prior to said
enlistment showed that the Plaintiff was fit and
medically qualified for military service. In August
2002 until September 2003, the Plaintiff suffered a
chronic respiratory infection while residing in and
utilizing said facilities owned, operated § and
maintained by the Defendant. The Plaintiff entered
into dialogue with the Defendant regarding
conditions prevalent in the Defendant’s facility,
however, a dispute arose and the Plaintiff resigned
from his employment position and vacated the
premises at Wood Hall on 18 September 2003. In
November 2003, and after extensive testing, medical
experts determined that the Plaintiff had developed
an asthmatic condition as a result of the respiratory
infections and the indoor environmental hazard
-113a-
exposure. The Plaintiff documented evidence
concerning this dispute and transmitted same to the
Office of the Governor of North Carolina in December
2003. On 20 January 2004, the North Carolina
Department of Health and Human Services, on
behalf of the Office of the Governor of North Carolina
and the Government of North Carolina, and all
public, private and quasi-public entities subject to
the jurisdiction thereof (hereinafter collectively
referred to as the “State”) confirmed receipt of said
documentation and represented that an investigation
had been initiated. In April 2005, the United State
Navy determined that the asthmatic condition
disqualified the Plaintiff for military service, and the
Plaintiffs enlistment contract was terminated five
(5) years early. As a result, the Plaintiff incurred
significant monetary damages. These damages are
the primary grounds for this cause of action. No
further communication or correspondence was
exchanged between the Plaintiff, Defendant or the
State after 20 January 2004.
JUSTIFICATION FOR THE NOTICE OF APPEAL
OF RIGHT FROM THE NORTH CAROLINA
COURT OF APPEALS TO THE SUPREME COURT
UNDER G.S. 7A-30
In establishing the North Carohna Court of
Appeals, defining its jurisdiction, and providing a
system of appeals, the General Assembly followed
the basic principle that there should be only one trial
on the merits and one appeal on the law, as of night,
in every case. Consequently, double appeals as of
right -- first to the Court of Appeals and then to the
Supreme Court -- are authorized only in the
-114a-
instances specified by this section. State v. Cumber,
280 N.C. 127, 185 S.E.2d 141 (1971). When the
Supreme Court, after a decision of a cause by the
Court of Appeals and pursuant to the petition of a
party thereto as authorized by G.S. 7A-31, grants
certiorari to review the decision of the Court of
Appeals, only the decision of the Court of Appeals is
before the Supreme Court for review. The Supreme
Court inquires into proceedings in the trial court
solely to determine the correctness of the decision of
the Court of Appeals. Its inquiry is restricted to
rulings of the Court of Appeals which are assigned as
error in the petition for certiorari and which are
preserved by arguments or the citation of authorities
with reference thereto in the brief filed by the
petitioner in the Supreme Court, except in those
instances in which the Supreme Court elects to
exercise its general power of supervision of courts
inferior to the Supreme Court. Supreme Court
review of a decision by the Court of Appeals upon an
appeal from it to the Supreme Court as a matter of
right, pursuant to this section, ts similarly hmited.
State v. Williams, 274 N.C. 328, 163 S.E.2d 353
(1968).
The constitutional question must be real and
substantial rather than superficial and frivolous. It
must be a constitutional question which has not
already been the subject of conclusive judicial
determination. An appellant seeking a_ second
review by the Supreme Court as a matter of right on
the ground that a substantial constitutional question
is involved must allege and show the involvement of
such question or suffer dismissal. State v. Colson,
274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied,
-115a-
393 U.S. 1087, 89S. Ct. 876, 21 L. Ed. 2d 780 (1969);
Bundy v. Ayscue, 276 N.C. 81, 171 S.E.2d 1 (1969).
This section requires that an appellant must
either allege and show the existence of a real and
substantial constitutional question which has not
already been the subject of conclusive judicial
determination or suffer dismissal. JVhompson v.
Thompson, 288 N.C. 120, 215 S.E.2d 606 (1975).
Respondent's appeal based solely on the
assertion that the district court's allowance of an
amendment to a juvenile petition deprived him of a
constitutional right was dismissed by the Supreme
Court, ex mero motu, because it did not directly
involve a substantial constitutional question within
the meaning of this section. Jn re Jones, 279 N.C.
616, 184 S.E.2d 267 (1971).
Appellate courts will not ordinarily pass upon
a constitutional question unless it affirmatively
appears that such question was raised and passed
upon in the trial court. State v. Mitchell, 276 N.C.
404, 172 S.E.2d 527 (1970); State v. Cumber, 280
N.C. 127, 185 S.E.2d 141 (1971).
The Supreme Court will not pass upon the
merits of a litigant’s contention that his
constitutional right has been violated by a ruling or
order of a lower court, unless, at the time the alleged
violation of such right occurred or was threatened by
a proposed procedure, ruling or offer of evidence, or
at the earliest opportunity thereafter, the litigant
made an appropriate objection, exception or motion
and thereafter preserved the constitutional question
at each level of appellate review by an appropriate
assignment of error and by argument in his brief.
State v. Mitchell, 276 N.C. 404, 172 S.E.2d 527
(1970).
-116a-
Once involvement of a substantial
constitutional question is established, the Supreme
Court will retain the case and may, in its discretion,
pass upon any or all assignments of error,
constitutional or otherwise, allegedly committed by
the Court of Appeals and properly presented for
review. State v. Colson, 274 N.C. 295, 163 S.E.2d 376
(1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21
L. Ed. 2d 780 (1969); Bundy v. Ayscue, 276 N.C. 81,
171 S.E.2d 1 (1969).
The Supreme Court will not ordinarily pass
upon a constitutional question unless it affirmatively
appears that such question was timely raised and
passed upon in the trial court if it could have been, or
in the Court of Appeals if the question arose after
trial. State v. Parrish, 275 N.C. 69, 165 S.E.2d 230
(1969).
The Plaintiff shows that the Plaintiff timely
filed and duly and properly presented pleadings in
protest of the Defendant’s Motion for Summary
Judgment, to show that the Plaintiff is not subject to
and in compliance with the North Carolina Workers’
Compensation Act, despite the existence of an
employer-employee relationship between the
Plaintiff and Defendant.
The Plaintiff contends that the North Carolina
Industrial Commission failed to make a finding of
fact as the injury in question in this claim, failed to
acknowledge the Plaintiff's right to assert a claim
under Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d
222 (1991), and failed to address the Plaintiff's
contention that the injury in question did not “arise
by accident out of and in the course of the
employment”. Instead, the Commission dismissed
the Plaintiffs claim solely on grounds that an
-117a-
employer-employee relationship existed by order
entered 9 February 2007. By entry of said order, the
Plaintiff asserts that the trial court violated his
rights under the Constitution of the United States
and the Constitution of the State of North Carolina.
The Plaintiff timely appealed and duly and
properly presented before the North Carolina Court
of Appeals said substantial questions and alleged
violation by the docketing and filing of the Record on
Appeal on 14 December 2007 and pleadings filed 28
December 2007 and 7 March 2008. In pertinent part,
the Plaintiff presented the following precedents from
the Appellate Division of the North Carolina Judicial
System.
The soci
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.