{ "id": 798959, "name": "MARY B. BLACKMON, Administratrix of the Estate of BOBBY T. BLACKMON, Deceased v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Employer; and/or NORTH CAROLINA DEPARTMENT OF TRANSPORTATION", "name_abbreviation": "Blackmon v. North Carolina Department of Correction", "decision_date": "1996-05-10", "docket_number": "No. 235A95", "first_page": "259", "last_page": "266", "citations": [ { "type": "official", "cite": "343 N.C. 259" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "457 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": -1 }, { "cite": "118 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920628 ], "year": 1995, "opinion_index": -1, "case_paths": [ "/nc-app/118/0666-01" ] }, { "cite": "61 ALR4th 196", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "54 ALR4th 241", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "49 ALR4th 926", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "252 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624931 ], "year": 1960, "opinion_index": -1, "case_paths": [ "/nc/252/0615-01" ] }, { "cite": "351 S.E.2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "318 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735974 ], "year": 1987, "pin_cites": [ { "page": "681-82" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0680-01" ] }, { "cite": "155 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "271 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562491 ], "year": 1967, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0076-01" ] }, { "cite": "25 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "223 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604451 ], "year": 1943, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0233-01" ] }, { "cite": "365 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566467, 2568453, 2572653, 2570776, 2570206 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0746-01", "/nc/321/0746-04", "/nc/321/0746-05", "/nc/321/0746-02", "/nc/321/0746-03" ] }, { "cite": "362 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "301" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358977 ], "year": 1987, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0637-01" ] }, { "cite": "347 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "318 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738158 ], "year": 1986, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0192-01" ] }, { "cite": "114 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1960, "pin_cites": [ { "page": "812-13" }, { "page": "813" }, { "page": "815-16" }, { "page": "814" }, { "page": "815" }, { "page": "815" }, { "page": "815" }, { "page": "815" }, { "page": "815" }, { "page": "815" } ], "opinion_index": 0 }, { "cite": "457 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "310" }, { "page": "312" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920628 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0666-01" ] }, { "cite": "252 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624931 ], "weight": 4, "year": 1960, "pin_cites": [ { "page": "618" }, { "page": "620" }, { "page": "619-20" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0615-01" ] } ], "analysis": { "cardinality": 732, "char_count": 16982, "ocr_confidence": 0.75, "pagerank": { "raw": 7.942510727187867e-08, "percentile": 0.4621796483115425 }, "sha256": "f47636259bd209fa89401423b83b4c9cdfc600375baca14469318f7367d22607", "simhash": "1:6a2c936694eb80d2", "word_count": 2747 }, "last_updated": "2023-07-14T22:14:44.802104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARY B. BLACKMON, Administratrix of the Estate of BOBBY T. BLACKMON, Deceased v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Employer; and/or NORTH CAROLINA DEPARTMENT OF TRANSPORTATION" ], "opinions": [ { "text": "PARKER, Justice.\nPlaintiff appeals a decision of the Court of Appeals reversing a decision and order of the Industrial Commission awarding plaintiff damages under the Tort Claims Act. For the reasons stated herein, we conclude that provisions of the Workers\u2019 Compensation Act bar plaintiff\u2019s wrongful death action. Accordingly, we affirm the Court of Appeals.\nOn 6 November 1990 decedent Bobby Blackmon was an inmate incarcerated within the Department of Correction (\u201cDOC\u201d) at Yancey Correctional Center. Decedent worked with a minimum custody road crew which was assigned to the Department of Transportation (\u201cDOT\u201d). The DOT foreman supervising decedent\u2019s crew assigned them the task of breaking up and removing road salt from a double storage bin, a wooden structure located on the side of a mountain immediately above the DOT maintenance yard.\nThe double storage bin consisted of two large compartments, each capable of holding seventy-five tons of road salt. The bin was raised eight feet from the ground on stilts and measured thirty-four feet from side to side, seventeen feet from front to back, and fourteen feet from top to bottom. Salt was removed from the bin by backing a truck beneath the bin and opening the doors to a vertical metal chute which provided access to the bottom of the bin.\nThe salt stored in the bin tended to crystallize and often would not flow through the chute. The standard DOT procedure for dealing with this circumstance was to have workers stand inside the bin on top of the salt and break up the crystallized salt with crowbars until the salt was granulated enough to pass through the chute.\nIn the process of cleaning the bin, decedent, another inmate, and a correctional officer stepped on top of the salt in the bin. A short time later decedent walked across the surface of the salt, the crystallized salt suddenly broke beneath him, and decedent dropped into the salt pile. Other inmates and a correctional officer attempted to rescue decedent, but the salt gave way and pulled decedent under the salt. Further rescue efforts failed, and decedent died from asphyxiation.\nPlaintiff Mary Blackmon, decedent\u2019s mother and administratrix of decedent\u2019s estate, instituted this action on 11 February 1991 by filing an affidavit with the Industrial Commission alleging a tort claim against the DOT and the DOC and seeking $100,000 in damages for wrongful death. On 11 March 1991 defendants answered, denying that decedent was injured as a result of the negligence of DOT or DOC employees and disavowing any liability.\nIn its answer and in a motion to dismiss filed 4 April 1991, defendants asserted that provisions of the Workers\u2019 Compensation Act barred plaintiff from proceeding under the Tort Claims Act. Deputy Commissioner Edward Garner, Jr. denied defendants\u2019 motion to dismiss on 13 August 1991.\nDeputy Commissioner Gregory Willis heard plaintiffs claim on the merits on 18 March 1992. Willis concluded that plaintiff failed to show that defendants\u2019 employees injured decedent as a result of their negligence. Accordingly, Willis did not award plaintiff any damages.\nThe Industrial Commission reversed. In an order written by Commissioner James J. Booker, the Commission concluded that the Workers\u2019 Compensation Act does not preclude a working prisoner from bringing a wrongful death action under the Tort Claims Act, that defendants\u2019 negligence caused the wrongful death of decedent, and that plaintiff was entitled to compensation. The Commission awarded plaintiff $73,685 in damages.\nThe Court of Appeals, with one judge dissenting, reversed. Blackmon v. N.C. Dep\u2019t of Correction, 118 N.C. App. 666, 457 S.E.2d 306 (1995). The Court of Appeals concluded that N.C.G.S. \u00a7 9743(c) entitles plaintiff to compensation and that N.C.G.S. \u00a7 97-10.1 thus precludes plaintiff\u2019s wrongful death action. We agree and affirm the Court of Appeals.\nN.C.G.S. \u00a7 9743(c) permits the dependents or next of kin of a prisoner killed while working for the State to apply for workers\u2019 compensation benefits. This subsection states that the exclusive remedy provision of N.C.G.S. \u00a7 97-10.1 applies to prisoners \u201centitled to compensation\u201d under N.C.G.S. \u00a7 9743(c). N.C.G.S. \u00a7 9743(c) provides in pertinent part:\nThis Article shall not apply to prisoners being worked by the State . . . except to the following extent: Whenever any prisoner assigned to the State Department of Correction shall suffer . . . accidental death arising out of and in the course of the employment to which he had been assigned, if there be death . . . the dependents or next of kin . . . may have the benefit of this Article by applying to the Industrial Commission as any other employee; provided, such application is made within 12 months from the date of the discharge; and provided further that the maximum compensation to . . . the dependents or next of kin of any deceased prisoner shall not exceed thirty dollars ($30.00) per week and the period of compensation shall relate to the date of his discharge rather than the date of the accident. . . . The provisions of G.S. 97-10.1 and 97-10.2 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said section applies to employees and employers.\nN.C.G.S. \u00a7 9743(c) (1991).\nN.C.G.S. \u00a7 97-10.1 states:\nIf the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.\nN.C.G.S. \u00a7 97-10.1 (1991).\nIn the instant case decedent is a prisoner who suffered an accidental death arising out of and in the course of the employment to which he had been assigned. For this reason plaintiff is entitled to workers\u2019 compensation benefits by N.C.G.S. \u00a7 97-13(c). The Court of Appeals concluded that the monetary benefit afforded to plaintiff by N.C.G.S. \u00a7 97-13(c) entitles her to \u201ccompensation\u201d and that N.C.G.S. \u00a7 97-10.1 thus applies to bar plaintiff\u2019s wrongful death action. We agree.\nPlaintiff contends that Ivey v. N.C. Prison Dep\u2019t, 252 N.C. 615, 114 S.E.2d 812 (1960), requires a contrary result. In Ivey the administrator of inmate Ivey\u2019s estate initiated an action against the North Carolina Prison Department for wrongful death. The Prison Department moved to dismiss on the grounds that the workers\u2019 compensation remedy was exclusive. Id. at 616, 114 S.E.2d at 812-13. This motion was allowed by the hearing commissioner and affirmed by the Industrial Commission and the Superior Court. Id. at 617, 114 S.E.2d at 813. This Court in Ivey determined that N.C.G.S. \u00a7 97-13(c), as it was then written, did not withdraw a prisoner\u2019s right to bring a tort claim against the State and reversed. Id. at 620, 114 S.E.2d at 815-16.\nAt the time Ivey was decided, N.C.G.S. \u00a7 97-13(c) limited the dependents and next of kin of a deceased prisoner to an award of burial expenses alone. Ivey, 252 N.C. at 618, 114 S.E.2d at 814. The question presented to the Ivey Court was whether the legislature had withdrawn the right of the plaintiff to bring a tort claims action by amending N.C.G.S. \u00a7 97-13(c) to provide that the exclusive remedy provision of the Workers\u2019 Compensation Act applied to prisoners \u201centitled to compensation.\u201d The Prison Department argued that the payment of burial expenses constituted the payment of compensation. Id. at 619, 114 S.E.2d at 815. The Ivey Court disagreed, stating that\nit takes the whole to constitute compensation and not one of its parts. A vest is a part of a suit of clothes, but a vest cannot .be called a suit. Surely compensation for wrongful death involves more than the burial of the body.\nId. at 620, 114 S.E.2d at 815. The Ivey Court questioned whether the legislature intended the amendment to withdraw a prisoner\u2019s right to bring an action under the Tort Claims Act. The Court stated:\nIf the Legislature intended to withdraw altogether a prisoner\u2019s right to pursue a tort claim, the logical procedure would be by amendment to the section of the Tort Claims Act which gave the right. No valid reason is suggested why the withdrawal, if such were intended, should be by an amendment tucked away in a jumbled and confusing subsection ....\nId. at 619, 114 S.E.2d at 815. The Court concluded that it could not presume that the legislature intended to withdraw a prisoner\u2019s right to assert a tort claim as a result of the amendment providing that workers\u2019 compensation was the exclusive remedy for prisoners \u201centitled to compensation\u201d under N.C.G.S. \u00a7 97-13(c). Id. at 620, 114 S.E.2d at 815.\nIn 1971 the General Assembly amended N.C.G.S. \u00a7 97-13(c) to delete the burial expenses limitation on workers\u2019 compensation relief for the dependents and next of kin of a deceased prisoner and to afford such claimants a weekly monetary benefit. The subsection now provides that this benefit \u201cshall not exceed thirty dollars . . . per week.\u201d N.C.G.S. \u00a7 97-13(c). The Court of Appeals determined that the legislative decision to amend the subsection to delete the limitation on benefits to burial expenses and to afford the dependents and next of kin of deceased prisoners a weekly monetary benefit entitled plaintiff to \u201ccompensation\u201d under N.C.G.S. \u00a7 97-13(c). Blackmon, 118 N.C. App. at 673, 457 S.E.2d at 310.\nIn his dissent Judge Greene argued that the concerns expressed by the Ivey Court continue to exist because (i) the legislature has not taken the Ivey Court\u2019s suggestion to amend the Tort Claims Act to withdraw the right of prisoners to bring a tort claim and (ii) the legislature has not changed the Workers\u2019 Compensation Act to treat working prisoners like regular employees. Judge Greene stated that\nif the Legislature desires the Workers\u2019 Compensation Act to be the exclusive remedy for prisoners accidentally injured or killed while on assigned work, it either needs to amend the Tort Claims Act as suggested by the Court in Ivey or change Section 97-13(c) to treat working prisoners as regular employees rather than as an exception to the Workers\u2019 Compensation Act.\nId. at 676, 457 S.E.2d at 312. We disagree and conclude that the legislature withdrew the plaintiff\u2019s right to bring a tort claim by amending N.C.G.S. \u00a7 97-13(c) to entitle the dependents and next of kin of a deceased prisoner to a weekly monetary benefit.\nThe primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. Derebery v. Pitt Co. Fire Marshall, 318 N.C. 192, 196, 347 S.E.2d 814, 817 (1986). In determining legislative intent, we may \u201cassume that the legislature is aware of any judicial construction of a statute.\u201d Watson v. N.C. Real Estate Comm\u2019n, 87 N.C. App. 637, 648, 362 S.E.2d 294, 301 (1987), cert. denied, 321 N.C. 746, 365 S.E.2d 296 (1988). The Ivey Court determined that an award of burial expenses alone did not constitute compensation. Ivey, 252 N.C. at 620, 114 S.E.2d at 815. We agree with the Court of Appeals that the subsequent legislative decision to afford the dependents and next of kin of a deceased prisoner a weekly monetary benefit is properly interpreted as entitling such claimants to \u201ccompensation.\u201d \u2022\nPlaintiff argues that the maximum benefit of thirty dollars per week afforded under N.C.G.S. \u00a7 97-13(c) is not sufficient to constitute \u201ccompensation.\u201d The Workers\u2019 Compensation Act defines \u201ccompensation\u201d as \u201cthe money allowance payable to an employee or to his dependents as provided for in this Article, and includes funeral benefits provided herein.\u201d N.C.G.S. \u00a7 97-2(11) (Supp. 1995). In this context \u201ccompensation\u201d refers to \u201c \u2018money relief afforded according to a scale established and for the person designated in the Act.\u2019 \u201d Ivey, 252 N.C. at 619-20, 114 S.E.2d at 815 (quoting Branham, v. Denny Roll & Panel Co., 223 N.C. 233, 236, 25 S.E.2d 865, 867 (1943)). The amount of \u201ccompensation\u201d to be awarded is based on the claimant\u2019s lost earning capacity. Ashley v. Rent-A-Car Co., 271 N.C. 76, 83, 155 S.E.2d 755, 761 (1967). A prisoner\u2019s earning capacity is greatly limited by the fact of his incarceration. For this reason a benefit of thirty dollars per week is more than sufficient to comport with the statutory definition of \u201ccompensation.\u201d\nPlaintiff also argues that the use of the word \u201cmay\u201d in N.C.G.S. \u00a7 97-13(c) gives plaintiff a choice of proceeding either under the Workers\u2019 Compensation Act or under the Tort Claims Act at plaintiff\u2019s election. We disagree. N.C.G.S. \u00a7 97-13(c) uses mandatory language in stating that the exclusive remedy provision of N.C.G.S. \u00a7 97-10.1 \u201cshall apply to prisoners ... entitled to compensation.\u201d The use of the word \u201cmay\u201d merely permits plaintiff to file a workers\u2019 compensation claim and cannot reasonably be construed as granting plaintiff the option of filing a claim under the Tort Claims Act.\nAmicus curiae American Civil Liberties Union of North Carolina Legal Foundation presents this Court with a constitutional argument alleging a denial of plaintiffs rights guaranteed under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. \u201cWhere the sole ground of the appeal of right is the existence of a dissent in the Court of Appeals, review by the Supreme Court is limited to a consideration of those questions which are . . . specifically set out in the dissenting opinion as the basis for that dissent . . . .\u201d N.C. R. App. P. 16(b); accord State v. Hooper, 318 N.C. 680, 681-82, 351 S.E.2d 286, 287 (1987). Because Judge Greene\u2019s dissent is not based upon a violation of plaintiff\u2019s constitutional rights, the equal protection argument is not before us, and we do not address it.\nWe conclude that plaintiff is \u201centitled to compensation\u201d under N.C.G.S. \u00a7 97-13(c) and that N.C.G.S. \u00a7 97-10.1 thus applies to bar plaintiff\u2019s wrongful death action under the Tort Claims Act. Accordingly, the decision of the Court of Appeals is affirmed.\nAFFIRMED.", "type": "majority", "author": "PARKER, Justice." }, { "text": "Justice Frye\ndissenting.\nFor the reasons stated in Judge Greene\u2019s dissenting opinion, I respectfully dissent.", "type": "dissent", "author": "Justice Frye" } ], "attorneys": [ "Griffin, Caldwell, Helder, Lee & Helms, P.A., by W. David Lee and R. Kenneth Helms, Jr., for plaintiff-appellant.", "Michael F. Easley, Attorney General, by Richard L. Griffin, Assistant Attorney General, for defendant-appellees.", "Patterson, Harkavy & Lawrence, by Martha A. Geer, on behalf of The American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae." ], "corrections": "", "head_matter": "MARY B. BLACKMON, Administratrix of the Estate of BOBBY T. BLACKMON, Deceased v. NORTH CAROLINA DEPARTMENT OF CORRECTION, Employer; and/or NORTH CAROLINA DEPARTMENT OF TRANSPORTATION\nNo. 235A95\n(Filed 10 May 1996)\nWorkers\u2019 Compensation \u00a7\u00a7 41, 57 (NCI4th)\u2014 death of inmate while working on road crew \u2014 recovery limited to workers\u2019 compensation\nThe Court of Appeals correctly held that the provisions of the Workers\u2019 Compensation Act bar plaintiff\u2019s wrongful death action where plaintiff, a prison inmate, died while working with a minimum custody road crew assigned to the Department of \u25a0 Transportation. N.C.G.S. \u00a7 97-13(c) permits the dependents or next of kin of a prisoner killed while working for the State to apply for workers\u2019 compensation benefits and states that the exclusive remedy provision of N.C.G.S. \u00a7 97-10.1 applies to prisoners entitled to compensation under N.C.G.S. \u00a7 97-13(c). Although Ivey v. N.C. Prison Dep\u2019t, 252 N.C. 615 (1960) determined that an award of burial expenses alone did not constitute compensation, the subsequent legislative decision to afford the dependents and next of kin of a deceased prisoner a weekly monetary benefit is properly interpreted as entitling such claimants to \u201ccompensation.\u201d Plaintiff argues that the maximum' benefit of thirty dollars per week is not sufficient to constitute compensation, but the amount of compensation to be awarded is based on lost earning capacity, which is greatly limited by incarceration. Finally, the use of the word \u201cmay\u201d in N.C.G.S. \u00a7 97-13(c) does not give a plaintiff a choice of proceeding under either the Workers\u2019 Compensation Act or the Tort Claims Act, but merely permits plaintiff to file a workers\u2019 compensation claim.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 162.\nWorkers\u2019 compensation law as precluding employee\u2019s suit against employer for third person\u2019s criminal attack. 49 ALR4th 926.\nWorkers\u2019 compensation: incarceration as terminating benefits. 54 ALR4th 241.\nWorkers\u2019 compensation: injuries incurred during labor activity. 61 ALR4th 196.\nJustice Frye dissenting.\nAppeal by plaintiff pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 118 N.C. App. 666, 457 S.E.2d 306 (1995), reversing a decision and order of the Industrial Commission, filed 15 March 1994, awarding plaintiff damages. Heard in the Supreme Court 15 February 1996.\nGriffin, Caldwell, Helder, Lee & Helms, P.A., by W. David Lee and R. Kenneth Helms, Jr., for plaintiff-appellant.\nMichael F. Easley, Attorney General, by Richard L. Griffin, Assistant Attorney General, for defendant-appellees.\nPatterson, Harkavy & Lawrence, by Martha A. Geer, on behalf of The American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae." }, "file_name": "0259-01", "first_page_order": 307, "last_page_order": 314 }