Helton v. N.C. Dep't of Correction12/6/2005
lso found that Dr. Pignatiello's negligence "was the proximate cause of [Sawyer's] death" and that Dr. Pignatiello was "as a matter of law an agent of the ." On this basis, Commissioner Hall concluded that defendants were negligent, and awarded plaintiff damages of $500,000. Defendants appealed to the Full Commission, which issued its Decision and Order on 16 November 2004. The Commission found that Dr. Pignatiello was not an agent or employee of the DOC. However, the Commission agreed with the deputy commissioner that the named defendants had not been negligent, and therefore dismissed plaintiff's claim. From this Decision and Order plaintiff appeals.
Standard of Review
"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). As long as there is competent evidence in support of the Commission's decision, it does not matter that there is evidence supporting a contrary finding. "The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Thus, "when considering an appeal from the Commission, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission's findings of fact, and (2) whether the Commission's findings of fact justify its conclusions of law and decision."
Simmons v. Columbus County Bd. of Educ., __ N.C. App. __, __, 615 S.E.2d 69, 72 (2005) (quoting Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793 (1998), and Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).
Plaintiff herein sought damages for negligence. "'Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent person would exercise under similarconditions.'" Tise v. Yates Construction Co., 345 N.C. 456, 459- 60, 480 S.E.2d 677, 680 (1997) (quoting Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 177-78 (1992)). "'To recover damages for actionable negligence, a plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.'" Id. at 460, 480 S.E.2d at 680 (quoting Mozingo v. Pitt County Memorial Hosp., 331 N.C. 182, 415 S.E.2d 341, 344 (1992)). Under the Tort Claims Act, the State is liable for:
the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.
N.C. Gen. Stat. § 143-291 (2003). "Additionally, under the Tort Claims Act: 'The burden of proof as to [negligence is] on the plaintiff. Evidence is usually not required in order to establish and justify a finding that a party has failed to prove that which he affirmatively asserts. It usually occurs and is based on the absence or lack of evidence.'" Drewry v. N.C. Dept. of Transp., 168 N.C. App. 332, 337, 607 S.E.2d 342, 346 (quoting Bailey v. N.C. Dept. of Mental Health, 2 N.C. App. 645, 651, 163 S.E.2d 652, 656 (1968)), disc. review denied, 359 N.C. 410, 612 S.E.2d 318 (2005).
Plaintiff argues in her appeal that the Industrial Commission committed reversible error by (1) failing to conclude as a matter of law that defendants "had a non-delegable duty to provide adequate medical services" to
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