Simmons v. N.C. Department of Correction

*********** On or about July 25, 2008 Plaintiff filed an affidavit pursuant to the North Carolina Tort Claim Act, alleging negligent conduct by the "North Carolina Department of Correction/Medical Department." Plaintiff's affidavit does not allege negligence on the part of any named officer, agent, employee or involuntary servant of Defendant. For a claim to succeed, it is necessary that there be negligence on the part of an officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority. N.C. Gen. Stat. § 143-291(a). The Tort Claims Act plainly requires that a plaintiff's affidavit of claim include, among other things, "the name of the department, institution or agency of the State against which the claim is asserted, and the name of the State employee upon whose alleged negligence the claim is based." N.C. Gen. Stat. § 143-297(2). "The purpose of requiring the claimant to specify the State employee whose negligent act caused the injury is to enable the State or department to make proper investigation as to the employee designated and ascertain the facts with respect to his alleged acts of negligence, and *Page 2 present evidence or be heart with respect thereto."Floyd v. North Carolina State Highway and Public WorksCommission,241 N.C. 461, 464, 85 S.E.2d 703, 705 (1955) overruled in part onother grounds. In the instant case, Plaintiff has failed to allege a negligent act or omission on the part of any individual, much less an employee or agent of Defendant, as required by N.C. Gen. Stat. §§ 143-291(a) and 143-297(2). Accordingly, Plaintiff has failed to state a claim over which the Industrial Commissions has jurisdiction, and has failed to state a claim upon which relief can be granted. For the foregoing reasons, Plaintiff's claim is hereby DISMISSED WITH PREJUDICE. The parties shall bear their own costs. This ___ day of June 2011. S/___________________ CHRISTOPHER SCOTT COMMISSIONER CONCURRING: S/___________________ BERNADINE S. BALLANCE COMMISSIONER S/___________________ DANNY LEE McDONALD COMMISSIONER *Page 1