Legrande v. N.C. D.O.C.

*********** The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before Chief Deputy Commissioner Gheen. The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, rehear the parties or their representatives or amend the Decision and Order.

*********** The competent evidence of record engenders the following:

FINDINGS OF FACT 1. A hearing on defendant's Motion To Dismiss was held on November 14, 2003.

2. Plaintiff alleges a negligence claim against "the State of North Carolina" in his Tort Claim Affidavit filed with the North Carolina Industrial Commission on October 8, 2001.

3. Plaintiff alleges in his Affidavit that his injury arose on April 25 and 26, 1996.

4. Defendant moved to dismiss plaintiff's claim asserting the expiration of the statute of limitations.

*********** The forgoing Findings of Fact engender the following:

CONCLUSIONS OF LAW 1. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties. Bolkir v.N.C. State University, 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).

2. N.C. Gen. Stat. § 143-299 requires that all claims against any and all State departments, institutions, and agencies shall be forever barred unless filed within three years of the accrual of such claim.

3. Plaintiff has not proven that any officers, agents or employees of defendant hindered or prevented plaintiff from filing his complaint within three years of the date of the incident. The Court has no discretion when considering whether a claim is barred by the statute of limitations. Congleton v. City of Asheboro, 8 N.C. App. 571,174 S.E.2d 870 (1970); Callahan v. Rodgers, 89 N.C. App. 250,365 S.E.2d 717 (1988).

*********** The forgoing Findings of Fact and Conclusions of Law engender the following:

ORDER 1. Plaintiff's claim under the State Tort Claims Act must be and is hereby DISMISSED WITH PREJUDICE.

2. No costs are taxed as plaintiff was permitted to file this civil action in forma pauperis.

This the 10th day of November 2004.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/____________ BUCK LATTIMORE CHAIRMAN

DCS/llc