An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-688
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


THURMAN M. JUDGE, JR.,
     Plaintiff,

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. TA-21612
N.C. DEPARTMENT OF PUBLIC SAFETY,
formerly N.C. DEPARTMENT OF
CORRECTION,
     Defendant.


      Appeal by Plaintiff from order entered 26 March 2013 by the

North   Carolina     Industrial     Commission.      Heard    in   the   Court    of

Appeals 7 November 2013.


      Thurman M. Judge, Jr., pro se.

      Attorney General Roy Cooper, by Associate Attorney General
      Adrian W. Dellinger, for Defendant.


      STEPHENS, Judge.


                    Factual and Procedural Background

      This case arises out of an act of violence that occurred on

14 November 2009. At that time, Plaintiff Thurman M. Judge, Jr.,

was an inmate in the custody of the North Carolina Department of

Public Safety      (“Defendant”)       at Tabor Correctional Institution
                                     -2-
(“the   Prison”),   where     he   worked   as     a    barber.    According      to

Plaintiff, the attack occurred while he was working as a barber.

A high-security inmate was having his hair cut by another barber

when the inmate stood up from his chair and punched Plaintiff in

the face. Plaintiff alleges that security personnel were not

present at the time and that the high-security inmate was not

properly restrained.

    On 12 February 2010, Plaintiff initiated a civil action

against Defendant under the North Carolina State Tort Claims

Act, asserting that Defendant negligently allowed this attack to

occur. On 9 March 2010, Defendant filed a motion to dismiss the

action because “Plaintiff’s          [a]ffidavit discloses facts which

necessarily    defeat   the   asserted      tort       claim,    insofar    as   his

exclusive     remedy,   if    any,    would        be    under     the     Workers’

Compensation Act.” A deputy commissioner with the North Carolina

Industrial Commission denied that motion on 25 June 2010 and set

the matter for hearing. On 9 December 2011, Defendant moved for

summary judgment, again asserting that Plaintiff’s tort claim

was necessarily defeated because “his exclusive remedy would be

under the Workers’ Compensation Act.” Plaintiff’s case was heard

before a deputy commissioner on 17 April 2012, and the deputy

commissioner granted     Defendant’s motion for summary judgment.
                                   -3-
Plaintiff    appealed   that   decision   to   the   full   North   Carolina

Industrial Commission (“the Commission”), which dismissed his

tort claim. In doing so, the Commission provided the following

rationale:

            Plaintiff alleges that he was injured in the
            course and scope of his employment as a
            barber while incarcerated by Defendant.
            Plaintiff’s exclusive remedy lies under the
            Workers’ Compensation Act[,] not the Tort
            Claims Act, and Plaintiff’s present tort
            claim must be dismissed.

Plaintiff appeals the Commission’s decision.

                                Discussion

    On appeal, Plaintiff contends that the Commission erred in

dismissing his claim, arguing that he was not acting in the

scope of his employment at the time of the attack and that the

Commission’s failure to address the merits of his claim was a

violation of his due process rights. In conclusion, Plaintiff

asserts:

            The   purpose   of   [the]  Worker’s   [sic]
            Compensation Act is remedy for prisoners
            injured for their loss of earning capacity
            by accidental circumstances; however, a suit
            in “tort” is remedy for neglegence [sic] /
            misconduct of state employees which gives
            rise to injury due to dangerous working
            conditions as is the central issue in the
            case at bar.
                               -4-
Consequently, Plaintiff contends that the members of the prison

staff violated their legal duty and requests that we overturn

the Commission’s order and remand for further proceedings as a

result. We cannot grant that request.

    “The Tort Claims Act was enacted in order to enlarge the

rights and remedies of a person who is injured by the negligence

of a State employee who was acting within the course of his

employment.” Simmons v. N.C. Dep’t of Transp., 128 N.C. App.

402, 405, 496 S.E.2d 790, 792–93 (1998). Separate and distinct

from that enactment, the Workers’ Compensation Act (“the Act”)

provides “compensation for an employee in this [S]tate who has

suffered an injury by accident1 which arose out of and in the

course of his employment . . . without regard to whether the

accident . . . was caused by the negligence of the employer.”

Lee v. Am. Enka Corp., 212 N.C. 455, 461–62, 193 S.E. 809, 813

(1937). The Act explicitly provides that the rights and remedies

granted therein exclude those that an employee might otherwise

have at common law. N.C. Gen. Stat. § 97-10.1 (2011).



1
  “An accident is an unlooked for and untoward event which is not
expected or designed by the person who suffers the injury.”
Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App.
112, 115, 519 S.E.2d 61, 63 (1999) (citation and internal
quotation marks omitted), disc. review denied, 351 N.C. 351, 543
S.E.2d 124 (2000).
                                   -5-
      Discussing the rationale behind the Act, our Supreme Court

has stated that it “provides for an injured employee’s certain

and sure recovery without having to prove employer negligence or

face [certain] affirmative defenses . . . .” Woodson v. Rowland,

329 N.C. 330, 338, 407 S.E.2d 222, 227 (1991). As a consequence,

the   Act   severely   limits    “the     employee’s    right   to   pursue

potentially   larger   damages   awards    in   civil   actions.”    Id.   In

addition to traditional employees, the Act applies to working

prisoners who suffer “accidental injury . . . arising out of and

in the course of [their assigned] employment . . . .” N.C. Gen.

Stat. § 97-13(c) (“The [exclusivity provision] shall apply to

prisoners and discharged persons entitled to compensation under

this subsection and to the State in the same manner as said

section applies to employees and employers.”).

      Here, Plaintiff’s claim occurred while he was working as a

barber for the Prison. In his tort claim affidavit, Plaintiff

described the incident as follows:

            Me and [another inmate] was cutting hair on
            Gray Unit Lock-Up . . . we was both cutting,
            when [two security personnel] came [to]
            escort [my client] back [to his cell]. [I
            was] alone with the other barber and his
            client[, the high-security inmate.] A couple
            of seconds later I see the [high-security
            inmate] stand up, come out of his hand . . .
            which was behind his back and attack me
            without notice. During the attack I was
                                         -6-
            punched in the mouth [and] face by the
            inmate that was supposed to be cuffed and
            escorted by two officers.

On appeal, Plaintiff argues that the accident and his injury did

not arise out of and in the course of his employment and, thus,

that the Act does not apply. For support, Plaintiff notes that

he was not engaged in cutting hair at the moment of the attack

and points out that another barber was cutting the hair of the

high-security     inmate     on   that    day.        These   facts    do   not   save

Plaintiff’s claim.

    As we have previously noted,

            [a]n injury arises out of . . . employment
            when it comes from the work the employee is
            to do, or out of the service he is to
            perform, or as a natural result of one of
            the risks of the employment; the injury must
            spring from the employment or have its
            origin therein. For an accident to arise out
            of the employment there must be some causal
            connection  between   the  injury   and  the
            employment.

Harless    v.   Flynn,   1    N.C.   App.      448,    455,   162     S.E.2d   47,   52

(1968). The attack on Plaintiff occurred while he was serving as

a barber for the prison. The fact that it was not perpetrated at

the moment Plaintiff was involved in cutting someone’s hair or

by Plaintiff’s particular client is irrelevant because it was

causally    connected        to   Plaintiff’s          employment.      Accordingly,

Plaintiff’s first argument is overruled.
                                   -7-
    Plaintiff also argues that the Commission violated his due

process rights because it failed to reach the underlying merits

of his claim. For support, Plaintiff contends that Defendant

violated the doctrine of collateral estoppel by making the same

argument in its motions to dismiss and for summary judgment.

This is a misinterpretation of the doctrine.

    Collateral estoppel2 was developed to prevent repetitious

lawsuits on questions that have already been decided and remain

“substantially static, factually and legally.” State v. Summers,

351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000). Thus, the doctrine

prevents   the   re-litigation    of     identical     issues   in   a    new,

separate case, when (1) the issue was actually litigated and

determined, (2) the issue was necessary to the outcome in the

original case, and (3) there was a final judgment on the merits.

Id.; see also Youse v. Duke Energy Corp., 171 N.C. App. 187,

193, 614 S.E.2d 396, 401 (2005) (“Collateral estoppel will apply

when: (1) a prior suit resulted in a final judgment on the

merits; (2) identical issues were involved; (3) the issue was

actually   litigated   in   the   prior   suit   and    necessary    to   the



2
  Collateral estoppel is also referred to as “issue preclusion”
or “estoppel by judgment.” See, e.g., King v. Grindstaff, 284
N.C. 348, 355, 200 S.E.2d 799, 805 (1973); Williams v. Peabody,
__ N.C. App. __, __, 719 S.E.2d 88, 93 (2011).
                                              -8-
judgment;       and     (4)      the        issue    was        actually       determined.”)

(citations, internal quotation marks, and brackets omitted). The

United States Supreme Court has described a final judgment as

one that “terminates the litigation between the parties on the

merits    of    the     case[]       and    leaves      nothing    to     be    done    but    to

enforce by execution what has been determined.” St. Louis, I.M.

& S. Ry. Co. v. S. Express Co., 108 U.S. 24, 28–29, 27 L. Ed.

638, 639 (1883).

       The     denial     of     Defendant’s         motion       to     dismiss       did    not

constitute a final judgment on the merits because the suit was

not disposed of and could continue to proceed below. See, e.g.,

Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d

770,   773     (2009)     (noting          that   the     denial    of    the    defendant’s

motion to dismiss was “made during the pendency of the action

[and did] not dispose of the case, but instead [left] it for

further      action     by     the    trial       court    in    order     to    settle       and

determine       the     entire       controversy”)         (citations          and     internal

quotation marks omitted). Collateral estoppel can only preclude

the re-litigation of an issue in a subsequent case, after that

same issue was finally resolved in a prior suit. Here, the issue

of the applicability of the Tort Claims Act was still pending

when Defendant moved for summary judgment. Therefore, the fact
                                    -9-
that the issue was raised again in the same case did not — and

could   not   —   implicate   the   doctrine   of   collateral   estoppel.

Accordingly, Plaintiff’s second argument is overruled, and we

affirm the Commission’s 26 May 2013 order dismissing his tort

claim with prejudice.3

     AFFIRMED.

     Judges GEER and ERVIN concur.

     Report per Rule 30(e).




3
  As the Commission noted in its order, however, Plaintiff may
file a workers’ compensation claim within twelve months of his
discharge from Defendant’s custody.
