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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
ROBERT BRYSON, Plaintiff v. NORTH CAROLINA DEPARTMENT OF
Filed: 15 March 2005
1. Tort Claims Act_miscalculation of inmate's release date_no damages
An inmate who alleged that the Department of Correction negligently miscalculated his
release date did not prove a claim under the Tort Claims Act, and his claim should have been
dismissed, where the Industrial Commission concluded that plaintiff had suffered no damages,
an essential element of a claim under the Tort Claims Act.
2. Tort Claims Act_specific performance_not authorized
The Industrial Commission has only the authority to award money damages under the
Tort Claims Act, and lacked jurisdiction to order the Department of Correction to recalculate
plaintiff's release date.
Appeal by defendant from judgment entered 14 November 2003 by
the North Carolina Industrial Commission. Heard in the Court of
Appeals 6 December 2004.
No brief for pro se plaintiff-appellee.
Attorney General Roy Cooper, by Associate Attorney General
Iain M. Stauffer, for the State.
MARTIN, Chief Judge.
Defendant, the North Carolina Department of Corrections,
(NCDOC), appeals from a decision and order of the North Carolina
Industrial Commission. Plaintiff appeared pro se before the Deputy
Commissioner and the Full Commission, and did not file a brief in
The evidence before the Commission tended to show that
plaintiff was sentenced on criminal charges to two consecutive
twenty-five to thirty month sentences. He was incarcerated atMountain View Correctional Institution on 8 October 1999, with a
projected release date of 18 February 2003. Defendant served 386
days of pre-sentence confinement.
On 21 September 2001, plaintiff filed a claim for damages
under the Tort Claims Act, N.C. Gen. Stat. § 143-291 et. seq.,
alleging negligence on the part of prison officials in calculating
his release date. The case was heard on 28 October 2002 before a
deputy commissioner, who issued an order requiring defendant to
calculate plaintiff's correct release date. Upon appeal by NCDOC,
the Full Commission issued a Decision and Order which ordered NCDOC
to calculate plaintiff's correct release date and taxed the costs
to NCDOC. NCDOC appeals.
 Defendant first argues the Full Commission erred in not
dismissing the claim because plaintiff did not carry his burden of
proving the elements necessary to recover on a claim for
negligence. We agree.
To recover upon a claim for negligence under the Tort Claims
Act, a plaintiff must prove that (1) defendant owed plaintiff a
duty of care; (2) the actions or failure to act by the named NCDOC
employee breached that duty; (3) the breach was the actual and
proximate cause of the injury and (4) plaintiff suffered damages as
a result. Simmons v. N.C. Dept. of Transportation
, 128 N.C. App.
402, 406, 496 S.E.2d 790, 793 (1998). The Commission concluded
that plaintiff had suffered no damages. Therefore, plaintiff
failed to prove a claim for negligence under the Tort Claims Actand his claim should have been dismissed.
 Defendant also asserts that the Commission erred by
ordering NCDOC to calculate plaintiff's correct release date and to
notify plaintiff and the Commission. Again, we agree.
The North Carolina Industrial Commission is vested with
jurisdiction of tort claims against the State Board of Education,
the Board of Transportation, and all other departments,
institutions and agencies of the State. N.C. Gen. Stat. § 143-
291(a). The statute further provides:
The Industrial Commission shall determine whether or not
each individual claim arose as a result of 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. If the
Commission finds that there was 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 that was the
proximate cause of the injury and that there was no
contributory negligence on the part of the claimant or
the person in whose behalf the claim is asserted, the
Commission shall determine the amount of damages that the
claimant is entitled to be paid . . . and by appropriate
order direct the payment of damages . . . .
N.C. Gen. Stat. § 143-291(a). The statute confers authority upon
the Commission only to award monetary damages; [t]here is nothing
in the statute which allows the Commission to order specific
performance. Price v. N.C. Dept. of Correction
, 103 N.C. App.
609, 613-614, 406 S.E.2d 906, 909 (1991). Because the Commission
lacked jurisdiction to order defendant to recalculate plaintiff's
release date, we must vacate the decision and order of theCommission.
Defendant's remaining assignments of error were not brought
forward in its brief and are therefore deemed abandoned. N.C. R.
App. P. 28(a).
Judges CALABRIA and GEER concur.
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