Department of Labor, Occupational Safety and Health Division

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Department of Labor, Occupational Safety and Health Division

No. 81PA97 (filed 6 February 1998)

Plaintiffs commenced this negligence action against defendants, the North Carolina Department of Labor and its Occupational Safety and Health Division, pursuant to the Tort Claims Act. Plaintiffs sought damages for injuries or deaths resulting from a fire at the Imperial Foods Products plant in Hamlet, North Carolina. Defendants moved, pursuant to North Carolina Government Statutes Rules 12(b) (1), (2) and (6), to dismiss plaintiffs' claims. Deputy Commissioner denied the motions. The full Commission affirmed and adopted his decision. The Court of Appeal agreed that the State had been negligent. It held that North Carolina Government Statutes, which describes the authority, power, and duties of the Commissioner of Labor, imposed a duty upon the defendants to inspect the workplaces of North Carolina and that the breach of this duty gave rise to the plaintiffs' action for negligence. It further held that the 'public duty doctrine' did not apply to actions brought against the State under the Tort Claims Act. On 5 June 1997 the Supreme Court granted the State of North Carolina (the defendants) the right to petition them to re-examine the Appeal Court's decision. This is called a 'discretionary review'.

The Supreme Court Judges accepted the facts, as presented to the court by the plaintiffs, as factually correct. On 3 September 1991 a fire started in a section of a chicken-processing factory belonging to Imperial Foods Products in Hamlet, North Carolina. The fire grew in intensity and spread rapidly. Plaintiffs were either former employees of Imperial Foods who suffered injury in the fire or personal representatives of the estates of employees who died in the fire. They were lawfully inside the factory at the time of the fire. They could not easily escape the plant or the fire because the exits in the plant were unmarked, blocked and inaccessible. It was only after the fire had taken place that the North Carolina Health Department conducted their first and only inspection in the plant's 11 year history of operation. As a result of this inspection, numerous violations of the Safety Act, including the plant's inadequate and blocked fire-suppression system, were discovered. Eighty-three citations against Imperial Foods Products for violations of safety and health standards were issued.

The majority of the appeal judges of the Supreme Court decided that the State of North Carolina was not negligent in its duty to carry out fire and safety inspections, on a legal technicality. One of the judges disagreed very strongly. The dissenting judge, Justice Orr, said: The majority opinion erroneously takes a limited and obscure common law concept, the public duty doctrine, which has traditionally applied only to municipalities and their law enforcement responsibilities, and expands the doctrine's application to effectively eviscerate the Tort Claims Act. As a result, the right of individuals to sue the State for negligent acts committed by the State, a right expressly conveyed by the General Assembly, is nullified without the support of any precedential authority permitting such an indulgence.

Legal brief

This case was controversial because there was a disagreement between the lower courts and the Supreme Court. The final word was the majority opinion of the Supreme Court, which said the State of North Carolina was not liable to pay compensation to the fire victims on a technical point which makes it impossible for a private citizen to sue a government organization.

Federal Tort Claims Act: the government of the United States may not be sued in tort-civil wrong-doing-without its consent. However, in 1946 that consent was granted and the Act set out the conditions for suits and claims against the federal government.

Over to you

1. Write a simple summary of the Federal Tort case and the Supreme Court's decision, and why Judge Orr dissented.

2. List the minimum safety measures you think a factory should have. Decide what duties the management should have, and what protection should be provided by state law.



Solicitor or Barrister?

The solicitor is the first point of contact with the law for a client in the UK. The solicitor listens carefully to the client, making sure their needs are clearly understood and then explains the legal position and tenders advice. By contrast, barristers will only see the client in the company of a briefing solicitor. The barrister is the specialist with particular skills in advocacy, a consultant who will examine the case and decide what line to take in court. The barrister will be reliant on the detailed brief prepared by the client's solicitor. There are only a few solicitors who are allowed to pre­sent cases in the higher courts. Many more solicitors work in their litigation departments and spend much of their time preparing briefs for counsel. Barristers are self-employed in the independent Bar. Solicitors are normally salaried and may be offered a share in the profits of the practice if they are successful.

The Bar is a small but influential independent body with just over 8,000 practicing barristers in over 400 chambers in England and Wales. In addition, there are about 2,000 barristers employed as in-house lawyers.

The Bar is an advocacy profession. The Bar's right of audience in the higher courts remains virtually unchallenged. The work divides equally between civil and criminal law. There are over 70 specialist areas, including major ones like chancery (mainly property and finance) and the commercial bar.

Judges in England and Wales have mostly been barristers of 10 years' standing, then Queen's Counselors, and are appointed by the Lord Chancellor. Judges cannot work as barristers once they are appointed. A barrister who is a part-time judge is known as a Recorder. The Crown Prosecutor, who works for the Director of Public Prosecutions, is responsible for prosecuting criminals based on evidence presented by the police.

Solicitors do a variety of work - corporate and commercial, litigation, property, private law, banking and project finance, employment law and environmental law. There are about 66,000 practicing solicitors in England and Wales.

Over to you

1. Being a lawyer is regarded as one of the best professions in many countries. Think about what the different areas of specialization are, and which you would choose, or have chosen, and why. Make notes under the headings: choice of specialization; number of years of training; income expectations; responsibilities; kinds of clients; need for foreign languages; likely challenges and opportunities. Add any other points that occur to you.

2. Imagine you are a family solicitor. Give advice to someone who asks your professional opinion about a financial matter. Your client has asked you whether she should invest money she has inherited in the stock market or place it in the bank. Explain that you feel she should consult a financial expert first. Invite her to discuss any tax implications with her tax adviser.

(Based on:media records)





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