The N.C. Supreme Court ruled Thursday that families of four of the eight inmates who died in the 2002 Mitchell County jail fire — and one survivor — can sue the state for negligence.

The families allege that the N.C. Department of Health and Human Services, whose jail inspection wing is responsible for ensuring jail safety in all 100 N.C. counties, failed in its duty, said Ben Baker, an Alabama attorney representing family members of two inmates.

More important, Baker said, is that for the first time, the families will be able to compel testimony from Sheriff Ken Fox, jailer Diana Greene and others in positions of authority who have remained largely silent since the fire in Bakersville, a small mountain town about 100 miles northwest of Charlotte.

“We have always wanted to take sworn testimony on what happened, and the state has been able to block that during these appeals,” Baker said. “We just want to find out the truth.”

Mark Thomas, the father of 20-year-old victim Mark Halen Thomas, has led family members’ efforts to learn more about what officials did and didn’t do on the night of the fire.
“Maybe now we can get some answers and get some charges brought,” Thomas said.

The state, through the Attorney General’s Office, can petition the court for a rehearing. The office was reviewing the ruling Thursday and hadn’t decided whether it would, said spokeswoman Noelle Talley.

The case probably will reach a courtroom by the end of the year, said Stephen Gheen, the chief deputy commissioner of the N.C. Industrial Commission, which handles all negligence claims against the state. A deputy commissioner will act as judge and jury in the case, Gheen said.

On the night of May 3, 2002, a space heater ignited a stack of flattened cardboard boxes in a wood-frame storage area behind the 47-year-old jail.

Smoke quickly overwhelmed the lone jailer and a trusty. Eight of 17 inmates — seven in a second-story cell block, one in a downstairs holding cell — died of smoke inhalation, the State Bureau of Investigation determined. It was the deadliest jail fire in state history, and most of the inmates were serving time for misdemeanors.

James “Tom” Rusher, then the area district attorney, announced in November 2002 that his office wouldn’t charge anyone in connection with the fire. He said the SBI probe established no criminal negligence by Fox, Greene or any other county employee.

The decision infuriated surviving inmates, Thomas and other family members, who believe someone needs to be held to account for the eight deaths.

The N.C. Department of Labor late in 2002 fined the county for assorted code violations, including failure to abide by fire safety rules, and criticized state jail inspectors for missing the violations before the fire.

In January 2003, the families of all 17 inmates accepted a $1.94 million settlement from the county’s liability insurance fund in exchange for a promise not to sue the county.

But that didn’t preclude claims against the state. One piece of evidence plaintiffs want to subpoena is the SBI report on the fire, which the bureau has not released. The SBI claims it’s privileged and exempt from state open records laws.


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