RALEIGH – Families of inmates who died while locked in their cells during a fire at the Mitchell County jail cheered a decision Thursday by the state’s highest court that lets their lawsuit go forward.

Families of four of the eight victims sued the state, seeking the right to question witnesses and obtain a State Bureau of Investigation probe into the May 3, 2002, blaze.

“We’ve been waiting for nearly five years to take some sworn testimony to try to find out what happened that night,” said Ben Baker, attorney for two of the families.

“And now we will finally get to it.”

Baker said within a month he would start subpoenaing documents and calling witnesses before the state Industrial Commission, which hears wrongdoing claims against the state. A deputy commissioner would hear the case in Asheville.

A spokeswoman for the state Justice Department declined to say if it would continue seeking to block those proceedings or the release of the SBI report, saying only that its lawyers are reviewing the decision.

The Supreme Court’s 5-2 ruling upheld a lower court’s refusal to dismiss the case. The court rejected the state’s claim that it cannot be sued for negligence in inspecting the jail for fire hazards.

Each family hopes to win a $500,000 wrongful-death payment from the state.

But the state’s liability doesn’t interest Mark Thomas as much as what he might find out from questioning and documents about the moments leading up to his son Mark “Haley” Thomas’ death, he said.

Thomas wants to know whether an order was given to leave the men in their cells. He’s waiting for the day when someone faces criminal charges.

“If there wasn’t something there, you know, why has it taken so long?” he asked.

The state’s deadliest jail fire started in a storage room attached to the back of the jail. SBI agents found that cardboard leaning against a running heater had ignited, while the county hired an investigator who said he believed the fire had been intentionally set.

Baker said he wants to question Diane Greene, who was the jailer that night, as well as Sheriff Ken Fox and Department of Health and Human Service officials who inspected the jail’s fire safety precautions.

Then-District Attorney Tom Rusher found that neither Fox nor Greene was criminally culpable. Mitchell County settled with victims’ families.

The state had kept the lawsuit from going forward by arguing that it is protected under the public duty doctrine, which ordinarily prevents people from suing government for failing to protect them. A police department, for example, can’t be sued for failing to prevent a crime.

But the court said inmates fall under an exception to that immunity that allows liability when a government agency has a “special relationship” with the victims.

“Inmates in custody necessarily have limited freedom to provide for themselves or to protect themselves from external dangers such as fire,” the ruling written by Justice Patricia Timmons-Goodson states. “They cannot ensure that the facility in which they are confined contains functional safety devices and procedures to deal with an emergency.”

Chief Justice Sarah Parker dissented, writing that Mitchell County and not the state bears the special responsibility for the inmates that would give them immunity.


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