Liability

Statutes of Limitation

1. Bodily Injury
Three (3) year Statute of Limitations. N.C.G.S § 1-52(16).
2. Property Damage
Three (3) year Statute of Limitations. N.C.G.S § 1-52(16).
3. UM/UIM Claims
Three (3) year Statute of Limitations. N.C.G.S § 1-52(16).
4. Wrongful Death
A claim for wrongful death must be brought by the estate administrator or representative within two (2) years of the fatality. N.C.G.S. § 1-53(4).
5. Breach of Contract
1. Ten (10) year Statute of Limitations for a sealed instrument or instrument of conveyance of an interest in real property. N.C.G.S. § 1-47(2).
2. Three (3) year Statute of Limitations for liability arising out of breach of written or oral contract. N.C.G.S. § 1-52(1).
3. Four (4) year Statute of Limitations for breach of any contract for sale. N.C.G.S. § 25-2-725(1).
6. Minor Statute of Limitations
1. Three (3) years past eighteenth birthday for personal injury. N.C.G.S § 1-52(16) & N.C.G.S. § 1-17(a) read together.
2. However, a claim for the wrongful death of a minor must be brought within two (2) years of the fatality. N.C.G.S. § 1-53(4).
7. Product Liability

Three (3) year Statute of Limitations. N.C.G.S § 1-52(16).

Negligent Entrustment, Hiring, Retention and Supervision

1. Negligent Entrustment

North Carolina does permit a cause of action for negligent entrustment if the owner entrusted his vehicle to an operator who he knew or should have known was incompetent or reckless driver, and the operator’s incompetence or recklessness proximately caused the plaintiff’s injuries. Based on the owner’s negligence in entrusting his vehicle to the impaired operator, he is liable to the plaintiff for any resulting injury. Tart v. Martin, 353, N.C. 252, 254, 540 S.E.2d 332, 334 (2000).

2. Negligent Hiring & Negligent Retention

In North Carolina, an employer may be liable for negligent hiring or retention if plaintiff can show: (1) the specific negligent act upon which the claim is based, (2) the employee’s history of unfitness or incompetency through previous acts, (3) actual or constructive notice to the employer of such incompetency, and (4) causation between the alleged injury and the employee’s incompetency. Walters v. Durham Lumber, Co., 163 N.C. 536, 541, 80 S.E. 49, 51 (1913); Medlin v. Bass, 327 N.C. 587, 591, 398 S.E.2d 460, 462 (1990).

3. Negligent Supervision

North Carolina permits claims for negligent supervision as well. These claims are based on the same elements required to prove negligent hiring and/or negligent retention. (See above section on “Negligent Hiring & Negligent Retention”). Doe v. Diocese of Raleigh, 242 N.C. App. 42, 50, 776 S.E.2d 29, 36 (2015).

4. Negligent Training

While there is no bright-line rule regarding a claim of negligent training, North Carolina does appear to allow a plaintiff to argue a cause of action for negligence based on an employer’s negligent training of its employee(s). See Floyd v. McGill, 156 N.C. App. 29, 35, 575 S.E.2d 789, 794 (2003). This is decided on a case-by-case basis and this claim is generally made in conjunction with a claim for negligent hiring, retention, and/or supervision.

Course and Scope of Employment

1. Standard of Review
Whether an employee acted within the scope of his employment is usually a question of fact determined by a jury. Carawan v. Tate, N.C. App. 161, 280 S.E.2d 528. Consideration must be given to the surrounding facts and circumstances when determining whether the employee was acting within the scope of his employment. Marlowe v. Bland, 154 N.C. 140, 69 S.E. 752 (1910).
2. Legal Rule
• An employer will be held liable under the theory of respondeat superior when its employee’s act is (1) expressly authorized, (2) within the scope of the employee’s employment, and (3) in furtherance of his employer’s business. An employer can also be liable when the employee’s act is within his implied authority, or if ratified by his employer. Medlin v. Bass, 327 N.C. 587, 592, 398 S.E.2d 460, 463 (1990).
• An employee’s acts can be considered outside the scope of his employment when such acts are purely to advance a personal interest. Such acts may include intentional tortious acts not committed for the purpose of furthering the employer’s business. Id.

Contributory Negligence

1. North Carolina is a Pure Contributory Negligence State
1. North Carolina recognizes contributory negligence which serves as a complete bar to the plaintiff’s recovery if the defendant can prove that the plaintiff’s negligence contributed to the proximate cause of his/her alleged injury. Whisnant v. Herrera, 166 N.C. App. 719, 603 S.E.2d 847 (2004)
2. However, if the defendant’s negligence rises to the level of willful and wanton conduct, the plaintiff may still recover in his/her negligence claim so long as the plaintiff’s negligence does not rise to the same willful and wanton level of conduct. Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971).
3. Contributory negligence is a question for the jury. Miller v. Scott, 185 N.C. 93, 116 S.E. 86 (1923).
2. The Last Clear Chance Doctrine
1. North Carolina does recognize the last clear chance doctrine.
2. Under this doctrine, there are five elements that must be proven: (1) the plaintiff, through his own negligence, placed himself in a position of peril; (2) the defendant saw, or by exercise of reasonable care should have seen, and understood the peril; (3) the defendant should have seen or discovered the plaintiff’s perilous position in time to avoid injuring the plaintiff; (4) notwithstanding such notice, the defendant failed to use every reasonable means within his control to avoid the plaintiff’s injury; and (5) the plaintiff was injured as a result of the defendant’s failure to avoid the injury. Watson v. White, 309 N.C. 498, 308 S.E.2d268 (1983).
3. The Sudden Emergency Defense

North Carolina recognizes the sudden emergency defense, although the jury instruction rarely given. A person who, by the negligence of another and not his own negligence, is placed in situation of sudden emergency and compelled to act to avoid injury is not liable in a claim of negligence brought against him so long as he acts as a person of ordinary prudence in a similar situation. Foy v. Bremson, 286 N.C. 108, 116, 209 S.E.2d 429, 444 (1974).

Contribution or Implied Indemnity from Third Parties

1. Contribution

North Carolina is a joint and several liability state. Each tortfeasor is responsible for 100% of the judgment; however, each can seek contribution against a co-tortfeasor. N.C.G.S. § 1B-1.

2. Implied Indemnity

North Carolina refers to this concept as “indemnity implied-in-law.” Indemnity implied-at-law “arises from an underlying tort, where a passive tort-feasor pays the judgment owed by an active tort-feasor to the injured third party.” In these situations, the passive tortfeasor is entitled to indemnification by the active tortfeasor. Kaleel Builders Inc. v. Ashby, 161 N.C. App. 34, 41, 587 S.E.2d 470, 475 (2003).

Exclusivity of Workers Compensation

1. General Rule

If an employee’s injury arose out of and in the course of his employment, he is limited to remedies available to him under the North Carolina Workers’ Compensation Act and may not sue his employer or his co-workers in tort. N.C.G.S. § 97-10.1.

2. Exception

If an employer engages in misconduct knowing that it is substantially likely to cause serious injury or death to employees and an employee is injured or killed by such misconduct, that employee or his representative may bring a civil action against the employer in addition to his remedies under the Workers’ Compensation Act because such actions are considered intentional torts. Woodson v. Rowland, 329 N.C. 330, 340-41, 407 S.E.2d 222, 228 (1991).

Seat Belt and Helmet Use

Although North Carolina is a contributory negligence jurisdiction, the seatbelt defense is specifically prohibited. Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968).

• North Carolina requires the operator and all passengers of a motorcycle to wear a safety helmet. However, violation of this law shall not be considered negligence per se or contributory negligence per se in any civil action. N.C.G.S. § 20-140.4.

Spoliation

• In North Carolina, spoliation occurs when a party fails to introduce into evidence documents that are relevant to the matter in question and within its control. Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905).
• North Carolina courts recognize spoliation as an evidentiary issue, not as a separate cause of action.
• The jury instruction asks the jury to determine whether the evidence (1) was in the exclusive possession of the party, (2) has been lost, misplaced, suppressed, destroyed, or corrupted, and (3) that the party had notice of the opposing party’s claim or defense. If so, the jury may infer that the evidence would be damaging to the party’s case. N.C.P.I. Civil 101.39.

Damages

Caps

North Carolina does not have a statutory cap on compensatory damages. However, punitive damages are capped at $250,000 or three times the compensatory damages, whichever is greater. N.C.G.S. § 1D-25. Punitive damages cannot be claimed against the administrator of the estate of a deceased individual.

Joint and Several Liability

North Carolina is a joint and several liability state. Each tortfeasor is responsible for 100% of the judgment; however, each can seek contribution against a co-tortfeasor. N.C.G.S. § 1B-1.

Standard of Proof Required for Compensatory Damages

Under North Carolina law, “proof of damages must be made with reasonable certainty.” Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 547 (1987).

Collateral Source

The collateral source rule is recognized in North Carolina. Damage awards will not be reduced by amounts the plaintiff received as compensation for his injuries from other sources, such as insurance. Likewise, evidence of such payments is inadmissible at trial. Young v. R.R., 266 N.C. 458, 466, 146 S.E.2d 441, 446 (1966).

Hedonic Damages

1. In North Carolina, a plaintiff may recover damages in a personal injury action for out-of-pocket expenses and losses which he incurs as a result of the defendant’s negligence, and also non-economic and hedonic damages, such as loss of enjoyment of life, pain and suffering, disability, and scarring. King v. Britt, 267 N.C. 594, 598, 148 S.E.2d 594, 598 (1966).
2. However, loss of enjoyment of life damages are generally not allowed in wrongful death cases. Livingston v. United States, 817 F.Supp. 601 (E.D.N.C. 1993).

Life Care Plans

Life care plans are admissible in North Carolina. However, the expert opinions of the life care planner are subject to all challenges available to other expert opinions. Patton v. Charlotte-Mecklenburg Hosp. Auth., 2017 N.C. App. LEXIS 639, 803 S.E.2d 666 (2017).

Wrongful Death Standing and Damages

1. Standing
• Any action for wrongful death shall be brought by and in the name of the personal representative of the deceased person.N.C.G.S. 1-53(4).
• Any wrongful death action must be brought within two years after the death of the injured person. N.C.G.S. § 1-53(4).
2. Damages

Pursuant to N.C.G.S. § 28A-18-2, a verdict in a wrongful death case may include damages for the following:

• Expenses for care, treatment and hospitalization incident to the injury resulting in death;
• Compensation for pain and suffering of the decedent;
• Reasonable funeral expenses of the decedent;
• Present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of reasonably expected:
• Net income of the decedent,
• Services, protection, care, and assistance of the decedent to the persons entitled to the damages recovered,
• Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;
• Such punitive damages as decedent could have recovered had decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct; and
• Nominal damages when the jury so finds.

There are no statutory limits for damages in a wrongful death action.

Punitive Damages

1. Recoverable? If so, standard for it?

Punitive damages are recoverable in North Carolina only if the claimant proves he is entitled to compensatory damages, and that the conduct of the defendant was marked by fraud, malice or willful and wanton conduct. These three aggravating factors must be proved by clear and convincing evidence. N.C.G.S. § 1D-15.

2. Statutory Cap on Punitive Damages

Punitive damages are capped at $250,000 or three times the compensatory damages, whichever is greater. N.C.G.S. § 1D-25.

3. Are Punitive Damages Insurable?

In North Carolina, punitive damages are generally recoverable under a policy of liability insurance unless they are specifically excluded from coverage. Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 319 S.E.2d 217 (1984).

Offers of Judgment

North Carolina does have offers of judgment. N.C.G.S. § 1A-1, Rule 68 of North Carolina Rules of Civil Procedure.

• Only a defendant may make an offer of judgment, any time more than 10 days before trial.
• If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment.
• An offer not accepted within 10 days after its service shall be deemed withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs.
• If the judgment finally obtained by the plaintiff is not more favorable than the offer, the plaintiff must pay the cost incurred after making the offer.
• The fact that an offer is made but not accepted does not preclude a subsequent offer.

Biomechanics

Biomechanical experts are qualified to render trial opinions in North Carolina. Their opinions and qualifications are subject to challenge like all other expert opinions. Floyd v. McGill, 156 N.C. App. 29, 37-38, 575 S.E.2d 789, 794-95 (2003).

Pre-suit disclosure of policy limits

In North Carolina, a plaintiff may request the policy limits of the defendant by certified mail directed to the insurance company. However, the plaintiff must agree to the following conditions in order to receive disclosure of the defendant’s policy limits:

1. Submit written consent for the insurance company to obtain three years prior medical records from all of plaintiff’s medical providers, as well as all medical records pertaining to the claimed injury;
2. Submit written consent to the insurance company agreeing to participate in mediation of the claim; and
3. Submit a copy of the accident report to the insurance company along with a description of the events at issue in order to allow the insurance company to make an initial determination of liability of its insured.

Within 30 days of receiving this request and the required information, the insurance company is required to provide the policy limits. N.C.G.S. § 58-3-33.

May claimant recover general damages if they do not have their own auto-insurance? (“No pay to play”)

Yes. In North Carolina, a claimant may recover general damages even if they do not have auto insurance.