What Every Claims Handler Needs to Know About General Negligence Claims in North Carolina

What Every Claims Handler Needs to Know About General Negligence Claims in North Carolina

Many North Carolina laws are significantly different from the laws of other jurisdictions. This article is intended to provide the reader with guidance as to some of the primary North Carolina distinctions in the area of general negligence.

  1. North Carolina is a contributory negligence state. Contributory negligence is a complete defense to a negligence claim. Comparative negligence does not apply in North Carolina. Contributory negligence is not a defense to gross negligence. However, gross contributory negligence is a defense to gross negligence.
  2. Last clear chance is a defense to contributory negligence, and a finding of last clear chance will allow a contributorily negligent plaintiff to recover.
  3. An action for wrongful death is governed by statute in North Carolina (G.S. §28A-18-2) with a two year statute of limitations. The damages recoverable for wrongful death are not limited in amount. They include medical expenses, pre-death pain and suffering, funeral expenses and the "emotional loss" and present value of the monetary loss to the beneficiaries of the deceased as determined by intestate succession. The monetary loss is only for the amount of the actual loss to those beneficiaries, not the economic loss to the "estate" over the lifetime of the decedent. A wrongful death action can seek recovery for any claim that the deceased would have been entitled to recover had he or she lived.
  4. North Carolina has an unfair and deceptive trade practices statute (G.S. §75.1). The mere breach of a contract does not constitute an unfair and deceptive trade practice. The statute allows for recovery of triple damages and attorney fees, but a plaintiff who also alleges a punitive damages claim for the same transaction must elect between punitive or triple damages and cannot recover both. There is a four-year statute of limitations for such claims. North Carolina also has specific statutory provisions for unfair and deceptive trade practices by insurance carriers in the handling of claims.
  5. North Carolina has specific statutes relating to claims arising from landlord tenant claims, dogs, boating, pollution and skiing accidents.
  6. In contracts relating to construction or maintenance provisions requiring indemnity for the negligence of the party seeking indemnity are generally unenforceable.
  7. North Carolina does allow for recovery against property owners based on the doctrine of attractive nuisance.
  8. North Carolina does not permit a claim for loss of parental consortium.
  9. North Carolina has specific dram shop statutes relating to liability for service or sale of alcohol to minors and intoxicated persons.
  10. North Carolina permits recovery for negligent infliction of emotional distress. However, the infliction of emotional distress must be foreseeable, and the plaintiff must suffer a diagnosable mental condition.
  11. An employer may only be sued by an injured employee where it is shown that the employer engaged in intentional misconduct that was substantially certain to cause serious injury or death. Even gross negligence is not sufficient to meet this standard.
  12. Negligence per se applies only in very limited areas of law and is related primarily to violations of those safety statutes which have criminal penalties.
  13. Assumption of risk cannot be used as a defense to a tort action in North Carolina but is available in defense of a contract action.
  14. Strict liability does not apply in North Carolina for products liability cases. It applies only in limited circumstances primarily dealing with inherently dangerous substances.
  15. North Carolina has a products liability act which sets specific requirements for liability. Contributory negligence is a complete defense and includes failure to follow instructions for the product. A "sealed container" defense is provided to all middlemen handling products. Modification of the product is also a defense. There is currently a six-year statute of repose for all products.

This article is intended only as a general guide for familiarization with North Carolina law. The law is subject to change by statutory amendments or opinions from the court. Advice of counsel should be sought with respect to the current law and its applicability to any specific case.

A more detailed discussion of general negligence, as well as other important North Carolina legal distinctions is available in The North Carolina Claims Manager's Guide 2007 edition, written by attorney Rodney Dean.

Be sure to check here for future articles covering North Carolina legal topics in areas such as premises liability, automobile claims, damages, liens, claims handling procedures, civil procedure, insurance coverage law, UM/UIM law, and statutes of limitations and repose.