Chapter 27 NEGLIGENCE

• Jurisdiction: North Carolina

27 NEGLIGENCE

A. Definition

Negligence can be defined as the failure to exercise proper care in the performance of a legal duty the defendant owed to the plaintiff.

The breach may be caused by a negligent act or a negligent failure to act.¹

B. Elements

In order to establish an action for negligence, a plaintiff must show that:

(1) The defendant owed the plaintiff a legal duty,
(2) The defendant breached that duty, and
(3) The plaintiff's injury was proximately caused by the breach.²

C. Elements Defined

1. Duty

The initial question in any negligence action is whether the defendant owed a duty to protect the plaintiff against injury. A duty is defined as an obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.³ A person's duty to act may result from statutory or contractual requirements, or may be implied from attendant circumstances.⁴ In Oberlin Capital v. Slavin, for example, the court found that the duty of the defendant, who was a debtor of the plaintiff, flowed from a loan agreement between the parties that the defendant allegedly breached.⁵ Actionable negligence occurs when a defendant owing a duty breaches that duty, that is, fails to exercise the degree of care that a reasonable and prudent person would exercise under similar conditions, or where such a defendant of ordinary prudence would have foreseen that the plaintiff's injury was probable under the circumstances.⁶ For guidance on whether a party has placed itself in a relation with another person such that North Carolina courts will impose a duty, the following factors may be relevant:

(1) the extent to which the transaction was intended to affect the other person; (2) the foreseeability of harm to him; (3) the degree of certainty that he suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury; (5) the moral blame attached to such conduct; and (6) the policy of preventing future harm.⁷

Generally, there is no duty to control the actions of a third party, nor is there a duty to protect another from a third party; however, there is an exception where there is a special relationship between the defendant and the third person which imposes a duty upon the defendant to control the third person's conduct. A special relationship exists where (1) the defendant knows or should have known of the third person's violent propensities, and (2) the defendant has the ability and opportunity to control the third person at the time of the third person's criminal acts. The ability and opportunity to control the third person must be more than mere physical ability to control. It must rise to the level of custody, or legal right to control.⁸

The defendant's duty of care may arise from actions relating to persons other than the plaintiff. For example, a defendant furnishing alcoholic beverages to third parties breaches this duty of reasonable care owed to people who travel on the public highways when it furnishes alcoholic beverages "to a noticeably intoxicated person who is going to drive [a motor vehicle]."⁹

2. Breach

A breach of the defendant's duty to the plaintiff may be caused by the performance of some positive act: "[A]ctive negligence denotes some positive act or some failure in duty of operation which is equivalent to a positive act."¹⁰ To establish that a defendant breached its duty of care to the plaintiff, in a premises liability action, for example, the plaintiff must show that the defendant (1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence.¹¹ In Robinson v. Wal-Mart Stores, the plaintiff was injured when he fell on the floor of one of the defendant's stores. While the trial court had granted summary judgment for the defendant, on appeal, the court reversed the judgment, citing conflicting evidence about whether the defendant created the dangerous condition and whether cones were placed in wet areas to provide adequate warning to alert customers such as the plaintiff, producing sufficient evidence to raise genuine issues of material fact.¹²

When a statute imposes a duty meant for the protection of others, a violation of such a public safety statute constitutes negligence per se.¹³ For example, in Gregory v. Kilbride, the court found that an involuntary psychiatric commitment statute was not a public safety statute, and thus, violation of that statute was not negligence per se.¹⁴ Note that the negligence per se rule applies to administrative regulations as well as legislative enactments.¹⁵ When a statutory violation is ruled not to be negligence per se, ordinary care applies, and the statute violation can be considered as evidence as to whether the defendant used due care.¹⁶ North Carolina also has adopted the "sudden emergency" doctrine, which provides that one confronted with an emergency is not liable for injury resulting from acting as a reasonable person might act in such an emergency, provided that (1) an emergency situation existed, and (2) the emergency was not created by the negligence of the party seeking the doctrine's protection.¹⁷

3. Injury and Proximate Cause

It is not sufficient, however, to merely show that the defendant was negligent in order to prevail in a negligence claim. The plaintiff must also show that proximate cause existed, connecting the negligent behavior with the plaintiff's injury.¹⁸ While the definition of proximate cause cannot be reduced to absolute rules, the following definition guides the courts in assessing whether proximate cause exists: (1) a cause which in natural and continuous sequence, (2) unbroken by any new and independent cause, (3) produced the plaintiff's injuries, (4) without which the injuries would not have occurred, and (5) one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.¹⁹ Foreseeability of harm to the plaintiff is a required element in the assessment of whether proximate cause exists.²⁰ To prove that an action is foreseeable, a plaintiff is required to show that, in "the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected."²¹

D. Defenses

Several defenses are available in negligence actions, including the statute of limitations, sovereign immunity, assumption of the risk, and contributory negligence. Each defense is discussed below.

1. Statute of Limitations

The statute of limitations for a negligence claim is three years.²² North Carolina's statute of repose, N.C.G.S. § 1-52(16), specifies that the cause of action does not accrue until the harm becomes apparent or should reasonably have become apparent to the plaintiff, whichever occurs first.²³ The statute of repose also limits the time in which the plaintiff can bring the action, stating that no action shall "accrue more than 10 years from the last act or omission of the defendant" that gave rise to the plaintiff's cause of action.²⁴ Note that the statute of repose does not apply to medical malpractice actions, where N.G.C.S. § 1-15(c) applies instead.

2. Sovereign Immunity

The North Carolina Tort Claims Act (NCTCA) governs the doctrine of sovereign immunity in North Carolina, granting immunity that prevents a claim for relief against the State except where the State has consented or waived its immunity.²⁵ While it is a fundamental rule of law that the State is immune from suit unless it expressly consents to be sued, North Carolina partially waived its sovereign immunity in those instances in which injury is caused by the negligence of a State employee and the injured person is not guilty of contributory negligence, giving the injured party the same right to sue as any other litigant.²⁶ Because the NCTCA is in derogation of common-law sovereign immunity, the statute must be strictly construed and its terms must be strictly adhered to.²⁷ Note that the 1977 amendment to the NCTCA, which substituted the phrase "arose as a result of the negligence" for "arose as a result of a negligent act" in the second sentence, has been held by North Carolina courts to enlarge the rights of persons seeking to recover for injuries resulting from State employees' negligence.²⁸ Thus, cases discussing the NCTA before the effective date of July 1, 1979, of the amendment to the statute should be consulted with care.

3. Assumption of Risk

Assumption of risk bars the plaintiff's recovery in a negligence action in the situation where the plaintiff knowingly and voluntarily encounters a risk created by the defendant and is injured because of that risk.²⁹ In North Carolina, the assumption of risk defense may only arise in two circumstances: when (1) there is a contract between the parties, and (2) the plaintiff knew of the specific risk presented.³⁰ In Swaney v. Peden Steel Co., for example, the plaintiff had no knowledge that the truss he was erecting was not properly designed when it collapsed and injured him, and thus, the court held that the plaintiff could not have assumed the risk of the situation.³¹

4. Contributory Negligence

North Carolina adheres to the common-law doctrine of contributory negligence and has eschewed comparative negligence...