Personal Injury

Animal Injury Liability

The keeper or owner of a domesticated animal can be liable to a plaintiff who suffers personal injury inflicted by that animal. Elements necessary to establish that the owner or keeper of the animal is liable for the harm suffered are: (1) The animal was dangerous, vicious, mischievous, ferocious, or considered to have a vicious propensity; and (2) The owner or keeper knew or should have known of the animal’s vicious propensity, character, and/or habits. Ray v. Young, 154 N.C. App. 492, 572 S.E.2d 216 (2002).

Punitive damages might be available if the keeper or owner displays reckless or wanton behavior, such as allowing a dog that is known to have twice attempted to bite a human being to run loose in an enclosed area occupied by other people. Hunt v. Hunt, 86 N.C. App. 323, 357 S.E.2d 444 (1987) (holding that such recklessness shows an indifference to or disregard for the safety of others sufficient to support an award of punitive damages).

Dram Shop Violations

If the underage consumption of alcohol contributes to another’s motor vehicle injury, then it’s possible to hold a business that sold the minor alcohol responsible. Elements necessary to establish a claim under the Dram Shop Act are: (1) the plaintiff is an aggrieved party; (2) the defendant is a permittee, or local Alcohol Beverage Control Board, who negligently sold or furnished alcohol to an underaged person; (3) consumption of the alcohol sold or furnished to an underage person caused or contributed to, in whole or in part, an underage person being subject to an impairing substance at the time of the injury; and (4) the injury was proximately caused by the underage driver’s negligent operation of a vehicle while so impaired. N.C. Gen. Stat. § 18B-121.

Negligence (Motor Vehicle Negligence, Premises Liability, and More)

An action for negligence occurs when the defendant causes an injury by failing to exercise proper care in the performance of a legal duty owed to the plaintiff. Negligence can arise when the defendant acts or fails to act in accordance with that legal duty. Negligence is the theory of relief that covers motor vehicle accidents, premises liability, slip-and-fall cases, and many of the most commonly litigated injuries in North Carolina. The elements necessary to establish a claim for negligence are: (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.

“Duty” means a legally recognized obligation for a person to conform to a baseline standard of conduct for the protection of others against unreasonable risk. The obligation might arise out of statute, contract, or be implied from the totality of circumstances. An action for negligence will arise when a defendant fails to exercise the degree of care that a reasonable and prudent person would exercise under substantially similar conditions.

“Breach” means that the defendant’s actions or inactions failed to comport with the caution expected of a reasonable and prudent person. For example, in a slip-and-fall case, a plaintiff must show that the defendant negligently created the condition causing the injury or negligently failed to correct the condition after actual or constructive notice of its existence. Robinson v. Wal-Mart Stores, Inc., 158 N.C. App. 299, 580 S.E.2d 426 (N.C. App. 2003) (reversing judgment because there was conflicting evidence about whether the defendant created the condition and whether cones were placed in wet areas to provide adequate warning to alert customers such as the plaintiff). The key is whether the defendant failed to exercise ordinary prudence in the performance of a legal duty. Wal-Mart had a legal duty to keep its premises safe for customers. That requires the store to take precautions consistent with those a reasonable and prudent person would take.

“Injury and Proximate Cause” means that the defendant’s failure to comply with a legal obligation is sufficiently connected to a plaintiff’s injury. Proximate cause refers to a cause which in natural and continuous sequence; i.e., unbroken by any new and independent cause; produced the plaintiff’s injury and was a reasonably foreseeable result under all the facts as they existed. In order to prove that an injury was foreseeable, a plaintiff must demonstrate that the defendant might have foreseen that some injury would result from his act or omission if he exercised reasonable care.

Contributory Negligence bars a plaintiff's recovery in a negligence action if the plaintiff's own negligence in any degree contributed to his or her own injury in North Carolina, unless the defendant acted with gross negligence and/or had the last clear chance to avoid the harm.

Negligent Infliction of Emotional Distress

In order to establish a claim under a theory grounded in negligence, the plaintiff must allege: (1) the Defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the Plaintiff severe emotional distress (often referred to as "mental anguish"), and (3) the conduct did in fact cause the Plaintiff severe emotional distress. Although an allegation of ordinary negligence will suffice, a Plaintiff must also allege that severe emotional distress was the foreseeable and proximate result of such negligence in order to state a claim; mere temporary fright, disappointment, or regret will not suffice. In this context, the term "severe emotional distress" means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.

Intentional Infliction of Emotional Distress

Elements necessary to establish a claim for intentional infliction of emotional distress are: (1) that the defendant engaged in extreme and outrageous conduct, meaning it exceeds all bounds usually tolerated by decent society; (2) the defendant’s conduct intended to cause severe emotional distress; and (3) the defendant’s conduct did, in fact, cause plaintiff to suffer severe emotional distress.

Products Liability

A plaintiff may base a products liability action on a breach of a contractual warranty.

A product liability action is "any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging or labeling of any product." N.C.G.S. § 99B-1(3).

As such, an action for breach of implied warranty of merchantability under the Uniform Commercial Code is a "product liability action" within the meaning of the Products Liability Act when the action is for injury to person or property resulting from a sale of a product.

The elements necessary to establish a claim under the Products Liability Act are: (1) The goods bought and sold were subject to an implied warranty of merchantability; (2) The goods did not comply with the warranty in that the goods were defective at the time of sale; (3) The injury was due to the defective nature of the goods, and (4) Damages were suffered as a result. Goodman v. Wenco Foods, Inc., 333 N.C. 1, 10, 423 S.E.2d 444, 447 (1992).

Toxic Mold Litigation

Toxic mold, which is mold that releases mycotoxins, can be a major threat to a person’s health, especially during a pandemic. Contamination and growth of toxic mold in an indoor environment is a serious problem, exhibiting a symptom of prolonged, repeated, and chronic water problems. In that type of an environment, the abundance of other toxic fungi and bacteria are a certainty. For example, stachybotrys chartarumn produces the mycotoxin trichothecenes, one of the most toxic substances known and linked to significant adverse health impacts in humans.

Adverse health impacts of mold sensitization include recurring cold and flu-like symptoms, burning sore throat, headaches and excessive fatigue, diarrhea, and impaired and altered immune function, as well as cough, irritation of eyes, skin, and respiratory tract, or joint ache. In addition, the ability for the body to resist infectious diseases may be weakened, resulting in increased opportunistic infections.