North Carolina Distinctions Flashcards
Extreme or Outrageous Conduct in NC
Conduct that is beyond all bounds of decency and is utterly intolerable in a civilized community.
Severe Emotional Distress in NC
An emotional or mental disorder that is recognized and diagnosed by a trained professional, such as neurosis, psychosis, chronic depression, or phobia.
Note - A formal diagnosis is required.
What is the tag-along intentional tort?
Intentional infliction of emotional distress.
Note - For every other tort, see if the elemts of IIED apply as well.
Alienation of Affection
A “heart-balm” intentional tort
Elements:
- There was a loving marriage;
- The spouse’s love was destroyed;
- The third party defendant’s malicious conduct caused the loss of affection
Note - See family law card for additional information
Criminal Conversation
When a spouse in a marriage has sex with a third party without the other spouse’s consent
Elements:
- The P is in a marriage and they are not legally separated; and
- There was sexual intercourse between the spouse and a third party
Note - See the family law card for additional information. Each instance of sexual intercourse can be brought as a separate claim against the third party.
Shopkeeper’s Privilege in NC
There is no civil liability for a shopkeeper who commits false imprisonment under certain circumstances
Requierments:
- They are excersising the right on their premises or within a reasonable proximity;
- It was reasonable, including the length of time, in order to determine if the person stole the item(s); and
- There is probable cause to believe that the person wilfully stole from the store
Trespass to Land Distinction in NC
There is no liability for flight over land unless it:
- Interferes with the owner’s current use; or
-
Injures the health and happiness of, or be imminently dangerous to, people or property on the land
- E.g., shooting a gun across their property vs throwing a ball over it
Coming to the nuisance defense in NC
A defendant who is an agricultural or forestry operation can raise a coming to the nuisance defense when:
- It has been in operation for more than one year; and
- The operation was not a nuisance when it began
Exception - If there has been a fundamental change in the operation
- Changes in ownership, size, or type of product produced are not fundamental changes
Defense of consent in NC
A person cannot consent to an unlawful act in NC.
Stand Your Ground Law in NC
A defendant in his home, car, or workplace had a reasonable fear of imminent death, and can thus use deadly force in self-defense without having to retreat, if:
- An individual was attempting to unlawfully and forcefully enter that place, or was attmpting to remove another from that place against their will; and
- The defendant knew or had reason to know that an unlawful and forcible entry was occurring
Exceptions:
- The person attempting to enter had a right to be in that place;
- The person being removed was a child or grandchild of ther person doing the removing;
- The person attempting to enter was a police officer who properly identified himself; or
- The person had discontinued efforts to enter or had exited the place
Defamation in NC
Elements:
-
A defamatory statement;
- Language that diminishes respect, esteem, or goodwill toward the plaintiff, or that deters others from associating with the plaintff
-
Made with some degree of fault;
-
Public figures/public officials - actual malice is required
- To protect the 1st Amend. the plaintiff must show a knowing lie or reckless disregard for the truth
- Private parties - NC only requires that the plaintiff show the statement was made negligently
-
Public figures/public officials - actual malice is required
-
Published to another person;
- Communicated to a third party and includes repeating defamatory statements
-
Of or concerning the plaintiff;
- A reasonable person would understand the statement to have been about the plaintiff
- Name is not required
- A reasonable person would understand the statement to have been about the plaintiff
- That damages the plaintiff’s reputation
Note - In NC a person can be liable for both libel and slander by speaking defamatory words to a reporter when the person knows or should know that the words will end up in print.
What is libel per se in NC?
A statement that is “obviously defamatory” which is an unambiguous statement that harms the plaintiff’s reputation
Note - special damages may be presumed
What is libel per quod in NC?
A statement is not obviously defamatory without knowledge of some extrinsic fact known to the audience to which the statement is published
Note - damages to the reputation must be proven
What is slander per se in NC?
A statement is obviously defamatory because it falls into one of three categories:
- A crime involving moral turpitude or one that would subject the accused to imprisonment;
- Reflecting poorly on P’s trade or profession; or
- Having a lothesome disease
Note - Allegations of sexual misconduct is not slander per se in NC
What two privacy torts are not recognized in NC?
- False light; and
- Public disclosure of private facts
Note - These need to still be mentioned on the bar exam. State that they do not apply in NC.
Intentional Misrepresentation in NC
Elements:
- A false representation (including concealment);
- Of a material fact;
- Made with the intent to deceive and knowledge of the statement’s falsity (scienter);
- Which caused the plaintiff to act or refrain from acting;
- Based upon the plaintiff’s reasonable reliance;
- That causes economic damage to the plaintiff
Negligent Misrepresentation
Misrepresentation that does not require scienter
- Note - Scienter is a statement made with the intent to decieve and knowledge of that statement’s falsity
- Look for this tort whenever you have professional negligence
What additional element is there in NC for intentional interference with contract?
The interference was made without justification.
Note - Public interests or “do-gooder interferences” that are motivated by non-economic or non-malicious concerns like health and safety are exceptions.
Competition is also a proper justification.
What is not considered a dismissal for malicious prosecution in NC?
A lesser-included conviction
What is the NC Good Samaritan Statute?
One who volunteers to rescue is not liable to the rescued party from harms he caused or exacerbated, even if the rescue was negligent.
What is the rule about rescuers and negligence in NC?
Danger invites rescue. A rescuer is a foreseeable consequence of D’s negligence and D will be liable for any injuries sustained by the rescuer and P if the rescue was not made recklessly.
What is the general standard of care for children in NC?
The rule of 7’s:
- Children under 7 are incapable of negligence;
- Children between 7 and 14 are presumed incapable of negligence but the presumption can be rebutted;
- Children 14 and older are presumed capable of negligence, but the presumption can be rebutted with clear and convincing evidence of incapacity
Note - If the child is engaged in an adult-only activity the adult standard of care applies regardless of age
What is the standard of care for doctors with respect to medical malpractice in NC?
A physician must exercise that degree of care, skill & proficiency exercised by reasonably careful, skillful, & prudent practitioners in the same class to which he belongs and in the same or a similar community, acting under the same or similar circumstances.
What duty of care is owed to invitees and licensees in NC?
NC does not distinguish between invitees and licensees. The standard of care owed to all lawful visitors is reasonable care.
What duty of care is owed to trespassers in NC?
The only duty owed to adult trespassers is to refrain from willful or wanton infliction of harm.
Note - The attractive nuisance doctrine does not apply when the child is being supervised and the parent is aware of the danger.
What is the exception to negligence per se in NC?
A building owner cannot be found negligent per se for violating the NC State Building Code without:
- Actual or constructive knowledge of the violation;
- Failing to take reasonable steps to remedy the violation; and
- The violation being the proximate cause of the harm suffered
What is the general test for proximate cause in NC?
The correct test for proximate cause in NC is foreseeability.
- Was the accident a reasonably foreseeable consequence of the defendant’s conduct?
- The general type of accident must have been foreseeable at the time of the negligence. The precise manner of harm or extent of harm need not be foreseeable.
What are superseding and intervening causes in NC?
Was the third party’s intervening act foreseeable to the defendant at the time of teh defendant’s negligence?
Yes: original actor still liable (intervening)
No: original actor absolved of liability (third party’s act supercedes D’s negligence)
Note - The foreseeability of a subsequent medical malpractice in the treatment of an injury is a question of fact for the jury.
When should you look for NEID in NC?
The following tort claims may give rise to NEID:
- Medical malpractice (lack of informed consent);
- False imprisonment involving extremely coercive confinements;
- Assaults and other threatening conduct;
- Personally observing neglgently caused harms to loved ones (accident scenes)
Note - as with IIED, look for physical manifestations of severe emotional distress with NEID
What is the NC wrongful death statute?
The family of a P killed by the negligence of the D may bring claims for:
- P’s pre-death hospitalization and treatment;
- Pain and suffering;
- Funeral expenses;
- Lost income, services, companionship; and
- Punitive and nominal damages
Note - Defamation and false imprisonment claims do not survive the plaintiff - not eligible for claims by the plaintiff’s family
What is negligent hiring and retention in NC?
An employer can be held liable for negligent hiring and retention when:
- The plaintiff was harmed by the employee’s negligence;
- The employee was an incompetant employee;
- Look to facts regarding the plaintiff’s history, pre or post hiring
- The defendant employer knew or should have known of the employee’s incompetence; and
- The injury resulted from that incompetence
Vicarious Liability: Family Purpose Doctrine
The owner of the family vehicle can be liable in addition to the member of the family that was negligent when driving the vehicle, when three elements are met:
Requirements:
- The operator was living in the family home;
- The car was owned, provided, and maintained for the family’s general use; and
- The car was being so used at the time of the accident
Note - Regardless of family ties, if the owner is in the car, the owner is responsible for the negligence of the driver
Dram Shop Liability in NC
Alcohol permitee (bar or liquor store) can be liable for a minor buyer’s negligence while intoxicated if:
Elements:
- The defendant sold the alcohol to the minor;
- The minor’s alcohol consumption caused him/her to be impaired; and
- The plaintiff’s injury was proximately caused by the minor’s alcohol-caused impairment
Note - Damages are limited to 500k per accident and the minor and permittee are joint and severally liable
Social Host Liability in NC
A host can be liable for negligence of an intoxicated driver if:
Requirements:
- The driver is a minor;
- The driver is intoxicated; and
- The host knows the person will be driving
Sovereign Immunity in NC
The general rule is that a sovereign is immune except when it says it is not. If it is government acting as a government, it is more likely to be immune.
Note - If the government is acting in a proprietary function (as a private company) there is no immunity. Ask if the service that was being provided was usually provided by a government entity.
Sovereign Immunity: Public Officers in NC
A public officer is immune from liability unless his actions were “corrupt or malicious” or if he acted beyond the scope of his duties.
Contributory Negligence in NC
Be sure to mention in all tort cases that this is the rule in NC and it completely bars recovery. However, it:
- Is not a defense to an intentional tort;
- Is not a defense to gross negligence (recklessness);
- Does not apply when the defendant has the last clear chance to avoid the injury but did not do so.
Last Clear Chance Doctrine in NC
Elements:
- The plaintiff, by her own negligence, placed herself in a position of peril from which she could not escape;
- The defendant saw or should have seen the plaintiff’s peril;
- The defendant could have avoided the accident;
- The defendant failed to avoid the injury; and
- The plaintiff was injured as a result
Note - Plaintiff will not be barred from recovery, even though contributorily negligent
Assumption of Risk in NC
No assumption of risk defense is permitted in NC without a contractual relationship
Strict Liability: Products Liability in NC
NC does not recognize strict products liability. Ordinary negligence rules, as incorporated and modified by the NC products liability statute, generally apply to products liability claims in NC.
NC Defenses to Products Liability Claims
Requirements:
- Use of the product contrary to its instructions, when the plaintiff knew or should have known of the instructions;
- Use of the product knowing of its defect or dangerous condition; or
- The plaintiff’s failure to exercise reasonable care
Sealed Container Rule in NC
A seller is not held liable for a manufacturing defect when the seller had no opportunity to inspect the product for defects.
Strict Liability: Products and Modification by the Plaintiff Defense
The definition of “modification” under the statute is broad and includes failure to observe routine care and maintainance. If a proximate cause of the plaintiff’s harm is the modification, then the manufacturer of the product will have a defense to the plaintiff’s product liability claim.
Strict Liability: Abnormally Dangerous Activities
In NC the only abnormally dangerous activity subject to strict liability is blasting.
Note - If you see any other activity on the exam, discuss it as an abnormally dangerous activity but note that NC only recognizes blasting.
Dog-bite Statute in NC
In NC the dog-bite statute imposes strict liability only for “dangerous dogs” that:
- have killed or severely injured without provocation;
- are designated by the local government to be potentially dangerous; or
- are owned or trained for the purpose of fighting
