North Carolina Law of Torts

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North Carolina Torts

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North Carolina Torts
second edition

David A. Logan
Roger Williams University Ralph R. Papitto School of Law

Wayne A. Logan
William Mitchell College of Law

Carolina Academic Press
Durham, North Carolina

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Copyright © 2004 David A. Logan Wayne A. Logan All Rights Reserved

ISBN 0-89089-847-2 LCCN 2003115021

Carolina Academic Press
700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com

Printed in the United States of America

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To our students, who keep us learning.

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Contents
Preface Acknowledgments Part I The Basic Negligence Cause of Action xix xxi 1 3 5 8 15 15 19 22 25 27 27 33

Chapter 1 Duty 1.10 Duty 1.20 Misfeasance and Nonfeasance [1] Special Applications of the Misfeasance Rule [a] Negligent Entrustment of Chattel [b] “Negligent Entrustment” and Alcohol [c] Spoliation of Evidence Chapter 2 Duty Despite Nonfeasance: The Special Relationship Exceptions 2.10 Duty Despite Nonfeasance 2.20 Duty Because of a Special Relationship between the Plaintiff and the Defendant 2.30 Duty to Control Another for the Benefit of the Plaintiff Chapter 3 No Duty Despite Misfeasance: Negligent Infliction of Emotional Distress and Negligent Infliction of Pure Economic Harm 3.10 No Duty Despite Misfeasance 3.20 Negligent Infliction of Emotional Distress [1] The Early Cases [2] Johnson v. Ruark Obstetrics and Its Progeny [3] Pre-Impact Fear of Dying [4] Fear of Contracting Medical Condition 3.30 Negligent Infliction of Pure Economic Harm Chapter 4 No Duty Because of the Defendant’s Status: Immunities 4.10 Recovery for Torts Committed by the Government [1] The Federal Tort Claims Act: Suing the Federal Government and Its Agents [a] The Discretionary Function Exception [b] Intentional Tort Exception [c] The Feres Doctrine

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CONTENTS

[2] 42 U.S.C. § 1983: Suing State and Local Governments and Their Agents for Civil Rights Violations [a] The §1983 Action in General [b] Suing Local Governments under §1983 [c] Qualified Immunity for State Actors [d] Particular Subject Areas of § 1983 Litigation [i] Free Speech Rights [ii] Violations by Law Enforcement [iii] Prisoner Cases [iv] Failure to Protect [v] Failure to Train [vi] Other Constitutional Tort Claims [e] Absolute Immunity [3] The North Carolina Tort Claims Act: Suing the State Government and Its Agents [a] Suits against Government Officials and Employees [i] Officials [ii] Employees [b] Special Protections Afforded State Actors [i] State Provision of Defense to Employees [ii] State Provision of Insurance [4] Suing City and County Governments [a] Waiver of Immunity Because of Insurance or Participation in a “Risk Pool” [b] Punitive Damages [5] Persons Liable on Their Bond [6] Suing Local Boards of Education [7] Particular Immunities in North Carolina [a] Statutory Immunities [b] Common Law Absolute Immunity 4.20 Family Relationships [1] Children and Parents [2] Spouses 4.30 Charitable Institutions Chapter 5 Limited Duty Because of the Defendant’s Status: The Liability of Landowners and Occupiers for Injuries on the Premises 5.10 Premises Liability 5.20 Persons on Land with Permission 5.30 Trespassers Chapter 6 Breach of the Duty Owed 6.10 The Standard of Care [1] Lowering the Standard of Care [2] Raising the Standard of Care 6.20 Higher Levels of Culpability 6.30 Proof of Breach [1] The Judge/Jury Relationship [2] Evidence of Custom

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