Defenses Against Negligence Actions in North Carolina

This assignment is based on a case study of Proffitt v. Gosnell and involves analyzing defenses against negligence actions in North Carolina. The student must identify specific jury instructions, determine whether a violation of N.C. Gen. Stat. § 20-174(a) is negligence per se, and explore the last clear chance issue. The assignment also requires an affirmative defense from the defendant's perspective, including contributory negligence and assumption of risk.

Running head: TORT LAW
Law
Name of the Student
Name of the University
Author Note

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1. Give examples of common law and statutory (cite specifically to the statute) torts in
North Carolina.
 Common law tort in North Carolina is the tort of negligence
 Statutory tort in North Carolina is the landowner liability provided through N.C G.S. §
38A-11
2. What are the elements of negligence, and how do these elements compare with the elements
of contributory negligence? Cite to authority
The elements of negligence are a duty of care, a breach in the duty of care and causation and
actual damages caused to the party. In terms of contributory negligence whether a person has
made contribution towards his own negligence or not is determined by the application of same
elements in that of negligence. The person himself had a duty off care which he breached and
because of it harm was caused to him and actual damages were suffered2.
3. Plaintiff’s Complaint alleges that: “Plaintiff is entitled to recover damages in excess of
$25,000.00 on account Plaintiff’s pain and suffering; and “Plaintiff is entitled to recover
damages in excess of $25,000.00 on account Defendant’s willful and wanton conduct,” are
examples of what kinds of damages?
The damages are called punitive damages which are provided to punish the wrongdoer for gross
and willful negligence3.
1 N.C G.S. § 38A-1
2 North Carolina Code - General Statutes § 1-139
3 N.C G.S. § 1D

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4. Assume that I recover punitive damages, may I use that recovery to support an award of
attorney fees? Why?
No, an award of attorney fees is to be covered under general harm which has been incurred by
the party and thus are covered under general damages as per N.C. Gen. Stat. §§ 6-20, 6-21 and 6-
21.14.
5. In a negligence action, assume I received a favorable verdict awarding me damages.
Assume further that my attorney spent $100.00 to obtain my medical records. In terms of civil
remedies, how is this amount classified and may I recover it as part of the verdict? Why?
Yes, the damages can be claim as the amount in terms of civil remedy is classified under the
terms of economic damages. These damages include the cost which has been incurred by the
plaintiff due to the negligent actions which have been done by the defendant. The medical
records would not have been required where there was no negligence and thus the cost of it
would be covered under economic damages.
6. Compare the burden of proof in an ordinary negligence case and in a claim for punitive
damages. Cite to authority.
4 N.C. Gen. Stat. §§ 6-20, 6-21 and 6-21.1.

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The burden of proof in relation to a ordinary negligence is lower than that required in a claim for
punitive damages. The punitive damages burden of proof is on the plaintiff and has to be proved
with “clear and convincing evidence” rather than “preponderance of the evidence” which is
required for standard negligence. The provisions have been provided in N.C.G.S. §1D-15(b)5
7. Assume the Plaintiff alleges gross negligence on the part of the Defendant. May the
Plaintiff sustain punitive damages based upon this allegation? Cite to authority. If Plaintiff
proves gross negligence, what effect does this have on any affirmative defense that Defendant
may raise?
No, punitive damages cannot be attained by the plaintiff where gross negligence has been
identified by the court as gross negligence is not enough to establish punitive damages and there
must be a willful conduct as per N.C.G.S. § 1D-5(7)6. Where gross negligence has been
identified the defendant does not have the right to claim any affirmative defense.
8. Plaintiff’s Complaint alleges that: “Defendant knew that Plaintiff was elderly and that it was
reasonably foreseeable that Plaintiff had a peculiar susceptibility to injury as a result of
Defendant’s negligence.” What specific jury instruction will you ask the court to give in
support of this allegation?
In the given situation the court would be requested to provide the jury with specific jury
instruction contained in chapter 2 of the North Carolina Pattern Jury Instructions for civil cases
5 N.C.G.S. §1D-15(b)
6 N.C.G.S. § 1D-5(7).

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in relation to negligence and specifically in relation to “Proximate Cause—Peculiar
Susceptibility” provided in 102.20.
9. With respect to the Sample Complaint in Moodle Block 2, what Claims for Relief are
examples of N.C. Pattern Jury Instruction Proximate Cause; Definition – Multiple Causes?
All five claim for reliefs in the complaint are an example of Proximate Cause—Definition;
Multiple Causes. (5/2009). This is because proximate cause is a reason which is continuous and
natural and results in a injury and a reasonable person can foresee that similar injury can be
caused by such cause. A plaintiff does not have to prove that the negligence of the defendant was
the only proximate cause of the injury as more than one proximate cause may exists. Thus by
greater weight of evidence the plaintiff has to prove that the negligence of the defendant was a
proximate cause7.
10. In an automobile negligence case, give specific examples of general and special damages,
and state the specific paragraph(s) where these damages are alleged in the Sample Complaint in
Moodle Block 3.
 Example of general damages in Motor accidents are- Pain and suffering due to the
accident
7 Stanley Edwards & Patricia Wells, Tort Law (6 ed. 2018).

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 Examples of special damages in Motor accidents are past and future lost of wages
 General damages in the complaint are in paragraph- 11
 Special damages in the complaint are in paragraph- 12
11. You buy a ticket to Monster Jam (Google it if you don’t know what it is) in the
Greensboro Coliseum. Those trucks have been known to have parts fly off, injuring or killing
spectators. What is the legal term for the language printed on the back of the ticket purporting to
shield Monster Jam from tort liability?
The legal term is known as an exclusion clause or a limitation of liability clause which is
incorporated to exclude or limit the liability of a person for negligence.
12. Assume I rear-ended Ms. Hollern’s car while we were leaving GTCC. Assume that the
jury awarded her $500,000.00 in compensatory damages, and $1,000,000.00 in punitive
damages. What actions, if any, does the judge take with respect to the punitive damages award?
Cite to authority.
In the given situation the court would calculate the punitive damages based on the financial
condition of the other party however the damages would not be in excess of three times the value
of the general damages as per N.C.G.S. § 1D-25(b)8
13. Assuming the same facts as in Question 12, in response to a defense of contributory
negligence, I attempt to introduce evidence that tends to show that my negligence contributed
only 15% to the proximate cause of the accident. What is the result, and why?
8 N.C.G.S. § 1D-25(b)

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The evidence which is attempted to be introduced by me would not be accepted. This is because
contributory negligence cannot be claimed against gross negligence. Thus as the contributory
negligence on my part is 15% it would not be accepted as evidence. The claim would be
defeated.
14. What are two ways to defend against a negligence action in North Carolina (be more
specific than just saying that defendant may allege an affirmative defense, and exclude
procedural defenses and sovereign immunity)?
A negligence action in North Carolina can be defended in two ways by providing the defense of
contributory negligence and assumption of risks which are included in affirmative defense where
elements of the prima faice case is contrasted. Contributory negligence can be claimed where the
plaintiff was himself or herself at fault. Assumption of risk take place when the plaintiff is
deemed to know that the activity involved in is dangerous.
15. Assume I was involved in a motor vehicle accident which I believe was caused by the
other driver’s negligence. I bring the action four years after the accident because I have just
notice the increasing pain from a fractured vertebra that my medical records show could have
been discovered if I had sought medical attention within one year of the accident. What defense
should I expect if I now bring the action? Cite to authority.

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Under N.C.G.S. §1-52(16) a claim for injury can be brought till 10 years of final injury.
However in this case there has been contribution from myself for not being reasonable and I had
the last chance to avoid the injury if I would have showed it to the doctor a year ago. Under the
last chance doctrine a defense can be claimed by the defendant as per North Carolina Code -
General Statutes § 1-1399
16. Your law firm represents the Plaintiff in the case of Proffitt v. Gosnell. What specific jury
instruction will you request in response to Defendant’s request for a contributory negligence
instruction?
The specific jury instruction which is to be provided to the court in response of contributory
negligence is 102.86 Willful or Wanton Conduct Issue (“Gross Negligence”)— Used to Defeat
Contributory Negligence. (12/2003)
17. Is a violation of N.C. Gen. Stat. § 20-174(a) negligence per se? If it is not what may it
prove? How do you know?
No, it is not Negligence per se as it only takes place where there is a violation of a statue causing
harm. It proves that N.C. Gen. Stat. § 20-174(a) is not a statue. I know this because N.C. Gen.
Stat. § 20-174(a) deals with negligence10.
18. Change one fact in Proffitt v. Gosnellthat would alter the outcome.
The outcome of the case would have been changed of the defendant had a last chance to avoid
the injury.
9 North Carolina Code - General Statutes § 1-139
10 N.C. Gen. Stat. § 20-174(a)

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19. Before the jury may consider the last clear chance issue, what two issues must the jury
answer “Yes?” In which specific N.C. Jury Instruction does this requirement appear?
The jury must consider that whether the defendant could have discovered the perilous position
of the plaintiff by reasonable care and whether he could have avoided the injury through
reasonable care. These factors are present in 102.30 Proximate Cause—Defense of Sudden
Incapacitation. (2/2000)
20. Go to the following link: https://www.ncappellatecourts.org/search.php
Enter the case number (COA17-233),click on the Record Vol.1, and scroll down to Gosnell’s
Answer.State an affirmative defense, and the paragraph number thereof, of a defense that we
have studied in this course. [Note that this is the N.C. Appellate Courts e-filing site and is an
excellent source for pleadings, motions and appellate briefs from cases that have been appealed.]
In this case the affirmative defense was of contributory negligence. It has been provided in
paragraph 2

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References
N.C. Gen. Stat. § 20-174(a)
N.C. Gen. Stat. §§ 6-20, 6-21 and 6-21.1.
N.C.G.S. § 1D-5(7).
N.C.G.S. §1D-15(b)
Stanley Edwards & Patricia Wells, Tort Law (6 ed. 2018).