Premises liability in Charlotte, North Carolina
Premises liability is the theory that an individual or entity is responsible for the safety of its guests. If you are shopping, visiting, or even passing through a retail establishment or private property of another, you are owed a duty to be safeguarded from injury.
Every day throughout America, thousands of people are injured due to the negligent acts or omissions of others. These injuries can range from a slip and fall in grocery store, to an impact injury from an item falling on a store patron, to even an injury at a private residence.
We have successfully represented numerous clients in premises liability and slip and fall injuries in North Carolina. Sheehan at (704) 222-4752 to set up a free consultation today.
North Carolina landowners owe one duty to lawful visitors and almost none to trespassers
In North Carolina the duty in a premises case is owed by the landowner or occupier of the property, and to every lawful visitor it is the same duty: reasonable care under the circumstances. Nelson v. Freeland, 349 N.C. 615 (1998), abolished the old invitee–licensee split, so a dinner guest, a delivery driver and a paying customer are owed the same standard. Owners and occupiers are not insurers of their premises. What differs between one visitor and another is the factual context, not the legal test.
Trespassers sit outside that rule. Under G.S. 38B-2 a possessor of land, including an owner, lessee or other occupant, owes a trespasser no duty of care and is not subject to liability for any injury to a trespasser. G.S. 38B-3 then sets out three narrow situations in which a possessor may be subject to liability. Each carries its own conditions, and none of them follows automatically from the fact that a trespasser was hurt.
The first is bodily injury or death resulting from the possessor's "willful or wanton conduct" or intentionally caused by the possessor — and even there the statute preserves the use of reasonable force to repel a trespasser who has entered the land or a building with the intent to commit a crime. The third, in G.S. 38B-3(3), applies where the possessor discovered the trespasser in a position of peril or helplessness on the property and then failed to exercise ordinary care not to injure the trespasser; discovery on its own does not create liability. The second, in G.S. 38B-3(2), concerns a child trespasser injured by an artificial condition, and it applies only where all five of its elements are satisfied: that the possessor knew or had reason to know that children were likely to trespass at the location of the condition; that the possessor knew or reasonably should have known the condition involved an unreasonable risk of serious bodily injury or death to such children; that the injured child did not discover the condition or realize the risk involved in it; that the utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child; and that the possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the child.
Visitor status therefore still matters in North Carolina, but only at the line between lawful presence and trespass.
A slip and fall requires proof the occupier created the hazard or should have known of it
In North Carolina a slip, trip or fall claim fails unless the injured person proves that the landowner negligently created the condition, or negligently failed to correct it after actual or constructive notice of it. A wet floor, standing alone, proves nothing. Negligence is not presumed from the mere fact of an injury.
Constructive notice is largely a question of elapsed time. Where a spill came from another customer rather than from staff, the claim turns on how long it sat there and whether a reasonable inspection would have found it. Sweep logs, inspection schedules and the retention window on store CCTV therefore decide many cases before any argument about the injury.
An occupier also owes no duty to protect a visitor against a danger that is known, or so obvious and apparent that it may reasonably be expected to be discovered. Von Viczay v. Thoms, 140 N.C. App. 737 (2000), affirmed per curiam at 353 N.C. 445 (2001), applied that rule to a guest who walked up a path she could see was covered in snow and ice. Whether a particular hazard really was obvious is a question of fact in most files, answered by photographs, lighting, sightlines and the visitor's own account rather than by the label an adjuster puts on it.
Contributory negligence can end a North Carolina premises claim outright
North Carolina is one of a small number of jurisdictions that still applies contributory negligence. If the injured person was negligent to any degree and that negligence was a proximate cause of the fall, the claim is barred outright, with no reduction in proportion to fault.
In fall cases the defense takes familiar forms: the hazard was in plain view, the visitor was looking at a shelf, an unlit route was taken when a lit one existed, the footwear was unsuitable. An adjuster who can build any of those into a file has a reason to deny the claim rather than value it.
Two doctrines cut against it. Contributory negligence is no defense to gross negligence or to wilful or wanton conduct. Last clear chance is narrower than its name suggests: it requires that the injured person, by his own negligence, was placed in a position of peril from which he could not escape by the exercise of reasonable care; that the defendant knew, or by the exercise of reasonable care should have discovered, both that peril and the injured person's inability to escape it; that the defendant then had the time and the means to avoid the injury; and that the defendant negligently failed to use them (Exum v. Boyles, 272 N.C. 567 (1968); Outlaw v. Johnson, 190 N.C. App. 233 (2008)). A defendant who could simply have been more careful has not had a last clear chance. The facts giving rise to the doctrine must be pleaded, though Exum held it enough that they appear in the complaint rather than only in a reply.
Children are treated separately, and the burden of proof on the issue is on the defendant. A child under seven is conclusively presumed incapable of contributory negligence. Between seven and fourteen the presumption of incapacity is rebuttable: the defendant must show that a child of that age, capacity, discretion, knowledge and experience would ordinarily have had the discretion and mental capacity to discern and appreciate circumstances of danger, and even then the child is held only to the care a reasonably careful child of the same age would have exercised. From the fourteenth birthday a child is presumed to have sufficient capacity to be sensible of danger and the power to avoid it.
The deadline is three years, and separate rules can shorten or extend it
A North Carolina personal injury claim must be filed within three years under G.S. 1-52(16). The period runs from the point at which bodily harm becomes apparent or ought reasonably to have become apparent, and the statute sets an outer limit of ten years from the defendant's last act or omission.
Other periods displace it. Where a fall causes death, the action belongs to the personal representative of the estate under G.S. 28A-18-2 and must be brought within two years of the date of death under G.S. 1-53(4). Where the injured person was under a disability — minority is the usual one — when the claim accrued, G.S. 1-17(a) allows the action to be brought within the ordinary period, so three years for a personal injury claim, after the disability is removed.
A statute of repose can also end a claim before the limitation period expires. G.S. 1-50(a)(5)a bars an action arising out of the defective or unsafe condition of an improvement to real property more than six years from the later of the defendant's specific last act or omission or substantial completion of the improvement. That matters where the complaint is about how a stair, ramp or railing was designed or built rather than how it was maintained. The repose is not available to everyone, though: under G.S. 1-50(a)(5)d it may not be asserted as a defense by a person in actual possession or control, as owner, tenant or otherwise, of the improvement at the time the defective or unsafe condition proximately caused the injury, where that person knew or ought reasonably to have known of the condition. The designer and the builder may have the benefit of the six-year period; the business or landlord in possession generally does not.
Where the fall happened determines who can be sued
In North Carolina the defendant in a premises case is the party that possessed or controlled the area, which is not always the owner. In a leased retail unit that is usually the tenant. In the parking lot or stairwell of an apartment complex it is usually the landlord. Cleaning contractors, snow-clearing contractors and managing agents can be defendants in their own right where the work they took on created the hazard or failed to correct it.
The Residential Rental Agreements Act is often quoted in that setting and needs to be read carefully. G.S. 42-42(a)(3) requires the landlord to keep all common areas of the premises in safe condition, and G.S. 42-42(a)(2) requires the landlord to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. Those statutory duties run to the tenant under the rental agreement rather than to every visitor or passer-by, and G.S. 42-44(d) provides that a violation of the Article does not constitute negligence per se. A person who falls in a common area therefore sues on the landlord's common-law duty of reasonable care under Nelson v. Freeland; the statute is evidence of what reasonable care called for, not a shortcut to liability.
A fall at work runs on a separate track. Under G.S. 97-10.1, where the employee and the employer are subject to and have complied with the Workers' Compensation Act, the rights and remedies the Act gives exclude all other remedies against the employer. That exclusivity is close to absolute but not quite: Woodson v. Rowland, 329 N.C. 330 (1991), permits a civil action where the employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death — a standard the appellate courts have applied strictly — and Pleasant v. Johnson, 312 N.C. 710 (1985), permits a claim against a co-employee for wilful, wanton and reckless negligence.
G.S. 97-10.2 preserves a claim against a negligent third party, such as the building owner or another contractor on the site, while giving the employer or its carrier a lien on what is recovered. The employee, or the personal representative if the employee has died, has the exclusive right to enforce the third party's liability where proceedings are instituted not later than twelve months after the date of injury or death. Under G.S. 97-10.2(j), once a judgment has been obtained or a settlement agreed, either party may apply to a superior court judge; after notice to the employer and carrier and an opportunity to be heard, the judge then determines, in his discretion, the amount, if any, of the employer's lien. A reduction is neither automatic nor assured — it has to be applied for and argued.
Claims against a public body follow different rules again. A tort claim against a State department, institution or agency is heard by the North Carolina Industrial Commission under the Tort Claims Act, G.S. 143-291, and G.S. 143-299 bars it unless it is filed with the Commission within three years of accrual, or within two years of the death in a wrongful death claim. A city or a county is protected by governmental immunity in the exercise of a governmental function unless it has waived that immunity by purchasing liability insurance, and the waiver reaches only as far as the coverage does — G.S. 160A-485 for cities, G.S. 153A-435 for counties.
What the claim can cover, and how insurers price it
A North Carolina premises claim can cover medical expenses, lost earnings, diminished earning capacity, pain and suffering, permanent injury, scarring and out-of-pocket losses. Rule 414 of the North Carolina Rules of Evidence (G.S. 8C-1) limits evidence offered to prove past medical expenses to the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. A billed charge is not by itself the recoverable figure, although the rule imposes no duty on a party to seek a reduction in billed charges to which it is not contractually entitled.
Punitive damages are separate and rarely available. G.S. 1D-15 permits them only where the claimant proves that the defendant is liable for compensatory damages and that fraud, malice or wilful or wanton conduct was present and was related to the injury for which compensatory damages were awarded, and the aggravating factor must be proved by clear and convincing evidence. They may not be awarded against a person solely on the basis of vicarious liability. Where they are awarded, G.S. 1D-25(b) provides that the award shall not exceed three times the amount of compensatory damages or $250,000, whichever is greater, and requires the trial court to reduce a larger verdict to that maximum.
Recoveries are subject to liens. G.S. 44-49 creates a lien in favor of providers of medical services on sums recovered as damages for personal injury in a civil action in this State, and G.S. 44-50 provides that the lien shall in no case, exclusive of attorney's fees, exceed fifty per cent of the amount of damages recovered. Health plans and workers' compensation carriers assert rights of their own, so the gross recovery and the figure that reaches the injured person can differ substantially.
How a premises case proceeds in Mecklenburg County
A civil action for a fall in Charlotte is normally filed in Mecklenburg County. Under G.S. 7A-243 the district court division is the proper division for trial where the amount in controversy is $25,000 or less, and the superior court division where it exceeds that. Rule 8(a)(2) of the Rules of Civil Procedure keeps a specific sum out of a negligence complaint above that threshold: the pleading shall not state the demand for monetary relief, but shall state that the relief demanded is for damages incurred or to be incurred in excess of $25,000. Any party may afterwards request a written statement of the monetary relief sought, and the claimant must provide it within thirty days.
The answer will almost always plead contributory negligence, which Rule 8(c) requires to be set out affirmatively in the responsive pleading rather than raised for the first time at trial. Written discovery and depositions follow. Mediation is usual in superior court but it is not automatic: under G.S. 7A-38.1 the senior resident superior court judge of a participating district may order a mediated settlement conference for any superior court civil action pending in the district, and once one has been ordered the parties, their attorneys and those with authority to settle the claims shall attend unless excused by rules of the Supreme Court or by order of that judge. The mediator makes no award and decides nothing.
If the case is tried, contributory negligence appears as its own issue on the verdict sheet, answered before any question of damages is reached. That is why a North Carolina defendant so often spends its effort on the conduct of the person who fell rather than on the extent of the injury.
Common questions
How long do I have to file a slip and fall claim in North Carolina?
Three years, under G.S. 1-52(16), running from when the bodily harm became apparent or ought reasonably to have become apparent, with an outer limit of ten years from the defendant's last act or omission. A claim for a death caused by a fall is two years from the date of death under G.S. 1-53(4) and belongs to the personal representative of the estate under G.S. 28A-18-2. If the injured person was under a disability such as minority when the claim accrued, G.S. 1-17(a) allows the action to be brought within the ordinary three-year period after the disability is removed. A claim about how a stair, ramp or railing was built can also be cut off earlier by the six-year statute of repose in G.S. 1-50(a)(5).
Can I recover in North Carolina if I was partly at fault for my own fall?
Usually not. North Carolina applies contributory negligence, so any negligence by the injured person that was a proximate cause of the fall bars the claim completely rather than reducing it. Two things answer that defense. Contributory negligence is no answer to gross negligence or to wilful or wanton conduct. And last clear chance can preserve a claim, but only where the injured person was in a peril he could not escape by reasonable care, the defendant knew or by reasonable care should have discovered both that peril and the inability to escape it, and the defendant then had the time and the means to avoid the harm and negligently failed to use them (Exum v. Boyles, 272 N.C. 567 (1968)). A defendant who could merely have been more careful has not had a last clear chance.
Does a store automatically owe me money if I slipped on a wet floor?
No. Negligence is not presumed from the fall itself. In North Carolina the injured person must show that the store negligently created the condition, or negligently failed to correct it after actual or constructive notice of it. Constructive notice generally depends on how long the spill was there and whether a reasonable inspection would have found it. A landowner also owes no duty to protect a visitor against a hazard that was known, or so obvious and apparent that it may reasonably be expected to be discovered.
Who is responsible if I fell in an apartment complex parking lot or stairwell?
Ordinarily the party in possession or control of that area, which for the common areas of a rented property is usually the landlord. G.S. 42-42(a)(3) requires a residential landlord to keep all common areas of the premises in safe condition and G.S. 42-42(a)(2) requires the premises to be kept fit and habitable, but those statutory duties run to the tenant under the rental agreement and G.S. 42-44(d) provides that a violation of the Article does not constitute negligence per se. A visitor's claim rests instead on the landlord's common-law duty of reasonable care under Nelson v. Freeland, 349 N.C. 615 (1998), with the statute serving as evidence of what that care required. A managing agent, a maintenance contractor or a snow-clearing contractor may also be a defendant.
I fell at work in a Charlotte warehouse. Can I bring a civil claim as well?
Under G.S. 97-10.1 the Workers' Compensation Act is ordinarily the exclusive remedy against the employer, so a tort claim against the employer is usually unavailable. The exceptions are narrow: Woodson v. Rowland, 329 N.C. 330 (1991), allows a civil action where the employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death, and Pleasant v. Johnson, 312 N.C. 710 (1985), allows a claim against a co-employee for wilful, wanton and reckless negligence. Separately, G.S. 97-10.2 preserves a claim against a negligent third party such as the building owner or another contractor on the site. The compensation carrier holds a lien on any recovery; under G.S. 97-10.2(j) either party may apply to a superior court judge after a judgment or an agreed settlement, and the judge then determines, in his discretion, the amount, if any, of that lien.
Are my medical bills recoverable at the amount the hospital charged?
Not necessarily. Rule 414 of the North Carolina Rules of Evidence (G.S. 8C-1) limits evidence offered to prove past medical expenses to the amounts actually paid to satisfy bills that have been satisfied, regardless of the source of payment, and the amounts actually necessary to satisfy bills that have been incurred but remain outstanding. A billed charge that an insurer settled at a lower contracted rate is generally not the figure put before a jury, though the rule does not require any party to go and negotiate a reduction it has no contractual right to.
What evidence tends to matter most in a North Carolina premises case?
The material that fixes the condition in time. That includes the incident report, surveillance video before it is overwritten, inspection and sweep logs, work orders, prior complaints about the same location, weather records, and photographs of the hazard and of footwear. Because constructive notice is largely a question of duration, records showing when the hazard appeared often carry more weight than testimony about it. Video retention windows in retail premises are frequently short, so a preservation letter early on can be the difference between a provable claim and an unprovable one.
How does DPS Law handle fees and case expenses in a premises liability matter?
Injury matters are handled on a contingent-fee basis, which means the fee is payable out of any recovery rather than in advance. Case expenses are a separate question from the fee. Rule 1.5(c) of the North Carolina Rules of Professional Conduct requires the contingent fee agreement to be in writing and to state whether expenses are deducted before or after the fee is calculated, and whether the client is liable for expenses regardless of the outcome. Those terms are set out in the written agreement and are gone through before any representation begins.
Ask about your own situation.
Every matter turns on its facts. Mr. Sheehan reviews each inquiry himself.