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Shapiro & Appleton

Summary and Guide to North Carolina Personal Injury/Tort Law

If you or a loved one suffered a personal injury in any city in North Carolina such as Elizabeth City, Raleigh, Charlotte, Nags Head, Kitty Hawk, etc., this guide provides a summary of important North Carolina personal injury / tort laws (note that this is a guide, and is not specifically legal advice for any particular North Carolina personal injury case or wrongful death claim).

During 2016, the outgoing president of the Virginia State Bar invited the author of this guide (Richard N. Shapiro) to participate in a lecture discussing the interplay between Virginia and North Carolina law. Shapiro was the only member of the panel involved in the continuing legal education seminar for Virginia lawyers who held both a Virginia and a North Carolina law license and since the author exclusively practices personal injury law for plaintiffs, it seemed natural for to focus on the personal injury law interplay of personal injury/tort law between these two states. And of course Virginia Beach, the city of our home office, is a large geographical city that borders the northeast corner of North Carolina and more and more people commute between the two states, creating the need for our North Carolina office on the Outer Banks of North Carolina in Kitty Hawk.

Also I did some internet research on Virginia personal injury law as well as on North Carolina personal injury law, and I didn't find any short, handy summary of personal injury law in either Virginia or North Carolina. Frankly, that's what motivated me to create the summary of personal injury law in Virginia (and NC), because I also field many phone calls from out-of-state lawyers who have a basic question about a VA or NC case that they need answered whether to be filed in Virginia for personal injury or wrongful death, or some aspect of personal injury law that they needed an answer for their case outside Virginia.

The other interesting part about being licensed in the bordering states of Virginia and North Carolina, is that in a small number of cases there is a choice whether to file a case in Virginia versus North Carolina or vice versa. There are some definite reasons to pick one state over the other but it varies by type of personal injury case. For example the typical personal injury statute of limitations for personal injury is three years in North Carolina, whereas Virginia's is two years.

In any case, we hope you find the summary of either Virginia or North Carolina personal injury law handy and of some value to you whether you are an out-of-state attorney looking for information, or just an attorney that doesn't handle personal injury law in one VA or NC.

Some of our personal injury law firm's biggest successes have been teaming with co-counsel-either out-of-state attorneys or other Virginia or Carolina attorneys that might not feel they have the specialization in an area personal injury law.

This summary of North Carolina tort laws can assist persons with potential North Carolina personal injury or wrongful death cases, as well in-state or out-of-state attorneys who may require answers with regard to North Carolina personal injury law. Firm attorney Rick Shapiro created this personal injury law comparison summary because many clients, and fellow attorneys, often ask:

 
This North Carolina tort law comparison summary is an informational resource. If you have questions about how Virginia and/or North Carolina personal injury laws impact your particular case, contact our firm by filling out a quick contact form on this page or by calling 1-800-752-0042.

Statute of Limitations in North Carolina Personal Injury Claims

Causes of action for personal injury whether brought under negligence or contract (breach of warranty) must be commenced within 3 years.  N.C. Gen. Stat. § 1-52(1)-(5).  (Does not apply to wrongful death claims, only personal injury claims, see below.)

Statute of Limitations in North Carolina Wrongful Death Claims

All wrongful death actions are subject to a 2-year statute of limitations and accrue at the date of death (shorter limitation period than for personal injuries).  N.C. Gen. Stat. § 1-53(4); N.C. Gen. Stat. § 1-53(1), (4). Can be extended by fraudulent concealment; Friedland v. Gales, 131 N.C. App. 802 (1998). Not more than 10 years from defendant's last act giving rise to the cause of action; N.C. Gen. Stat. § 1-52(16), also note statute of repose as to products (see below).

Damages Caps in North Carolina Personal Injury and Wrongful Death Suits

Generally, no caps apply to personal injury or wrongful death claims for compensatory damages purposes (excluding medical malpractice claims).

Recoverable Damages in a North Carolina Wrongful Death Case

To be distributed under the North Carolina Intestate Succession Act (N.C. Gen. Stat. § 28A-18-2(a) including the following recoverable damages:  (1) expenses for care incident to the injury causing death; (2) compensation for pain and suffering of decedent; (3) reasonable funeral expenses; (4) present monetary value to statutory beneficiaries of reasonably expected – net income of decedent; services, protection and care from decedent and society and companionship from decedent, punitive damages meeting other necessary requisites and nominal damages.
 
North Carolina provides that the surviving spouse receives the first $60,000 of (personal property) proceeds and the remaining statutory beneficiaries share under a mathematical formula set forth by statute. (N.C. G.S. 29-14-16).  Notably, a 2016 North Carolina Court of Appeals case held that an illegitimate child not legitimized within one year of birth does not qualify as beneficiary.  In re Estate of Williams (N.C. App. 2016) (N.C. G.S. 29-19).
 

Medical Malpractice Claims in North Carolina

A. The three year personal injury statute of limitations applies with special modifications – 3 years accrues from the last act of the defendant giving rise to the cause of action.  N.C. Gen. Stat. sec. 1-15(c) and 1-52(16).  1-year extension from date of discovery if loss not readily apparent to the claimant but a statute of repose prevents commencement of any suit more than 4 years from the last act of the defendant giving rise to the cause of action (as to minors different rules apply).  N.C. Gen. Stat. sec. 1-15(C).

B. Foreign Object Left in Body – Within 1 year of discovery but in no event more than 10 years from the last act of defendant giving rise to the cause of action. N.C. Gen. Stat. sec. 1-15(C).

C. Damages Cap – North Carolina limits all pain and suffering damages, as to all defendants responsible for the cause of action, to a maximum of $500,000.00 N.C. Gen. Stat. Ann. Sec 90-21.19.  There is an exception only if the jury specifically determines that both defendant's malpractice was egregious combined with that the plaintiff suffered disfigurement, loss of use of a body part, permanent injury or death.  N.C. Gen. Stat. sec 90-21.19 (provides for period Consumer Price Index adjustments every three years following 2014, in January of the calendar year).

D. Emergency Medical Treatment Medical Malpractice – Plaintiff must prove evidence by clear and convincing standard.  N.C. Gen. Stat. sec 90-21.12.

E. Liability and Damages Tried Separately –In tort actions seeking $150,000 or more, the court must order separate trials on liability and damages unless it finds good cause for a single trial. N.C. Gen. Stat. § 1A-1, Rules of Civ. Pro., Rule 42(b)(3) (defendants in medical malpractice actions generally will not waive the mandate).

F. “Magic Words” Pleading Specificity– The Complaint shall be dismissed unless it asserts "that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care; or a variant that the plaintiff is seeking to have the expert qualified under Rule 702(e) and that that motion is filed along with the Complaint, or that the Complaint alternatively must allege the case falls under res ipsa loquitur.  NC Gen. Stat. Ann. § 1A-1, Rule 9 (best practice is to have an affidavit signed by a standard of care expert witness prior to the filing of the Complaint meeting the other requirements set forth above).

Product Liability Claims in North Carolina

North Carolina enacted substantial product liability tort reform located under General Statutes Ann.  99B-1.1, et seq.  North Carolina does not permit product liability strict liability claims.  G.S. 99B-1.1.  Numerous limitations are found in the referenced statutory scheme.
 
Statute of Repose – For actions accruing after August 5, 2009, the repose period is "more than 12 years after the date of initial purchase for use or consumption."  N.C. Gen. Stat. § 1-46.1 (this is not intended to change existing law with regard to product liability actions based on disease, which actions accrue on date of diagnosis.  Dunn v. Pac. Employers Ins. Co., 332 N.C. 129, 132, 418 S.E. 2d 645, 647(1992)).
 

North Carolina is a Contributory Negligence State

North Carolina, along with Virginia, is one of four remaining states or jurisdictions that follow the rule that contributory negligence is a complete bar to recovery by the plaintiff, burden of proof on defendant to prove by the greater weight of the evidence.  The doctrine was judicially established in North Carolina.  

Joint and Several Liability in North Carolina

North Carolina imposes joint and several liability on joint tortfeasors. Young v. Baltimore & Ohio Railroad, 266 N.C. 458, 465, 146 S.E.2d 441, 446 (1966); N.C. Gen. Stat. § 1B-1. Thus, any joint tortfeasor against whom judgment is entered is liable to the claimant for the entire amount of the judgment, regardless of the tortfeasor’s share of fault.
 

Delayed Service of Process in North Carolina

In North Carolina, a summons issued with a complaint has a termination date within 30 days.  A new summons must be issued (renewed) to avoid the possibility of dismissal.  The process of “renewing” a summons (alias and pluries summons) in NC involves many nuances beyond this summary, but the paramount point is that the tolling of the statute of limitations in N.C. is jeopardized if a valid summons is not served on at least one defendant, despite the prior filing of the Complaint.

Dismissal of a Civil Suit in North Carolina

Dismissal – The rules of civil procedure in North Carolina allow for the extension of any state statute of limitations for 1 year from the date of a dismissal without prejudice, so long as the initial action was not already barred by the same or a separate statute of limitations.  N.C. Gen. Stat. § 1A-1, Rule 41(a)(1).  There is no requirement that a defendant consent to the dismissal prior to filing, however case expenses allowable under N.C. law may be obtained by a defendant after dismissal if the same cause of action is re-filed.  Id.

North Carolina Discovery Rule

A. In wrongful death actions, the action normally accrues at date of death.  N.C. Gen. Stat. § 1-53(4).
 
B. In personal injury cases, the cause of action accrues on the date the damage or injury becomes apparent, or ought reasonably to have become apparent to the claimant.  N.C. Gen. Stat. § 1-52(16).  
 
C. In medical malpractice actions--see the separate medical malpractice special rule discussions.  

Uninsured/Underinsured Motorist Claims in North Carolina

North Carolina is an "offset" state with regard to how it computes undersinsured motorist coverage that may apply in excess of liability coverage or coverages.  As of 2016, the minimum bodily injury and UM limits are $30,000.00.
 
UM/UIM arbitration – North Carolina has a unique scheme that sets forth a statutory basis available to (only) the plaintiff to pursue normal injury litigation involving underinsured motorist coverage, or by statute, a plaintiff may instead invoke arbitration, involving a three-judge panel of arbitrators to decide any underinsured motorist claim.  N.C.G.S. sec 20-279.21.  Each side selects one arbitrator, and the two arbitrators select the third if there is not an agreement to the third arbitrator. A UM/UIM carrier, to retain subrogation rights, must tender the policy limit of the underlying liability carrier upon written notice from Plaintiff, or the carrier risks waiver of subrogation. 
 
North Carolina is a “contact” UM state for hit and run claims, meaning there must be a collision between vehicles, and the claim must be corroborated.  
 
Inter-policy stacking of UM/UIM generally applies to nonfleet private passenger motor vehicles. N.C.G.S. sec 20-279.21 (b)(3) and (4).
 

Workers Compensation in North Carolina

Like most states, NC has a workers' compensation comprehensive statute barring or making it the exclusive remedy for on-the-job injuries.  N.C. Gen. Stat. §§ 97-1—97-200.  Primary jurisdiction is with the North Carolina Industrial Commission.  N.C. Gen Stat. § 97-91.
 
Exceptions to exclusive remedy – A narrow exception to the exclusive remedy is when the employer's conduct is intentional and substantially certain to the cause the injury or death (called a "Woodson" claim).  Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (N.C., 1991.
 
N.C.G.S. 97-10.2 sets forth a statutory scheme for having a judge determine the amount of  the workers compensation lien, including various reductions.  The lien may be eliminated or reduced on various grounds, for example, if the employer’s own negligence was a contributing factor in the accidental injury.
 

Can You Recover Punitive Damages in North Carolina?

Punitive damages have been a subject of limitations since 1996.  N.C. Gen. Stat. Chapter 1D.  In personal injury actions they must be proved by clear and convincing evidence of actual fraud, malice or willful or wanton conduct related to the injury upon a showing first of compensatory damages.  N.C. Gen. Stat. § 1D-15(a)-(b) & 1D-5(4).  The conduct must be more than gross negligence.  N.C. Gen. Stat. § 1D-5(7).  The punitive damages claim must be specifically pled in detail in the complaint or in a supplemental pleading.  
 
Award limited to three times compensatory damages or $250,000.00.  N.C. Gen. Stat. § 1D-25(b)-(c).  Note: an exception for driving-while-impaired cases exists.  
 
A separate trial on punitive damages can be required on defendant's motion.  N.C. Gen. Stat. § 1D-30.  

Which Rules of Evidence Apply in North Carolina?

North Carolina has adopted the federal rules of evidence with specific North Carolina modifications. N.C.G.S. sec § 8C-1 et seq. The primary exceptions are stated at Rule 1101.

Which Rules of Civil Procedure Apply in North Carolina?

 
North Carolina has adopted the federal rules of civil procedure with modifications.  N.C.G.S. § 1A-1 et seq.
 
Summary judgment motions may be supported by depositions under the N.C. Rules of Civil Procedure.
 

Uniform Foreign Deposition Act Adoption in North Carolina

Adopted:  N.C. General Statutes 1-F1 et seq.
 

Pre-Judgment Interest for North Carolina Civil Lawsuits

In tort actions compensatory damages bear interest at the legal rate of interest from the date the action was commenced until the date the judgment is satisfied. N.C. Gen. Stat. §§ 24-1 and 24-5.
 

Jury Trials and Jurisdictions of North Carolina Courts

The Superior Court is the state trial court of general jurisdiction; civil cases involving an amount in controversy in excess of $25,000, and appeals from the District Court are tried (de novo review) in Superior Court. The District Court is a court of limited jurisdiction. It has original jurisdiction over civil claims involving less than $25,000.
 
Plaintiffs must state that over $25,000 is in controversy and do not state an amount sued for, however, defendants file a pleading requesting a statement of monetary relief which the Plaintiff must respond to within 30 days stating the ad damnum.
 
Superior court civil trials have 12 person juries (unless parties agree to lesser number), unanimous verdict required.  
 
North Carolina permits wide ranging voir dire during jury selection, jury voir dire is first conducted by Plaintiff, and then the jurors are “passed” to the defendant for its voir dire.  Strikes are declared in open court.
 
The N.C. Trial Court Administrators (TCA’s) are in charge of the Superior Court trial calendars and coordinate details of scheduling and trial matters.
 
In N.E. North Carolina superior courts the trial dates are not provided in Superior Court until the case matures to a final pretrial conference   In the remaining parts of North Carolina cases ripen by date and are placed on a court’s administrative calendar for “term dates” meaning a number of cases are set for trial on “term dates.”  Counsel must assure that they are on that court’s email distribution list or that court’s mailing list in order to receive the administrative calendars.  Cases that have matured may be set by agreement in coordination with the TCA in some jurisdictions.  Also, various courts permit a “preemptory setting” which is essentially a firm trial date accorded cases with out of state experts or other criteria set by that court’s TCA.
 

Recovery of Case Expenses for North Carolina Personal Injury Lawyers

Set by N.C. Gen. Stat. Ann. Sec 6-20, and G.S. 7A-305(d): including:
 
(d)       The expenses set forth in this subsection are complete and exclusive and constitute a limit on the trial court's discretion to tax costs pursuant to G.S. 6-20:
(1)        Witness fees, as provided by law.
(2)        Jail fees, as provided by law.
(3)        Counsel fees, as provided by law.
(4)        Expense of service of process by certified mail and by publication.
(5)        Costs on appeal to the superior court, or to the appellate division, as the case may be, of the original transcript of testimony, if any, insofar as essential to the appeal.
(6)        Fees for personal service and civil process and other sheriff's fees, as provided by law. Fees for personal service by a private process server may be recoverable in an amount equal to the actual cost of such service or fifty dollars ($50.00), whichever is less, unless the court finds that due to difficulty of service a greater amount is appropriate.
(7)        Fees of mediators appointed by the court, mediators agreed upon by the parties, guardians ad litem, referees, receivers, commissioners, surveyors, arbitrators, appraisers, and other similar court appointees, as provided by law. The fee of such appointees shall include reasonable reimbursement for stenographic assistance, when necessary.
(8)        Fees of interpreters, when authorized and approved by the court.
(9)        Premiums for surety bonds for prosecution, as authorized by G.S. 1-109.
(10)      Reasonable and necessary expenses for stenographic and videographic assistance directly related to the taking of depositions and for the cost of deposition transcripts.
(11)      Reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.
(12)      The fee assessed pursuant to subdivision (2) of subsection (a) of this section upon assignment of a case to a special superior court judge as a complex business case.
 
 

Collateral Source Rule in North Carolina

North Carolina law prohibits the reduction of a claimant’s recovery by amounts received from a collateral source, such as insurance or government benefits. Cates v. Wilson, 321 N.C. 1, 5-6, 361 S.E.2d 734, 737 (1987). However, in actions commenced on or after October 1, 2011, evidence of past medical expenses is limited to the total amount actually paid to satisfy medical bills rather than the face amount of the bills. N.C.G.S. sec § 8C-1 , Rule 414; see also N.C. Gen. Stat. § 8-58.1.
 

Mediation in North Carolina

North Carolina requires mandatory mediation in superior court civil cases.  Within 160 days from the appearance by a defendant, and order of referral to mediation occurs.  If the parties  do not agree to a particular certified mediator and notify the trial court administrator, the TCA will assign a certified mediator.
 

North Carolina Personal Injury/Tort Laws

These laws described in this personal injury summary apply throughout North Carolina including Ahoskie, Camden, Charlotte, Corolla, Currituck, Dare, Durham,  Elizabeth City, Edenton, Greensboro, Greenville, Goldsboro, Halifax, Havelock, Kinston, Kitty Hawk, New Bern, Northampton, Pasquotank, Perquimans, Raleigh, Roanoke Rapids, Rocky Mount, Tarboro, Wilson, and Winston-Salem. We also serve the the Outer Banks towns of Kill Devil Hills, Manteo, Nags Head, Corolla and so on.
Richard N. Shapiro
North Carolina Personal Injury & Wrongful Death Lawyer Rated as a Best Lawyer for Injury Law
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