Common Law Negligence
North Carolina State Civil Tort
A tort is a civil wrong at law that gives an injured person a “cause of action” (a right to file a lawsuit in court) to seek recovery for the damages received as a result of the tort. Negligence is a type of tort that commonly occurs in North Carolina and which forms the basis for much litigation in the State.
Negligence refers to a person’s failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury or damage. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury or damage. A person’s failure to use ordinary care is negligence.
Negligence forms the basis for many other areas of law that have come to be called different things but still, at their core, are just negligence by another name. These areas include, but are not limited to, the following:
Personal Injury (automobile accidents – negligence in operating a motor vehicle).
Premises Liability (slip-and-fall cases – negligence in maintaining a safe premises).
Product Liability (negligence in the design of a defective product).
Nursing Home Liability (negligence in providing care to patients in a nursing home).
Medical Malpractice (negligence by a physician in the treatment of a patient).
Legal Malpractice (negligence by a lawyer in representing a client).
Construction Law Claims (negligence in the construction or repair of a home).
Wrongful Death (negligence which results in the death of another person).
What gives rise to a negligence claim in North Carolina is a facts and circumstances issue that has to be examined on a case-by-case basis. To someone untrained in the law, what looks like negligence might, in fact, not be, and what does not look like negligence may also, in fact, be negligence. For this reason, it is important to consult with legal counsel to see if you have a claim in your particular situation.
It is important to remember that time is always important in legal matters and that the failure to take action within the time allowed may forever bar your claim. For this reason, seek the advice of counsel right away. These time limits are called “statutes of limitation” and they function to limit the amount of time that a claim can be brought for a particular type of claim. Certain things can “toll” these statutes, meaning that they can temporarily stop the running of the statute of limitation to bar the claim, while other things can have no effect on the running of the statute.
These are very complex issues that are best determined by skilled legal counsel. What is important is that, if you have a situation that you believe may be “actionable” (may give rise to a lawsuit for negligence or any other type of civil wrong or claim), then you should seek the advice of an attorney without delay.
Call the Byers Law Office today.
Rev. 10/02/23; 10/3/23
Updated: Oct 11, 2023
Excessive Force in Making an Arrest - Common Law Claim for Battery
North Carolina State Civil Tort
A law enforcement officer may use excessive force in making an otherwise lawful arrest. When an officer does so, he or she has committed the common law offense of Battery against the person who has been arrested. The use of excessive force in making an arrest may give rise to either a North Carolina common law claim for Battery or a federal civil rights claim under Title 42, Section 1983, of the United States Code, or both.
A battery is a civil tort (“wrong”) in North Carolina which supports the filing of a lawsuit to seek recovery of damages for the civil offense committed.
The issue to be decided by the jury at trial is, “Did the defendant (officer) commit a battery upon the plaintiff during his or her arrest of the plaintiff?”
On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, two things.
(1) First, that the defendant committed a battery upon the plaintiff.
The law defines a battery as intentional bodily contact that occurs without the consent of the person being contacted and either actually offends a reasonable sense of personal dignity or causes physical pain or injury.
(2) And Second, that the battery occurred during an arrest.
An individual has been arrested when a law enforcement officer interrupts the individual’s activities and significantly restricts his freedom of action. An arrest requires either physical force or, where that is absent, submission to the assertion of authority. An arrest is a more significant restriction of an individual’s freedom than a seizure. A seizure becomes an arrest when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.
A seizure occurs when a law enforcement officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Circumstances that might indicate a seizure include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice suggesting that compliance is mandatory.
Circumstances that do not amount to a seizure include the following: an officer approaching an individual in a public place and asking questions, an officer following an individual on foot, or an officer following an individual’s vehicle.
The jury will be instructed by the presiding judge that if the jury finds, by the greater weight of the evidence, that the defendant committed a battery upon the plaintiff and that such battery occurred during the defendant’s arrest of the plaintiff, then it would be the duty of the jury to answer “Yes” in favor of the plaintiff. If, on the other hand, the jury fails to so find, then it would be the duty of the jury to answer “No” in favor of the defendant.
These are very complex issues that are best analyzed by skilled legal counsel. What is important is that, if you have a situation you believe may be “actionable” (may give rise to a lawsuit for excessive force in an arrest, battery, or any other type of civil wrong or claim), then you should seek the advice of an attorney without delay.
Call the Byers Law Office today.
Rev. 10/03/23.