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Articles 1 - 30 of 45
Full-Text Articles in Torts
Minor's Personal Injury Actions And Settlements In North Carolina, John M. Kirby
Minor's Personal Injury Actions And Settlements In North Carolina, John M. Kirby
Campbell Law Review
This Article addresses the issues that are peculiar to claims of minors in North Carolina. Persons who are the age of majority prosecute and settle claims that raise numerous substantive and procedural issues. These issues can be compounded, however, when the claimant is a minor. The distinct issues that arise with a minor’s claim include: that a minor is often held to a different standard of conduct; that other persons are held to a higher or different standard of conduct toward a minor; that other persons may have a duty to protect the minor; that courts generally protect the interests …
Orders From On High: The Current Struggle Over Medicaid Third Party Recovery Between North Carolina And The Supreme Court Of The United States, Allen N. Trask Iii
Orders From On High: The Current Struggle Over Medicaid Third Party Recovery Between North Carolina And The Supreme Court Of The United States, Allen N. Trask Iii
Campbell Law Review
This Comment will first present a brief legal background of the Medicaid program, and specifically its presence in North Carolina. It will then explore the federal statutes which broadly govern Medicaid recovery from third parties, as well the North Carolina Medicaid statutes which specifically govern this area of recovery. It will explore the two decisions, Ezell and Ahlborn, which have clouded this area in North Carolina. Following that explanation, the aforementioned hypothetical will be revisited and taken through both the North Carolina and United States Supreme Court's analytical models. Finally, suggestions for both statutory and judicial resolutions of this issue …
"It Is Much Easier To Find Fault With Others, Than To Be Faultless Ourselves": Contributory Negligence As A Bar To A Claim For Breach Of The Implied Warranty Of Merchantability, William B. L. Little
"It Is Much Easier To Find Fault With Others, Than To Be Faultless Ourselves": Contributory Negligence As A Bar To A Claim For Breach Of The Implied Warranty Of Merchantability, William B. L. Little
Campbell Law Review
To better understand the policy underpinnings of the statutory bar of certain implied warranty merchantability claims, this Article first reviews the origins and the continued vibrancy of the doctrine of contributory negligence in North Carolina. The doctrine is then examined in the context of North Carolina's enactment of the Products Liability Act and the doctrine's applicability to the implied warranty of merchantability.
Federal Malpractice In Indian Country And The "Law Of The Place": A Re-Examination Of Williams V. United States Under Existing Law Of The Eastern Band Of Cherokee Indians, J. Matthew Martin
Federal Malpractice In Indian Country And The "Law Of The Place": A Re-Examination Of Williams V. United States Under Existing Law Of The Eastern Band Of Cherokee Indians, J. Matthew Martin
Campbell Law Review
This paper analyzes the law applicable in malpractice cases occurring within Indian Country and brought under the Federal Tort Claims Act, applying the "Law of the Place." In particular, this paper argues that the law of the Eastern Band of Cherokee Indians, including the customs and traditions of the Tribe, should have been applied by the Federal Courts in lieu of the law of North Carolina in Williams v. United States. The paper concludes by suggesting that a complete "laboratory" of Federalism should include the application of the laws of the respective Tribes where Federal medical negligence occurs.
Compensating Post-Conception Prenatal Medical Malpractice While Respecting Life: A Recommendation To North Carolina Legislators, Michelle Mcentire
Compensating Post-Conception Prenatal Medical Malpractice While Respecting Life: A Recommendation To North Carolina Legislators, Michelle Mcentire
Campbell Law Review
Part I of this Comment will provide an overview of the national perspective on these three types of prenatal negligence claims. Part II will discuss North Carolina's viewpoint and the evolution of its case law addressing prenatal negligence. Part III examines fundamental rights recognized by the United States Supreme Court and related North Carolina laws. Part IV considers the policy issues dominating the debate surrounding prenatal torts. Part V suggests North Carolina should protect the rights of expectant parents through legislation allowing medical malpractice claims for post-conception prenatal negligence.
Validity And Enforceability Of Liability Waivers On Ski Lift Tickets, C. Connor Crook
Validity And Enforceability Of Liability Waivers On Ski Lift Tickets, C. Connor Crook
Campbell Law Review
This article attempts to highlight some of the important differences in the legal enforceability of waivers. Currently, there is no uniform national standard for what are the "inherent risks" of skiing. Because the variance in liability rules can affect injured skiers so acutely, attorneys representing both ski resorts and injured skiers need to be aware of real differences in the enforceability of waivers in a sport not unfamiliar with serious injuries.
Punitive Damages After Campbell: The Role Of Out-Of-State Conduct, Steven R. Hamlin
Punitive Damages After Campbell: The Role Of Out-Of-State Conduct, Steven R. Hamlin
Campbell Law Review
This article examines the scope of out-of-state conduct that may be used after Campbell.
Childhood Vaccinations And Autism: Does The National Childhood Vaccine Injury Act Leave Parents Of Children With Autism Out In The Cold With Nowhere To Go?, Katherine Marie Bulfer
Childhood Vaccinations And Autism: Does The National Childhood Vaccine Injury Act Leave Parents Of Children With Autism Out In The Cold With Nowhere To Go?, Katherine Marie Bulfer
Campbell Law Review
No abstract provided.
Rule 9(J) - Is Requiring A Plaintiff In A Medical Malpractice Action To Certify His Or Her Claim Before Filing Unconstitutional? - The Issue In Anderson V. Assimos, Levonda Wood
Campbell Law Review
This note will examine the North Carolina Court of Appeals' decision in Anderson v. Assimos. Part II of the note presents the factual background, the issue raised, and the holding in the Anderson decision. Part III analyzes the decision and discusses why the court's holding is correct. This note concludes that the North Carolina Supreme Court should hold that Rule 9(j) unconstitutionally infringes upon rights guaranteed by both the federal and state constitutions if asked to addresses the issue in the future.
Products Liability - Emerging Consensus And Persisting Problems: An Analytical Review Presenting Some Options, Dr. J. Stanley Mcquade
Products Liability - Emerging Consensus And Persisting Problems: An Analytical Review Presenting Some Options, Dr. J. Stanley Mcquade
Campbell Law Review
No abstract provided.
The Eggshell Skull Rule And Related Problems In Recovery For Mental Harm In The Law Of Torts, Dr. J. Stanley Mcquade
The Eggshell Skull Rule And Related Problems In Recovery For Mental Harm In The Law Of Torts, Dr. J. Stanley Mcquade
Campbell Law Review
The theme of this article is the place, actual and proposed, of the "thin skull" rule in relation to mental harm.
Vendor Liability For The Sale Of Alcohol To An Underage Person: The Untoward Consequences Of Estate Of Mullis V. Monroe Oil Co., Angela M. Easley
Vendor Liability For The Sale Of Alcohol To An Underage Person: The Untoward Consequences Of Estate Of Mullis V. Monroe Oil Co., Angela M. Easley
Campbell Law Review
This article contends that Defendants clearly had a duty to the people who travel on public highways not to serve alcohol to an underage individual. Therefore, N.C. GEN. STAT. section 18B-302, which prohibits the sale of alcohol to underage persons, should be regarded as a public safety statue, violation of which constitutes negligence per se. It further argues that Defendants should have recognized that Mullis and others might be injured by their conduct. The supreme court merely misinterpreted the element of duty required to maintain a common law negligence action and failed to look at the evidence and circumstances surrounding …
Liner V. Brown: Where Should We Go From Here - Two Different Approaches For North Carolina, A. John Hoomani, Kimberly Sieredzki Woodell
Liner V. Brown: Where Should We Go From Here - Two Different Approaches For North Carolina, A. John Hoomani, Kimberly Sieredzki Woodell
Campbell Law Review
No abstract provided.
The Franchising Dilemma Continues: Update On Franchisor Liability For Wrongful Acts By Local Franchisees, Randall K. Hanson
The Franchising Dilemma Continues: Update On Franchisor Liability For Wrongful Acts By Local Franchisees, Randall K. Hanson
Campbell Law Review
The purpose of this update is to review recent franchisor liability cases to determine the direction of franchisor liability cases. The three most common theories used to invoke franchisor liability will be discussed, and North Carolina's approach to this area of the law will also be examined.
Medicine Goes Madison Avenue: An Evaluation Of The Effect Of Direct-To-Consumer Pharmaceutical Advertising On The Learned Intermediary Doctrine, Michael C. Allen
Medicine Goes Madison Avenue: An Evaluation Of The Effect Of Direct-To-Consumer Pharmaceutical Advertising On The Learned Intermediary Doctrine, Michael C. Allen
Campbell Law Review
This comment will attempt to examine and evaluate the learned intermediary doctrine in light of the recent explosion in direct-to-consumer advertising of pharmaceutical products, focusing on an analysis of product liability principles, including comments from the proposed Restatement (Third) of Torts, as they apply to this subject. This comment will examine the potential ramification of FDA consumer advertising requirements, especially as they relate to potential additional exceptions to the learned intermediary doctrine. This analysis will support the conclusion that the learned intermediary doctrine remains functional and provides the consumer with the best available alternative to ensure the most appropriate use …
The Discretionary Function Exception To The Federal Tort Claims Act: How Much Is Enough?, Amy M. Hackman
The Discretionary Function Exception To The Federal Tort Claims Act: How Much Is Enough?, Amy M. Hackman
Campbell Law Review
No abstract provided.
Contributory Negligence, Comparative Negligence, And Stare Decisis In North Carolina, Steven Gardner
Contributory Negligence, Comparative Negligence, And Stare Decisis In North Carolina, Steven Gardner
Campbell Law Review
Part I of this article examines the contributory negligence doctrine and its history in the United States and North Carolina. Part II describes some of the criticism levelled at the contributory negligence doctrine. Part III examines the comparative negligence doctrine, including a-description of the types of comparative negligence systems, a history of the doctrine, and a look at the history of comparative negligence bills in the North Carolina General Assembly, concentrating on the several comparative negligence bills introduced in the 1980s and one of the principal arguments made against the bills. Part IV discusses North Carolina's stare decisis jurisprudence and …
Municipal Liability For Negligent Inspections In Sinning V. Clark - A 'Hollow' Victory For The Public Duty Doctrine, Frank Swindell
Municipal Liability For Negligent Inspections In Sinning V. Clark - A 'Hollow' Victory For The Public Duty Doctrine, Frank Swindell
Campbell Law Review
This Note examines the North Carolina Court of Appeal's decision in Sinning v. Clark. First, the Note briefly reviews governmental immunity in code enforcement cases. Second, the Note provides an historical overview of the public duty doctrine and examines the legal analysis which other jurisdictions have used to reject the public duty doctrine in inspection cases. Next, the Note discusses North Carolina's concept of governmental immunity and surveys North Carolina's application of the public duty doctrine, including the doctrine's application in Lynn v. Overlook Development. Fourth, the Note analyzes the Sinning court's application of the public duty doctrine in light …
Judicial Boilerplate Language As Torts Decisional Litany: Four Problem Areas In North Carolina, Charles E. Daye
Judicial Boilerplate Language As Torts Decisional Litany: Four Problem Areas In North Carolina, Charles E. Daye
Campbell Law Review
This article discusses four selected examples from the tort law of North Carolina. These examples isolate instances in which the result of a case might not have warranted the language used or when the language of the cases was picked up and carried forward in subsequent cases without adequate analysis. Perhaps attorneys can point out these problems to the courts, and perhaps the courts might choose to make helpful clarifications.
Consumer Choice In The North Carolina Auto Insurance Market, Jeffrey O'Connell, Stephen Carroll, Michael Horowitz, Allan Abrahamse, Bradley Miliauskas
Consumer Choice In The North Carolina Auto Insurance Market, Jeffrey O'Connell, Stephen Carroll, Michael Horowitz, Allan Abrahamse, Bradley Miliauskas
Campbell Law Review
No abstract provided.
The Vicarious Liability Of A Physician For The Negligence Of Other Medical Professionals - North Carolina Charts A Middle Course - The Effect Of Harris V. Miller, J. Scott Coalter
The Vicarious Liability Of A Physician For The Negligence Of Other Medical Professionals - North Carolina Charts A Middle Course - The Effect Of Harris V. Miller, J. Scott Coalter
Campbell Law Review
This Note examines the North Carolina Supreme Court's decision in Harris v. Miller. First, the Note addresses the facts of the case. Second, it discusses the rules courts traditionally have used to impose vicarious liability under respondeat superior, the borrowed servant rule, and tests courts have established to determine whether the borrowed servant rule even applies. Next, the Note analyzes the Harris court's rejection of the "captain-of-the- ship" doctrine, the professionals approach, and the application of the "right to control" test. Finally, the Note concludes that North Carolina has charted a middle course; a course which recognizes that reality …
Inherently Dangerous Or Inherently Difficult? Interpretations And Criticisms Of Imposing Vicarious Liability On General Contractors For Injuries Suffered As A Result Of Work Performed By Independent Contractors: Hooper V. Pizzagalli Construction Company, Mary Margaret Mceachern
Campbell Law Review
This Note has several objectives. First, it outlines how the Hooper court used parts of the Woodson interpretation to conclude that the work in which the plaintiff's decedent was involved did not fall within the inherently dangerous exception. Next, it traces the origins of the doctrine itself, and how it has evolved in other jurisdictions as well as in North Carolina. The Note analyzes some criticisms of the doctrine, predicting what may become of it in the future. Additionally, this Note analyzes the Hooper court's decision by comparing it to the Woodson analysis, as well as to the definitions and …
The Substantial Certainty Exception To Workers' Compensation, Michael Doran
The Substantial Certainty Exception To Workers' Compensation, Michael Doran
Campbell Law Review
This Article attempts to point toward the correct definition and application of the substantial certainty liability standard, recognizing its foundation in the Woodson and Barrino decisions. This Article also will point out the apparent misapplications of the standard in decisions handed down after Woodson. Finally, in light of the North Carolina Supreme Court's per curiam decision in Owens v. W.K Deal Printing, Inc., which appears to illustrate the court's disapproval of the definition and application of substantial certainty contained in decisions from other courts, this Article will attempt to forecast the direction of future decisions involving this theory of civil …
The Demise Of The Foreign-Natural Test In North Carolina - Goodman V. Wenco Foods, Leigh A. Aughenbaugh
The Demise Of The Foreign-Natural Test In North Carolina - Goodman V. Wenco Foods, Leigh A. Aughenbaugh
Campbell Law Review
This Note has several objectives. First, it will describe the origins, development, and rationale of both the foreign/natural and reasonable expectations test in other jurisdictions, as well as trace the growth of the former test in North Carolina and its eventual demise. In addition, it will analyze the court's decision, and examine the reasons given for it by comparing the decision to that of the recent national trend. Finally, this Note will explore the consequences of the court's decision and determine whether the course chosen was the proper one.
What The Supreme Court Giveth, The Supreme Court Taketh Away - Gardner V. Gardner, Alice Mcneer
What The Supreme Court Giveth, The Supreme Court Taketh Away - Gardner V. Gardner, Alice Mcneer
Campbell Law Review
This Note reviews the Ruark decision and the cases decided in the wake of its expansive "foreseeability" test. It then analyzes the court's application of the factors established in Ruark to the facts of Gardner and questions the court's failure to establish more specific standards for determining foreseeability in negligent infliction of emotional distress cases. Next, this Note explores the possible effects of Gardner. This Note concludes that the Court should have set forth clearer standards to better guide the lower courts in deciding when a plaintiff has stated a proper claim and suggests how the "foreseeability" test could …
The Evolution And Status Of The Contributory Negligence Defense To Medical Malpractice Actions In North Carolina - Mcgill V. French, Lucinda L. Fraley
The Evolution And Status Of The Contributory Negligence Defense To Medical Malpractice Actions In North Carolina - Mcgill V. French, Lucinda L. Fraley
Campbell Law Review
This Note will examine the defense of contributory negligence, the prerequisites for asserting the defense, and the underlying policy reasons which may explain the rampant growth of the defense and its alleged recent decline. Next, this Note will evaluate the circumstances which have given rise to contributory negligence as well as those circumstances that do not rise to the level of contributory negligence. Finally, this Note will analyze the North Carolina Supreme Court's decision to permit the defense when the patient fails to follow the physician's advice and instructions.
The Recognition Of Social Host Liability In North Carolina - Hart V. Ivey, Donna L. Shumate
The Recognition Of Social Host Liability In North Carolina - Hart V. Ivey, Donna L. Shumate
Campbell Law Review
This Note will first trace the development of social host liability in North Carolina and in other jurisdictions. Second, the Note will list the positions on social host liability adopted by other jurisdictions. Finally, this Note will analyze the Hart decision by explaining the disagreement between the North Carolina Court of Appeals and the North Carolina Supreme Court on the rationale to be employed, and by noting how the stage is now set for further expansion of social host liability.
Tort Law: The Negligent Infliction Of Emotional Distress - Reopening Pandora's Box - Johnson V. Ruark Obstetrics, Donna L. Shumate
Tort Law: The Negligent Infliction Of Emotional Distress - Reopening Pandora's Box - Johnson V. Ruark Obstetrics, Donna L. Shumate
Campbell Law Review
This Note will first trace the development of the negligent infliction of emotional distress in North Carolina case law. Second, the Note will explain the limitations on recovery adopted in other jurisdictions and explore the policies behind those limitations. Finally, this Note will analyze the Johnson decision by comparing its holding to the recent national trend and by noting problems that the North Carolina Supreme Court did not adequately address.
Dickens V. Puryear And Progeny: An Overview Of Recent North Carolina Case Law Concerning The Intentional Infliction Of Emotional Distress, William B. L. Little
Dickens V. Puryear And Progeny: An Overview Of Recent North Carolina Case Law Concerning The Intentional Infliction Of Emotional Distress, William B. L. Little
Campbell Law Review
This Survey is an overview of relative North Carolina caselaw since 1981 concerning the intentional infliction of emotional distress.
Intimate Injuries: Are There Constitutional Law Protections From Family Violence, J. Randall Patterson
Intimate Injuries: Are There Constitutional Law Protections From Family Violence, J. Randall Patterson
Campbell Law Review
In a national upsurge of domestic violence, often occurring in the home of the victim and often committed by a member of the family, the courts across the United States have been forced to define the limits of government protection from this most intimate form of abuse. It is estimated that each year as many as sixteen million women are injured from some form of spousal violence, and in 1989 alone nearly two and one-half million reports of child abuse were filed. When can an individual rely on state or police protection from this significant private danger? This reoccurring question, …