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Tort/Negligence

Aug 7, 2012

Tort/Negligence – Police Shooting Victim – Car Chase – Passenger – Public Official Immunity – Malice – Constructive Intent — Constitutional

Wilcox v. City of Asheville Since neither the public nor the three defendant-police officers were in danger from the slow-moving vehicle when the officers fired upon it, shooting and injuring the plaintiff-passenger, there is a genuine issue as to whether the officers acted with malice under the constructive intent doctrine.

Aug 3, 2012

Tort/Negligence – Interference with Contract – Defamation – Satellite TV Marketer

Exclaim Marketing, LLC v. DIRECTV, Inc. Where plaintiff’s marketing efforts sent potential customers to defendant’s dealers, defendant was a non-outsider to plaintiff’s contracts with the dealers. The complaint itself reveals that defendant’s interference in plaintiff’s contracts with its dealers was justified by defendant’s legitimate business interests: an interest in contro[...]

Aug 2, 2012

Prisons & Jails – Civil Rights – Tort/Negligence – Denial of Medical Care – Battery

Eller v. Kaufman Since plaintiff was a pretrial detainee when he was allegedly denied medical care and otherwise mistreated, the Eighth Amendment does not apply to him. Instead, plaintiff’s claims are governed by the Due Process Clause.

Jul 31, 2012

Civil Rights – Fourth Amendment — False Arrest – Tort/Negligence – State Court Conviction

Whitlock v. Chaffin Even though plaintiff was acquitted of disturbing the peace, she was convicted in district court of resisting arrest. Even if she is later acquitted in superior court, her district-court conviction establishes probable cause under N.C. law.

Jul 31, 2012

Civil Practice – Removal – Diversity Jurisdiction – Fraudulent Joinder Argument – Insurance Adjuster – Unfair Trade Practices — Tort/Negligence – Fraud – Pleadings

New Jerusalem Rebirth & Restoration Ministries, Inc. v. Meyer The N.C. courts have not addressed whether an insurance adjuster may be subject to individual liability for unfair trade practices. In the absence of an N.C. case that squarely resolves that plaintiff’s claim is not actionable, there is at least some possibility that plaintiff may recover against the defendant-adjuster under [...]

Jul 30, 2012

Labor & Employment – Tort/Negligence – CFAA – Authorized Computer Access – Unauthorized Use

WEC Carolina Energy Solutions LLC v. Miller If an employee is authorized to access information on his employer’s computer, that employee’s misuse of the information is not a violation of the Computer Fraud and Abuse Act.

Jul 26, 2012

Tort/Negligence – Professional Negligence – Real Property – Appraisals – Justifiable Reliance – Civil Practice – Statute of Limitations

Cabrera v. Hensley Since plaintiffs had already contracted to buy the lots at issue before the defendant-appraisers appraised the lots, plaintiffs could not have relied on the appraisals in obligating themselves to buy the lots.

Jul 25, 2012

Tort/Negligence – Animal Attack – Dog Bites – Vicious Propensity – Owner’s Lack of Knowledge

Starcher v. Kea The dogs that bit plaintiff lived on land which defendant’s father had transferred to her the year before the attack, and defendant fed them. Although defendant referred to the dogs as “wild,” this does not indicate knowledge of the dogs’ viciousness without evidence of any prior instances of vicious conduct.

Jul 24, 2012

Tort/Negligence – Respondeat Superior – Dismissal of Agent – Battery

Metts v. New Hanover Regional Medical Center Although plaintiff alleges that an individual defendant hit plaintiff without provocation, plaintiff failed to serve the individual defendants with process within the statute of limitations period, and plaintiff does not appeal the dismissal of his claims against those defendants.

Jul 24, 2012

Tort/Negligence – Sovereign Immunity – Schools & School Boards – School Boards Trust

Johnson v. Avery County Board of Education Plaintiff argues that the defendant-school board waived its sovereign immunity, but the only basis for plaintiff’s argument is the board’s participation in the N.C. School Boards Trust. We have held that participation in the Trust does not operate to waive a school board’s right to assert sovereign immunity.

Jul 20, 2012

Tort/Negligence – Baseball Game Attendee – Hit by Wild Pitch – Bull Pen – Unscreened Area

Bryson v. Coastal Plain League, LLC Since the defendant-ballpark operator provided an area of screened seats, it discharged its duty to exercise reasonable care for the protection of lawful visitors. Plaintiff, who chose an unscreened area near the bullpen and was hit by a wild pitch, has not shown that the ballpark operator was negligent.

Jul 17, 2012

Tort/Negligence – Negligent Inspection – Municipal – Sovereign Immunity – Insurance

Bullard v. Wake County Although the defendant-county had insurance during the period in which county inspectors okayed construction and occupancy of a house that has since been found unfit for human habitation, an endorsement to the insurance policy (applicable to the first year and a half at issue) limited coverage to “occurrences or wrongful acts for which the defense of governmental [...]

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