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Tag Archives: Tort/Negligence

Civil Practice – Subject Matter Jurisdiction – Tort/Negligence – STCA – Contract (access required)

Brown v. N.C. Department of Transportation Plaintiff’s assertion that defendant’s agents and employees engaged in “poor driveway construction practice” may state a claim that defendant breached its contract to reconfigure and reconnect plaintiff’s driveway as part of its highway project, but it does not state a claim for negligence under the State Tort Claims Act.

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Tort/Negligence – Banks & Banking – Fiduciary Duty – Fraud – Unfair Trade Practices – Real Property – Appraisal (access required)

Allran v. Branch Banking & Trust Corp. (Lawyers Weekly No. 11-15-0698, 14 pp.) (Calvin E. Murphy, J.) N.C. Bus. Ct. Holding: The plaintiff-borrower alleges that the defendant-bank (1) failed to reveal that the land the borrower was buying was not worth the purchase price and (2) falsified closing documents; these allegations are not sufficient to show any fiduciary duty or fraud, but they are sufficient to state a claim of unfair and deceptive trade practices. The bank’s motion to dismiss is granted as to plaintiff’s claims of breach of fiduciary duty, constructive fraud, fraud, and fraud in the inducement. The motion to dismiss is denied as to plaintiff’s unfair trade practices claim.

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Tort/Negligence – STCA – Pothole – Notice (access required)

Schneider v. N.C. Department of Transportation Plaintiffs failed to challenge the Industrial Commission’s findings that the N.C. Department of Transportation had no notice of the pothole into which the minor plaintiff drove his bicycle (resulting in a broken leg). The commission’s unchallenged findings of fact establish that the DOT lacked notice of the pothole; therefore, plaintiffs failed to prove the DOT was negligent. We affirm the commission’s decision and order in favor of the DOT.

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Civil Practice – Appeals – Interlocutory – Attorneys – Tort/Negligence – Legal Malpractice – Intellectual Property – Foreign Patents – Subject Matter Jurisdiction (access required)

Revolutionary Concepts, Inc. v. Clements Walker, PLLC Plaintiffs; legal malpractice claim against defendants alleges that defendants’ actions prevented plaintiffs from obtaining foreign patents, not a U.S. patent; therefore, this case does not fall within the exclusive jurisdiction of the federal courts. Even if an unsuccessful challenge to subject matter jurisdiction under 28 U.S.C. § 1338(a) were entitled to immediate appellate review, this case does not fall under § 1338(a). We dismiss as interlocutory defendants’ appeal of the trial court’s denial of their motion to dismiss.

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Tort/Negligence – Malicious Prosecution – Damages – Attorney’s Fees – Amount (access required)

Johnson v. Johnson The defendant-seller had the plaintiff-buyer arrested for stealing a Lincoln Navigator that the buyer had already paid the seller for (the seller apparently wanted to add the cost of rims to the price). Attorney’s fees are recoverable as damages in a malicious prosecution action, and the buyer testified that he had incurred attorney’s fees; however, he did not testify as to how much he paid his criminal defense attorney.

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Tort/Negligence – Real Property – Inverse Condemnation — Municipal – Governmental Immunity – Insurance — Road Closure – Act of God (access required)

Kirkpatrick v. Town of Nags Head Even though the defendant-town has commercial general liability insurance, the destruction of the road that provided access to plaintiffs’ beach house was an act of God, which is not a covered occurrence. Since the town made a conscious decision not to repair and to close what was left of the road, the town’s acts and omissions were not a covered occurrence, either. We reverse the trial court’s denial of summary judgment for the town on the grounds of governmental immunity.

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Tort/Negligence – Motor Vehicle Accident – Damages – Motorcycle Repair Costs – Medical Expenses – Pain & Suffering – Rule 68 Offer of Judgment – Costs (access required)

Smith v. White Even though defendant paid for repairs to plaintiff’s motorcycle before trial, the cost of the repairs was admissible as some evidence of the difference in the value of the motorcycle before the accident and immediately after the accident. Since the trial court did not allow plaintiff to present such evidence, the court correctly granted plaintiff a new trial on the issue of diminution of the value of his motorcycle. We affirm the trial court’s (1) grant of plaintiff’s motion for a new trial as to the value of his motorcycle, (2) denial of plaintiff’s motion for a new trial based on the jury’s alleged compromise verdict, and (3) award of costs to defendant.

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Tort/Negligence – Medical Malpractice – Civil Practice – Rule 9(j) – Dismissal Without Prejudice – Re-Filing (access required)

McKoy v. Beasley Where plaintiff’s original complaint failed to comply with N.C. R. Civ. P. 9(j), Rule 9(j) was not satisfied when the original complaint was dismissed without prejudice and plaintiff re-filed within one year - but outside the statute of limitations - with Rule 9(j) allegations in her re-filed complaint.

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Tort/Negligence – Slip & Fall – Jury Instructions – Minor Plaintiff – Landowner’s Duty – Waterfall (access required)

Cobb ex rel. Knight v. Town of Blowing Rock On the defendant-town’s property, the 12-year-old plaintiff stepped off an observation deck into a stream, slipped, and fell over a waterfall, sustaining serious injuries. The trial court should have instructed the jury to consider the known or reasonably foreseeable characteristics of lawful visitors when a plaintiff, who is a lawful visitor, is injured by a natural condition on the defendant’s property. We reverse the trial court’s denial of plaintiffs’ motion for a new trial.

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Tort/Negligence – Aiding & Abetting Breach of Fiduciary Duty – Damages – Post-Trial Motions (access required)

Greensboro Rubber Stamp Co. v. Southeast Stamp & Sign, Inc. Although defendant Stephen Hewitt paid a business’s former principal $21,000 for a $100,000 promissory note owned by the business, a jury could nevertheless award the business, its minority shareholder, and its judgment debtor mere nominal damages. We affirm the trial court’s denial of plaintiffs’ post-judgment motions.

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