In connection with a discovery dispute between the parties, the Court of Appeals held that a blanket general objection asserted by the defendants based on “the attorney/client privilege, the work product doctrine, or any other applicable privilege or doctrine” was inadequate to effect the intended purpose of the objection. The Court noted that even though such holding was a matter of first impression in North Carolina, it was consistent with federal courts’ approach to general objections based on privilege, where such objections must be made and established on a document-by-document basis. K2 Asia Ventures v. Trota, No. COA10-1065 (N.C. App. Sept. 6, 2011). Click here for a copy of the case opinion.
In a lawsuit involving a mobile home park tenant assaulted by another tenant, the Court of Appeals stated that although North Carolina law has recognized a landowner’s duty to exercise reasonable care to protect tenants from foreseeable third-party criminal acts, such a duty did not include a duty to evict a tenant, and although other states have recognized such a duty, the Court declined to do so under the facts of this case. The Court viewed the evidence of the assaulting tenant’s prior conduct as not indicating a propensity for violence at the level of his attack on the plaintiff-tenant. Davenport v. D.M. Rental Properties, Inc., No. COA11-231 (N.C. App. Nov. 15, 2011). Click here for a copy of the case opinion.
In a medical malpractice lawsuit brought by the parents of a deceased child alleging that defendant doctors were negligent in failing to discover lacerations to the child’s liver at the hospital following a car accident, the Court of Appeals agreed that the parents’ expert witness’ testimony was not improperly speculative, even though the expert used the word “speculation” during his testimony. The Court concluded that the expert was not labeling as speculation his opinion that, if the child’s liver laceration had been diagnosed and treated, he would have had greater than a 51% chance of survival. Instead, the Court viewed such testimony as acknowledging that the practice of putting a specific percentage on the chance of survival is inherently speculative, and nevertheless, the expert ultimately testified that “most” patients with the kind of injury that the child had who are treated in accordance with the standard of care will survive, and such an opinion was sufficient to establish a probability of survival regardless of the precise numerical percentage used. Day v. Brant, COA09–573–2 (N.C. App. Jan. 17, 2012). Click here for a copy of the case opinion.
The North Carolina Supreme Court “adopted” the reasoning of the dissenting Court of Appeals judge and hence held that the age of a lawful visitor injured on property naturally occurring (a creek), in and of itself, did not impose a higher standard of care on the property owner, because such a heightened level of care would have given improper emphasis to the injured person’s age and would have created a higher standard of care in any case where a plaintiff had some characteristic condition (such as age, physical disability, or mental disability) which may have decreased that person’s ability to look out for his or her own safety. The Court acknowledged that a property owner generally has a duty to a lawful visitor to use reasonable care to keep the property safe and to warn of hidden dangers, and a jury is to make the determination of the standard of care required by a reasonable landowner by considering the totality of the circumstances of a particular case, including the location, the time of day, lighting conditions, type of facility, and the foreseeable characteristics of lawful visitors. Therefore, the Court felt that the age of the visitor is just one of various factors and circumstances for a jury to consider in determining what is “reasonable.” Cobb v. Town of Blowing Rock, No. 300A11 (N.C. Jan. 27, 2012); No. COA09-1443 (N.C. App. July 5, 2011). Click here for a copy of the Supreme Court case opinion; click here for a copy of the Court of Appeals dissenting case opinion.
In a product liability action involving a self-propelled wheelchair that caught fire, resulting in the house to catch on fire and burning Plaintiff’s decedent, the Court of Appeals held that the defense of “insulating negligence” (by which a defendant is insulated from liability by an independent act of another) does not apply where it is the injured person whose negligence was allegedly “insulating,” but rather, the defense of contributory negligence is the sole method available to relieve a defendant from liability due to the injured person’s negligence. Muteff v. Invacare Corp., No. COA11–495 (N.C. App. Feb. 7, 2012). Click here for a copy of the case opinion.
The Court of Appeals, asserting that it was following established law, declined to allow damages for the loss of a pet dog based upon a strong emotional bond the owners had with the dog, and instead damages were generally limited to the cost of “replacing” the dog, since the Court viewed the dog as merely personal property. Shera v. N.C. State University Veterinary Teaching Hospital, No. COA11–1102 (N.C. App. Feb. 21, 2012). ). Click here for a copy of the case opinion.
Although Plaintiff filed the Complaint without it being signed and ordinarily that would result in the action being deemed not to have been properly instituted, Plaintiff’s prompt remedial measures of filing an amended, signed Complaint corrected the deficiency, and the amended Complaint related back to the commencement of the action for purposes of timeliness. Estate of Livesay v. Livesay, No. COA11–973 (N.C. App. Feb. 21, 2012). Click here for a copy of the case opinion.