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Tort Claims Act: What Happens When the State is Negligent?

By:  Paul A. Sheridan

Many of our clients deal with municipal, county, and State agencies on a regular basis as part of their day to day business transactions. Occasionally an individual or business can sustain an injury as the result of the negligent actions of a North Carolina agency or employee.

As an agent of state government, the general rule is that the offending party is entitled to claim “sovereign immunity” from various types of liability, including tort liability. This immunity prevents third parties from making a valid claim except to the extent the state agrees to be sued. Only the General Assembly of North Carolina is authorized to waive this immunity, and it has done so to a limited extent by enacting the North Carolina Tort Claims Act (N.C. Gen. Stat. § 143-291 et seq.).

The North Carolina Tort Claims Act allows parties to bring a claim against the state of North Carolina.  There are many special rules, exceptions and notice requirements involved when you sue a North Carolina governmental unit and the laws dictating what the government can be sued for and how are extremely complicated. The basic premise of the North Carolina laws is that no part of the government (including those working for the government) can be sued for anything done within the discretion of their job. This eliminates many possible types of lawsuits, but it leaves room for possibilities when an agency or agency officials fail to enforce your rights or wrongfully enforce statutes against you.  State agencies and employees acting in their official capacities may be sued for torts, but only for ordinary negligence caused by the identified state employee who was acting within the scope of their authorized service. There is a three year statute of limitations for negligence, and a two year statute of limitations for wrongful death.

Claims are brought before the Industrial Commission (the court that is generally responsible for hearing worker’s compensation claims) which evaluates four elements to a tort claim.  First, there must be a legal duty of care owed to that inured party.  Secondly, there must be a breach of that duty by a State actor.  That breach of duty must be the proximate cause of the injury.  Finally, there must be a personal injury or property damage.  Since North Carolina’s laws state that contributory negligence is a bar to an award, the Commission must also find that the plaintiff was not contributory negligent (that means the person filing suit was not also negligent in contributing to his or her injuries).

The maximum amount that the State may pay cumulatively to all claimants on account of injury and damage to any one person arising out of any one occurrence is currently limited to one million dollars, although the purchase of insurance by the State can affect recovery as well.

In the real world, these technical requirements can create incredibly harsh results.  For example, in a very recent New York City ruling, applying similar laws, the estate of a claimant (who died as the result of a call to 911 which was ignored for over two hours) was denied their claim for wrongful death, because the victim or an immediate family wasn’t the party that placed the call.  Thus, there was a finding that no “duty” arose to the victim.

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