North Carolina

 

 

Statute of Limitations (NORTH CAROLINA)

 

Personal Injury - 3 yrs. (from the time harm/damage becomes apparent, but within 10 yrs. from act/omission) [N.C.G.S.A. § 1-52]

Wrongful Death - 2 yrs. (from death, provided that, whenever the decedent would have been barred, had he lived, from bringing an action for bodily harm, no action for his death may be brought) [N.C.G.S.A. § 1-53]

Property Damage - 3 yrs. (from the time harm/damage becomes apparent, but within 10 yrs. from act/omission) [N.C.G.S.A. § 1-52]

Contracts (Written and Oral) - 3 yrs. [N.C.G.S.A. § 1-52]

Breach of Warranty (Property Damage or Personal Injury involved) - 3 yrs. [Hanover Ins. Co. v. Amana Refrigeration, Inc., 415 S.E.2d 99 (N.C. App. 1992); Smith v. Cessna Aircraft Co., 571 F.Supp. 433 (M.D.N.C. 1983)]

Contracts for Sale and Breach of Warranty (Property Damage or Personal Injury not involved) - 4 yrs. (from tender of delivery) [N.C.G.S.A. § 25-2-725]

 

 

 

 

 

 

 

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Statute of Repose (Products) (NORTH CAROLINA)

 

All Negligence (Personal Injury and Property Damage) - 10 yrs. [N.C.G.S.A. § 1-52]

Products - 12 yrs. [N.C.G.S.A. § 1-46.1] (6 yrs. for actions that accrued on or before 9/30/2009)

 

 

 

 

 

Admissibility of Expert Testimony (NORTH CAROLINA)

 

Dauber test adopted.  In deciding whether the proffered scientific theory or technique will assist the trier of fact, the trial court may consider, among other things: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or technique is generally accepted as reliable in the relevant scientific community. This inquiry is a flexible one [State v. McGrady, 753 S.E.2d 361 (N.C. Ct. App. 2014)].

 

 

 

 

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Causes of Action (NORTH CAROLINA)

 

Statutory Definition – “Product liability action” includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product [N.C.G.S.A. § 99B-1].

 

Strict Liability – Rejected [N.C.G.S.A. § 99B-1.1].

 

Negligence – A products liability claim grounded in negligence requires the plaintiff prove: (1) the product was defective at the time it left the control of the defendant; (2) the defect was the result of defendant's negligence; and (3) the defect proximately caused plaintiff damage.  Under a claim based on negligence, a manufacturer has the duty to use reasonable care throughout the manufacturing process, including making sure the product is free of any potentially dangerous defect in manufacturing or design. This duty of care may involve inspection or testing of the product, which includes the duty to inspect products manufactured by another which are component parts of the product produced by the manufacturer [Red Hill Hosiery Mill, Inc. v. Magnetek, Inc., 530 S.E.2d 321 (N.C. Ct. App. 2000)].

 

Breach of Warranty – North Carolina has adopted the standard UCC express warranty [N.C.G.S.A § 25-2-313]; implied warranty of merchantability [N.C.G.S.A § 25-2-314]; implied warranty of fitness for particular purpose [N.C.G.S.A § 25-2-315].  A claimant who is a buyer of the product, or who is a member or a guest of a member of the family of the buyer, a guest of the buyer, or an employee of the buyer may bring a product liability action directly against the manufacturer for breach of implied warranty; and the lack of privity of contract is not grounds for the dismissal of such action [N.C.G.S.A. § 99B-2].  Nothing in the product liability statute precludes a product liability action that otherwise exists for breach of warranty; the defenses provided for in the statute apply to claims for breach of warranty unless expressly excluded [N.C.G.S.A. § 99B-1.2].  A seller's liability for breach of warranty does not depend upon proof of his negligence but arises out of his contract [Veach v. Bacon American Corp., 266 N.C. 542 (N.C. 1966)].

 

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Definition of “Defect” (NORTH CAROLINA)

 

A product is defective if the product’s proper use would involve an unreasonable risk of harm to those using it for the purpose it was manufactured [Cockerham v. Ward, 262 S.E.2d 651 (N.C. Ct. App. 1980)].

 

 

 

 

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Liability of Sellers (NORTH CAROLINA)

 

A seller is not liable (except in actions for breach of express warranty) when when the product was acquired and sold by the seller in a sealed container or when the product was acquired and sold by the seller under circumstances in which the seller was afforded no reasonable opportunity to inspect the product in such a manner that would have or should have, in the exercise of reasonable care, revealed the existence of the condition complained of.  The seller is not exempt from liability, however, if the manufacturer of the product is not subject to the jurisdiction of NC courts, or if such manufacturer has been judicially declared insolvent [NCG.S.A. § 99B-2].

 

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Defenses (NORTH CAROLINA)     

 

Contributory Negligence – North Carolina follows strict contributory negligence (Plaintiff is barred from recovery even if 1% at fault) [Bowden v. Bell, 446 S.E.2d 816 (N.C. App. 1994)].  Complete defense to a product liability action [N.C.G.S.A. § 99B-4].

 

Assumption of Risk – Complete defense (when the user knew of, or discovered, a defect or dangerous condition of the product that was inconsistent with the safe use of the product, and then unreasonably and voluntarily exposed himself or herself to the danger, and was injured by or caused injury with that product) [N.C.G.S.A. § 99B-4].

 

Product Misuse – Complete defense (when the use of the product was contrary to any express and adequate instructions or warnings delivered with, appearing on, or attached to the product or on its original container or wrapping, if the user knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings [N.C.G.S.A. § 99B-4].

 

Product Alteration/Modification – Complete defense [N.C.G.S.A. § 99B-3].

 

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NORTH CAROLINA)

 

In the context of a products liability suit, purely economic losses are not ordinarily recoverable under tort law in an action for negligence [Chicopee, Inc. v. Sims Metal Works, Inc., 391 S.E.2d 211 (N.C. App. 1990)].

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NORTH CAROLINA)

 

In a products liability action, based on tort or warranty, a product defect may be inferred from evidence of the product's malfunction, if there is evidence the product had been put to its ordinary use [Red Hill Hosiery Mill, Inc. v. Magnetek, Inc., 530 S.E.2d 321 (N.C. Ct. App. 2000).

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Design Defects (NORTH CAROLINA)

 

Manufacturer is not liable for the inadequate design unless Plaintiff proves that at the time of its manufacture the manufacturer acted unreasonably in designing the product, that this conduct was a proximate cause of the harm for which damages are sought, and also proves one of the following: (1) at the time the product left the control of the manufacturer, the manufacturer unreasonably failed to adopt a safer, practical, feasible, and otherwise reasonable alternative design or formulation that could then have been reasonably adopted and that would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the product; or (2) at the time the product left the control of the manufacturer, the design or formulation of the product was so unreasonable that a reasonable person, aware of the relevant facts, would not use or consume a product of this design [N.C.G.S.A. § 99B-60].

 

In determining whether the manufacturer acted unreasonably, the factors to be considered include, but are not limited to: (1) the nature and magnitude of the risks of harm associated with the design or formulation in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product; (2) the likely awareness of product users, whether based on warnings, general knowledge, or otherwise, of those risks of harm; (3) the extent to which the design or formulation conformed to any applicable government standard that was in effect when the product left the control of its manufacturer; (4) the extent to which the labeling for a prescription or nonprescription drug approved by the US FDA conformed to any applicable government or private standard that was in effect when the product left the control of its manufacturer; (5) the utility of the product, including the performance, safety, and other advantages associated with that design or formulation; (6) the technical, economic, and practical feasibility of using an alternative design or formulation at the time of manufacture; (7) the nature and magnitude of any foreseeable risks associated with the alternative design or formulation [N.C.G.S.A. § 99B-60].

 

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Failure to Warn (NORTH CAROLINA)

 

Manufacturer is not liable for a claim based upon inadequate warning or instruction unless Plaintiff proves that the manufacturer acted unreasonably in failing to provide such warning or instruction, that the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought, and also proves one of the following: (1) at the time the product left the control of the manufacturer, the product, without an adequate warning or instruction, created an unreasonably dangerous condition that the manufacturer or seller knew, or in the exercise of ordinary care should have known, posed a substantial risk of harm to a reasonably foreseeable claimant; or (2) after the product left the control of the manufacturer or seller, the manufacturer or seller became aware of or in the exercise of ordinary care should have known that the product posed a substantial risk of harm to a reasonably foreseeable user or consumer and failed to take reasonable steps to give adequate warning or instruction or to take other reasonable action under the circumstances [N.C.G.S.A. § 99B-5].

 

Manufacturer is not liable for failing to warn about an open and obvious risk or a risk that is a matter of common knowledge [N.C.G.S.A. § 99B-5].

 

 

 

 

 

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Independent Cause of Action for Evidence Spoliation (NORTH CAROLINA)

 

Not addressed/recognized.

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