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Tort Liability

Updated: 09/21/2007

Definition
When can you be sued for work-related conduct or events?
What protection exists if you are sued personally?
What do you do if there is an accident or a possibility of lawsuit?
When should you use liability waivers?

Definition:

 A "tort" is an injury to another person or to property, which is compensable under the law. Categories of torts include negligence, gross negligence, and intentional wrongdoing. Negligence is the most common type of tort, and the only type for which the university as a state agency can be liable.  To give rise to a legal claim in negligence, an act (or inaction) must satisfy four elements:
  1. there must be a legal duty of care to another person;
  2. there must be a breach of that duty;
  3. the claimant must have suffered damages, and
  4. the damages must have been proximately caused by the breach of duty.

In addition, North Carolina generally bars lawsuits in tort if the claimant is suing you for negligence but the claimant was also negligent ("contributory negligence"). Contributory negligence will also bar claims against a State agency or department. G.S. 143-299.1 and G.S. 143-291.


When can you be sued for work-related conduct?

Anytime you commit a tort, the victim can sue you personally, or can sue you in your capacity as a representative of the University, or can sue the University, or can sue any combination of the three. Tort lawsuits against the University or persons acting in their official capacity as University representatives are governed by the Tort Claims Act, G.S. 143-291.

You may also be sued on theories other than tort liability, such as violation of civil rights laws, breach of contract, etc. The next Question and Answer is applicable to these types of lawsuits as well as torts. In some cases the courts will not allow you to be personally sued under non-tort theories if you were acting in good faith in your employment capacity.


What protection exists if you are sued personally?

  1. The DEFENSE OF STATE EMPLOYEES ACT, G.S. 143-300.3, is a law that provides the N.C. Attorney General may defend State employees and agents who are subject to legal action for either criminal or civil (which includes tort) liability, under the following conditions:
  • IF the case is based on acts or omissions committed in the scope and course of your employment or service as an agent of the State, (G.S. 143-300.4(a)(1)) and
  • your conduct does not involve fraud, corruption, or malice (G.S. 143-300.4(a)(2)), and
  • the Attorney General determines that defending you does not create a conflict of interest with the State (G.S. 143-300.4(a)(3)), and
  • the Attorney General does not determine that defending you is not in the best interest of the State (G.S. 143-300.4(a)(4)).
  1. IF YOU LOSE and there is a monetary judgment against you, your unit within the University will have to make payment up to $1,000,000 (effective August 27, 2007). See G.S. 143-299.2 . Amounts above that are covered by the State's excess liability policy up to $5 million (subject to exclusions -- see the following section), and any judgment above that would be paid by the employee's personal insurance (if applicable) or the employee's personal assets. (Insurance and Risk Management can provide additional information about the excess liability insurance policy.)
  2. The EXCESS LIABILITY POLICY applies to judgments over $1,000,000.
  • It covers employees, agents, and volunteers who were acting within the scope of their employment or service as an agent
  • It pays up to $5,000,000 per employee/agent or per occurrence (less the $1,000,000 paid by your University unit)
  • Coverage is tied to the criteria in the Defense of State Employees Act.

There are exclusions for liability arising from pollution, asbestos, nuclear, automobiles, watercraft over 30 feet, medical malpractice, criminal acts, sexual/immoral acts, one insured versus another, autopsies, etc.

  1. There is also a STATE MOTOR VEHICLE INSURANCE policy-
  • It covers damages to the other party(ies)
  • for accidents involving use of a state-owned vehicle
  • being driven by a state employee on official business.
  • It does not cover agents or volunteers
  • If you drive your own car, your own auto insurance applies as primary coverage.
  • The State policy pays up to $500,000 per claimant
  • Additional coverage applies to a few of the cars owned by 4-H.
  1. YOUR PERSONAL INSURANCE POLICIES might provide coverage.
  2. The NC State Benefits Office in Human Resources may offer optional liability insurance. (See the Employee Benefits web page.)

What do you do if there is an accident or a possibility of lawsuit?

  • Make notes of what happened. Save any documentation or other evidence.
  • Notify your supervisor.
  • Notify the NC State University office of Insurance and Risk Management.
  • Notify the Office of Legal Affairs if a lawsuit appears likely or there is an attorney involved.
  • Notify your personal insurers (home, auto, optional liability insurers may provide coverage).

When should you use liability waivers?

  • It is acceptable, but not required, to ask persons to sign liability waivers if they are engaged in voluntary activities sponsored by the University, or if they are visiting University property or using University resources in a capacity other than employee or student.
  • It is not appropriate to ask students to sign liability waivers for curricular activities; nor is it appropriate to ask employees to sign liability waivers for activities within the scope of their employment.
  • The effectiveness of liability waivers is uncertain and will likely depend on the specific facts of each situation.
  • If you ask people to sign a liability waiver, you may want to ascertain that they have comprehensive medical insurance so there will be a means of payment for injuries.
  • IF YOU WANT TO USE A LIABILITY WAIVER, please call the Office of Legal Affairs (919) 515-3071. Our form waivers usually need to be tailored to reflect the circumstances.