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Issue  43  Article  96
Published:  2/1/1999

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Supreme Court Changes Law on Premises Liability
Chris Burti, Vice President and Legal Counsel

The North Carolina Supreme Court has handed down an important decision that does not directly affect title to real property but should be of significance to real property practitioners. Nelson V. Freeland, 507 S.E.2d 882 (N.C. 1998), has changed the standard of care owed to a non-trespasser by a landowner. The Court has eliminated the distinction between licensees and invitees by requiring the party in control of the property to exercise a standard of reasonable care to all lawful visitors.

The Court presents a lengthy discussion of the history of the existing standard, the extent of its evolution in other jurisdictions and the arguments for, and against, the need for its abandonment in North Carolina. In determining a need for change the Court concludes that the "[a]doption of a true negligence standard eliminates the complex, confusing, and unpredictable state of premises-liability law and replaces it with a rule which focuses the jury’s attention upon the pertinent issue of whether the landowner acted as a reasonable person would under the circumstances." The Court, in an apparent attempt to assuage concern, goes on to proclaim that "we note that we do not hold that owners and occupiers of land are now insurers of their premises. Moreover, we do not intend for owners and occupiers of land to undergo unwarranted burdens in maintaining their premises. Rather, we impose upon them only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors."

The Court does not change the standard of care due a trespasser and makes the new rule retrospective as well as prospective. Chief Justice Mitchell, joined by Justices Lake and Orr, voiced concern over the inadvisability of rendering "an opinion of the magnitude of that entered by the majority in this case when, as here, no party has suggested such a modification of the common law and this Court has not had the benefit of briefs and arguments on the issues decided by the majority." These three justices concurred only in the result.

Editors comment: One is inclined to look behind the decision and see a cultural bias to define responsibility for injury in unstated terms of who is most likely to be insured.

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