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Premises liability: It’s not just trash talk

I. The Blue Light Fades

Known for their great prices and colorful logos, Kmart used to be everywhere. Now, across North Carolina, there are only four Kmarts left. Not so long ago, one of these Kmart store in Gaston County was involved in an interesting, but very disturbing, premises liability case. It ended up becoming a major Blue Light test of premises liability law…and even of the North Carolina Constitution itself.

A couple had the habit of taking a daily walk for exercise. As a normal part of their path or route, they apparently liked to often cut across the Kmart parking lot. This couple--Dan and Alice--was noticed one spring day. One of the Kmart workers asked them whether they had been “rummaging” through any of Kmart’s dumpsters. The husband, Dan, said no. He also explained they were only out for exercise. The next day there was something of a repeat of the incident. Only this time, the Kmart employee grabbed the man, and actually placed him in a chokehold, forcing him onto the ground. Alice came to his assistance, and a second employee also then knocked her onto the ground. Police were called and arrived about 15 minutes later. At that time, Kmart staffers said that they were going to charge Dan and Alice with trespass. Eventually, Kmart charged Dan only with simple assault. Notably, these assault charges were also dismissed by the court, by then with the help of a premises liability attorney.

The incident wasn’t easily forgotten. Dan’s estimated costs included medical and lost wages, and were more than $5,000; Alice’s injuries in medical bills alone were almost $14,000. A couple in this kind of alleged trespass on any commercial property should always decide to get help from an experienced premises liability attorney. As we will see, it’s best to address various issues associated with any alleged assault on another’s property. As often happens with these types of premises cases, there are also additional legal issues that are usually raised. Dan and Alice also sued Kmart for both intentional and negligent infliction of emotional distress.

Addressing the many issues involved, the premises liability attorney effectively won the lawsuit at the trial level. Next, the experienced premises liability attorney protected the basic award at the appeals court level. Finally, the Supreme Court of North Carolina itself was asked to weigh in, by the couple and Kmart, and decide some important issues. One of the key arguments was whether or not the limitation of the award to Dan and Alice was valid under the Constitution of North Carolina. Whereas the jury had awarded $11.5 million in total damages, the trial court judge reduced the award to $250,000 apiece.

II. That’s Gross?

Courts can overturn jury awards, if they are found to be “grossly excessive” or unfair. Premises liability attorneys don’t just look at the actual medical costs of these cases. Often, there’s the issue of whether or not the party that caused harm should be paying punitive damages, too. As you can understand from the word itself, there is an idea of public policy in play, in making an award “punitive.” Punitive awards also send a message that not only specific, proven costs should be paid… a message is sent for peculiarly offensive or outrageous conduct. In this case, the jury found the conduct of the Kmart workers to have been so outrageous that it set the award at $11.5 million.

The premises liability attorney was ready to defend this award by challenging the constitutionality of North Carolina law that set the cap on punitive awards.

III.  Compensatory Damages and Premises: Meet Liability Caps

At trial, the premises liability attorney noted the significant compensatory damages to the couple. Dan received a little over $8000 (including almost $2000 for legal expenses for the prosecution of his supposed assault against the Kmart workers). Alice had received almost $11,000 in compensatory damages. The caps were written to automatically reduce punitive awards to either three times compensatory (that would have been as low as $57,000), or $250,000 – whichever one was bigger.

Both sides of the case argued against the caps, but for obviously very different reasons. Kmart argued that the amounts were “grossly” excessive. The couple argued that the caps had unconstitutionally infringed with the rights of a jury. Ultimately, the North Carolina Supreme Court upheld the constitutionality of the caps.

Because we’re looking at the premises liability side of this case, the North Carolina Supreme Court had some interesting things to say about the uncertainty of language in defining the damages in this case. For example, the Court had an interesting argument about whether or not punitive damages are or are not a sort of “property.”

IV.  Property, premises, and Constitutional problems

As long ago as 1872 in North Carolina, courts wrestled with defining exactly what “property” means. In other words, courts are encouraged to treat certain words as somewhat flexible.

The word “property” is not always such a technical term, after all. “It’s meaning varies according to the subject treated” (a North Carolina court in 1876, cited in Baylor). The premises liability attorney, who is experienced in this field, knows there’s a constant balancing act between defining property, and premises--from the damages that may be held in terms of the party that’s been affected. In this court case, one question was in trying to explain whether or not the “property” interest of the injured couple included punitive damages. On this point, the premises liability attorney did not win the argument: the judges ruled that punitive damages were not Constitutionally protected property rights. This meant punitive damages were covered by the caps; the $250,000 caps were upheld.


It’s worth noting that there had been a very strong dissent, at the appellate court level on this case. Part of the importance of the dissent was that it granted an immediate right of appeal to the North Carolina Supreme Court. But at the Supreme Court level, the premises liability attorney’s arguments were strong enough that there were no dissenting opinions at that point.

On the other hand, there was an interesting twist in the concluding analysis. Kmart pointed out that there could be an uncertainty in the cap language as to whether or not the caps applied to the award to the plaintiffs, or to “each” defendant. This would’ve had the effect of cutting the awards ($500,000 total) to the injured couple in half. On this final point, the premises liability attorney prevailed for the clients again: they may have been harmed as a team, but they were entitled to separate awards. The language of the caps applied to each plaintiff. If you, a family member, or even your business or business associate or sublessor—have questions involving insurance claims, premises liability, or allegations of trespass, please contact us.  You will speak with an expert in premises liability/ insurance expert, who can best answer your questions about how your injuries may be best addressed.  There is never a fee for this initial consultation.

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