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Workers' Compensation

Vernon Sumwalt on "Last Clear Chance" Doctrine under N.C. Gen. Stat. § 97-10.2(e): Outlaw v. APAC-Atlantic, Inc.

In a case of first impression, the North Carolina Court of Appeals held in Outlaw v. APAC-Atlantic, Inc., 660 S.E.2d 550 (N.C. Ct. App. 2008), that a negligent employer cannot recover its workers' compensation lien even though a negligent third party had the last clear chance of avoiding an injury. This article looks at the facts and the law behind the Outlaw decision, as well as the lessons that advocates can take from the court's decision.
 The author first explains the factual background of Outlaw and the posture of the appeal to the Court of Appeals. He then discusses the language and impact of N.C. Gen. Stat. § 97-10.2(a), (e), (g). The author examines the case law that surrounds § 97-10.2(e) and why § 97-10.2(e) precludes the employer from utilizing the last clear chance doctrine. The author then provides three important lessons for practitioners. The author finds that “the court got it right…making the injured party whole and leaving the legislative intent behind N.C. Gen. Stat. § 97-10.2(e) intact.”