Tag: contributory negligence

How Do You Know if Negligence is to Blame for Your Accident?

Written by kwmlaw on June 15, 2023. Posted in Kelly & West News.

Accidents happen and are sometimes unavoidable. Although, maybe you have been involved in an accident and are confident that another person caused it to happen. You did everything right, yet you are burdened with the consequences of financial and/ or physical damages. It is essential to know what signs to look for when you suspect negligence was the cause of your accident.

What is Negligence?
Negligence is conduct that falls below standards established by the law that results in risk or harm to others. To put it simply, it mostly consists of carelessness. Negligence can be committed by carelessness or non-performance of duties. There are many different kinds of negligence.
Negligence can be seen in automobile accidents, during lack of concern for hazards on a property, in medical settings, and in the workplace. Some causes include texting and driving, reckless driving, medical personnel administering the wrong medication or treatment, and ignored hazards in a public space or the workplace.

Contributory Vs. Comparative Negligence
Two terms you might hear are contributory and comparative negligence. Contributory negligence only remains recognized for personal injury law in four states, with North Carolina being one of them. It prevents a person from recovering any money in a personal injury lawsuit if they had any fault in the accident, even 1%. Comparative negligence allows the fault to be distributed to both parties. For example, if the person injured was 25% at fault, they could receive 75% of the damages. Read more in our post explaining the two.

5 Examples of an Accident Due to Someone Else’s Negligence

There is a broken staircase on a property you are visiting. The property owner has known about this hazard, and there have been reports filed about it. Nothing has been done to address it, you have not been warned about the danger, and you injure yourself while walking up the staircase.
A person is not paying attention to the road while texting and driving. The distraction causes the person to hit your car, injuring you and/or your passenger(s).
You are driving through a green light, and another driver runs a red light at a busy intersection, causing a collision. You and/or your passengers are injured from the collision.
You are shopping at the local grocery store. A jar has shattered and spilled, and the mess has been there for 30 minutes with no “wet floor” sign in sight. You slip and fall and injure yourself on the glass.
A person takes their dog to a public park, even though they are aware the dog is aggressive and has bitten before. While at the park, the owner lets the dog get close to you and the dog attacks, causing injury.

Signs Your Accident was Caused by Negligence
You might notice a trend in these examples; someone did not do something that a regular person would consider typical behavior. For example, someone didn’t put out a sign to warn people about the wet floor at the grocery store. Look for the following:

Signs/cautions about the danger.
Previous complaints filed about the danger.
Previous citations given regarding similar or identical acts.
Ignored claims of broken or damaged property.

Negligence can sometimes be difficult to determine, so it is always important to consult a lawyer. If you are unsure if your accident was caused by negligence, contact us for a free consultation from one of our caring attorneys.

Defenses and Arguments in Personal Injury Actions

Written by kwmlaw on October 13, 2022. Posted in Kelly & West News.

If you are injured in an accident caused by another person’s failure to use reasonable care (“negligence”) you may have to file a lawsuit. In your lawsuit (a “personal injury action”) you will seek to recover an amount of money (“damages”) to compensate you for your medical bills, loss of income during any period you were unable to work, pain and suffering, emotional distress and other losses and costs resulting from the accident.

Once you (the “plaintiff”) file your personal injury action, you can expect the person or company from which you seek to recover damages (the “defendant”) to do everything they can to prove that they are not legally responsible (“liable”) for your injury and/or to minimize the damages you can recover from them. The following are some of the most common defenses and arguments that a defendant may raise in a personal injury action in North Carolina.

Statute of Limitations

A statute of limitations specifies the period of time within which a plaintiff must initiate an action. Statutes of limitations are meant to ensure that lawsuits are dealt with fairly and in a timely manner.

In North Carolina, the statute of limitations for a personal injury action is 3 years from the date of the injury. The statute delays the period for some actions. For example, the 3 year period starts to run on the plaintiff’s 18th birthday for an action to recover for an injury suffered by a minor. In any event, if the plaintiff waits any longer than the applicable 3-year period, the action will be dismissed.

Contributory Negligence

Contributory negligence is a particularly strict defense in North Carolina. It applies where the negligent defendant can prove that the plaintiff’s own negligence was partly the cause of the accident that caused his or her injury.

Unlike North Carolina, most states now allow a defendant to use only a comparative negligence defense in cases where both parties are negligent. Under comparative negligence, the defendant is responsible for a percentage of the plaintiff’s damages equal to the percentage to which the defendant was at fault. In some states, comparative negligence applies even where the injured plaintiff is more at fault than the defendant. In most comparative negligence states, however, it applies only where the defendant’s percentage of fault either was at least equal to (i.e. 50%) or exceeded the plaintiff’s.

North Carolina is one of only 4 States which (along with the District of Columbia) still apply the old contributory negligence rule. Under contributory negligence, a plaintiff is completely barred from recovering any damages if the defendant proves that the plaintiff’s negligence contributed to any degree to the accident which caused the injury. So, even if the defendant’s negligence was 99% of the cause of the accident, and the plaintiff’s contributory negligence was only 1%, the plaintiff will not recover any damages.

There are a few important exceptions to the contributory negligence defense in North Carolina. If an injured plaintiff can prove that the defendant’s “gross negligence” was a significant cause of the accident, the defendant cannot avoid liability based on the plaintiff’s contributory negligence. This has been held to apply, for example, where a defendant was driving while intoxicated or engaged in street racing.

Another exception in North Carolina is the “last clear chance” doctrine. It has been described as a defense to a defense. In a last clear chance situation, the plaintiff was in a “position of helpless peril” due to his or her own negligence prior to the accident. If the defendant discovered (or reasonably should have discovered) the plaintiff’s perilous position and had enough time and the ability to avoid the accident but negligently failed to do so, the plaintiff can recover for his or her injury.

Assumption of Risk

Assumption of risk, as the name suggests, is a defense based on proof that the plaintiff was aware of a type of injury often suffered by people engaging in an activity yet still willfully participated in that activity and thereby assumed the risk. Classic examples of assumption of risk are a spectator at a baseball park who is hit by a foul ball or an amusement park visitor who suffers a whiplash injury while riding a roller coaster.

Assumption of risk will also be raised as a defense in a case where a plaintiff chooses to be a passenger in a vehicle driven by a defendant whom he or she knows is intoxicated and is injured when the defendant driver loses control of the vehicle and runs off the road.

Prior Injury or Pre-Existing Condition / Peculiar Susceptibility

It is often argued that the plaintiff had already been injured or had a medical condition prior to the accident and should not recover from the defendant for damages, such as medical costs, that are actually related to treatment of that injury or condition. Similarly, it is sometimes argued that, because the accident in question would not have injured a person of “normal susceptibility” the defendant is not necessarily liable for an injury resulting from the plaintiff’s “peculiar susceptibility”.

These arguments are not valid defenses against liability like contributory negligence and assumption of risk. The defendant is liable for damages to the extent that the accident aggravates or exacerbates the plaintiff’s prior injury or pre-existing condition and regardless of the plaintiff’s level of “susceptibility”. They can, however, make calculation of the plaintiff’s damages a contentious issue.

Failure to Mitigate Damages

Another argument that a defendant might use to try to reduce the amount of damages a plaintiff can recover is that the plaintiff unreasonably failed to seek medical treatment, follow doctor’s orders, make it to physical therapy appointments or otherwise attempt to mitigate the harmful consequences of the accident. In a case involving an injury that significantly impairs the plaintiff’s ability to perform his or her normal job, he or she might have to accept an offer of a “light duty” or desk job at lower pay and thereby mitigate his or her damages based on lost income.

Insurance companies and defense attorneys will use the defenses and arguments summarized above (and many others) to make it as hard as they can for you to recover fair compensation for your injury. You will need the advice of an experienced attorney to help you anticipate, be prepared for and deal with them effectively. Our attorneys at Kelly & West have been helping clients with their personal injury actions for 40 years. Call us and arrange for a free consultation.

Car Accident: What is Contributory vs. Comparative Negligence?

Written by kwmlaw on July 30, 2019. Posted in Areas of Experience, Kelly & West News.

If you get into a car accident, you, of course, want to make sure the at-fault driver’s insurance pays for damage and medical bills. At the outset of your case, you may hear about contributory negligence versus comparative negligence. What do those terms mean, and why does it matter in your case?

First, negligence itself refers to who is at fault. Sometimes, figuring out who is at fault is not easy. For example, let’s say a person while visiting a store, slips and falls on something dark spilled on a white tile floor in the store. The person did not see the spill, but if she had looked, she could have seen it as it was clearly visible. Who is at fault? Most of us would assume that the store is more at fault in causing the accident as they should have cleaned up the spill so that any guests visiting the store would not slip. But an argument could also be made that the person could have seen it had she looked since it was clearly visible.

If you are involved in a negligence claim, you will want to get a better understanding of the differences between contributory and comparative negligence.

Contributory Negligence

North Carolina is one of four states (and the District of Columbia) that still recognize contributory negligence in personal injury law. This law prevents a person from recovering money in a personal injury lawsuit if he or she had even the slightest bit of responsibility for his or her injuries.

So, in our slip and fall example above, while the store might clearly be negligent for not properly cleaning up the spill, it is likely that the person who fell is also at least 1% at fault — she could have seen the spill had she looked, and she had a duty to look at where she was going. Thus, in N.C., the person who fell in the store is likely to recover nothing in N.C.

This is not so in other states.

Comparative Negligence

Comparative negligence allows the fault to be distributed between both parties — depending on who is more or less responsible for the injury. However, there are different versions of comparative negligence. Some states have “pure comparative negligence.” This means that if the plaintiff (the person who was injured) was found to be at fault by some percentage, say 25% for example, then the plaintiff would only recover 75% of his or her damages (100% less the 25% for the plaintiff’s fault).

So, in our slip and fall example in a state that practices pure comparative negligence, if the person who fell is awarded $10,000 in damages but is determined to be 25% at fault, then that person would recover $7,500 or 75% of her damages.

More commonly, states use “modified comparative negligence,” which means that the plaintiff will only recover if he or she is not more than 50% at fault.

So, in our slip and fall example, if it is determined that the person who fell is 25% at fault, that person would recover 75% of her damages, same as above. However, if the person is determined to be 51% at fault for some reason, say maybe she was running in flip flops after an employee had alerted her of the spill, then in a state that practices modified comparative negligence, that person would recover nothing because she is more than 50% at fault.

What This Means in North Carolina

Your North Carolina case may be affected by contributory negligence, as North Carolina law does not allow for comparative negligence. This means you may not recover anything if you are even just 1% at fault in North Carolina. In most personal injury cases, it’s best to contact an attorney who can help you sort out your approach before you talk with anyone about how the accident occurred.