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Tag: Personal Injury Action

Pure Joint and Several Liability in Personal Injury Actions

Written by kwmlaw on . Posted in Kelly & West News.

The negligent acts or omissions of two or more individuals or entities can
coincide or combine to injure another party. While this can occur in many other
types of personal injury situations, for the purposes of this discussion, we’ll use
this auto accident scenario:

Two motorists, D1, who is driving north while distracted by typing a text message
on his cell phone, and D2, who is driving west and runs a stop sign, collide in the
intersection of North Avenue and West Street. The impact forces D2’s car over
the curb and onto the sidewalk where it hits and seriously injures an innocent
pedestrian, P. P’s total damages as a result of the injury, including medical bills,
pain and suffering and lost wages, are $100,000.

How the total liability for P’s damages is apportioned between D1 and D2
depends on the law of the state where the accident occurs. There are 3 basic
approaches used by the 50 states’ laws to deal with that issue:

1. Pure Several Liability – used by 14 states, including North Carolina’s
neighbor, Tennessee,

2. Modified Joint and Several Liability – used by 29 states, including North
Carolina’s neighbor, South Carolina, and

3. Pure Joint and Several Liability – used by North Carolina, its neighbor,
Virginia, and only 5 other states.

In the following, we will first briefly describe the approaches used by other states,
then focus more closely on the approach used by North Carolina law.

Pure Several Liability

In the 14 states that use the “pure several liability” approach, which is also called
the “proportionate liability” approach, each negligent defendant is liable for only a
portion of the total damages incurred by the injured plaintiff. That portion of
liability is based on the defendant’s percentage of fault for the plaintiff’s injury,
either as agreed to in a pre-trial settlement or as determined by the jury. To the extent to which any of the defendants is “judgment-proof” (uninsured and insolvent) and thus unable to compensate the plaintiff for his/her percentage share of the plaintiff’s damages, the plaintiff will not actually recover full compensation.

Assume that the accident described in our scenario occurred in Tennessee or
another several liability state. At the trial, the jury finds that D1 was 60% at fault
and D2 was 40% at fault. As a result, D1 is liable to P for only 60% of P’s
damages, $60,000, and D2 is liable for only the remaining 40%, $40,000. If D2
is unable to compensate P for any more than $10,000 of P’s damages, then P
will actually recover only $70,000 of P’s $100,000 of total damages.

Modified Joint and Several Liability

In the 29 states that use the “modified joint and several liability” approach, each
negligent defendant is liable for only a portion of the injured plaintiff’s damages
based on that defendant’s percentage of fault for the plaintiff’s injury, up to a
defined percentage threshold. If the percentage of any defendant’s fault equals
or exceeds the applicable threshold, then that defendant is liable for all of the
plaintiff’s damages.

Assume that the accident described in our scenario occurred in South Carolina, a
modified joint and several liability state where the liability threshold is 50%.
Again, the jury finds that D1 was 60% at fault and D2 was 40% at fault. Even if
D2 is nearly judgment-proof and cannot compensate P for any more than
$10,000 of damages, P can still recover all of P’s damages, $100,000, from D1
whose percentage of fault was above the 50% threshold.

Pure Joint and Several Liability – North Carolina Law

In North Carolina and the other 6 states that use the “pure joint and several
liability” approach, every defendant whose negligence is a cause of the plaintiff’s
injury is liable for all of the plaintiff’s resulting damages, regardless of their
percentage of fault for such injury.

Assume that the accident described in our scenario occurred in North Carolina.
North Carolina’s courts do not apportion fault between defendants who are found to be jointly and severally liable. P could sue either D1 or D2 individually for all of
P’s damages. For instance, P might elect to sue D1 alone, because there is a
reliable eyewitness who clearly saw D1 texting just before the collision, and P
knows that D1 has more than enough insurance and assets from which to collect
all of P’s damages. In all likelihood though, P will sue both D1 and D2 in a single
action, because generally speaking, a plaintiff cannot receive two jury awards for
the same personal injury damages.

If D1 pays for all of P’s damages, then pursuant to a North Carolina statute, D1
can sue the other jointly and severally liable defendant, D2, for “contribution”
equal to D2’s “pro rata share” in the entire liability. Such pro rata share is based
solely on the number of jointly and severally liable defendants involved – their
respective percentages of fault are not taken into consideration. Because there
are two such defendants, D2’s pro rata share is equal to 50% of P’s total
damages, $50,000. If D2 is judgment-proof for any more than $10,000, then
after recovering that $10,000 from D2, D1 will end up having paid for 90% of P’s
damages, $90,000.

As you can see, there are special issues that often arise in situations where
multiple negligent parties are responsible for causing a personal injury. If you
have been injured in such a situation and are considering taking legal action, call
us and arrange for a free consultation. Our experienced attorneys at Kelly &
West have been helping clients with their personal injury actions for more than 40
years.

Defenses and Arguments in Personal Injury Actions

Written by kwmlaw on . 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.