How You Can Still Win Your Personal Injury Negligence Case
North Carolina is one of the few states that still have contributory negligence in personal injury law. North Carolina is joined only by three other states and Washington D.C., while the remaining 46 states have a form of comparative negligence. Contributory negligence is harshly cut and dry. When an injury occurs, one of the first questions people ask is, “Whose fault is it?” With contributory negligence, if the answer includes the injured party to any degree, the injured party cannot collect any damages. In other words, if a jury concludes the injured party is even 1% at fault for the injuries, the person cannot recover anything from the 99% at fault party.
However, there are several doctrines personal injury attorneys can employ to mitigate the harsh cut and dry nature of contributory negligence. These negligence doctrines may help plaintiffs recover damages even if they are partially responsible.
Comparative Vs. Contributory Negligence
Comparative negligence allocates damages when both parties are at least partially at fault. The allocations are percentage-based depending on how much the plaintiff and defendant are to blame for the incident. For example, if the jury finds the plaintiff was 20% at fault, then the defendant pays 80% of the total of plaintiff’s damages as determined by the jury.
On the other hand, contributory negligence bars plaintiffs from recovery if they are in any way negligent in causing the accident, regardless of how negligent the defendant was. For example, if the plaintiff was 1% at fault, the defendant pays 0% of the plaintiff’s damages. It is easy to see why this practice has been abolished in most states, but thankfully, there are still some workarounds to alleviate the potentially unfair effects of comparative negligence to the plaintiff.
Elements of a Negligence Case
The elements required to establish liability are mostly the same from one state to the next. Here are the general elements of a negligence case:
- Duty: Defendant owed a duty to commit an act or refrain from committing an act
- Breach of Duty: Defendant breached this duty
- Proximate Cause: Defendant’s actions (or inactions) were the proximate cause of the injury (the defendant should have known that this action could have caused injuries)
- Damages: Plaintiff suffered actual damages (i.e., lost wages, hospital bills, etc.)
Contributory Negligence/Proximate Cause
- Proximate Cause: exists if the plaintiff’s injuries were a reasonably foreseeable consequence of the defendant’s behavior. (more on this below)
Types of Negligence Doctrines
Personal injury lawyers use several doctrines to deal with the blow of contributory negligence, including the “last clear chance” doctrine, proximate cause, and gross negligence. By implementing these doctrines, personal injury attorneys can still win compensation for their clients, even if they are partially responsible for their injury.
“Last Clear Chance” Doctrine
A negligent plaintiff may still be able to recover damages if the defendant had the “last clear chance” to avoid injuring the plaintiff. By way of example, if a bicyclist is riding without proper reflectors on their bike, a technical violation of the law, but a motorist sees them anyway and still hits the cyclist, the cyclist may technically be contributorily negligent but the motorist had the last clear chance to avoid hitting the cyclist because they saw them in time to avoid the collision.
As mentioned before, proximate cause relates to the foreseeable consequences of the defendant’s actions. If the plaintiff’s negligence was not a proximate cause of her injuries, as determined by a jury, then the elements of contributory negligence are not met and the plaintiff can still recover.
A defendant can be considered grossly negligent if they consciously disregard or is indifferent to the rights and safety of others. This type of negligence is known as “willful and wanton conduct.” As an example, if the defendant was speeding and intoxicated in a parking lot where several pedestrians are walking and hits the plaintiff, the plaintiff’s attorney can argue the defendant was intentionally exhibiting dangerous behavior that led to the plaintiff’s injury. If the defendant’s conduct rises to the level of gross negligence, the defendant must prove gross contributory negligence on the part of the plaintiff to bar recovery. In this scenario, ordinary contributory negligence will not preclude a plaintiff from recovering fair and reasonable damages.
North Carolina Negligence Laws
Many believe North Carolina should adopt comparative negligence laws like the majority of the country, but contributory negligence law still stands. Despite the harsh unfairness of contributory negligence, there are still ways for the plaintiff to recover damages in a personal injury case. North Carolina has several negligence laws that apply to different injuries. More negligence doctrines than mentioned in this article exist that can reduce the unfair effects of contributory negligence.
Do not give up on receiving compensation for your injuries because of your small degree of negligence. Experienced attorneys can help you navigate and work around contributory negligence laws and get you the damages you deserve. If you are looking for personal injury attorneys near Asheville NC, contact Fisher Stark, P.A. today for your free consultation.
Related article: “The Personal Injury Claims Process”