Understand how North Carolina’s negligence laws might affect the outcome of your personal injury lawsuit
Negligence, liability, and fault are some of the basic elements that comprise a tort law claim. You can only make a personal injury claim if you can establish that a defendant (or multiple defendants) caused the injury.
But first, here are some legal terms you need to know in order to understand North Carolina negligence law:
Tort: A tort is any wrongful act or omission that can lead to civil (not criminal) responsibility because it injured a person or entity. Broadly defined, an “injury” could be physical, non-physical (for example, emotional), or financial.
Personal injury: A personal injury could be literal, like injuries you suffered in a car accident. A personal injury can also be damage to your reputation, such as in slander or libel. Loss can be related to financial loss (like loss of property, loss of earning capacity, loss of a business or livelihood), or a property or contract dispute. In essence, personal injury law covers a broad range of losses or any action that harms you. A personal injury is usually handled in civil courts, but there are limited circumstances when it’s also a crime.
Liability: At its core, legal “liability” refers to whether someone had an obligation or responsibility to do or not do something that caused harm.
In short, a tort is the defendant’s action. An injury is what happened to you as a result of that action. The legal question is whether the event was an unavoidable accident, or if the defendant was liable for your injury.
Negligence ties these concepts together. It’s an action or failure to act by a defendant who owes a duty of care to a plaintiff. Everyone has a duty to another person, and that duty changes — even minute by minute — depending on circumstances and relationships. But be aware that you can have a duty relationship with someone you don’t even know.
Here’s why:
Any interaction, no matter how small, creates a duty relationship. These are just a few examples of when a person has a duty to someone they might or might not know:
- A manufacturer has a duty to sell products that are free from defects that could cause injury to the public.
- A driver has a duty to all road users to take reasonable care on the roads by following traffic laws, taking precautions to prevent crashes, and being aware of traffic, pedestrians, and bicyclists.
- A pedestrian has a duty to other pedestrians, bicyclists, and drivers to pay attention to where they’re going and avoid collisions.
- A property owner has a duty to keep premises safe from trip-and-fall hazards or other dangerous situations.
5 elements for proving negligence:
- The defendant had a duty to either act or not act in a specific way.
- The defendant breached their duty.
- Breach of that duty was the cause of the plaintiff’s injury.
- The defendant should have foreseen the likelihood that someone would be harmed by their action or inaction.
- The injury resulted in actual damages (cost of medical treatment, lost wages, pain and suffering, etc.).
North Carolina’s pure contributory negligence rule
Every state in the U.S. follows 1 of 4 fault systems. These rules determine how much (or if) you can recover damages for a personal injury.
In some states, even if the injured person had some liability for the accident, they can still recover damages, but the amount is reduced by the percentage of the plaintiff’s fault. For example, in a car accident case where the defendant was at fault but the plaintiff could’ve acted differently in a way that would have avoided the collision, the court would evaluate what percent was the plaintiff’s fault. If the plaintiff was found to be 10% liable, their damage award would be reduced by 10%.
But that’s not how it works in North Carolina.
North Carolina is 1 of 5 states that follows the pure contributory negligence rule. If the plaintiff has any fault for the accident, they aren’t allowed to receive any damages.
Here’s an example of how North Carolina’s contributory negligence rule might affect a slip-and-fall case:
The property owner claims that the plaintiff was partially at fault. These are some of the possible defenses:
- The plaintiff entered a part of the store that was clearly marked “employees only.”
- The plaintiff was texting while walking and fell because they weren’t paying attention to where they were going.
- The plaintiff ignored signs or cones that warned of a dangerous condition like a wet floor.
- The dangerous condition was obvious.
- The plaintiff was running or wearing unsafe footwear.
But just because the defendant says the plaintiff was doing one of these things doesn’t make it true. The defense has the burden of proof for contributory negligence, so they would need to demonstrate by a preponderance of the evidence (meaning it’s more likely than not that the plaintiff was acting as the defense suggests) that the plaintiff was acting in a way that contributed to the accident.
Plaintiff’s defenses to contributory negligence
When a defendant claims that the plaintiff contributed to the accident, the tables are turned and the plaintiff is in a position where they must defend against that claim. In such cases, the following legal strategies may be used:
- Gross negligence. Gross negligence is when a defendant has engaged in “willful or wanton conduct” that caused the plaintiff’s injury. “Wanton” means the defendant’s behavior involves actual or deliberate intention to harm or an indifference to safety, either their own or someone else’s. If the defendant was grossly negligent, the plaintiff would not be liable for contributory negligence.
- Last clear chance doctrine. This rule says that even if the plaintiff was contributorily negligent, if the defendant could have avoided the accident by using reasonable care at any moment up until the injury happened, the plaintiff cannot be at fault because the defendant could’ve prevented the accident. The burden of proof is on the plaintiff to provide evidence to demonstrate that the defendant knew that the plaintiff was at risk of being hurt and could’ve avoided the injury or damage and failed to do so.
- Proximate cause doctrine. The court determines whether the plaintiff’s injury was the foreseeable result of the defendant’s action, which is called “proximate cause.” In North Carolina, the court can require that the plaintiff’s contributory negligence was the proximate cause of the injury in order to bar recovery. If the court finds that the plaintiff’s action was not the proximate cause, then the plaintiff wouldn’t be barred from recovering damages.
When do you need a North Carolina personal injury lawyer?
If you were injured in a North Carolina accident, a lawyer can help protect your interests by finding evidence that provides a defense to contributory negligence. Especially if the injury was serious and costly, the defendant is likely to claim that you had a role in causing the accident because they know that even a small role might be enough to bar you from recovering compensation.
It’s your lawyer’s job to review the facts of the case and present the evidence to result in the highest compensation possible for your injuries.
The Enjuris law firm directory is your source for finding a North Carolina personal injury lawyer who knows the law, is skilled in representing plaintiffs’ interests in court, and will be able to maximize your recovery.
See our guide Choosing a personal injury attorney.