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Defense and Arguments in a Personal Injury Action

defenses-and-arguments-in-a-personal-injury-actionIf you are injured in an accident that was caused or could have been prevented by another person or a company, you might have to file a lawsuit (a “personal injury action”) against them.  In your action, you will seek to recover monetary compensation (‘damages’) for your resulting medical bills, loss of wages or salary during any time you were unable to work, your pain and suffering, and related expenses.  Common personal injury actions include those arising from auto accidents, slips and falls, and dog bites.

When 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 or to minimize the amount of any damages you can recover.  In the simplest of terms, the following are some of the most common defenses and arguments the defendant may raise depending, of course, on the facts in your case.

Statute of Limitations

A statute of limitations specifies a period within which you must initiate your action.  Under North Carolina law, the statute of limitations for a personal injury action is three years from the date of the accident.  If you wait any longer, your action will be dismissed.

Contributory Negligence

Contributory negligence is a defense based on the argument that you were at fault, in whole or part, for the accident that caused your injury.  In an auto accident personal injury action, for instance, even though the driver (the “defendant”) may have also been negligent, if the defendant proves that it is more likely than not that you, the plaintiff, contributed to the wreck, say by speeding, for example, contributory negligence applies and you are barred from recovery.

Contributory negligence is a particularly harsh defense in North Carolina.  Instead of contributory negligence, most states now apply a “comparative negligence” rule where the defendant is responsible for a percentage of the plaintiff’s damages equal to the rate at which the defendant was at fault for the accident.  So, for example, if you were twenty percent at fault in causing the wreck but the defendant was eighty percent at fault, you would recover eighty percent of your damages.   In some states, the rule is effective even where the plaintiff is more at fault than the defendant; however, in most comparative negligence states, it applies only where the defendant’s percentage of fault is equal to (or, in some states, exceeds) the plaintiffs.

By contrast, North Carolina is one of only four states (along with the District of Columbia) that still apply the old contributory negligence rule – you are completely barred from recovering damages if you were at fault for the accident.

Assumption of Risk

Assumption of risk is, as its name suggests, a defense based on the argument that the plaintiff was aware of the risk of a type of injury often suffered by those engaging in a particular activity yet still willfully participated in that activity and thereby assumed the chance that such an injury might occur.  Classic examples of assumption of risk are a spectator at a baseball park who is hit by a foul ball or a beach vacationer who rents a jet ski and is injured when he or she falls off.

Assumption of risk might also be argued where the plaintiff chose to be a passenger in a vehicle driven by a person the plaintiff knew was intoxicated and injured when the driver lost control of the car or ran off the road causing injury.

Pre-existing Condition / Peculiar Susceptibility

It is often argued that the plaintiff had been previously injured or had a physical condition before the accident and should not recover from the defendant for damages such as medical costs related to that pre-existing injury or condition.  Similarly, it is sometimes argued that the defendant is not necessarily liable for the plaintiff’s injuries because the accident in question would not have injured any person of “normal” susceptibility.

Under the “Eggshell Plaintiff Rule” in North Carolina, a plaintiff’s frailty, weakness, sensitivity, or feebleness cannot be used as a defense against liability in a personal injury action.  These arguments are mainly used to reduce the number of damages that the plaintiff can recover rather than preclude recovery altogether.

Failure to Mitigate Damages / Avoidable Consequences

Another argument that the defendant might use to reduce the damages you can recover is that you unreasonably failed to seek medical treatment, follow your doctor’s orders, make it to your physical therapy appointments or otherwise attempt to avoid or reduce the harmful consequences of the accident.  In the case of a severe injury that limits your ability to perform your regular job, you might still need to accept the offer of a desk job at a lower pay rate as part of your reasonable effort to mitigate your damages.

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


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