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Defenses and Arguments in Personal Injury Actions

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.

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