Personal Injury Defense

Personal Injury Attorney and Lawyer in Chapel Hill North Carolina

Personal injury lawyers in Chapel Hill, Raleigh, Durham and other areas of North Carolina are here to provide legal help whether it involves civil litigation or negligence.  If you have been injured or lost a loved one due to actions of another then you need the help of an experienced North Carolina personal injury lawyer. Everett Law Firm, P.A. has represented numerous individuals injured due to the careless, reckless, negligent and intentional acts of others. As someone injured in an accident you face numerous problems, including getting the treatment you need to get better, paying for this treatment, getting your vehicle fixed and receiving compensation for your injuries, lost time at work or property damage. The Chapel Hill based attorneys of Everett Law Firm; P.A. will help you receive the compensation you deserve through aggressive representation.

There are two types of claims an individual can assert when injured by another party, those being claims arising from the negligent acts of another and those arising from another's intentional act. The attorneys of Everett Law Firm, P.A. can assist you in your claim arising out of either negligent or intentional acts of another.

NEGLIGENCE
Negligence is the largest area of tort law and civil litigation for the most part. It is very important for one to understand what a negligence lawsuit involves and what must be proven in order to be successful in the negligence lawsuit. Important elements include breach of duty, actual cause, proximate cause, and actual damages.

Duty
Every person in the state of North Carolina owes a duty of care to all individuals who are foreseeable victims as a result of that person's behavior. What this means is that when one drives down the road, the driver owes a duty of care to pedestrians and other motorists. The driver has a duty to look for pedestrians before running through an intersection. The driver has a duty to not hit other vehicles and so forth. A construction worker working on a skyscraper has a duty not to be careless and let objects fall onto pedestrians below. The standard for the amount of care a person must exercise is the reasonable prudent person test. This is an objective test that is not always a "typical person" but is a rigid test. The reasonable prudent man always drives the speed limit and always looks before crossing the street. Children are held to the standard of what a reasonable child of like age, intelligence, and experience would do. The exception would include adult activities. In these scenarios, the child is held to the adult standard of a reasonable prudent adult. If a child drives an automobile or fires a gun, he would be held to the adult standard.

The first thing that must be proven in a negligence lawsuit is that the defendant had a duty, but then breached the duty. If there is no duty to begin with, the defendant cannot be held liable except under rare strict liability scenarios.

Actual Cause
For a North Carolina civil suit to prevail, it must be proven that the defendant's action or omission was the actual cause of the injury. The most standard test used is the "but for" test. This test applies as follows: Plaintiff's injury would not have occurred "but for" defendant's actions or omissions. This is the test for the actual cause. What this basically says is that if the accident or injury would have occurred anyway, regardless of the alleged action or omission, then the plaintiff's claim will not prevail. The test is there so that plaintiffs have to prove that the defendant caused the plaintiff's injuries.

For instance, John owns a hardware store in Raleigh. On a snowy day, he refuses to shovel the snow and ice in front of his store. He opens his store anyway and does not put any warning signs or notice that the sidewalk might be slippery or dangerous. Tonya walks down the sidewalk and slips and falls, breaking her leg. She would not have broken her leg "but for" John's poor maintenance of his sidewalk in front of his store. Had John shoveled the sidewalk or posted warning signs in front of his store, Tonya would not have slipped and fallen.

Proximate Cause
Proximate cause is also required for a negligence lawsuit to prevail. The general principle involving proximate cause is that the defendant will only be held liable if the injuries are within the scope or risk of the activity. The reason for this rule is to limit liability and to cut down the number of frivolous lawsuits where the plaintiff may have been injured "but for" the defendant's activity, but that activity was so attenuated and removed from the injury that it would be difficult to justify awarding the plaintiff.

For instance, Douglas accidentally hits Cameron with his vehicle one day on the street. As a result, Cameron is injured and incurrs substantial medical bills. However, Douglas is out of money, but his mother is a multi-millionaire. Cameron decides to file suit against Douglas's mother rather than Douglas, stating that the accident would not have occurred "but for" Douglas's mother having Douglas and that she did not teach him to drive more carefully. Cameron’s lawsuit is unlikely to prevail because the cause is just way too attenuated and the mother's action of having children is completely out of the scope of someone's negligent driving.
It is important to note that many fact patterns involving intervening forces do not cut off liability for the tortfeasor. Subsequent medical malpractice, botched rescues, reaction forces, and subsequent diseases or accidents are always considered foreseeable and within the proximate cause.

For instance, David is playing around with a loaded gun. The firearm accidentally discharges and hits Phillip in the leg. Normally, the wound would be fully recoverable. However, Phillip the doctor that treats Phillip mistreats Phillips injury and the doctor's malpractice causes Phillip's leg to have a massive infection. In this scenario, David is still liable for the leg infection. The doctor can also be held liable for the infection, but his liability is not going to prevent Phillip from recovering from David for the infection.

Criminal conduct does not cut off liability from the negligent tortfeasor in most cases either. For instance, Jenny is shopping at the mall late at night. The mall security provides no security cameras or lights in the dark parking garage when the mall closes. As a result, a late night robber named Paul hits Jenny with a crowbar and takes her purse. Paul's intentional torts and criminal activity would not cut off the mall's liability. In this case, the mall's negligence produced a foreseeable outcome as a result of the negligence. It is very foreseeable that the lack of security measures would cause a late night robbery.

Damages
For a negligence action to prevail, actual damages must be present. If the defendant's negligent actions did not actually cause any damages whatsoever, then it is pointless for the plaintiff to file suit since they would not recover anything. Actual damages must not only be present, but proven. Thus, that is why punitive damages are only available when there are compensatory damages. What this basically says is that for a negligence lawsuit to be successful, the plaintiff must have actually been harmed.

North Carolina Defenses to Negligence
It is important to know that there are various defenses that are available to defendants in a negligence suit. North Carolina is a contributory negligence state. This means that if the jury finds that the plaintiff was also at fault at all (no matter how small), recovery is completely barred. What this means is that when one files a negligence lawsuit, if the jury finds the plaintiff at fault at all, the plaintiff will not be entitled to recover anything.

For instance, Fernando and Susan get into a large car accident. Fernando was speeding 100 mph in a 45 mph zone, did not have his headlights on, and was not using his windshield wipers even though it was raining. Susan was driving carefully and obeying all the laws, but she was speaking to her husband on the cell phone. If the jury finds Fernando 99% responsible for the accident and Susan 1% responsible for the accident, Susan will not be able to recover anything at all.

Assumption of risk is another defense to negligence. If the injured person full well realizes the risks of an activity and voluntarily undergoes the activity, the doctrine of assumption of risk would completely bar recovery. The only exceptions would include violations of public policy or if the injured person really did not have a choice, or if the accident occurred during an emergency. The absence of an alternative always destroys the assumption of risk defense. An example of assumption of risk would be if Jennifer wanted to go skiing on some dangerous slopes even when the ski resort instructors expressly tell her to not go on the slopes. They warn her of the dangers and even make her sign a waiver. She decides to go anyway and breaks her leg. She will have no meritorious cause of action against the ski company.

Strict Liability
There are certain activities and the ownership of certain animals trigger strict liability. The ownership of tigers, lions, and bears would trigger strict liability for their owners.

It is important to note that the animal owners would be strictly liable for the type of harm normally caused by that type of animal. This means that if Jerry owns a pet tiger, he would be held strictly liable if the tiger bites Thomas. Jerry's negligence is irrelevant since there is strict liability. However, if Jerry's tiger somehow gets into Jerry's truck and moves the transmission to reverse, causing the truck to back into Samuel's SUV, Jerry would not be held liable under strict liability. This is because the type of injury was clearly not what tigers normally are expected to cause.

Abnormally dangerous activities also warrant strict liability. These are activities that require a high degree of risk to even be conducted. In addition, if something does go wrong, the harm is likely to be severe. The activity has to be very uncommon in the community that it occurs in. Examples would include explosives, poison gas, and nuclear energy.

A typical scenario would include a chemical company working on poison gas. Despite a huge prodigious effort to ensure no leaks, some poison gas escapes and Barbara is severely injured. A thorough investigation finds that the chemical company was not negligent at all. Nonetheless, Barbara will have a cause of action against the chemical company. Everett Law Firm, P.A. will be your advocate in proving to the finder of fact each and every element of your North Carolina personal injury case.

Free personal injury legal consultations are available.
The personal injury attorneys and lawyers at Everett Law Firm, P.A. understands the issues of personal injury in North Carolina.  Please feel free to email us or call our Chapel Hill law office, conveniently located in Chapel Hill, to discuss your personal injury case. Our toll free phone number is (800) 942-8048.