When an individual is injured due to another’s negligence, the victim may be entitled to file a personal injury claim. The root of the personal injury can vary, however, personal injury claims often encompass claims arising out of car accidents, trucking accidents, motorcycle accidents, slip and falls, and even dog bites.
- What is a personal injury?
- What is negligence?
- How much is my case worth?
- What are damages?
- What are punitive damages?
- What is contributory negligence?
- What should I do if an insurance company approaches me to settle the claim?
- How long can I wait to file a personal injury claim?
- How much does it cost to hire an attorney?
- What is a contingency fee?
- How long will it take for my personal injury claim to be resolved?
- How long do I have to file a lawsuit?
- Can personal injury claims be made against the State of North Carolina and its agents?
The following is a list of some of the most frequently asked personal injury questions. If you do not see your question answered, contact us using the form to your right and we’ll answer any legal questions you have.
Personal Injury
What is a personal injury?
A personal injury is legally defined as physical or psychological harm inflicted on another persona, which is caused accidentally by another individual or company’s failure to use reasonable care.
What is negligence?
Every personal injury case can be boiled down into two major components; liability and damages. Basically, liability is whether the defendant is legally responsible for the incident and any financial losses which may arise from the accident. For the party to be legally responsible, he must first be found to have been negligent.
Negligence is the failure of an individual or party to use reasonable care, it refers to a person’s failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from harm. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstance to protect himself and others from harm.
Negligence must be proven in order for a personal injury claim to be successful.
How much is my case worth?
A personal injury claim is not absolutely objective, there are many factors to consider in determining the strengths and weaknesses of any case. Since most cases do not go to trial and it is often difficult to determine what a jury would do, it is often beneficial to discuss your case with an experienced attorney.
An attorney can help you evaluate and understand the strength of liability, the extent of your damages and the value which an insurance adjuster or a jury may compensate you based on previous experience. With this understanding, an attorney can help present your case in the most favorable light and help you try and obtain the best possible value your case. An attorney will also help you weigh the risks and benefits of either settling your case or pursuing a lawsuit.
What are damages?
Every personal injury case can be boiled down into two major components; liability and damages. If the party who caused your grievances is found to be negligent, and therefore liable, then the extent of the damages that party is responsible for must be determined.
Damages are the amount necessary to compensate you for your loss and put you back in the same position, or as close as possible, to where you were before the accident. In other words, damages represent the monetary extent of your loss.
Damages may take many forms including, but not limited to, past and future medical expenses, lost wages, lost earning capacity, disability, pain and suffering, emotional distress, punitive damages and in some cases, loss of consortium (the deprivation of the benefits of a familial relationship – for example, a spouse). While some of these damages can be calculated objectively, many are subjective. An attorney can help present your objective damages, and most importantly, subjective damages to an insurance company or jury in the most favorable light possible in an effort to maximize your recovery.
What are punitive damages?
In North Carolina, punitive damages may be awarded only if the defendant is liable for compensatory damages, such as medical expenses and pain and suffering, and one of the following aggravating factors is present and related to the injury for which compensatory damages were awarded: (1) fraud, (2) malice, or (3) willful or wanton conduct.
Willful and wanton conduct is a conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows, or should know, is reasonably likely to result in injury or damage. The most common personal injury cases involving punitive damage claims are when the at-fault driver was intoxicated or drunk at the time of the accident.
What is contributory negligence?
North Carolina law recognizes a legal defense called contributory negligence and it is one of the most common defenses in personal injury cases. This is a defense to a claim for damages and operates as a complete block to any recovery for compensation or damages.
If the injured party was negligent and his negligence was an immediate cause of his injury, then he cannot recover for his damages or injuries. The judge basically gives the jury an instruction on the law which states: “If the plaintiff’s negligence joins with the negligence of the defendant in proximately causing the plaintiff’s own injury or damage, it is called contributory negligence, and the plaintiff cannot recover.”
Again, if the plaintiff or injured party is determined to have contributed to the accident then he or she cannot recover even if the other party’s negligence was much greater. This law does not take into account the severity of the injury or amount of medical bills incurred. As experienced litigators, the attorneys at Riddle & Brantley understand the significance of this law and may be able to help you understand how it operates in accident cases in North Carolina.
In certain circumstances, contributory negligence would not act as a complete bar to recovery. There are exceptions. For example, if the defendant had the last clear chance to avoid the accident and failed to exercise reasonable care to do so, then the plaintiff’s negligence is excused and will not prevent his recovery for damages.
North Carolina is one of a few states that still recognizes contributory negligence as law. If your accident occurred in another state, then you should contact Riddle & Brantley to help you determine the appropriate laws on negligence for that particular state. For example, the states of South Carolina and Georgia do not recognize contributory negligence and such a rule would not be a complete bar to recovery in those states.
What should I do if an insurance company approaches me to settle the claim?
It is important that you do not sign anything you do not understand, nor agree to a settlement that you are not comfortable with. Insurance companies will often try to settle as quickly and as cheaply as possible. Remember, the insurance company has its own interest in mind, not yours – which means you may be receiving inadequate or unfair compensation. Request a free consultation with Riddle & Brantley if you are concerned that you are not getting a fair deal.
How long can I wait to file a personal injury claim?
North Carolina, along with everyone other state, has enacted statutory restrictions on the time allowed to bring a civil action forward. In North Carolina, state laws mandate that a personal injury claim be brought forward within three years of discovering the injury or when the injury should have been discovered. If the incident resulted in death, then you only have two years from the date of death to bring a wrongful death claim. There are exceptions which may extend the statute of limitations such as infirmity and age; our personal injury attorneys can help advise you on these issues.
The statute of limitations varies depending on the type of action. The statute of limitations does not mean that your case must be resolved within the respective timeframe, however, it does mean that a lawsuit must be filed prior to the expiration of the timeframe. Your case can be dismissed if a lawsuit is not filed within this timeframe.
It is wise to consult with an attorney if you are concerned about the statute of limitations in your case. A complete list of the North Carolina General Statutes governing the statute of limitations can be found here. http://www.ncleg.net/gascripts/Statutes/StatutesTOC.pl?Chapter=0001
How much does it cost to hire an attorney?
Most personal injury attorneys, including Riddle & Brantley, will take your case under a contingency fee agreement. The North Carolina State Bar allows contingency fees in only a few types of cases including personal injury, workers’ compensation, and social security disability cases.
What is a contingency fee?
A contingency fee is a contractual form of establishing an attorney’s fees between a client and attorney. Generally, a contingency fee means that there are no attorney’s fees unless there is a recovery and the amount of the attorney’s fee is based on an agreed upon percentage of that recovery. In many other areas of law, attorneys may ask for a retainer before they begin working on your case. A portion of that retainer may be nonrefundable and immediately payable to the lawyer, and the other portion would be held in trust and billed against by the hour as work on your case progresses.
Obviously, there are several benefits to a contingency fee agreement over a retainer or hourly billing agreement. For starters, there is no upfront cost for attorney’s fees. Rather, your attorney’s fees come out of the recovery your lawyer helps you obtain at the end of your case. This is most beneficial when you may be injured and unable to work and cannot afford to pay a retainer to hire a lawyer to help you. In this respect, contingency fees are commonly referred to as “keys to the courthouse door” because no matter who you are, or how much money you have, you may still be able to hire a personal injury lawyer to represent you in your case.
Another factor which can be considered a benefit of contingency fees is that it aligns your interest with your attorney’s interest. Since the attorney’s fees are based on the amount of the recovery, the attorney also has an additional incentive to get the maximum value on your case. Lastly, contingency fees are beneficial for a client because if there is no recovery then there is no attorney fee.
How long will it take for my personal injury claim to be resolved?
There is no set amount of time it takes to resolve a personal injury claim. The process can take several months to several years and varies from case to case. We always strive to expedite cases, but this time period is usually influenced by the severity of your injury, the length of your treatment, the strength of negligence in your case and the response from the insurance company to any offers.
How long do I have to file a lawsuit?
Some clients have a strong desire to put their case before a jury, and some clients are reluctant to go through litigation and be in a court room. Our goal is to resolve your case at whatever point is best for you. Sometimes this means settling in pre-litigation, settling after a complaint is filed but before trial, or letting a jury decide your case. It is important to discuss the risks and benefits of either concluding your case or moving forward no matter what stage your case is in. There are always several factors to consider when deciding to resolve your case. At Riddle & Brantley, our personal injury attorneys will try and present your case in the most favorable way, be honest with you about your options, and educate you about the risks and benefits of resolving or proceeding with your claim so that you can make an informed decision that you will ultimately feel comfortable with.
Can personal injury claims be made against the State of North Carolina and its agents?
Yes. Even though the state has sovereign immunity (which means that the government cannot be sued) with respect to its agencies, the state has waived protection from this immunity depending upon the nature of the claim. North Carolina and its agencies waive immunity for negligence claims through the operation of the State Tort Claims Act, N.C.G.S sections 143 – 291 et seq. This Act was passed in 1951 and since that time the waiver of immunity by the State has permitted certain types of actions for personal injury and wrongful death based upon negligent actions of the state, its agencies and employees. Under this Act, an individual or individuals need only file an affidavit with the Industrial Commission and no complaint need be filed in the regular court system. However, this process is still a legal process and the claimant(s) should seek legal counsel as the affidavit must contain:
- The name of the claimant
- The name of the department, institution or agency of the State against which the claim is asserted, and the name of the State employee upon whose negligence the claim is based
- The amount of damages sought to be recovered
- The time and place where the incident occurred; and
- A brief statement of the facts and circumstances surrounding the injury and giving rise to the claim.
Under this Act, the North Carolina Industrial Commission is constituted a court for the purpose of hearing and passing upon the claims made against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State. Under NCGS 143-291, the Industrial Commission shall determine if the claim occurred as a result of the negligence of the State (any officer, employee, involuntary servant, or agent of the State while acting within the scope of his office or duties or authority), under circumstances where the State, if a private person, would be liable to the claimant. If the Industrial Commission determines that the State is liable, then the Industrial Commission will also determine the amount of damages to be awarded to the claimant. However, the maximum amount that the state may pay cumulatively to all claimants for damages arising out of any one occurrence is $1,000,000. N.C.G.S. 143-299.2. Therefore, there is a cap on the amount the State must pay regardless of the amounts of medical bills incurred or damages suffered. As with other claims for injury as a result of negligence, a claim may not be filed after 3 years from the date of the occurrence resulting in injury. If the claim is for wrongful death, then the claim must be filed within 2 years after such injury resulting in death. N.C.G.S. 143-299. An attorney should be contacted to determine what the appropriate time period would be for any limitation on claims.
As compared to any other landowner in North Carolina, the State is liable for actions arising out of injuries suffered by citizens while on property owned and or maintained by the State. The State owes the same reasonable duty of care to citizens using State land as a private person or business owes to the citizens. The State’s duty extends to those citizens who travel on the State’s highways.
Most importantly, the Industrial Commission has jurisdiction to hear and determine claims related to accidents involving public school buses (yellow buses). NCGS 143-300.1. Therefore, injuries to students caused by the negligence of yellow school bus drivers will be heard and determined by the Industrial Commission and such claims will not be heard in our regular court system. If the injuries to students occur as a result of the negligence of another driver, and not the driver of the yellow school bus, then the claim will not be heard by the Industrial Commission. Accordingly, private school buses owned by churches and private educational schools are not covered under this Act and claims against those private entities would be made against those entities in our regular court system and not be heard in the Industrial Commission.
Handling a personal injury claim on your own can be difficult, especially if you are still recovering from the event.
The personal injury attorneys at Riddle & Brantley have handled many claims under workers' compensation, car crashes, slip and fall accidents and more. Examples of State Tort Claims we have handled include a $750,000 verdict in an assault claim and other significant cases.
If you believe that you may have been the victim of a personal injury, contact us at (800) 525-7111 to schedule a free case review or fill out the Free Case Evaluation form to get started right away. Hablamos español.