People are hurt every day, all the time, 24/7. Sometimes it’s someone else’s fault. Sometimes it’s the victim’s fault. Sometimes it’s a mix.
How do you prove who is at fault in an injury claim? And what if it isn’t clear?
First, let’s talk about what it is to “prove” fault. In most instances we are dealing with negligence claims. That means the defendant (the person whom the victim is saying caused the accident) is alleged to have failed to act in a proper way, as opposed to an intentional claim, where the allegation is the defendant acted with the purpose of harming the victim in mind. In negligence claims you have to show 4 things: Duty, Breach, Causation, and Damages.
This post is more about the Duty issue. Everyone in North Carolina has a duty to exercise reasonable care to protect the safety of others and themselves. A plaintiff (the hurt side…that’s us!) has to show that this duty existed (and it almost always does) AND that the defendant breached that duty by failing to “act as a reasonably prudent person would in the same or similar circumstances.”
Back to the question…how do you “prove” that? Guess what? It’s totally a matter of opinion. Luckily, there are some acts that are defined as per se negligence, meaning that if you do them, you’re negligent, period, no proof or opinion needed. Violating safety statutes often will get you this per se negligence instruction, but not necessarily always. So the problem is having enough evidence to make the insurance representative, or if you’re really unlucky, the jurors, feel like it’s obvious that the defendant acted improperly.
In North Carolina, we have an extra hurdle here that most states don’t have. We have – solely because of the maleficent influence of the insurance lobby – maintained a vestigial remnant of English Common Law known as Contributory Negligence. “Contrib” as we call it in the business essentially means that if the victim is shown to be even 1% at fault, they can recover NOTHING from the defendant. Remember up there where I mentioned that everyone has a duty to exercise reasonable care? Guess what? This includes accident victims. So if there is evidence that an accident victim ALSO acted unreasonably and that act (or failure to act) was a proximate cause of the injury, then that victim might face a tough time getting treated fairly by an insurance company or a jury.
Injury law is complicated. If you have an injury claim, chances are there is too much at stake for you to risk muddling through this dangerous and complicated process all on your own. Don’t be silly. Talk to an attorney. Talk to me. 919-929-2992.