Nature of injury
Degree of defendant's liability
Contributory negligence
Assumption of Risk
Last Clear Chance
Joint and Several Liability
Joint Tortfeasors
Respondeat Superior
Alternative Liability/Acting in Concert Liability
Joint Enterprise Liability
Market Share Liability
Plaintiff's and Defendant's credibility
Plaintiff's age
Witness testimony
It stands to reason that the most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it's usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.
In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.
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As noted in our materials on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. At Mills Levine, Attorneys at Law, we will vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.
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If a plaintiff is found partially at fault for an accident, he or she will have lost his or her case altogether. In North Carolina, contributory negligence is used to calculate the degree of the plaintiff's negligence and serve as a bar to recover altogether. A plaintiff is contributorily negligent when he fails to exercise such care as an ordinarily prudent person would exercise under the circumstances in order to avoid injury. Tharpe v. Brewer, 7 N.C. App. 432, 172 S.E.2d 919 (1970). The presumption shall be that the plaintiff in a suit was not contributorily negligent, and it is the burden of the defendant to plead and prove the plaintiff failed to exercise proper care. N.C.G.S. § 1-139.
Contributory negligence is not a bar to a plaintiff's recovery when the defendant's gross negligence, or willful or wanton conduct, is a proximate cause of the plaintiff's injuries. Yancey v. Lea, 354 N.C. 48, 550 S.E.2d 155 (2001).
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One common example of contributory negligence is "assumption of risk." If a person undertakes an action while aware of the risks associated with performing that action, there are circumstances where this assumption of the risk will be considered contributory negligence. Then, the person's actions become contributorily negligent when his knowledge of specific hazards that aren't normally present should create a standard of care that he must observe to be non-negligent.
Example: Suppose a defendant driver told a passenger-plaintiff to buckle his seatbelt because the door on his side has a defective lock and the door may come open at any time. The passenger does not buckle up, and as a consequence, is thrown out of the car in the next curve when the door comes open. Ordinarily, failing to buckle one's seatbelt is not negligence per se, but in this case, it would be considered "assumption of risk," and be a valid defense of contributory negligence on the defendant's part. Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968).
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There are some limitations to the defense of contributory negligence. One of these is the "last clear chance" doctrine. If, in an accident that the plaintiff contributed to negligently, the defendant had an opportunity to prevent the harm just before the accident and the plaintiff did not have such an opportunity, then the existence of the defendant's opportunity wipes out the effect of the plaintiff's contributory negligence.
Example: A pedestrian, with diminished sight, attempts to cross a street without the benefit of crossing signals or a marked crosswalk. Her actions are considered negligent. A motorist strikes the pedestrian in the crosswalk. During the trial, it is established the motorist had a clear view and ample opportunity to avoid the collision. This opportunity allowed the pedestrian to invoke the "last clear chance" to wipe out her contributory negligence. VanCamp v. Burgner, 328 N.C. 495, 402 S.E.2d 375 (1991).
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Joint and Several Liability
As a general rule, North Carolina holds two or more defendants who are responsible for causing an injury such that the separate acts constitute one transaction, or that the acts separate in time and place combine to form a single injury, jointly and severally liable. State Farm Mut. Auto Ins. Co. v. Holland, 324 N.C. 466, 470 (1989). This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff himself. For example, if defendants' A and B are each responsible for 40% of plaintiff's damages, and plaintiff is 10% responsible, A and B are each still liable for the full 80% total apportioned to the defendants. This does not mean that the plaintiff can recover 80% from each of them, it merely means that the plaintiff can recover up to 80% total between the two defendants, whether it all comes from A, B, or a combination of the two. However, A and B have what is known as a right to contribution. N.C.G.S. § 1B-1. This means that if the plaintiff recovers more than A's "pro rata" share of the damages, then A can sue B for partial reimbursement. State Farm Mut. Auto Ins. Co. v. Holland, 324 N.C. 466, 470 (1989).
Example: A 13 year-old boy is injured as a result of a multi-vehicle accident which was caused by four defendants. The jury awarded $62,000 in damages to the plaintiff. One of the defendants paid their pro-rata ¼ share of the damages, while the others did not pay their share. If the plaintiff sought the full amount of damages from this defendant, the defendant could seek contribution for the amount over the ¼ share he had already paid. Sterling v. Gil Soucy Trucking, Ltd., 146 N.C. App. 173, 552 S.E.2d 674 (2001).
Example: A patient undergoes surgery on her gall bladder. After the surgery, the performing surgeon goes on vacation, leaving the patient under the care of a different doctor. The patient had experience complications, but the second doctor dismissed the problem as not serious. The patient saw a different surgeon who recommended immediate emergency surgery, but the patient later died. The patient's family brought a medical malpractice suit against both the first surgeon and the second doctor who did not treat the patient's complications. The doctor's were held jointly and severally liable for their negligent acts. Sweatt v. Wong, 145 N.C. App. 33, 549 S.E.2d 222 (2001).
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The theory of joint and several liability is that when separate and independent acts of negligence of several persons combine to produce a single injury, the actors are considered joint tortfeasors. The plaintiff can sue these joint tortfeasors in the same action, and each individual defendant will be held responsible for the entire amount of damages. The purpose of this rule is to transfer the risk that one defendant will lack the resources to pay the damages from the plaintiff to the other defendants. If one defendant pays the entire judgment, that defendant can sue the other defendants to contribute the amount of the damages that the jury found them responsible for. In North Carolina, the plaintiff can recover the full amount of damages from any defendant that is 60 percent or more at fault. So if the plaintiff is 25 percent at fault, and defendant A is 65 percent at fault and defendant B is 10 percent at fault, the plaintiff can recover the full amount of damages (75 percent in this example) from defendant A, even though Defendant A was found to be 65 percent at fault. Defendant B can only be held responsible for 10 percent of the damages.
Example: Suppose the jury awards you $100,000 in damages because you were injured in a car accident. If the jury finds the driver of the other car 60 percent at fault and the municipality 40 percent at fault, you would be able to recover the full $100,000 from the other driver. However, you can only recover $40,000 from the municipality. If the other driver pays you $100,000 it can then sue the municipality for $40,000. This is called contribution.
An exception to this rule is when a social host is sued for serving alcohol to an already intoxicated guest, which results in an accident. In that case, the social host can only be held responsible for the amount of damages apportioned to them, even if their percentage of fault is greater than 60 percent.
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If an employee commits a tort during the "scope of his employment," his employer will be liable (jointly with the employer). This is the rule of respondeat superior. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner that the work is carried in. Independent contractors generally do not fall under respondeat superior liability unless the employer retains the right to control the manner in which the contractor performs the work. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).
Also, as a general rule, a physician who exercises due care is not liable for the negligence of nurses, attendants or interns who are not his employees." Davis v. Wilson, 265 N.C. 139, 146, 143 S.E.2d 107, 112 (1965). However, one who borrows another's employee may be considered a temporary master liable in respondeat superior for the borrowed employee's negligent acts if acquires the same right of control over the employee as originally possessed by the lending employer. Harris v. Miller, 335 N.C. 379, 387, 438 S.E.2d 731, 735 (1994).
Another important factor is that respondeat superior only applies if the employee was acting within the scope of his employment when the act occurred. Scope of employment is defined as the employee acting with the intent of furthering his employer's business purpose.
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As a special circumstance of joint and several liability, sometimes the actions of two or more defendants combine in such a way that it is nearly impossible for the plaintiff to identify which defendant's action caused the plaintiff's injury. An example of this would be if two hunters in the woods fired towards an animal, but one of the bullets struck the animal while the other bullet hit a bystander. Without knowing which bullet was fired by which hunter, the plaintiff would be unable to establish the liability of either hunter. To remedy this, some states, including North Carolina, recognize "alternative liability" or "concert of action," where the actions of multiple negligent defendants result in an injury and the plaintiff can't prove whose act caused the injury. McMillan v. Mahoney, 99 N.C. App. 448, 393 S.E.2d 298 (1990).
Example: A child receives head injuries when neighborhood children fire air gun pellets in her direction. She cannot prove which child's actions caused the injury, but she can plead a "concert of action" liability theory so that her action will survive in court. McMillan v. Mahoney, 99 N.C. App. 448, 393 S.E.2d 298 (1990).
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A "joint enterprise" may arise in negligence actions, where the negligence of one main actor is imputed to the other actors and results in imputed contributory negligence. It often arises in auto accident cases, where the negligence of the driver is imputed to the passenger (either to allow the occupant of a second car to recover against the passenger, or to prevent the passenger from recovering against the negligent driver of the other car under the doctrine of imputed contributory negligence.)
Example: Where a passenger in a car is injured in a collision at a railroad grade crossing, and the passenger has no control over the driver in the operation of the car, and the parties are not engaged in a joint enterprise, the negligence of the driver will not be imputed to the passenger, and will not bar recovery for the passenger's injury or death unless the negligence of the driver is the sole proximate cause of the accident or unless it constitutes intervening negligence insulating the negligence of the railroad company as a matter of law. However, when the passenger is in control of the operation of the car by the driver, the driver's negligence will be imputed to the passenger and will bar recovery for injury to the passenger as a joint enterprise. Price v. Seaboard A.L.R. Co., 274 N.C. 32, 161 S.E.2d 590 (1968).
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In cases involving many defendants who produce the same or identical-looking products, courts in some states have held defendants liable under "market share" liability. This arises when several manufacturers produce a product that plaintiff's can't separately identify as coming from a particular manufacturer. For example, when plaintiffs several years took a miscarriage-preventing pharmaceutical that had an indistinct shape and label, courts in other states held that the manufacturers could be held liable to the percentage of market share they occupied on a nationwide basis at the time of injury, because the courts saw a need for accountability from the manufacturers, and the lack of identifying marks on the drug should not be a bar. Under North Carolina law, market share liability is generally not imposed for products liability. It has been rejected as a theory of liability for asbestos products (Becker v. Baron Bros., 138 N.J. 145 (1994)), and for vaccine products (Class v. American Roller Die Corp., 308 N.J. Super. 47 (1989)). However, it has been used successfully in cases involving product lines that have been sold and acquired by various manufacturers, but the injuring product cannot be traced to a particular manufacturer because of loss of records. Class v. American Roller Die Corp., 308 N.J. Super. 47 (1998).
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Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?
The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.
The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant's version of the accident will damage the defendant's credibility, resulting in higher damage awards in most cases.
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Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.
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The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts", the background and professional experience of your expert is critical to establishing his or her influence over the jury.
In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injuries, call Mills Levine, Attorneys at Law now at 877-660-4357 toll free, 704-660-1770 local or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don't delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.
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