According to the court’s opinion, the Plaintiff and his golfing buddies drank a substantial amount of moonshine and beer during a round of golf on a course in Wilson County. After their round ended, some of the men decided to go hit some balls on the driving range. The Plaintiff parked his golf cart in a parking lot near the range while his buddies went to off to hit balls. His cart was parked about 60-70 yards from the tee boxes. A mesh fence ran alongside the parking lot, but the Plaintiff parked beyond the fence’s protection. As he sat in the cart, he began texting his wife on his cell phone.

You can probably guess what happened. One golfer struck a ball and hit the Plaintiff in his eye, causing alleged blindness. The Plaintiff sued the other golfer.

Contributory Negligence Bars Recovery in North Carolina

The North Carolina Court of Appeals ruled that the injured golfer could not recover damages for his injuries. He was barred by the defense of contributory negligence. The court laid out the two-part standard for the defense in North Carolina:

• a want of due care on the part of the plaintiff; and
• a proximate connection between the plaintiff’s negligence and the injury

They court found that the golfer’s “lack of situational awareness — due at least in part to his intoxication and the distraction from his cell phone — constituted plaintiff’s failure to exercise ordinary care.”

It certainly didn’t help that the golfer was inebriated. Would the court’s decision have been different if he was sober?

When It’s Not Clear-Cut

As attorneys representing injured parties in North Carolina, we face the defense of contributory negligence on a daily basis. This is especially true in premises liability and car accident cases, where injured parties are accused by defense attorneys and insurance adjusters of failing to use ordinary care and causing their own injuries.

Claims of contributory negligence are sometimes far-fetched, but they can stop an injury claim dead in its tracks and should be taken seriously. If you or someone you know has suffered personal injury and are facing claims of contributory negligence by the other side, you should seek the help of an experienced North Carolina attorney immediately.

As an attorney practicing personal injury law in Fayetteville, North Carolina, my answer to this question will vary based on several factors:

Insurance: Who’s Writing the Check?

Due to complicated laws surrounding judgments and execution in North Carolina, obtaining money from an uninsured party can be like squeezing blood from a turnip. If the party is a massive corporation, like Walmart, Inc., then payment is not an issue. However, if you’re injured by a lower or middle-class person without insurance, or a corporation without many assets, you could wind up wasting a great deal of time and money for very little return.

If our clients were injured in a motor vehicle collision, we often look to uninsured (UM) or underinsured (UIM) motorist coverage for recovery. However, in other sorts of injury cases, where there is no statutory framework to protect innocent parties, we face significant challenges.

Getting The Insurance Policy

Car Accident Cases

In car accident cases, we’ll make an attempt to ask the auto insurance company for the policy limits. If they refuse, we are not out of luck. A North Carolina law (N.C.G.S. 58-3-33) requires the insurance company of an at-fault party to disclose the policy limits if the injured party agrees to the following:

• The person seeking the information submits to the insurer the person’s written consent to all of the person’s medical providers to release to the insurer the person’s medical records for the three years prior to the date on which the claim arose, as well as all medical records pertaining to the claimed injury.

• The person seeking the information submits to the insurer the person’s written consent to participate in mediation of the person’s claim under G.S. 7A‑38.3A.

• The person seeking the information submits to the insurer a copy of the accident report required under G.S. 20‑166.1 and a description of the events at issue with sufficient particularity to permit the insurer to make an initial determination of the potential liability of its insured.

Other Injury Cases

In non-automotive cases, at fault parties are not required to disclose their insurance information prior to a lawsuit being filed. Once a lawsuit is filed, we can request this information using formal discovery, specifically, under Rule 26 of the North Carolina Rules of Civil Procedure.

But what if we want to find out the insurance coverage prior to filing a lawsuit that could take months or even years to resolve? That is where the tactical skills of an experienced attorney can help. Every situation is different, but a good lawyer can often get the insurance information through negotiations with the other side.

Damages: What Does it Cost to Make You Whole?

Once we have decided that there is money available to recover, we turn to the issue of damages. The purpose of a civil action in tort is to make the wronged person “whole.” There is no way to waive a magic wand and heal your injuries, so the law attempts to quantify your loss in dollars. There are two types of damages we attempt to recover for our clients: economic and noneconomic.

Economic Damages: The Hard Numbers

Economic damages are easy to quantify. They represent specific amounts of money you were forced to spend, or money that you lost as a result of your injury. Some examples are:

• Medical Bills
• Lost Wages (Missing Work Due to Injury or Treatment)
• Loss of Earning Capacity
• Transportation Costs
• The Cost of Future Medical Care

Noneconomic Damages: The Grey Area

Noneconomic damages are more difficult to quantify. These damages are awarded by a jury based on your particular circumstances. Some include:

• Pain and Suffering
• Loss of Enjoyment of Life
• Mental Anguish

Proving these types of damages requires the skill of an experienced attorney. We often use testimony from friends, relatives, or health care professionals to illustrate the impact of an injury on our client’s daily life.

Noneconomic damages are capped by North Carolina law in medical malpractice cases. The amount of the cap is adjusted each year. The current cap is $656,730.

Medical Liens: Who Else Gets Paid?

One of the first steps we take in any injury case is to ask for our client’s health insurance information. Most health care plans have subrogation rights. This means that the health insurance company has a right to be paid back any amounts they paid to your medical providers for treatment related to your injury claim.

Here’s where it gets tricky: the rules are different for every plan.

Many health care plans falling under federal law (Medicare, Tricare, ERISA) require that we pay them back in full. Other plans falling under North Carolina law have caps. These plans can only take 50% of the total settlement, after attorney fees are deducted.

Negotiating The Lien Amount

Medical liens must be paid. If they are not paid, you could lose your health care coverage. However, we often have success negotiating the lien amount with the health insurance company. Any reduction we are able to obtain means more money in your pocket at the end of your case.

The Final Calculation

You have seen that it is not easy to calculate the value of an injury case until a great deal of work has been done by your attorney. Forgetting about insurance, unclaimed damages, and hefty medical liens can reduce the amount of money you receive at the end. Ultimately, the value of your case depends on your specific situation and the skill of your attorney.

If you’ve been injured or have questions about our legal services, please give us a call. We will be happy to evaluate your case, free of charge.

Protect your rights and maximize your payout after an accident or injury. Personal injury claims are complex, and it is wise to have an expert attorney at your side. Most often after an accident or injury, you are experiencing physical and mental stress and need the support of an expert.

PREMISES LIABILITY LAWS

All property owners, including commercial businesses, have a duty to keep their premises in a reasonably safe condition. Yet, each day people are injured when property owners neglect to perform this duty. A failure to keep the property safe can open the owner up to a civil claim for damages.

IDENTIFY WHAT CAUSED YOUR INJURY

To help protect your rights, it is important to identify what caused your injury and to document it as best you can with photographs or video. Your cell phone camera is a great tool. Frequent causes for injuries in stores are liquids on the floor, electrical wires or cords, or merchandise falling off of shelves.

Sometimes, people are attacked or robbed by criminals inside or outside of a commercial business. Commercial property owners also have a duty to provide reasonable security to protect their patrons and their failure to do so can also substantiate a claim for civil damages.

DOCUMENT AND REPORT

Because you may forget details over time, it is vital that you document the incident while it is fresh on your mind. If relevant, take photos of injuries and the area the accident occurred; this will come into hand later when meeting with your lawyer. Any photos you take may serve as evidence in your claim, which makes it easier for your lawyer to support your case.

It is imperative that you document all bills and losses related to an injury or accident. Make sure to save any and all medical bills, receipts, or any invoices related to the accident. Keep a record of the number of days of work and income you’ve lost due to your injury.

If possible, it is important to file a report or record of the incident with the store after the accident or injury occurs. This document should include the incident’s date, time, and circumstances. Make sure to make a copy of the report for your records and share it with your lawyer.

THE INSURANCE COMPANIES HAVE EXPERTS

When you file a personal injury claim, you will face experienced insurance companies who are skilled in protecting their interests. Insurance companies are for-profit businesses. One of their primary goals is to minimize the amount of money you receive to settle your personal injury claim.

Our Fayetteville personal injury attorneys at The Richardson Firm will advocate on your behalf so that you’re able to receive the resources needed to recover from an injury on someone else’s property. We know how insurance companies work. Let us put our knowledge and skill to work for you.

To start your free consultation, contact us today at (910) 488-5050.