| Personal Injury and
Accidents FAQs
What is
Personal Injury?
What is a TORT?
What is an Accident?
What is Negligence?
What is Proximate Cause?
What is Contributory Negligence?
What damages (compensation) can be recovered for
injuries due to Negligence?
Is a lawyer necessary?
What is Personal Injury?
Personal Injury is a generic term which applies to a wide body
of law designed to compensate you if you are injured due to
someone else's negligence. It is based on the concept that one
who negligently or intentionally injures another is
responsible for the harm caused. It includes such areas as
automobile wrecks, slip and fall injuries, medical
malpractice, and products liability.
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What is a TORT?
A tort is a private or civil wrong or injury (other than
contract cases) for which a court of law may provide a remedy
through a lawsuit for damages (compensation). When a person
violates his or her duty to others created under the law, and
thereby causes injury, a tort has been committed.
The typical tort lawsuit involves the following elements:
- the existence of a duty owed by a person to others
- the breach or violation of that duty (negligence)
- such violation of duty being the proximate cause of
injury or damages suffered by another
- damages incurred by the injured person
All of these elements must be present in order for an
injured person to be entitled to compensation.
A person who commits a "tort," is referred to as
a "tortfeasor."
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What is an Accident?
Specifically, an "accident" is an unexpected or
unforeseen event. It must be unexpected or unforeseen by the
injured victim. The circumstances of the accident must be such
that a reasonable and prudent person would foresee that injury
could occur from actions or omissions on his or her part. For
example, it is reasonably foreseeable to an automobile driver
that if he runs a stop sign he might collide with another car
in an intersection, causing injury. The collision would be
unexpected and unforeseen by the other car, however. The owner
of a dog may be liable if the dog, without provocation, bites
a visitor if the owner had reason to know the dog has vicious
tendencies.
While it might be said that "accidents happen,"
they usually happen because someone is "negligent."
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What is Negligence?
A person is said to be negligent when he or she fails to act
like an ordinarily reasonable and prudent person (the ORP
standard), under the same circumstances. This is the
"standard of care." The circumstances are important
because they dictate the degree of care required. For example,
the circumstances surrounding loading potatoes into a pickup
truck allow for the occasionally potato to drop on the ground.
However, if loading nitroglycerin on the truck, a much higher
standard is required.
An ordinary person may drive 55 miles per hour on the
highway on a clear, dry day, well within the speed limit.
However, dense fog may require that same driver, on the same
highway, to drive much more slowly. Each can be reasonable
care under the circumstances. It likely be negligent to drive
55 mph in dense fog.
A person's knowledge, experience and background can dictate
the appropriate standard of care, as well. A 35-year old
driver may be presumed to have more knowledge and experience
than a 5-year old playing near the street.
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What is Proximate Cause?
An act or omission may be the proximate cause of an accident
and injury when it sets off a natural and continuous sequence
of events which produces injury. No injury would have occurred
but for this act or omission. There may be more than one
proximate causes of an accident and injury.
Responsibility usually rests with the last negligent act or
omission producing the injury. For example, if a child throws
a baseball into the neighbor's yard, that act may set a chain
of events into motion. However, if another child catches the
ball and throws it through the neighbor's window, breaking the
glass and causing it to cut a person sitting nearby, it is the
act of the second child, not the first, which is the proximate
cause of the injury, even though had the first child not
thrown the ball in the first place the window would not have
been broken.
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What is Contributory Negligence?
"Negligence" is defined the same for everyone. If
one of the proximate causes of your accident and injury was
your own negligence or inattentiveness, in North Carolina you
cannot recover, even if your negligence was only a very small
part of the overall picture.
There are circumstances in which contributory negligence
will not bar a claim. If the other party's negligence amounted
to willful or wanton behavior, or was malicious, this gross
negligence may overcome contributory negligence and still
allow for compensation. Likewise, if the other party had the
"last clear chance" to avoid the accident and
injury, contributory negligence may not bar recovery. At best,
these are questions to be resolved by a jury is a settlement
is not possible.
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What damages (compensation) can be
recovered for injuries due to Negligence?
For one party to be responsible for injury to others, that
party's negligent acts or omissions must be a proximate cause
of the injury, without any intervening causes interrupting the
natural sequence of events.
Once the first three elements of a tort (duty, breach, and
causation) have been established, damages must be determined
so that the injured party may be compensated for injuries
sustained as a result of that negligence. The usual
"damages" include:
- medical expenses incurred for treatment of the injuries
- these must be reasonably necessary and must be
reasonable in amount
- lost earnings - lost time from work made necessary by
the injuries
- pain and suffering
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Is a lawyer necessary?
Not every personal injury case requires legal assistance. If
injuries a slight and damages minor, it may not be in your
best interest to retain a lawyer. However, if you are
concerned about your ability to negotiate on an even basis
with the insurance adjuster, you may feel more comfortable
with legal help and hiring a lawyer can be justified.
Very often the injury is not trivial. There may be
permanent injuries or scars, and an inability to return to the
same work or activity level enjoyed before the injury. There
may also be complicating factors involving insurance coverage,
liability, and even medical causation which mandate getting
professional help with your claim.
Remember, the insurance adjuster has been trained to
minimize claims. The adjuster gets a "gold star" if
he or she saves money for the insurance company, not by paying
top dollar on claims. The adjuster is under no legal
obligation to offer you advice or to protect your interests.
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For more information, please see our
Personal Injury page.
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