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.

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."

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."

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.

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.

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.

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
  
  
  

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.

What is a "Slip and Fall?" "Slip and fall" or "trip and fall" are generic terms used to describe an injury or accident which occurs due to slipping or tripping and falling as a result of a dangerous or hazardous condition on someone else's property. It includes falls in supermarkets, as well as falls resulting from water, ice or snow and abrupt changes in flooring, poor lighting, or a hidden hazard such as a hard to see hole in the ground. A person who slips and falls on someone else's property is not automatically entitled to recover damages for any personal injuries which follow. The injured person (called the "plaintiff") must prove that the fall happened because of the negligence of the property owner or someone else who could be legally responsible. North Carolina is one of the few states which still clings to the "pure contributory negligence rule" which bars any recovery by an injured person if that person in any way contributed, by his or her own negligence, to the accident and injury. In cases of open and obvious hazards, this makes it very difficult, if not impossible, for the injured party to recover compensation. What is a Dangerous or Hazardous Condition? Property owners are legally responsible for injuries occurring as the result of dangerous or hazardous conditions on their property only when the property owner knew of the condition, or through the exercise of due care should have known of the condition. The hazard may be obvious (such as a broken stair or darkened stairway) or hidden (such as a hole in the ground partially or completely covered by grass). The hazard may not be apparent (as in flooring which appears normal but is slippery or rotting). It could be permanent (such as a change in elevation) or temporary (such as a liquid spill in a supermarket aisle). If the hazard is permanent in nature, the owner may generally, but not always, be held to have at lease constructive knowledge of its existence. The same is true of even a temporary hazard created by the owner or by an agent or employee of the owner. If the condition is temporary (like a liquid spill), the length of time the condition existed before the fall occurred may be significant, since the owner must have a reasonable period of time in which to discover the hazard and remove it. If the spill occurred just seconds before the slip and fall, then there may be no legal liability. However, if the victim can show that the spill had been present for some time (such as where the liquid became dirty or discolored), then it maybe assumed that the owner had reasonable time in which to discover and remove the hazard, even though the owner did not have actual knowledge of its existence. Recovery of damages may not be possible in cases where the hazard is open and obvious. The law requires everyone to watch where he or she is going and the failure to keep a reasonable lookout may constitute contributory negligence, barring the claim. However, where the owner has, through its actions, distracted one from looking, then the failure to see the hazard may not bar the claim. This may especially be true in retail sales establishments where goods are attractively displayed for maximum effect. What should I do after a "Slip and Fall" Incident to protect my rights? Inspect the area where you fell. Try to determine what caused you to fall. If there are witnesses, be sure and get their names and addresses. This includes not only anyone who actually saw you fall, but also anyone who happened upon the scene right after you fell, and who might have overheard the owner or an employee make a damaging statement. If you fell in a store or place of business, speak with the manager or supervisor on duty. Make sure there is a written record of the incident, and demand a copy. If anyone makes any statement which suggests that this has occurred before, or that they were aware of the condition which caused your fall, make a mental note and try to get that person's name. As soon as you are off the premises, write down the name and exactly what the person said and whoever else may have overheard the statement. If the condition is permanent or semi-permanent (such as an icy sidewalk), have someone take photographs as soon as possible before the condition changes. Even permanent conditions may be changed by the passage of time or by the efforts of a landowner who is afraid of legal liability. Things to Avoid. Be very careful about signing any statement regarding the incident. Make sure all errors are corrected and all pertinent facts included before signing anything. It is usually best to avoid giving a recorded statement, since wily adjusters may be able to induce you to make a damaging admission, or to minimize your injury. Recoverable Damages In general, if the plaintiff can prove that the owner is legally liable for the injury, the following types of damages may be recovered: medical bills incurred as a result of the accident (even if covered by your own insurance) gross lost earnings or income for time lost from work (includes time lost even if you took vacation or sick leave to avoid loss of income) fair value of clothing damaged compensation for pain and suffering   What if the injury occurs at work? In North Carolina if a slip and fall injury occurs during the course and scope of employment, it is covered by Workers' Compensation, which is the exclusive remedy. However, if a third party, such as a bottled water company making a delivery, causes the accident, the third party may be legally responsible for your injuries. In such a case, it is almost always a good idea to consult a personal injury or Worker's Compensation lawyer about the claim, since there are other issues which complicate matters, such as the employer's right to reimbursement out of any recovery obtained from the negligent third party. What if the injury occurs at a friends house? If the friend is a homeowner, he or she may have homeowner's insurance to handle the claim. Renters may have renters insurance for the same purpose. Even if there is no legal liability, such insurance policies often contain "medical payments " insurance coverage which will pay, up to the coverage limits, medical bills incurred as a result of the accident, even if those bills are also paid by your own insurance company. Remember, just because you are injured on someone else's property, and just because that person may have liability insurance, it does not necessarily follow that you will receive compensation. If I pursue a claim against the landowner, what are the main defenses to the suit? Obviously, the first and most frequently encountered defense is that of contributory negligence, which completely bars the claim if proved. Even the slightest inattention on your part may be enough to defeat your claim. This is especially true where the hazardous condition is "open and obvious." If the condition was temporary, such as spilled liquid, the argument will be that you cannot satisfactorily prove that the condition had existed sufficiently long to allow for a reasonable inspection and discovery of the problem, and for an opportunity to correct it.