Navigating the healing and treatment process after a personal injury is difficult enough, but understanding the legal realities affecting your right to recovery can seem impossible. A skilled attorney can apply the law to the facts of your particular case. However, even a basic understanding of negligence law can allow you to feel more comfortable with the process. Partner William Plyler recently prepared an informative guide to some of the key legal concepts that you might encounter in a typical negligence case.
Personal Injury Liability – Principles of Law
By William Plyler
Personal Injury: Liability
There are two parts to a personal injury claim – liability and damages. Both parts must be proven in order for an injured person to recover. This article focuses on the issue of liability. The legal basis for liability in most personal injury cases is negligence.
The law that applies in almost every negligence case in North Carolina is set forth in the North Carolina Pattern Jury Instructions. The Pattern Jury Instructions constitute the law that North Carolina trial judges read to juries to guide juries in their deliberations. The terminology of the pattern jury instructions can be stilted and legalistic; however, it constitutes the black letter law that applies in most cases. Consequently, this article tracks the language of the pattern instructions in order to provide the reader with the most accurate account of the law in North Carolina.
Negligence and Negligence Per Se
Negligence refers to a person’s failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury. N.C.P.I. MV 102.11, citing Pinyan v. Settle, 263 N.C. 578, 139 S.E. 2d 863 (1965); Barnes v. Caulbourne, 240 N.C. 721, 83 S.E. 2d 898 (1954); Williamson v. Clay, 243 N.C. 337, 90 E.E. 2d 727 (1956). Every person is also under a duty to follow standards of conduct enacted as laws for the safety of the public. A standard of conduct established by a safety statute must be followed. A person’s failure to do so is negligence in and of itself – negligence per se. N.C.P.I. Civil 102.12.
A plaintiff in a personal injury case not only must prove that the defendant was negligent, but also that the negligence was a proximate cause of the injury. Proximate cause is a cause which in a natural and continuous sequence produces a person’s injury, and is a cause which a reasonable and prudent person could have foreseen would probably produce such injury or some similar injurious result. N.C.P.I. Civil 102.19, citing Loftis v. Little League Baseball, Inc., 169 N.C. App. 219, 609 S.E. 2d 481 (2005). There may be more than one proximate cause of an injury. Therefore, the plaintiff does not have to prove that the defendant’s negligence was the sole proximate cause of the injury. Rather, the plaintiff must prove only that the defendant’s negligence was a proximate cause of the injury. Id.
Burden of Proof: Greater Weight of the Evidence
Another important principle of law that applies in negligence cases (as well as every other type of case) is the burden of proof. The easiest way to explain burden of proof is to relate it to the manner in which juries do their work. Juries decide cases by answering questions, called issues. The issues are set forth on a verdict sheet that the trial judge gives the jury right before the jury begins its deliberations.
In most negligence cases, the first issue the jury will be asked to decide is “Was the plaintiff injured by the negligence of the defendant?” The trial judge typically will instruct the jury about the burden of proof as follows.
“In this case you will be called upon to answer questions – also called issues. As I discuss each issue I will tell you which party has the burden of proof. The party having that burden is required to prove, by the greater weight of the evidence, the existence of those facts which entitle that party to a favorable answer to the issue.
The greater weight of the evidence does not refer to the quantity of the evidence, but rather to the quality and convincing force of the evidence. It means that you must be persuaded, considering all of the evidence, that the necessary facts are more likely than not to exist.
If you are so persuaded, it would be your duty to answer the issue in favor of the party with the burden of proof. If you are not so persuaded, it would be your duty to answer the issue against the party with the burden of proof.” N.C.P.I. Civil 101.10.
The trial judge will then instruct the jury that the plaintiff has the burden of proof with respect to the first issue. In some negligence cases, a favorable decision for the plaintiff on this first issue constitutes a resolution of the liability question in the plaintiff’s favor. In these cases, the jury then proceeds to answer the damage issue. However, in some negligence cases, this is not the case. In some negligence cases, the defendant asserts the affirmative defense of contributory negligence. If contributory negligence is alleged, the question of liability remains unresolved until the contributory negligence issue also is answered in the plaintiff’s favor.
If the first liability issue is resolved in the plaintiff’s favor, the jury will proceed to answer the second liability issue (the contributory negligence issue). This issue typically reads as follows: “Did the plaintiff, by his own negligence, contribute to his injury?” N.C.P.I. Civil 104.10. On this issue, the burden of proof is on the defendant. This means that the defendant must prove, by the greater weight of the evidence, that the plaintiff was negligent and that such negligence was a proximate cause of the plaintiff’s own injury. The test for what constitutes negligence is the same as previously described and is the same for the plaintiff as for the defendant. If the plaintiff’s negligence joins with the negligence of the defendant in proximately causing the plaintiff’s injury, it is called contributory negligence and the plaintiff cannot recover (unless the defendant was grossly negligent, or unless the defendant had the last clear chance to avoid the accident). N.C. P.I. Civil 104.10.
Willful or Wanton Conduct (Gross Negligence) – Used to Defeat Contributory Negligence
In cases where there is evidence of willful and wanton conduct by the defendant, the plaintiff may be able to recover even if the plaintiff was contributorily negligent. In such cases, this issue typically will appear as the third issue on the verdict sheet submitted to the jury. This issue typically reads as follows: “Was the plaintiff injured by willful or wanton conduct of the defendant?” N.C.P.I. Civil 102.86. The jury reaches this issue only if it already has answered the first issue as to the defendant’s negligence “yes” in favor of the plaintiff and the second issue as to the plaintiff’s contributory negligence “yes” in favor of the defendant.
On this third issue, the issue of the defendant’s willful or wanton conduct, the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, that the defendant engaged in willful or wanton conduct and that such conduct was a proximate cause of the plaintiff’s injury.
An act is willful if the defendant intentionally fails to carry out some duty imposed by law or contract which is necessary to protect the safety of the person or property to which is it owed. N.C.P.I. Civil 102.86, citing Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 362 S.E. 2d 559 (1987).
An act is wanton if the defendant acts in conscious and intentional disregard of and indifference to the rights and safety of others. N.C.P.I. Civil 102.86, citing Yancy v. Lea, 354 N.C. 48, 54, 550 S.E. 2d 155, 158 (2001) ( Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E. 2d 393, 397 (1956)); cf. Bullins v. Schmidt, 322 N.C. 580, 369 S.E. 2d 601 (1988) (defining gross negligence as wanton conduct done with conscious or reckless disregard for the rights and safety of others).
Last Clear Chance – Used to Defeat Contributory Negligence
Another circumstance where the plaintiff may recover, even where the plaintiff was contributorily negligence, is where the exception called the Last Clear Chance Doctrine applies. In cases where the evidence supports submission of this issue to the jury, the issue typically is submitted as follows: “Did the defendant have the last clear chance to avoid the plaintiff’s injury?” N.C.P.I. MV 105.15. This issue, when applicable, typically will be the third liability issue, and will follow the contributory negligence issue.
On the last clear chance issue, the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, the following four things:
First, that the plaintiff negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care.
Second, that the defendant knew, or by the exercise of reasonable care should have discovered, the plaintiff’s position of peril and inability to escape from it.
Third, that the defendant had the time and means to avoid injury to the plaintiff and failed to exercise reasonable care to do so.
And Fourth, that such failure proximately caused the plaintiff’s injury. N.C.P.I. MV 105.15.
This article does not establish an attorney-client relationship and must not be construed as legal advice.
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