What is Contributory Negligence?
If you have been involved in an accident in North Carolina, the rule of contributory negligence, or “contrib” for short, may come roaring into your life suddenly and without warning. An adjuster may be telling you that he or she is investigating to see if you are “contrib,” or maybe a friend is telling you that a little mistake you made could ruin your whole claim. What is contributory negligence, and what do people mean when say you are “contrib?”
Contributory negligence is defined by the Wex Legal Dictionary as “a common law tort rule, abolished in most states.” Under contributory negligence, a plaintiff was “totally barred from recovery if they were in any way negligent in causing the accident, even if the negligence of the defendant was much more serious[i].” This means that if you are involved in a car accident and the other driver’s insurance can show that you did something wrong too, then they will deny your claim.
You may be thinking, “Okay, I get it, if I’m negligent and I hurt myself then I can’t sue somebody else. But counselor, the other driver hit me! How can the adjuster be telling me this is my fault?” The thing about contributory negligence that is so unjust is that you do not have to be completely at fault to be “barred from recovery.” In states that follow the rule of contributory negligence, such as North Carolina, even a tiny little mistake can ruin your case, because you do not need to be completely at fault to be considered “contrib.” There is a reason adjuster’s sometimes call this the “1% rule;” the insurance company is allowed to deny your claim completely if you are even 1% at fault. No rental car, no medical treatment, no settlement, no compensation of any kind.
Let’s go over one example of what contributory negligence looks like in everyday life. A person (let’s call them “Driver #1”) is driving on the interstate in the left lane. Driver #1’s exit is about a mile away, so Driver #1 decides to go ahead and merge into the right lane. Drive #1 looks over their shoulder and sees a large truck in the right lane a good distance behind them. Driver #1 sees that there is plenty of space, so Driver #1 starts merging into the right lane without using a turn signal. After completing the merge, Driver #1 looks in the rear view mirror and sees that the truck is not slowing down. The truck slams into the back of Driver #1’s vehicle, sending it off the road and into a ditch.
Driver #1 thinks to him or herself, “I know I didn’t use a turn signal, but I had plenty of space and it was a bright sunny day! Any reasonable person would have seen me. How am I contrib?” Being “contrib” does not mean you are totally at fault; all that is required to be found “contrib” is that the defendant show you did anything wrong. Yes the truck driver should have seen Driver #1, but the truck driver can say that Driver #1’s failure to signal their intention to merge contributed to the accident occurring. It’s called the 1% rule for a reason; if Driver #1 is even 1% at fault then the insurance company can get off scot free!
Since North Carolina is one of the only states to still follow the rule of contributory negligence, it is especially important that you do everything you can to maximize your chances of successfully recovering your damages from the other driver’s insurance. You can bet your bottom dollar that the insurance company is doing everything they can to minimize your chances of recovery!
If you’ve been injured in a car accident in North Carolina and want to maximize your chances of success, come to the Law Offices of Brian deBrun for a free consultation. With over 50 years of combined experience, Brian deBrun and his associates know that Personal Services Gets Results! Gives us a call at (704) 405-5505 or come on by in person to maximize your chances at a good settlement today!
Still have questions at contributory negligence? Feel free to email the author at Cameron@debrun.net if you’ve got a specific situation to discuss, or keep on reading for the Top Three Ways to Avoid Being Found Contrib.
Top Three Ways to Avoid Being Contrib
Contributory negligence is an aspect of North Carolina law that continues to frustrate drivers across the state. Contributory negligence, or “contrib,” is a common law tort rule followed by North Carolina that can have a major impact on your life if you have been injured in a car accident. As described in detail in the previous post, contributory negligence is bad for you if you have been the victim of a car accident because it gives the defendant a rock-solid defense if you have done or said anything that could be misunderstood or misconstrued. It goes without saying that doing everything possible to avoid being found “contrib” is important. Here are the top three ways to avoid contributory negligence.
#1 Never say “I didn’t see them”
In Hyder v. Asheville Storage Battery Co. the court stated that “Notwithstanding the driver is faced with green light, however, the duty rests upon him to maintain a reasonable and proper lookout for other vehicles in or approaching the intersection.” Hyder v. Asheville Storage Battery Co., 242 N.C. 553, 556, 89 S.E.2d 124, 127-28 (1955). In this statement, the court establishes that a driver has a duty to maintain a reasonable and proper look out at all times.
Why is this important? This matters because it is considered negligence to fail at keeping a proper lookout. One of the most common mistakes people make is telling the adjuster that they did not see something because that hands the adjuster a possible defense. If you admit that you did not see the other vehicle before it hit you, you open the door to an improper lookout defense. Try to say something else, or even better would be…
#2 No statements
It can be very stressful to give an adjuster a statement about what happened. You have to worry about saying the right things and not saying something that could hurt your accident case, and this can be quite a challenge from someone that has recently been injured in car accident. The adjuster may be pressuring you to give a statement, and you might think you have to give them one. This is not true. You have no obligation to give someone a statement. Without knowing what to look for and what to avoid, giving a statement can be a surefire way to complicate things. If you have an adjuster attempting to strong arm you into giving a statement it is in your best interest to speak with a specialized personal injury attorney, as they can guide you through this process.
#3 Know the speed limit
When the police are called to an accident they always ask each driver how fast they were going, so knowing the speed limit at all times is very important. If the speed limit is 35, and you tell the officer you were going 35 to 40, then you may have just admitted to being negligent, which bar your claim under the rule of contributory negligence. Even 1 mph over the speed limit has the potential to bar your claim completely.
If you have been injured in a car or truck accident and want to speak with an attorney, or if you just have questions about the finer points of contributory negligence, please do not hesitate to call the Law Offices of Brian deBrun. There is no charge for a consultation, so come on down and say hello. Brian deBrun and his associates know that when it comes to personal injury, Personal Services Gets Results!
Uber and Lyft offer appealing revenue sources for drivers across North Carolina and particularly in the Charlotte area. Many drivers navigate the heavy traffic of the Charlotte-Douglas International Airport to pick up riders day and night. As with any car trip, accidents may happen and you should be prepared for emergencies. Here are a few considerations if you are involved in an Uber accident:
- Always call 911 firstafter whether you are the driver or the passenger. By calling 911 immediately, you can guarantee the best possible response time by police and EMS for all people involved.
- Take photographs of the damage on all four sides of each vehicle involved as well as pictures of the accident scene (including nearby debris fields and road conditions) and any of your own injuries. These pictures may prove invaluable to verify the insurance claims and build your case in the event that you must make an injury claim.
- Your testimony right after the accident could complicate a court case later, so wait for professional advice before discussing fault.
- If you are the driver of an Uber vehicle, verify your status on the Uber application. If you were online mode in the Uber Partner app and either driving to pick up a passenger or transporting a passenger, then you may qualify for auto insurance from Uber directly. If you were available or waiting for a ride request, then Uber may offer liability insurance if your own insurance does not apply. See Uber’s insurance coverage web page for details.
Driving safety is especially important when transporting passengers and working for a ride sharing service. Whether you are a driver or a passenger on an Uber ride in the Charlotte area, you should know that the Law Offices of Brian deBrun PLLC is prepared to help in the event of an accident. To schedule a free consultation, call us at (704) 405-5505 or contact our Charlotte office online briandebrunlaw.com.
Uninsured Drivers Should Have You Re-Thinking Your Deductible
North Carolina requires drivers to have liability insurance with a minimum of $30,000 of coverage for personal injury to one person, $60,000 for personal injury to more than one person, and $25,000 for property damage. Given the cost of medical care and vehicle repair or replacement, these minimums are not adequate for a serious injury accident. However, higher levels of coverage are more costly, and a state increase in the requirements might operate as a disincentive to buy any insurance, especially among the poor. So, at best, we have a system where motorists who are struck by negligent drivers are likely to be partially covered.
We say “at best” because many drivers are driving without any insurance at all. According to the Insurance Information Institute, 16 percent of drivers had no insurance in 1992. Twenty years later, in 2012, that number had shrunk to 12.6 percent nationally. Oklahoma is the riskiest state to drive in, with an uninsured rate of 25.9 percent. North Carolina had an uninsured rate of 9.1 percent. Current statistics are not available, but our recent experience as auto accident attorneys leads us to think the rate of uninsured driving may have spiked again.
Prudent drivers guard against uninsured and underinsured drivers by purchasing an Uninsured Motorist policy. North Carolina is one of the few states that require this coverage. But even with UM, you can take a significant loss because of your deductible.
If you have UM with a $1,000 deductible, you’re going to be out of pocket for that grand before your insurance company will pay for damages. Our experience representing the victims of uninsured motorists leads us to recommend carrying a lower deductible on your UM policy. Yes, that means a slightly higher premium, but given the number of uninsured motorists on the road today, it could easily be a bargain in the long run.
How long has it been since you reviewed your insurance coverage? Before you get blind-sided by an accident, carefully review and know your coverage. If you’ve been in an accident with someone with no insurance, call us at 704-405-5505 or contact our office online.
North Carolina Rule 414 Limits Recovery for Medical Expenses
Under the old rule, a plaintiff could claim medical expenses for services that were reasonably necessary due to the injury event the defendant allegedly caused. The only limitation was that the medical expenses had to be reasonable in amount. But Rule 414 states:
“Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”
Consequently, no longer may a plaintiff present a bill that reflects the fair market value of medical services. If a plaintiff has private insurance, Medicare or Medicaid, which by contract or by law reduces the amount a provider receives for services, it is that lower amount the plaintiff must claim. Anyone who has compared what a hospital generally charges for an MRI to what Medicare reimburses for an MRI can understand just how drastic a reduction Rule 414 imposes. The rule may potentially disadvantage elderly and poor patients who receive the greatest reductions for services under Medicare and Medicaid.
But it gets worse, because the insurer, whether a private company, Medicare or Medicaid, has a right of subrogation. In other words, they have a lien on the injured party’s recovery. If the injured party can only recover amounts equal to what insurance has paid, the insurer could claim the entirety of the victim’s recovery.
Finally, victims also sue for noneconomic damages such as pain and suffering. Because these are intangible amounts, it is often difficult to set a baseline for a settlement or jury award. One negotiating tactic is to discuss pain and suffering as a multiple of medical expenses. But, if Rule 414 has already reduced medical expenses, then any multiple would be reduced proportionately. In this way, Rule 414 could do more than simply reduce recovery for medical expenses; it could reduce a plaintiff’s overall recovery substantially.
Given the limitations Rule 414 puts on your potential recovery, it is more important than ever that you consult an experienced personal injury attorney with a track record of success. To schedule a free initial consultationat the Law Offices of Brian deBrun, call us at 704-405-5505 or contact our office online.
Accessing Auto Insurance Med Pay Benefits for Your Hospital Bills
If you have been injured in a car accident, you’re probably feeling some distress over the mounting medical bills. Even if you have health insurance, the deductible and co-payments can cost you thousands of dollars. However, you may have an asset you haven’t even considered: the medical payments coverage under your own auto insurance policy. Commonly called med pay, this is optional coverage you may have purchased when you first bought your policy. Coverage amounts start at around $1,000, but yours could be $5,000 or higher. You may file a med pay claim if:
- You or an eligible family member was injured while occupying your car or, with certain exclusions, any automobile.
- You or an eligible family member was injured as a pedestrian by a motor vehicle.
You can file for med pay benefits for any reasonable and necessary treatment for an injury that results from the accident. And since med pay is a no-fault benefit, you can file a claim even if you caused the accident.
Auto insurance follows the vehicle. Therefore, if you were injured while riding in a vehicle that has med pay coverage, you can file a claim on that policy. Likewise, anyone injured while occupying your car can file a claim under your policy.
The Law Offices of Brian deBrun, PLLC advises clients to carry med pay insurance. The cost is low, but the benefits are important given the high cost of medical care and the number of uninsured drivers on the road today. If you haven’t been in an accident, review your auto policy to see if you have med pay. We recommend that motorists have at least enough coverage to offset their health insurance deductible.
If you’ve been injured in an accident, check your auto insurance policy to see if you have med pay coverage. If the company denies your claim, we can help you access those benefits as part of the overall management of your accident case.
Your insurance only pays up to the limit of your policy and may not cover the entirety of your medical bills. You also cannot claim lost wages or pain and suffering through med pay. To recover for these losses, you must file a claim against the at-fault driver. For help, call the Law Offices of Brian deBrun, PLLCat [ln::phone] or contact our office online.
Beware of Delayed Onset Symptoms of Closed-Head Injuries
Many people erroneously believe that if they suffered a brain injury they’d know it or at least the responders treating them would pick up on it. This is not always the case, especially following a traffic accident when adrenaline often masks injuries, and you should be aware that symptoms of a brain injury can be delayed by hours or even days.
In a closed-head injury, brain tissue is damaged when force causes the brain to shift within the cranium. Damage results from shearing — that is, the tissue tearing as the brain shifts — and bruising as the brain strikes the wall of the skull. Motor vehicle collisions are the most common cause of closed-head injuries for teenagers and young adults. These injuries affect more than half a million Americans annually.
Many victims of this type of injury have immediate symptoms that are readily associated with traumatic brain injury, such as a headache or a feeling of pressure in the head, temporary loss of consciousness, confusion or “foggy” feeling, amnesia concerning the accident, dizziness, tinnitus, nausea or vomiting, slurred speech, delayed response to questions, and fatigue. However, according to the Mayo Clinic, many symptoms may only appear after a significant delay. These include:
- Disrupted sleep
- Personality changes
- Problems with concentration and memory
- Sensitivity to light and noise
- Taste and smell disorders
It is always best to seek immediate medical care after an accident. If for some reason you forego emergency care, you should see a doctor as soon as any of these delayed onset symptoms materialize. An untreated brain injury can have catastrophic consequences, especially if bleeding and swelling of the brain occur. We suggest that you have an MRI to get an accurate diagnosis.
After you’ve sought appropriate medical treatment, be sure to consult a personal injury attorney with specific experience in traumatic brain injury cases. To schedule a free initial consultationat the Law Offices of Brian deBrun, call us at [ln::phone] or contact our office online
Can Children Be Held Negligent for Their Own Injuries?
North Carolina is one of the few remaining states adhering to the law of pure contributory negligence. This is an all-or-nothing rule that bars an injured party from recovering compensation if he did anything to contribute to the cause of the injury. But what does the law say when the victim is a child? For example, if your daughter picks up a knife in a kitchen store and cuts herself severely, can the store be held responsible?
For purposes of contributory negligence, child plaintiffs fall into three categories according to age:
- Younger than seven years
- Seven years and older, but younger than 14
- Fourteen years and older, but younger than 18
Children in the first category are legally incapable of negligence, and therefore cannot commit contributory negligence. A judge must forbid any discussion of the issue.
Children in the second category are presumed to be incapable of negligence, but the defendant can present evidence to rebut that presumption. The defendant would have to show that a reasonable child of that age would have the capacity to act carefully, based on the typical knowledge and experience of a youngster, but simply did not exercise the necessary care. This is a question of fact that the jury must decide.
Children in the third category are presumed to be capable of negligence, but they may present evidence to rebut that presumption. In this case, the plaintiff would have to show that a reasonable child of the plaintiff’s age would not have the discretion to act carefully under the circumstances in which the plaintiff was injured. Again, this is a question of fact for the jury.
Although the law presents opposite presumptions for children in the second and third age categories, the practical difference in almost negligible. The question remains the same: did the injured juvenile plaintiff act with age-appropriate care under the circumstances that led to the injury?
If you’re the parent of an injured child, be sure to consult an experienced personal injury attorney with specific knowledge of North Carolina’s contributory negligence statute and relevant case law. Call the Law Offices of Brian deBrun at [ln::phone] today or contact our office online to schedule a free initial consultation.
Charlotte Growth Leading to Greater Traffic Snarls and More Accidents?
Charlotte, North Carolina has enjoyed a period of growth since the bleak days of the most recent recession. Now it must contend with growing pains, as the boom in development has brought traffic congestion and an increased rate of auto accidents. Following the downturn of 2008, traffic accidents in Charlotte dropped, as fewer people were driving to work and high fuel costs limited motor traffic. The number of accidents in the city remained low until recently. According to The Charlotte Observer, the city recorded more than 23,000 collisions in 2014, which was up nine percent from the previous year and approaching prerecession levels.
Some see these traffic numbers as a return to normality, but others anticipate worse conditions in the future. The biggest reason for pessimism is the explosive growth of commercial and residential real estate in Charlotte. For example, 2,100 new apartments, two new office towers and two major mixed-use projects are currently planned for the SouthPark area. These plans lead many residents to wonder whether their neighborhood, already the home of the largest shopping mall in Charlotte, may become the next Buckhead, the Atlanta district north of downtown, which lost its residential character after a period of rapid commercial expansion in the 1980s.
The number of people working in SouthPark has more than doubled in the last 20 years. While this latest building boom will raise property values and bring additional amenities to the area, residents can’t help but be concerned about traffic snarling the neighborhood, creating congestion, adding pollution, overcrowding parking areas, and hampering their commutes. There are safety issues as well for the motorists and pedestrians who will inevitably see an increase in traffic accidents unless the city takes responsible steps to improve traffic flow.
The Law Offices of Brian deBrun is deeply rooted in the Charlotte community, and we fervently hope that city planners manage growth prudently for all concerned. Congestion is a quality-of-life issue that affects us all, and traffic accidents too often have tragic consequences. If you or a loved one is injured in an auto accident in the Charlotte area, theLaw Offices of Brian deBrun PLLC is ready to help. To schedule a free consultation, call us at [ln::phone] or contact our Charlotte office online.
Email: email@example.comPhone: 704-405-5505
Content, including images, displayed on this website is protected by copyright laws. Downloading, republication, retransmission or reproduction of content on this website is strictly prohibited.