6 Signs of a Weak Personal Injury Case

Being served with a personal injury lawsuit can be a nerve-wracking experience. But defendants should keep this in mind — not every injury leads to a viable claim. Furthermore, just because you have been sued does not mean you will be found liable for what the plaintiff alleges. In a highly litigious society like ours, all sorts of people make all sorts of legal claims, some of them significantly stronger than others. For defendants in personal injury cases, recognizing early signs of weakness in legal claims can help direct defense strategy. Below are some of the most common and tell-tale signs of a weak personal injury case our North Carolina personal injury defense attorneys routinely encounter. 

1. The Plaintiff Was Partially at Fault 

In most states, a plaintiff who was partially at fault for the accident that caused their injury is not barred from recovery, provided that the plaintiff’s share of the fault was less than 50% of the total. North Carolina is not one of those states. Instead, North Carolina follows the contributory negligence doctrine, which holds that if a plaintiff is even slightly at fault, they are completely barred from recovery. Examples of contributory negligence include: 

• Crossing the street against a traffic signal
• Using a phone or otherwise being distracted
• Ignoring warning signs or safety barriers
• Failure to wear safety equipment

Contributory negligence is thus a powerful weapon in the personal injury defendant’s toolkit. However, under North Carolina law, the party asserting the contributory negligence bears the burden of proving it, and sometimes proving it is easier said than done. That’s why defendants in personal injury suits should consult a North Carolina personal injury defense attorney if they suspect the plaintiff was even partially liable. 

2. Lack of Objective Evidence Supporting the Plaintiff’s Version of Events 

The strongest evidence in personal injury cases is objective evidence — e.g., surveillance footage, police reports, or eyewitness accounts. Plaintiffs weaken their claims significantly when their evidence consists mostly of their own version of events with little to corroborate their assertions. This weakness is often exacerbated when plaintiffs provide inconsistent accounts of how the incident occurred, such as claiming X in a police report but Y in a deposition. Generally, the weaker the plaintiff’s evidence, the stronger the defendant’s argument for summary judgment in litigation. 

3. Delayed Medical Treatment 

A plaintiff delaying seeking medical treatment after suffering an injury is a red flag that their legal claim may be shaky. For defendants, delayed medical treatment can give rise to several defense arguments, such as: 

• The injury was not due to the accident giving rise to the litigation
• The injury was not as serious as the plaintiff claims
• The plaintiff failed to mitigate their damages 

While certain plaintiffs might have good reasons for delaying medical treatment, the fact that they did so invites skepticism as to the seriousness of their injuries and can provide leverage during cross-examinations and settlement negotiations. 

4. Preexisting Conditions 

The presence of a preexisting condition — i.e., a condition the plaintiff suffered before the incident giving rise to the litigation — does not necessarily doom a claim. However, it is not uncommon for plaintiffs in personal injury cases to attribute some or all of the symptoms of a preexisting condition to the injury they allegedly suffered due to the defendant’s negligence. And because defendants are responsible only for injuries attributable to their conduct, the existence of a preexisting condition or injury can cast doubt on the plaintiff’s claim. Defendants should note, however, that asserting the preexisting condition defense requires careful use of medical records and other technical evidence. If you’re considering asserting this defense in a personal injury action, you should consider speaking to a North Carolina personal injury defense attorney who has experience working with such evidence. 

5. Social Media Evidence That Contradicts the Claimed Injuries 

Social media is often a plaintiff’s Achilles heel. While most plaintiffs’ attorneys counsel their clients to avoid using social media during personal injury litigation, clients don’t always follow their attorneys’ instructions. In many cases, plaintiffs may claim severe injuries while posting content that directly contradicts such claims. Common examples include: 

• A plaintiff claiming a severe back injury, but posts photos of a hiking trip
• A plaintiff who claims they are unable to return to work or engage in physical activity, but posts videos of themselves dancing 
• A plaintiff who claims that they rarely leave home due to chronic pain, but they make regular visits to restaurants, shops, and other public places

Social media evidence is becoming increasingly prominent in personal injury litigation, and courts routinely allow its discovery. And even if the plaintiff has a rational explanation for the damning evidence, its existence alone can significantly weaken their credibility. 

6. “Open and Obvious” Conditions in Premises Liability Claims

North Carolina premises liability law requires property owners and occupiers to exercise reasonable care to maintain their premises and warn lawful visitors of hidden hazards. The law does not require property owners to be the insurers of their visitors’ safety. As such, a major exception to premises liability is the “open and obvious” doctrine, which generally holds that property owners are not liable for injuries due to hazards that a reasonable person would have noticed and avoided. A plaintiff’s claim in a premises liability suit may be significantly weakened if the hazard at issue was objectively open and obvious — for example, if there are warning signs clearly visible even in the plaintiff’s photos of the hazard. 

Achieve Early Resolution With Help From a North Carolina Personal Injury Defense Attorney 

The advantage of identifying weaknesses early in a personal injury litigation is speedier resolution of the claim, including through summary judgment. The best way to ensure early resolution of your claim is to work with an attorney who has experience defeating personal injury claims. To get started, please contact a North Carolina personal injury defense attorney at Harris, Creech, Ward & Blackerby. Call 252-638-6666 or use our online contact form.