Common Defenses Used in North Carolina Personal Injury Cases

January 1, 2023 | - News & Insights

Personal injury lawsuits are most commonly based on allegations that the defendant acted negligently (in contrast to acting intentionally). To prevail on a negligence claim, the plaintiff must show that (1) he or she was owed a duty of care by the defendant, (2) the defendant breached that duty of care, (3) the defendant’s breach caused the plaintiff’s injuries, and (4) the plaintiff suffered damages as a result. The plaintiff must prove each of these elements to win — failing to prove even one may result in the plaintiff’s case being dismissed. As is to be expected, various affirmative defenses have arisen in response to allegations of negligence. If you are facing personal injury litigation, a North Carolina personal injury attorney can help you defend yourself using one or more of the following common defenses to personal injury lawsuits, if applicable. 

Contributory Negligence 

Contributory negligence is one of the most common and strongest defenses used in personal injury cases. The doctrine of contributory negligence holds that a plaintiff is barred from recovery if he or she is at fault in any way for the events that gave rise to the injury. For example, assume that Driver A was going 55 miles per hour in a 30-mile-per-hour zone. Driver B runs a red light and crosses in front of Driver A, who cannot stop in time and strikes Driver B’s vehicle, causing Driver A to suffer a severe neck injury. Driver A subsequently sues Driver B for her injuries. However, her claim would likely be barred under the doctrine of contributory negligence because she was partially at fault for her injuries. She likely could have avoided hitting Driver B’s car if she had been going the legal speed limit. The party asserting the contributory negligence defense has the burden of proving it. North Carolina is one of only four states, in addition to the District of Columbia, that use this strict application of the contributory negligence doctrine. 

Assumption of the Risk 

The assumption of the risk defense often arises in scenarios where the plaintiff was engaged in an activity that carried an inherent risk, such as participating in or viewing sporting activities. Under the assumption of the risk doctrine, the injured party is barred from recovery where he or she was aware of the risks associated with the activity and decided to partake in it anyway. For example, assume that Mike is a member of a local softball team who suffers a head injury when a softball strikes him. Any personal injury lawsuit Mike may wish to pursue against the batter likely would be barred, as being hit with a ball is a known and inherent risk of playing softball, and Mike chose to play voluntarily. However, the assumption of the risk defense applies only to risks that are inherent or known to the plaintiff in connection with the activity at issue. Unknown or unanticipated risks — for example, a light fixture falling and seriously injuring a basketball player during a game — are not covered by the assumption of the risk doctrine.  

Preexisting Conditions

The third element of negligence requires the plaintiff to prove that the defendant’s breach caused his or her injury. Defendants cannot be held liable for injuries that are caused by a preexisting condition from which the plaintiff suffers. However, the preexisting condition defense is not a complete defense to liability, as a defendant may still be liable for exacerbating a preexisting condition. For example, assume that Pam, through no fault of her own, slips and falls on a puddle of water at her local grocery store. The fall re-activates a prior back injury that had healed but is now causing her significant pain. While the defendant cannot be held liable for Pam’s original back injury, he or she may be liable to the degree to which his or her actions exacerbated her pain. Cases involving a preexisting condition defense are among the most technically challenging in personal injury law, as they often involve extensive expert testimony and voluminous amounts of medical evidence. To maximize your chances of prevailing on a preexisting condition defense, you should consider seeking the counsel of a North Carolina personal injury attorney. 

Waivers, Releases, and Other Contractual Limitations on Liability 

Waivers, releases, and other contractual limitations on liability (often referred to as “liability waivers”) are also common measures used to limit litigation risk. They are commonly used by the proprietors of gyms, resorts, sporting facilities, amusement parks, and other businesses that carry an elevated risk to participants. North Carolina courts enforce liability waivers, but they construe them strictly. Generally, the waiver must contain language that clearly and unambiguously releases a party from liability for specific injuries. If there is ambiguity as to what the liability waiver covers, courts generally construe it against the benefiting party. 

Like the assumption of the risk defense, liability waivers apply only to the types of injuries that are inherent to the activity being undertaken. For example, assume that Todd signs a liability waiver at an ice skating rink and is injured when he falls and suffers a deep cut on his arm from another skater’s skates. Todd’s arm injury is the type of injury that is inherent in ice skating and likely would be covered by the liability waiver. However, assume that Todd also develops a severe and debilitating rash, and it is later discovered that the ice at the rink had been contaminated with a caustic chemical. The rash would likely fall outside the scope of the liability waiver, as that is not a type of injury that is inherent to ice skating. 

Mount a Strong Defense with Help from a North Carolina Personal Injury Attorney

No matter what the personal injury lawsuit involves — automobile accidents, premises liability, or defective products — there are common and effective defenses available to you. But affirmative defenses like those presented in this article may be challenging to prove. That is why your best bet is to seek the counsel of an experienced attorney. To get started, please contact a North Carolina personal injury attorney at Harris, Creech, Ward & Blackerby by calling 252-638-6666 or using our online contact form.

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Harris, Creech, Ward & Blackerby, P.A.

325 Pollock Street, PO Drawer 1168,
New Bern, NC 28563

Tel: 252-638-6666
Fax: 252-638-3542

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