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Things to Consider Before Bringing a Personal Injury Claim

Accidents happen all the time. Whether you have been injured in a car accident, fallen on someone else’s property, or been bitten by a dog, you may be wondering if you should pursue a claim for your injuries. 

Filing a lawsuit is both time consuming and expensive. Before pursuing a claim there are a few things that potential plaintiffs should consider. 

1.    The Extent of Your Injuries. How severe are your injuries? Without identifiable, compensable injuries there are no damages. A plaintiff in a car accident with no physical or psychological injuries and minimal car damage should not pursue a claim. A plaintiff in a car accident whose car was totaled and who is paralyzed likely should pursue a claim, depending on a number of factors including fault. Without actual damages, and being able to prove them, there is no personal injury claim. 

2.    Hiring a Lawyer. Do you need a lawyer? It is always best to consult with a lawyer. Personal injury lawyers know the applicable laws and their nuances as well as the court system. Many lawyers offer free consultations. During the course of that consultation a lawyer will use his or her expertise to evaluate the pros and cons of filing a lawsuit and advise you about the best course of action. A lawyer may be able to negotiate a settlement on your behalf and keep you from having to go to court. 

3.    Timing. All states have deadlines, called statutes of limitations, which govern the amount of time you have to file a lawsuit. In North Carolina, the statute of limitations governing personal injury claims is 3 years. N.C. Gen. Stat. §§ 1-52. Plaintiffs have 3 years from the date of injury to file a lawsuit. If you miss that deadline then you will not be able to pursue a claim.

4.    Fault. Who was at fault for the accident? In most states, the person who caused the car accident (or created the conditions that lead to the personal injury) will pay for the damages. While North Carolina is an at-fault state, meaning that the person at fault will have to pay damages, it is also one of only a few states that follows the contributory negligence rule.The contributory negligence rule states that if a plaintiff was partly responsible for causing the accident or injury, they cannot receive any compensation.This can be a harsh rule as often both parties are partially to blame. For example, in the case of a car accident, if you were driving 5 miles over the speed limit when you were cut off by a truck and you rear-ended that truck, you could be found partially at fault and precluded from recovering damages. 

5.    Damages and Damage Caps.  Damages available in a personal injury case include economic and non-economic (compensatory) and punitive. 

Economic damages are the actual, quantifiable damages suffered. For example, economic damages in the case of a car accident could include the cost to repair or replace your vehicle, the cost of any medical bills that you incurred and payment for time lost from work if you were not paid. 

Non-economic damages are intended to compensate for your pain and suffering. These damages are much harder to identify and put a number on. Non-economic damages can be awarded for the mental anguish that was suffered. North Carolina places a cap on non-economic damages in medical malpractice cases. That cap is $500,000. 

Punitive damages are intended to punish the defendant. Punitive damages are only awarded in particularly egregious cases, where fraud or malice was present or there was willful or wanton conduct. In the case of a car accident, where a defendant accidentally hit the gas instead of the brake, punitive damages would not be awarded. On the other hand if a defendant had a grudge against a neighbor and  purposefully ran into that neighbor with their car, punitive damages could be awarded. In North Carolina, punitive damages are capped at the greater of 3 times the actual damages or $250,000. So if a plaintiff was awarded $200,000 in actual damages, the maximum amount of punitive damages a plaintiff could receive would be $250,000 because 3 times the actual damages ($300,000) exceeds North Carolina’s cap. 

6.     Type of Case. In certain personal injury cases, specific rules apply. If a plaintiff was bitten or attacked by a dog then the typical analysis in a personal injury case could change. Most states have laws that deal specifically with dog bites or attacks with the majority of those states adopting a “one-bite” rule which protects dog owners from liability the first time that their dog bites or attacks someone. North Carolina, on the other hand, makes dog owners “strictly liable” whenever a dog bites or attacks someone and causes injury. N.C. Gen. Stat. Ann. § 67-4.4.

7.    Claims Against the North Carolina Government. If an employee of the government of North Carolina caused the plaintiff’s injury then a claim cannot be filed in court. Rather it must instead be filed under the North Carolina Tort Claims Act with the state Industrial Commission. So if you were involved in a car accident where the other driver was an employee of the state of North Carolina and the accident occured while that employee was performing his or her duties, you would need to file with the Industrial Commission. Like other personal injury claims, there is a 3 year statute of limitations in which a claim must be filed. The Industrial Commission has its own rules that must be followed and a lawyer can help guide you through the process. 

So many things need to be evaluated before deciding to bring a personal injury claim. It is important that you understand your rights as soon as possible to avoid any possible missteps. The lawyers at Rosensteel Fleishman, PLLC are experienced personal injury attorneys and can guide you through this difficult time. Please contact our office at 704-714-1450.  There is no fee for an initial consultation.

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