The aftermath of a personal injury, including a car accident, can be very stressful and challenging, particularly if you suffer injuries such as losing work and earnings and seeing your medical bills pile up because of the accident. While you focus on healing from your injury, you may be wondering if you should file a lawsuit against the defendant (i.e., the other driver) to recover from the damages. However, this aspect is not always as clear-cut as it may seem, especially where the other party blames you for the accident. In such cases where you may be considered even minimally at fault, it is important for you to understand an important legal defense.
If you are injured in a personal injury accident, including an auto accident in North Carolina, you can file a claim against the other party, such as the other driver. However, the other party may state that you were also negligent. In that case, you could potentially lose your chance at any recovery. North Carolina takes a pure contributory negligence approach at attributing fault, which means no recovery for you if you are found negligent even in the slightest. In this case, you can overcome contributory negligence with the last clear chance doctrine. This is a strict standard that only a handful of states adopt; however, it is critical for you to know you can overcome contributory negligence to receive the compensation you deserve.
How does the Last Clear Chance Defense work in North Carolina?
Under the Last Clear Chance defense, you can argue that the other driver had the last clear opportunity or chance to avoid the accident. If the defendant is found to have had the last clear chance to prevent an accident and failed to take that opportunity, then the defendant’s negligence—rather than any negligence on your part—was the proximate cause of your injuries.
To raise the last clear chance defense, you, as the plaintiff, have the burden of proving it was more likely than not that the defendant had the last clear opportunity to avoid the accident. North Carolina courts provide that the following must be satisfied:
- the plaintiff was in immediate or actual danger and was unable to extricate him or herself from that danger
- the defendant knew about or should have known about the danger
- the defendant had a reasonable opportunity to avoid the injury
- the defendant negligently failed to avoid the injury
- the plaintiff was injured as a result of failure on the part of the defendant
Succeeding on a Last Clear Chance Defense
If you are able to successfully prove that the other driver was careless and shift the blame entirely back to the other driver due to their carelessness, then you won’t be barred from financially recovering compensation for your losses. Below are examples of the kinds of damages you may be eligible to obtain.
In general, personal injury damages are categorized as economic and non-economic. The idea is to position you back to where you were before the accident occurred. In cases of extreme recklessness, punitive damages may also be awarded.
Economic damages compensate you and/or your family member injured for actual monetary loss.
Common examples of economic damages include:
- Medical expenses: Medical expenses include money expended on medical visits, treatment, and procedures related to the accident, including those you will expend in the future (i.e., upcoming surgery and/or ongoing physical therapy or chiropractic treatments).
- Loss of income: Damages for lost income include earnings you lost after the accident and the income you lost the ability to earn in the future as a result of the car accident injury.
- Property damage: Property damage includes costs related to repairing or replacing your damaged vehicle due to the accident.
On the other hand, non-economic damages are intangible losses you have suffered, which may be referred to as “pain and suffering,” which include the non-physical harms suffered such as a diminished quality of life due to the inability to engage in your favorite hobbies or activities.
Non-economic damages may include:
- Chronic physical pain, or fear or discomfort impacting your daily life
- Disfigurement from the accident
- Emotional distress: emotional or psychological impact or conditions resulting from the injury such as discomfort, inconvenience, anxiety, and anguish.
- Loss of consortium: losing the personal companionship, relationship, and support of a loved one who passed as a result of the accident.
- Loss of enjoyment: a change to your quality of life, i.e., you can no longer enjoy activities that you once did before the accident.
Lastly, there is another set of damages entitled punitive damages, which are not compensatory and rarely used. Punitive damages are utilized as a punishment against the defendant and serve as a deterrent. However, there are certain factors that must be present on the part of the defendant’s conduct, such as malice or fraud.
Speak To a North Carolina Attorney Car Accident And Injury Attorney
Seek help from a North Carolina attorney to better learn about whether the last clear doctrine applies under the specific facts of your case. Most importantly, since the burden is on you to prove the last clear chance defense, an experienced personal injury attorney familiar with cases like these in North Carolina can best ensure to present your evidence in a manner that best supports your last clear chance defense.
Contact a Wilmington Car Accident and Personal Injury Attorney
Understanding your legal options to recover financial compensation for your injuries can be complicated and overwhelming. While you focus on healing from your injuries, the dedicated attorneys at Horton & Mendez are committed to safeguarding your right to fair and just compensation for your injuries. We can effectively guide you through the legal process and represent your legal needs, including asserting the last clear chance defense if applicable to your case. We are committed and prepared to stand by your side and draw on our extensive experience in personal injury law to help you hold defendants responsible for the injuries they caused. The best way to get started is to contact us for a free, confidential free evaluation of your case.