Answering some of the most frequent questions about tort and civil law in the Tarheel State
If you’ve been injured, your mind is probably swirling with questions... everything from how to get medical treatment to who’s responsible for paying those bills.
And, what happens next?
Fear not! Enjuris has answers.
This list of questions and answers can guide you through the North Carolina legal process for what to do after an injury.
Q: What is a personal injury lawsuit?
A: Not every injury leads to a legal claim. A personal injury lawsuit is how you can recover damages (costs) related to your injury.
The basis for personal injury claims is “tort” law. A tort is a wrongful act or omission that results in injury or damages.
In order for an injury to be a claim for damages, it must cost you money. The purpose of a civil lawsuit for a personal injury is to make the plaintiff whole. In other words, the injured person can recover the amount of money they deserve to restore them to the financial condition they would have been in if the injury had never happened.
You might see news stories where plaintiffs recover millions of dollars in damages after car accidents, illnesses from chemical exposures, or other injuries. Yes, those damage awards sound like a lot of money — but so is a lifetime of expenses if an accident leaves you disabled and unable to work, not to mention medical treatment for a serious injury.
A slip-and-fall that results in a sprain or bruise that you self-treat at home or an accident that leaves you with whiplash that doesn’t require medical treatment might make you feel angry at the person who injured you, but it doesn’t give rise to a lawsuit unless it cost you money.
A personal injury lawsuit is filed by a plaintiff to recover costs for an injury caused by the defendant.
Q: How do I know if my injury belongs in civil or criminal court?
A: You can sue a defendant in the civil legal system for financial damages.
There are situations when a personal injury is the result of a criminal act. For example, a car accident might lead to criminal charges if the driver was drunk or driving especially recklessly. There are also violent crimes that cause personal injury.
You, as an individual, cannot arrest or charge someone with a crime. If you believe that a crime has been committed against you, you can report it to your local law enforcement department. Law enforcement may arrest a defendant and charge them with a crime. You might be called as a witness in a criminal trial, and the penalty for being convicted of a crime is usually jail time or probation.
While justice may be served in a criminal case, it won’t help compensate you for your financial losses.
You may need to sue the defendant in civil court as a separate matter. The remedy for a personal injury lawsuit is a damage award (money).
Q: What damages can I recover in a North Carolina personal injury lawsuit?
A: You can recover damages to cover the economic and non-economic costs related to your injury. In some cases, you can also recover punitive damages.
There are 3 categories of damages: Economic, non-economic, and punitive:
- Economic damages include medical expenses, lost wages (or future earning capacity), and related costs. Medical expenses might include surgery, hospital stays, doctor’s visits, physical or other rehabilitative therapies, prescription medication, assistive devices, and anything else that’s related to your medical treatment from the accident.
- Non-economic damages are intangible costs of your injury (in other words, compensation for ways the accident has affected your life that don’t have a specific monetary value). These include pain and suffering, emotional distress, and loss of consortium.
- Punitive damages are intended to punish a defendant for especially egregious behavior and create a deterrent for that defendant (or another person) to act in a dangerous way in the future. To receive punitive damages in North Carolina, there must be an aggravating factor in addition to the negligence that caused the injury. Aggravating factors could be fraud, willful or wanton conduct, or malice. A punitive damage award is in addition to the economic and non-economic damages that you were awarded.
Q: Is there a damage cap (maximum recovery amount) for a North Carolina lawsuit?
A: Yes. In North Carolina, punitive damages may not exceed 3 times the amount of compensatory damages or $250,000, whichever is greater.
The first exception to this rule is when the injury is from a car accident where the driver was impaired (i.e. drunk driving).
The second exception is for medical malpractice cases. In a medical malpractice claim, the non-economic damages (pain and suffering, mental anguish, etc.) are limited to $500,000, but there is no limit on punitive damages.
Q: How do I prove a personal injury claim?
A: You must prove that a defendant was negligent in order to recover damages for a personal injury claim.
Negligence is the failure to take reasonable care in a situation when a person or entity can be reasonably expected to exercise care for someone else.
There are 4 elements to determining negligence:
- Duty of care. There can be a duty even among strangers. For example, every driver has a duty of care to avoid causing harm to any other road user.
- Breach of duty. A “breach” occurs when the defendant’s behavior was not reasonable based on the duty of care to another person.
- The breach caused the injury. A driver might take their eyes off the road for a moment (they shouldn’t, though), which is breaching a duty. But if they don’t actually cause an accident, they haven’t caused an injury.
- The injury resulted in financial loss. As discussed above, you can file a personal injury claim if your injury cost you money.
In order to recover compensation for your claim, your lawyer must prove each of these elements by a preponderance of the evidence. That means they must convince the judge or jury that your version of events is more likely to be true than false. This burden of proof is lower than in criminal cases, which must be proven beyond a reasonable doubt.
Q: What if the accident was partially my fault?
A: North Carolina follows a pure contributory negligence system of law, which means a plaintiff can’t recover damages if they are partially at fault.
Sometimes, accidents are the fault of 1 person, but might have been prevented if another person had acted differently or been more cautious. If the court finds that a plaintiff was liable for any portion of the accident, they cannot recover damages.
Q: Should I try to settle my claim out of court or proceed with a trial?
A: Most personal injury lawyers will recommend that you attempt to settle out of court. A lawsuit should be your last resort.
Your lawyer should negotiate with the defendant (or defendants) to try to arrive at a settlement that is enough to cover your damages and that’s agreeable to the other side. But sometimes parties reach an impasse, especially if there are questions about whether the defendant was truly liable for the injury or how much your injury is worth. If the parties really can’t agree on a fair settlement, there might be no choice but go to trial.
Here are some considerations before going to trial:
- A trial is time-consuming. Getting to trial could take months or even years. And once the trial happens, you might need to call witnesses (or testify yourself), which takes everyone’s time and costs money if you need to bring witnesses from out of town. You also might need to take an extended period of time off from work, and a trial could take you away from other life activities and events.A trial can also involve an appeals process. If the defendant appeals the verdict, it means more years and additional expense — and you might still be paying medical bills and other costs related to the injury while you wait for the payout.
- A trial is expensive. Most retainer contracts for a personal injury lawyer include a provision that their hourly fee increases by a certain percentage if the case goes to trial. This is because a trial takes significantly more time and effort, which means the attorney is limiting their availability to handle other cases.You might also need to pay additional fees to expert witnesses. Your lawyer will likely have already retained experts for depositions or pleadings before a settlement is reached, but it will cost more money to have them testify at trial.
- You might need to testify. If the defense seeks to prove that you were partially liable for the accident (and it’s likely that a defendant would look for that to be the situation), you might be asked tough questions on cross-examination by the defendant’s lawyers. Questions can include details about your physical and mental condition both before and after the accident. Testifying before a jury can be stressful, emotional, and difficult.
- A settlement can be sealed. A trial is open to the public and the transcripts of witness testimony (including experts) become part of the public record. A settlement agreement, on the other hand, can include a provision that the terms are sealed, which means the details remain private.
- A jury is unpredictable. You might think you have an airtight case and the defendant’s liability is clear as day. Your lawyer might even agree. But a jury is unpredictable. You never know how a jury will decide a case, and even the best lawyers lose cases sometimes.
In some circumstances, a judge can order you to pay the defendant’s attorney fees if you lose at trial. That means you owe the defendant money, rather than recovering any money yourself.
Q: How much will a personal injury lawsuit cost?
A: The cost of a personal injury lawsuit depends on how long it takes and the complexity of the case.
Most personal injury lawyers work on a contingency fee basis. That means you only pay your lawyer if you receive a settlement or damage award. Your lawyer will be paid a percentage of whatever money you recover in the case. However, there might be up-front expenses related to the case — for example, your lawyer might charge you fees for expert witnesses, travel expenses, or other costs that they incur in handling your claim.
Some lawyers charge a certain percentage if a settlement is reached and raise their percentage if it goes to trial. This should be included in the retainer fee or contract you sign with your lawyer before they begin handling your case.
Q: Do I need a lawyer to file a personal injury claim?
A: You can file a claim up to $10,000 in North Carolina small claims court.
Most people represent themselves in small claims court and don’t need a lawyer. If your claim is less than $10,000, a small claims court action might save you time and money.
If your claim is more than $10,000, it’s likely in your best interest to file a regular lawsuit and hire an attorney.
Q: How much time do I have to file a North Carolina personal injury claim?
A: North Carolina personal injury statutes of limitations range between 1-10 years and vary by type of case.
|North Carolina statutes of limitations for personal injury lawsuits|
|Injury to person||3 years|
|Libel or slander||1 year|
|Loss of property||3 years|
|Professional malpractice||2-4 years after the last act of the defendant (legal malpractice), or 1-10 years after discovery of a foreign object left in the body (medical malpractice)|
|Rent collection||3 years|
|Judgment enforcement||10 years|
Q: How do I find a North Carolina personal injury lawyer?
A: Not any lawyer will do. You want to look until you find the best fit.
Searching for the right lawyer is a bit like finding a doctor or therapist. A lawyer can be educated, qualified, and experienced in handling cases like yours. But that doesn’t mean they’re the right fit for you. You want a lawyer who listens, gives your case the time and attention it deserves, and understands your concerns and objectives.
Here’s how you can begin to find a lawyer:
- Ask your friends. Word of mouth is a valuable tool for finding an attorney. If you’re comfortable asking a friend, family member, neighbor, or coworker for a recommendation, that’s a great way to find a reputable lawyer in your area.
- Search online. You can start by casting a wide net and doing a Google search for a term like “personal injury lawyer” with the name of your city or town. You’ll get a list of law firms nearby that you can then use as a master list before you begin to narrow selections.
- Check websites. Most law firms will have websites that include attorney bios, accomplishments, courts where they try cases, and specialties. Look for a lawyer whose specialty is related to your case.
- Have consultation meetings. Most personal injury lawyers offer a free initial meeting or consultation where they will listen to your version of the facts, determine whether you have a claim, and possibly share their strategy for how they would approach settlement. You can meet with multiple lawyers and then decide which one seems best suited for your case.
The Enjuris law firm directory is also a reliable source for finding a North Carolina lawyer near you to handle your case.
Here are some additional resources to help you through the process of finding a lawyer who will be best-suited for handling your case:
- What you should look for in attorney
- Tips for hiring a personal injury lawyer
- How to find the right car accident attorney for you