North Carolina’s negligence laws are particularly unforgiving to injury survivors
A poll conducted by Truven Health Analytics-NPR Health reported that about 1 in 4 Americans (23.3%) say they’ve experienced a concussion. Of those people, about 80% sought medical treatment. That’s because a concussion is serious, and even a mild concussion can have lasting effects.
What’s the difference between a concussion and a traumatic brain injury (TBI)?
Some doctors call a concussion a “mild TBI.” A traumatic brain injury is a disruption in the normal function of the brain that’s caused by a bump, blow, or jolt to the head. A concussion usually resolves on its own and isn’t life-threatening, but it can have long-term effects.
Common concussion and TBI symptoms
These are some common symptoms of a concussion:
- Vision changes
- Hard to awaken or arouse
- Loss of consciousness
- Memory loss
- Nausea and vomiting
- “Lost time” (i.e. a period of time the injured person can’t remember)
By contrast, a TBI can result in long-term or permanent changes in a person’s consciousness, awareness, or responsiveness.
The Mayo Clinic offers this list of symptoms and effects that can result from a TBI:
|Altered consciousness from a TBI||Physical effects of a TBI|
|Coma: Unconsciousness, lack of awareness of anything and inability to respond to stimuli.||Seizures: Some people with a TBI experience seizures that only last for a short time after the injury, while others last for years.|
|Vegetative state: Unawareness of surroundings, but might be able to open or close their eyes, make sounds, or respond to reflexes.||Hydrocephalus: This is a fluid buildup in the brain, which causes increased pressure and swelling.|
|Minimally conscious state: Some self-awareness or awareness of surroundings. This is sometimes a transition from a coma or vegetative condition to additional recovery.||Infection: A skull fracture or penetration can tear the protective tissue that surrounds the brain, and that can allow bacteria to enter the brain and cause an infection that could then spread to the rest of the nervous system.|
|Brain dead: No measurable brain or brain stem activity. If a brain dead person is removed from a breathing device (life support), they will pass away. There’s no “cure” or reversal for brain death.||Blood vessel damage: Blood vessel damage can lead to a stroke or blood clots.|
|Headaches and vertigo: Many TBI patients experience frequent headaches or vertigo, which is extreme dizziness.|
|Other possible effects from a TBI|
Common causes of a head injury or traumatic brain injury
People with the highest rates of emergency department visits for TBIs are those 75 years old and older and children up to age 4.
Falls are the leading cause of emergency department visits for children age 0-4 and for adults 65 and older. Children from age 5-14 are the most likely to require emergency medical treatment for a TBI as a result of being struck by or against an object.
AThe 5 most common causes of a head or traumatic brain injury include:
- Falls. This could be a child falling in a bathtub, out of a crib, down the stairs, or any other place. It also includes adults who fall off ladders, roofs, construction sites, or any other fall from heights. Even a fall from standing on the floor could result in a TBI if you hit your head on a solid object when you fall.
- Car or truck crashes. Any motor vehicle crash — motorcycle, bicycle, car, or truck — can result in a TBI.
- Violence. Shaken Baby Syndrome can cause a TBI, as can gunshot wounds, domestic violence, child abuse, or other forms of assault.
- Sports injuries. Any high-impact or extreme sport like football, lacrosse, skateboarding, hockey, soccer, and others could result in a TBI.
- Explosive blast or combat injuries. These are common in active-duty military personnel. It’s possible that even absent an impact, a pressure wave can pass through the brain and disrupt its functioning.
Because of the ways that head and brain injuries most commonly occur, the people at highest risk are very young children, older adults, and individuals between 15 and 24 or those who are likely to engage in high-risk activities.
Head and brain injury lawsuits in North Carolina
When a tragic event occurs, it’s human nature to wonder who’s to blame. Not to be vindictive, necessarily, but to find a reason why it happened.
Sometimes, it’s just human error. A slip and fall in the bathtub is probably no one’s fault. If you fell and hit your head on the floor or a table in your home because you had a momentary lapse of balance due to a medical condition, that’s also probably not someone’s fault per se.
But sometimes, an accident could have been prevented if someone had foreseen the possibility and taken reasonable steps to avoid it.
Here are some instances when it might be possible to file a lawsuit for your head or brain injury:
Premises liability allows for a lawsuit if your injury is the result of an unsafe condition on someone else’s property.
A property owner or manager has a duty of reasonable care to a lawful visitor to prevent unnecessary exposure to a dangerous condition or to warn that a hazard is present.
In other words, if you’re legally permitted to be somewhere, you should be able to reasonably expect that the property is safe.
In order to bring a successful premises liability claim, you’ll need to prove that:
- The property owner owed you a duty of care (and that you were a lawful visitor to the property).
- There was a dangerous condition.
- The property owner knew or should’ve known about the dangerous condition and that it could potentially cause an injury.
- The property owner did not take reasonable action to correct or warn about the condition.
- You were injured because of the dangerous condition.
- Your injuries cost you money (medical bills, lost wages, or other recoverable damages).
You could suffer a head injury related to a condition on a property in a variety of ways — a trip and fall over a broken tile or loose carpet, loose or unsafe stairs, a tree branch falls and strikes you, a swimming pool accident, falling because of poor lighting, or any other manner of injury.
Companies that run facilities for seniors know that older people are more likely to fall. These kinds of environments should be equipped with handrails, additional visual cues for steps or other hazards, ramps, and other modifications to accommodate the needs of older adults who aren’t steady on their feet.
Car or truck accident
We know that a car accident or truck accident can cause anything from a minor bump or cut to serious injuries or fatalities. Unfortunately, that also applies to bicycle accidents, bus accidents, motorcycle accidents, and pedestrian accidents.
North Carolina is an at-fault state. That means the person who is legally at fault for the collision is responsible for the costs. The at-fault person’s insurance company would pay for the damages and injuries of anyone injured in the accident.
The purpose of UM coverage is to provide compensation if you’re in an accident with a driver who doesn’t have insurance. This coverage would also cover a hit-and-run (i.e. when another driver hits your car and flees without you being able to obtain their information).
North Carolina does NOT require underinsured motorist coverage (UIM), which benefits you in a catastrophic accident if your injuries total more than the limits of the other driver’s liability insurance policy. For example, if the at-fault driver has a policy that meets the $30,000 minimum for personal bodily injury but your injuries cost $50,000, then your UIM policy can help cover the $20,000 difference.
Defective product (product liability)
The manufacturer, distributor, or retailer involved with a defective product could also be liable for a head or brain injury.
There are 3 ways a product might be considered defective for the purposes of a lawsuit:
- Design defect. This happens if a product is inherently dangerous because the design wasn’t safe. Even if it’s manufactured exactly according to the design specifications, it remains a dangerous product when used correctly. The only way to correct the defect is to change the design and create the product differently.
- Manufacturing defect. If a product is damaged, not assembled properly, or otherwise comes through the manufacturing process incorrectly, it could result in a manufacturing defect.
- Inadequate warnings. Even if the product is designed and manufactured exactly as expected, sometimes injuries happen because the labels or packaging didn’t provide sufficient warning to the consumer about possible dangers or incorrect use.
Damages from a head or brain injury lawsuit
“Damages” are the amount of money you can recover in a personal injury lawsuit.
If you or a loved one suffered a head or brain injury in North Carolina because of someone else’s negligence, then you might be able to recover costs related to:
- Medical treatment. Medical treatment costs can include doctor and hospital visits, prescription medication, assistive devices, rehabilitative therapies, and any other costs related to your physical recovery.
- Lost income. You can also claim salary and wages as a loss from an accident. Loss of earning capacity is the difference between what you would’ve earned for the remainder of your lifetime and what you will actually earn because of the accident.
- Property loss. If you’re filing a lawsuit because of a car accident, for instance, the cost of replacing or repairing your car would be included under property loss.
- Emotional distress. This might include fear, anxiety, sleep disturbances, post-traumatic stress disorder, or other psychological conditions that arise following trauma or serious injury.
- Loss of enjoyment. Anyone who has been injured to the extent that they lose some level of capacity to do the things they previously enjoyed—even if it’s walking your dog or playing with your kids—could be eligible for a damage award for loss of enjoyment.
- Loss of consortium. If a loved one has been in an accident and lost the ability to provide love, affection, companionship, comfort, or even the ability to participate in household responsibilities and child-rearing, you might have a loss of consortium claim.
- Punitive damages. Punitive damages are calculated separately from (or in addition to) compensatory damages as a punishment or deterrent to a defendant when the action that caused the injury was malicious, willful, or especially egregious.
North Carolina negligence laws
In some states, if the injured person had some liability for the accident, they can still recover damages, but the amount is reduced by the percentage of the plaintiff’s fault. For example, in a car accident case where the defendant was at fault but the plaintiff could’ve acted differently in a way that would have avoided the collision, the court would evaluate what percent was the plaintiff’s fault. If the plaintiff was found to be 10% liable, their damage award would be reduced by 10%.
But that’s not how it works in North Carolina.
North Carolina is 1 of 5 states that follows the pure contributory negligence rule. If the plaintiff has any fault for the accident, they aren’t allowed to receive any damages.
Therefore, if you’ve suffered a head injury or TBI in North Carolina, the stakes are high. You want to consult a personal injury lawyer right away... ideally, before you’ve spoken with an insurance company. You don’t want to run the risk of saying anything that might suggest that you had any level of liability for the accident — including that you could’ve somehow avoided it and didn’t.
Insurance adjusters use a variety of tactics to get you to say that your injury is less serious than it is, or that you were somehow at fault (or partially at fault). These people are trained to say certain things in order to elicit a specific response. Even something that seems innocuous can change your lawsuit.
For example, an insurance adjuster might call you a few days after an accident and say, “How are you feeling today?” It might sound like concern or kindness, but don’t be fooled. If you say, “I’m doing much better today!” or “I still feel bad about what happened,” you might be digging yourself a hole that you can’t climb out of during a lawsuit.
Remember that when it comes to speaking with an insurance adjuster, less is more. There’s no such thing as small talk or pleasantries. Even if it’s your own insurance company, the adjuster’s job is to get you to settle for the lowest possible amount.
Your lawyer is a different story.
When to consult a head and brain injury lawyer near you
Your lawyer’s job is to represent YOU and your interests, even if it’s in a negotiation with your own insurance company. The insurance company profits by paying out as little in settlements as possible. Your lawyer earns money by achieving the highest possible settlement or damage award for their client.
See the difference?
It’s an important distinction to understand.
Remember, too, that an insurance settlement won’t generally cover the cost of your pain and suffering, emotional distress, or punitive damages. Because a head or brain injury can be very serious and long-lasting, these should be important considerations.
Let the Enjuris law firm directory be your guide to finding an experienced North Carolina personal injury lawyer who specializes in head, TBI, and other catastrophic injury settlements and lawsuits.
In addition, here’s a list of resources specifically for head trauma and TBI-related services in North Carolina:
- Brain Injury Association of North Carolina
- NC Department of Health and Human Services’ TBI Program
- Carolina Brain Center
- Centers for Disease Control and Prevention