Losing a loved one is a terrible tragedy, but for some people, it may be made worse by the worry that their loved one’s death could have been prevented. Unfortunately, sometimes the actions of a person or entity can lead to an accident or other situation in which a person is killed.
When this happens, family members may be left in financial difficulty, they may be concerned that the responsible party should face consequences for their actions, or both. These are the most common situations where people consult a wrongful death attorney.
North Carolina treats wrongful death cases like other personal injury lawsuits. There are five elements that your attorney will need to prove in order to win your case:
Actual cause and proximate cause are two terms you may hear in relation to a wrongful death or other personal injury cases. In North Carolina, both actual and proximate causes are necessary to find someone negligent in another person’s death. Actual cause is simply what caused the harm – in this case, a person’s death. The defendant’s car crashed into the deceased person’s car, leading to severe injuries that caused their death. That is the actual cause of the death, but it isn’t necessarily enough to prove negligence.
Proximate cause deals with whether the defendant could have reasonably expected their actions to cause the harm that occurred. Sometimes a person’s actions may be the actual cause of harm without being the proximate cause. For example, let’s say that Bob goes to the tire store and buys a new set of tires. A few weeks later, he’s driving and one of the tires blows out, causing his car to go off the road and hit a tree. Sadly, Bob dies from his injuries. Now, these tires were still fairly new, and after asking around, Bob’s wife finds out that many other customers have reported the tires were defective and failed in a similar way. In this situation, the tire store selling Bob defective tires is the actual cause of the accident that resulted in his death. But if the tire store’s management didn’t know the tires were defective, are they responsible for the proximate cause of Bob’s death? No. Could they have anticipated one of the tires would fail after only a few weeks and cause the wreck? No.
On the other hand, if the tire store was informed of a recall on the tires and kept selling them anyway, they could reasonably expect a customer might be harmed by a prematurely failing tire causing an accident. Similarly, if the tire company found issues with some of the tires randomly exploding in their testing, but went ahead and shipped them to stores anyway, they could be responsible for the proximate cause of the accident that killed Bob.
Only a few states in the country use contributory negligence statutes in personal injury law, and North Carolina is one of them. Most states use some type of comparative negligence standard, where the plaintiff can still collect damages even if they contributed to an accident in some small way, as long as more than 50 percent of the fault lies with the other party. With contributory negligence rules, the plaintiff can’t collect any damages if they are even one percent at fault.
In most personal injury cases, the plaintiff is the injured party. In a wrongful death case, the plaintiff is technically a representative for the decedent’s heirs. A wrongful death suit can only be filed by an executor or personal representative of the deceased person’s estate. However, the question of whether the deceased contributed to the accident that took their life is still considered in wrongful death cases. Due to the contributory negligence laws in the state, it’s very common for the defendant’s lawyer to argue that the decedent contributed to their own accident, and therefore, the defendant should not have to pay any damages.
Fortunately, an experienced wrongful death attorney can work to refute these claims if the case goes to court (many wrongful death suits settle out of court). They may also try to negotiate with the other party and/or their insurance carrier. Here are some arguments your lawyer may use when dealing with a contributory negligence claim:
First, they may argue that the decedent’s actions did not actually contribute to the accident. It’s not uncommon for a defendant or their insurance carrier to claim that all sorts of things happened that contributed to the accident beyond the defendant’s control. Your lawyer may introduce evidence refuting these assertions. This could include interviewing witnesses, video from traffic cameras, data from both cars’ GPS or other electronics, smartphone user data, etc.
Another option is to argue that contributory negligence statutes don’t apply because of the “Last Chance Doctrine.” This is an exception that says an injured party can still collect damages, even if they were contributorily negligent to some degree if they can demonstrate that the defendant had the last clear chance to avoid the event that caused the death. There are several steps to proving the other party had this “last chance”:
For example, a person who didn’t use their signal when turning likely knew that this behavior increased their risk of an accident by potentially confusing other motorists. But if another driver saw they were in the middle of turning, had the chance to stop, and didn’t do it, they had the “last chance” to prevent an accident and failed in that duty.
In rare cases, contributory negligence rules can be set aside if the defendant’s negligence is found to be “wanton or willful.” In other words, if the other party’s behavior was excessively reckless, occasionally the judge or jury may overlook a small mistake on the victim’s part. However, proving “wanton or willful” negligence is much more difficult than proving regular negligence, so this probably won’t be the first strategy your lawyer suggests, except in unusual circumstances.
While North Carolina uses contributory negligence statutes, South Carolina uses comparative negligence, in which a plaintiff can still collect damages from a defendant if they were less than 50 percent at fault. The plaintiff’s compensation will simply be reduced by the percentage that the deceased person was found to be at fault. At Auger & Auger, we assist clients with wrongful death and other personal injury cases in both states and will develop a strategy for the particular situation and state it took place.
This can depend on the kind of case. In a car or other type of accident, your lawyer will probably start with the police report. They may also canvas the scene to see if there are any additional witnesses who may have been missed. Additionally, traffic cam video is often useful, but so is a video from doorbells or other private cameras in the area. Sometimes a law firm investigator may uncover evidence that was missed in the police report.
For this reason, it’s important not to get too hung up on the initial police report. The fact is that law enforcement officers are often very busy, and technically it isn’t their job to decide who is at fault in an accident. It’s their job to investigate an accident and write a report about contributing factors. This will include information about where the cars were at the point of impact, the location and length of any skid marks if either vehicle had any malfunctions like lights that were out, etc. They will also interview the people involved as well as witnesses and will issue a citation if they find evidence that one or both parties committed a traffic violation or other crime.
If the officers responding to the scene find evidence that a driver committed a crime beyond a minor traffic violation, they may make an arrest and file charges against the driver. This typically happens in impaired driving cases. For example, if a breathalyzer shows one of the drivers was over the legal limit (drunk driving), law enforcement will likely arrest them for Driving While Impaired (DWI). If a person in the other car died as the result of their injuries in the accident, the police may add other charges, such as vehicular manslaughter.
Keep in mind that these are criminal charges. A wrongful death case does not require a person to have committed a crime. Although it certainly won’t hurt your case if the other party was found guilty of vehicular manslaughter or another crime connected to the accident, this is not necessary for you to sue for wrongful death.
In fact, because the burden of proof in a criminal case is much higher than in a civil case, you may be able to successfully sue someone even if no criminal charges were filed against them, or if they were not found guilty in criminal court. Juries in a criminal case have to conclude that a person is guilty “beyond a reasonable doubt.” But in civil court, they only need to decide that the defendant is more likely guilty than not by “a preponderance of evidence.” That means that if there is slightly more evidence the defendant is guilty, they can find it in the plaintiff’s favor.
We’ve talked a lot about car accidents because this is the most common kind of wrongful death case. However, another party’s negligence may cause someone’s death in a wide variety of situations. We’ve worked on cases involving workplace accidents, plane or train crashes, boating accidents, defective product incidents, medical malpractice, and other situations that led to a person’s untimely death. If you believe your loved one died as the result of someone else’s behavior, it’s in your best interest to contact an attorney. At Auger & Auger, we work hard to take as much stress as possible off your shoulders so you can focus on your life and family during this time.
After your free consultation, we will keep you involved in the legal proceedings as much or as little as you want. We will worry about the paperwork, consulting experts and witnesses, and negotiating with the insurance companies on your behalf. We have been helping wrongful death victims receive the compensation they deserve for over 26 years, and we know what it takes to win your case.
There is no obligation if you want to find out your legal options. You won’t owe us a dime unless we win your case. Call us at (855) 969-5624 or contact us online for a free, no-obligation consultation with an experienced wrongful death attorney. Our legal team is always available to take your call.