What is Contributory Negligence?

Posted on by Horman Nichols, LLC

Written By: Andrew Nichols

            You’re almost late for a meeting downtown and after grabbing a cup of coffee, you step between two parked cars and look both ways.  Not seeing any oncoming traffic, you dart across the street, only to be hit by a driver you didn’t see.  A driver who was on her cell phone, sending text messages and driving 20 MPH over the posted speed limit.  After you get out of the hospital, you limp into an attorney’s office, ready to sue the pants off the at-fault driver.  You’ve got thousands of dollars in medical bills, you’re currently unable to work and your doctor told you it’s possible you’re going to have a limp for the rest of your life.  After explaining the facts of your accident, you’re shocked when the attorney tells you there is nothing he can do for you.  Under Maryland law, the attorney says your claim is likely barred by contributory negligence.  

            What is contributory negligence?  It’s a legal standard that can completely prevent an injured party from recovering any monetary damages if they contributed to their own injuries in any way.  Contributory negligence is not followed in the majority of jurisdictions.  In fact, only Alabama, Maryland, Washington D.C., Virginia and North Carolina allow the defense of contributory negligence.  

            Contributory negligence is not an automatic defense or bar.  This means a judge or jury has to find as a factual determination that you were contributorily negligent.  However, it is a defense that is often used aggressively by at-fault drivers and their insurance companies, and for good reason.  I was involved in an appeal where a jury found contributory negligence on the part of an injured pedestrian who, at the time of trial, had been in a coma for 5 years after being struck by a driver who was rushing to make it through a yellow light at an intersection.  The injured plaintiff by all accounts was a great guy.  He had worked for a religious non-profit for 2 years and had 2 young children.  After deliberation, the jury found he had stepped off the sidewalk when he did not have the right-of-way and was contributorily negligent.  A man who would likely never awake from his coma and leave a widow and two young children behind was completely barred from recovering monetary damages.  

            Contributory negligence has a “sibling” that can also completely prevent you from recovering for injuries you sustain as a result of someone else’s negligence – assumption of the risk.  A plaintiff is said to “assume the risk” of injury if he or she voluntarily enters a dangerous situation fully aware of the risk involved.

            What is the practical application of these legal defenses for you?  When you’re getting ready to do something potentially stupid or reckless and you hear that voice in your head that says, “Hey, maybe this isn’t a good idea” – listen to that voice.  Always use reasonable caution and care, and always use a crosswalk.  

            If you have any further questions or would like to consult with Horman Nichols, please call 30.663.8101.

4 Tips in a Personal Injury Case

Posted on by Horman Nichols, LLC

Not everyone wants to hire an attorney for their personal injury case, and if you consult with an attorney, you should know you have the right to negotiate a settlement with the insurance company without an attorney and you have the right to file a lawsuit without an attorney.

Whether you choose to represent yourself in your negotiations with an insurance company, or you’ve retained an attorney, here are four things to keep in mind.

 

Can an Attorney Help Me Get More Money for My Injuries?

Posted on by Horman Nichols, LLC

If you’ve ever been home sick on a Wednesday morning and spent some time watching the TV, you’ve seen the commercials – “Have you or someone you love been hurt in a car accident?” and the tag line is that “If you don’t get paid, we don’t get paid.”

Remove the cheesy and sometimes slimy nature of some of these commercials and you’ll see the message is that if you have been injured through no fault of your own, you should get a lawyer.  It’s also true that for the vast majority of personal injury cases, attorneys work on a contingency basis, which means they get paid a percentage of what they recover on your behalf.

Retaining an attorney will usually lead to a higher recovery on your personal injury case. There are several reasons for this, but here are a few primary ones:

1.  An attorney can assess the strength of your case and potential value.

2.  Hiring an attorney lets the insurance company know you’re not afraid to take your case to trial.  If you negotiate the claim yourself, the insurance adjuster knows you likely don’t want to go to trial.

3.  Hiring an attorney allows the attorney to become involved in communicating with the insurance adjuster earlier on in the process.  This can help you avoid any potential missteps in what you say to the insurance company or what personal information you authorize the insurance company to obtain about you.

4.  An attorney can advise you on ensuring that your medical records and treatment notes are properly documented to assist you in maximizing your recovery.

Consulting with an attorney for a personal injury case is almost always free with no risk to you. Trust your gut – if you feel uncomfortable with the attorney you’ve consulted with, speak to another attorney or firm.  Do your research and find attorneys that get consistently good reviews online (i.e., Yelp, Google and Facebook).

I’ve Been in a Car Accident – Now What?

Posted on by Horman Nichols, LLC

Getting into a car accident can be very stressful, especially if it wasn’t your fault.  One of the things we get asked the most is what to do after you’ve been in a car accident.  Here is a quick list of some of the things to do and remember.  This list contains some pointers, but by no means should be considered an exhaustive list that covers all situations and scenarios that can surround a car accident:

  1. CALL 911:  If anyone is injured, immediately called 911 and ask for an ambulance, as well as the police.
  2.  EXCHANGE INFORMATION: Make sure you exchange information with the other driver, including your names, phone numbers, addresses, make and model of the vehicles, including license plate numbers, and insurance information from any drivers involved.  An easy way to store some of this information is to take pictures of driver’s licenses, license plates and insurance cards.  If there are passengers in any vehicles or witnesses that identify themselves, try to obtain their information as well.
  3. TAKE PICTURES:  Take pictures of any damage to vehicles involved in the accident, the accident scene, or anything that may have contributed to the accident (i.e., road construction, objects in the road, icy patches, etc.).
  4. BE CAREFUL WHAT YOU SAY:  It’s completely appropriate to check on drivers and passengers in the other car(s) and see if they need medical attention or help. However, never admit fault for the accident, not even to the police.  Even if you think you were at fault, it may not be immediately clear who was actually at fault or contributed to the accident.  DO NOT allow the other driver’s insurance company to take a recorded statement from you.  If you have any suspicions that the other driver(s) may try to blame you for the accident, you do not have to speak with their insurance company at all.
  5. CALL YOUR INSURANCE COMPANY: Contact your insurance company as soon as it’s practical.  While you should answer any questions about the accident truthfully, be mindful of what you say, especially if the insurance company is taking a recorded statement.
  6. IF YOU’RE INJURED, SEE YOUR DOCTOR:  Delaying your medical treatment can impact your medical diagnosis and recovery time as well as have an effect on how your case is evaluated for settlement by the other driver’s insurance company.
  7. DON’T SETTLE TOO QUICKLY:  Some insurance companies will offer you a quick payment in exchange for a settlement of your case and a release of all claims.  In the state of Maryland, as a general rule, you have 3 years from the date of the car accident to file a lawsuit, so before settling your case, it’s important to make sure all of your injuries have been diagnosed and if possible, treated.  Once you settle your case, you cannot come back for more money.
  8. IF IN DOUBT, CONTACT A LAWYER: If you’re unsure of your options, including what costs and expenses you can recover and what your case is worth, contact an attorney.  Consultations for these types of cases are almost always free.