When prosecuting for damages in a North Carolina car accident case, the defense lawyer can use assumption of risk as a complete defense.
Assumption of risk, which can be implied or expressed, is a defense claiming that the injured party (plaintiff) knew about the risk and voluntarily assumed it. An expressed assumption of risk is one where the plaintiff in a case outwardly agrees to or accepts the risk. By comparison, an implied assumption of risk results when the plaintiff’s behavior exposes him or her to risk.
Implied assumption of risk is typically a partial defense which implies comparative negligence (where the plaintiff is assigned some of the negligence). However, in North Carolina, which is a pure contributory negligence state, any plaintiff who contributes to causing an accident is barred from recovery.
An example of assumption of risk is when the plaintiff knows the defendant is drunk or the plaintiff has been drinking with the plaintiff and then gets in the vehicle to ride as a passenger anyway, thus accepting the exposure to risk.
One precedent-setting case in respect to the assumption of risk in a drunk driving car accident is Ven Rooy v. Farmers Mutual Insurance Co. The driver and four other drinking companions left together in a car speeding down the highway. The court ruled that based on the precedent from Topel v. Correz, "a guest who knows, or in the exercise of ordinary care should have known, that if the conduct of his host-driver, is in any respect dangerous, is required under the law to make known his objection to such conduct by protesting.' Instead, in the Ven Rooy case, all four plaintiffs in the car were merrily singing songs as the car sped along.
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