North Carolina is one of a handful of states in the U.S. that has what is known as a “pure contributory negligence” law. It can be harsh, and it affects a great many personal injury lawsuits. In a “pure contributory negligence” state, if a person is found partly at fault for an accident, they cannot collect damages against the other party.
At the time the law was enacted, it was believed that placing the onus on a person to continually exercise due care for their safety and the safety of others promoted personal responsibility. In addition, at the time that North Carolina adopted the contributory negligence bar, courts were seeking ways to control sympathetic juries and protect businesses during the industrial revolution. Under the law, one must exercise the ordinary care in their actions that others under the same or similar circumstances would. If a person fails to do so, even for a moment, and that failure contributes to an accident, then the person who failed in their duty cannot collect.
This law leads to many accident insurance claim denials. Here is an example. Driver A and Driver B approach an intersection at the same time from opposite directions. Driver A is proceeding straight through the intersection and assumes that Driver B has no turn indicator blinking.
Driver A looks down at his radio to check the time as he is going through the intersection. He does not see that Driver B is making a left-hand turn into him. So, he does not apply his brakes or take any evasive action. Under a pure negligence state, Driver A did not cause the accident, but by looking down he may be partly to blame—say 5%. Driver A may be precluded from collecting against Driver B. Driver B’s insurance would likely deny Driver A’s claim. However, the insurance company doesn’t want you to know that contributory negligence has exceptions.
The defense team will need to be able to unanimously convince 12 jurors of contributory negligence. A good personal injury lawyer can help you develop a legal theory to defeat a contributory negligence argument.
Last Clear Chance and Other Ameliorating Actions Doctrines
Fortunately, there are exceptions to contributory negligence. An experienced North Carolina personal injury attorney will investigate the facts of your case to see if any of the exceptions apply. One such workaround is called the “last clear chance” doctrine. Under the last clear chance doctrine, regardless of the plaintiff’s negligence, where the defendant had the last clear chance to avoid the accident and fails to take any action to do so, the defendant should be held accountable.
For the last clear chance rules to be successfully used, it is important for the plaintiff to show the following:
1) The plaintiff, by [plaintiff’s] own negligence put [plaintiff] into a position of helpless peril;
2) Defendant discovered, or should have discovered, the position of the plaintiff;
3) Defendant had the time and ability to avoid the injury;
4) Defendant negligently failed to do so; and
5) Plaintiff was injured as a result of the defendant’s failure to avoid the injury.
Addison v. KYE (N.C. App. 2004).
So, in the above example, Driver B could have applied his or her brakes. Driver B had the last clear chance to avoid the accident. Instead, Driver B plowed directly into Driver A. Under this doctrine, Driver A’s conduct does not bar recovery.
Gross Negligence Defeats Contributory Negligence
Another exception to contributory negligence is gross negligence. If the jury finds the Defendant was grossly negligent this finding would overrule the Plaintiff’s contributory negligence. For example, if you’re struck by a drunk driver while you’re looking down at the radio than the drunk drivers gross negligence would trump your contributory negligence.
To show gross negligence you must prove “willful and wanton” conduct. The NC Supreme Court has defined “willful and wanton” as conduct done with a conscious or reckless disregard for the safety of others.
When one engages in reckless or willful conduct, the contributory negligence bar should not shield them. So, in the above example, if Driver B had three drinks before getting into the car, Driver A could assert this doctrine as a workaround.
Facts really matter in these cases. Even the smallest details may be important in your personal injury case. Bring those facts to an experienced personal injury attorney and get the recovery you deserve.
Free Consultation with An Experienced North Carolina Personal Injury Attorney
Years of insurance defense work have honed our skills. We can view your case from the other side and help you expose weaknesses in their contributory negligence defense. Many times insurance companies wrongfully allege contributory negligence. We will help make sure they don’t get away with it.
We bring these skills to bear so that you can get the recovery that you deserve. Put our experience on your side. The initial consultation is free. Call Horton & Mendez today at (910) 668-8067 or fill out the form on this page to see what we can do for you.
Contributory Negligence Attorney FAQ
The Defendant’s Insurance Company Has Asked Me for a Statement. What Should I Do?
Facts, and how you talk about the facts of your case, can be important. Before you consider giving a statement to the defendant’s insurance company, consult with a trusted attorney.
The Defendant’s Insurance Company Has Denied My Claim Because They Think I Was on My Phone at the Time of the Accident. Now What Do I Do?
All is not lost. There are ways to show the insurance company that you were not on your phone. We can help you move your case along toward recovery for your injuries.
The Defendant Told Me He Had Been at a Party. How Do I Prove He was Drunk While Driving?
There are ways. If the police report does not show that the defendant had been drinking, it is possible to interview possible witnesses from the party.