North Carolina's Contributory Negligence Rules Outdated and Unfair

August 13, 2010 (Press-News.org) Imagine that you were in a bad car crash. Not only was there extensive property damage to your vehicle, but you also suffered severe injuries and have thousands of dollars in unpaid medical bills to prove it. In an attempt to recoup your losses from the insurance company of the driver who hit you, you file a personal injury lawsuit. While there is some question about whether the other driver is 100% at fault, you are confident that he is at least partially responsible for your losses.

The court, however, disagrees and finds you shared fault - 10% of it - for causing the accident. While this is not what you wanted to hear, it is not the worst news because you will still get something, right?

In most states, yes, you would. In North Carolina, however, you would get nothing.

Contributory Negligence

Unlike the majority of states, North Carolina follows an old common law rule in tort cases known as contributory negligence. Under this rule, whenever a person is found to share any responsibility at all for his or her injuries, the person is barred from recovering compensation for those injuries. This means that if a plaintiff in a personal injury action is found to be even as little as 1% at fault, then the plaintiff will get nothing from the defendant, despite the fact that the defendant still is 99% at fault for the plaintiff's injuries.

Under state law, contributory negligence is an affirmative defense to personal injury lawsuits. In other words, the defendant has the burden of proving that the plaintiff's own actions or inactions were a proximate cause of the plaintiff's injuries.

In certain cases, the contributory negligence defense can be overcome. If the plaintiff can prove that the defendant's willful and wanton acts caused the injury, then the defendant cannot claim contributory negligence bars the plaintiff from recovery. Likewise, if the plaintiff can show that the defendant had the last clear chance to avoid an accident and did not do so, then the defendant can still be held accountable even if a plaintiff is found contributorily negligent.

Currently only 3 other states and the District of Columbia follow a contributory negligence scheme.

Comparative Negligence - Distributing Fault Fairly

The majority of states have a comparative negligence system. In comparative negligence, a plaintiff's total amount of recovery is decreased according to the percentage of fault assigned to the plaintiff. Whether the plaintiff is denied recovery once he or she has reached a certain percentage of fault depends on which type of comparative negligence system the state has adopted.

In pure comparative negligence jurisdictions, plaintiffs are entitled to recover some damages, even if they are assigned the greater portion of fault for causing the accident. For example, if the plaintiff is found to be 90% at fault and the defendant is found to be 10% at fault, the plaintiff still can recover 10% of the total damage award from the defendant. Thirteen states have pure comparative negligence rules.

Thirty-three states have a modified comparative negligencerule. Twelve of the states follow a 50% rule in which plaintiffs are barred recovery if they are found to be 50% or greater at fault for their injuries. Twenty-one states follow a 51% rule in which plaintiffs are not barred recovery unless they have been found 51% or greater at fault for their injuries.

Attempts to Change North Carolina Law Unsuccessful

There have been attempts in the past to change North Carolina's contributory negligence laws. The most recent effort occurred last year when the House voted in favor of H.B. 813. The bill would have replaced the state's contributory negligence rules with a modified comparative negligence system in which plaintiffs only would have been barred recovery if they were found to be 50% or more at fault for their losses. H.B. 813, however, never made it out of the Senate due to "poison pills" inserted into the legislation at the insistence of insurance industry lobbyists. These amendments would have resulted in the unequal application of laws based upon whether or not an injured person had health insurance. The result would have been to allow largerpersonal injury recoveries to those who lacked health insurance when compared with those injured victims who had health insurance. Thus, the insurance industry wanted to sacrifice the rights of those responsible consumers with health insurance in exchange for affording justice to victims of negligence. Advocates for injured victims were unwilling to accept these "poison pill" amendments as it would simply shift an injustice from one category of people to another.

The insurance industry is one of the biggest opponents to changing North Carolina's negligence laws. They have argued that liability insurance rates will increase dramatically if North Carolina adopts a comparative fault system because insurers will be forced to pay out more claims. The evidence, however, does not support their argument as rates have not increased disproportionately in those states which have adopted a comparative negligence approach to injury lawsuits.

While it certainly is more beneficial for the insurance industry if North Carolina remains a contributory negligence state, it is not more beneficial for injured people. The majority of states no longer have contributory negligence rules because their state legislatures correctly determined that these rules unfairly favor wrongdoers and harshly punish injured victims. It is well-past the time when North Carolina's General Assembly should come to the same conclusion and adopt a comparative negligence system that does not shift injustices to other categories of individuals.

Article provided by Brown, Moore & Associates PLLC
Visit us at www.brownmoorelaw.com