Contributory Negligence

Contributory Negligence in North Carolina

A majority of personal injury claims rest on the legal doctrine of "negligence." North Carolina imposes a duty on every person to use the level of ordinary care that a reasonable and prudent person would use under the same or similar circumstances. When a person fails to use ordinary care that person is considered to be "negligent."

"Contributory Negligence" is a legal doctrine that states that a plaintiff (the party who brings a lawsuit) will be unable to recover damages from the defendant (the party who allegedly injured the plaintiff) if the plaintiff's own negligence contributed to his injuries in any way. Contributory negligence may be established upon a showing by the defendant of: (1) a lack of ordinary care on the part of the plaintiff and (2) a proximate connection between the plaintiff's negligence and his injury. Therefore, the plaintiff's own negligence must have had a hand in causing his injuries and that negligence cannot be unrelated to the injuries he sustained.

Interestingly, the concept of Contributory Negligence is based on old law that was once prevalent throughout the United States. However, currently only four U.S. states (Alabama, Maryland, North Carolina, and Virginia) still use this doctrine. Today, most other states have moved on to using some form of the "Comparative Negligence/Fault" doctrine, which allows a plaintiff who is only partially at fault to recover damages up to the percentage to which he was not at fault. For example, a plaintiff who was 10% at fault for his own injuries can recover up to 90% of his damages from the defendant.

Because Comparative Negligence allows for a certain amount of flexibility and is not an all-or-nothing doctrine, it is often seen as a more fair system than the doctrine of Contributory Negligence. In fact, the Comparative Negligence doctrine of proportional recovery is in almost direct contrast to the strict Contributory Negligence doctrine. Comparative Negligence allows a person to be compensated for their injuries even if they were partially at fault. Contributory Negligence bars a plaintiff from recovery if he is negligent in any way. Accordingly, Contributory Negligence can lead to seemingly unfair results such as not allowing a critically injured plaintiff who was only 1% negligent to win a lawsuit against a very negligent defendant who was 99% at fault. Conversely, such results would not occur in a Comparative Negligence state.

However, there are limits to the doctrine of Contributory Negligence. A person must be aware, or reasonably should be aware, that their actions create the potential danger of injury. North Carolina case law states that a party cannot be guilty of contributory negligence unless he or she had knowledge and appreciation of the danger of injury which his or her conduct involves. This standard is an objective standard requiring "the care an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury."

This standard does not require a person to be extraordinarily cautious. Instead, a person must simply act reasonably in a given situation. Indeed, the North Carolina Supreme Court has specifically stated that "one is not required to anticipate the negligence of others . . . one is entitled to assume and act on the assumption that others will exercise ordinary care for their own or others' safety." By setting clear limits to the Contributory Negligence doctrine, such rulings have served to soften the harsh results often found under this old-fashioned legal concept.

Next week this blog will examine special defenses to Contributory Negligence, including gross negligence and the "Last Clear Chance" doctrine.

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