In relationships, fault is a matter of perspective, but in the legal arena, fault determines liability and the right to fair compensation.
Comparative Negligence vs. Contributory Negligence
Comparative negligence rules apply in most states, which allocates fault as a percentage. There are several variations of comparative fault, but most states have adopted comparative fault. In most states, an injured person can collect a percentage of their damages as long as they are no more than 50% at fault.
Contributory negligence is a common law rule that bars accident victims from receiving fair compensation for injuries or damages. Negligence relates to careless or inadvertent actions or inaction, which causes harm or damage. However, contributory negligence is a concept that incorporates the "clean hands" philosophy: a person cannot benefit in any way from their own wrongful act, and there is no distribution of fault.
The History of Contributory Negligence
The unfair rule was created not by the North Carolina legislature but by the court. Therefore, the North Carolina Supreme Court could abandon the rule in favor of comparative fault. The doctrine was first adopted in England in 1809. Forty-nine of the fifty states, including North Carolina, modeled their court systems after the English system. The North Carolina courts first invoked the doctrine in 1869. In 1953, the US Supreme Court called contributory negligence "a discredited doctrine." Pope & Talbot v. Hawn, 346 US 406, 409.
Despite multiple attempts to abandon this old standard, state lawmakers' efforts have been unsuccessful. In 2013, General Assembly members challenged the long-standing contributory negligence rule through H.B. 813, but the draft never made it out of the Senate. If successful, the draft amendment would have placed North Carolina in the majority of states that offer some type of comparative negligence standard for those injured through the significant negligence of others.
Contributory Negligence in North Carolina
In very few states, such as North Carolina, contributory negligence is still the standard. In cases of personal injury or car wrecks, contributory negligence can prevent you from receiving compensation for life-altering injuries.
In Saunders v. Hull Property Group, LLC Ms. Saunders tripped over a 5/8 of an inch defect in a paved shopping center parking lot. The American with Disabilities Act and other accepted standards recognize a defect of more than 1/4 of an inch as a tripping hazard requiring it to be beveled to prevent pedestrians from falling.
Ms. Saunders broke her knee, required a total hip replacement, and had a traumatic brain injury. Her case was tried to a jury. The jury found Ms. Saunders was injured due to the parking lot owners' negligence, but also found that she was contributorily negligent — she did not keep a proper lookout and should have seen the defect. Thus she could not recover any compensation for her severe and life-altering injuries.
The attorneys representing Ms. Saunders attempted to take her case directly to the NC Supreme Court, asking it to review the case without an intermediate, appellate decision. However, the Supreme Court declined to do so, and the case is now at the Court of Appeals.
Defending Yourself Against Contributory Negligence
Based on the concept of contributory negligence, you may not receive any compensation if you share any of the fault. While the contributory negligence standard is difficult to overcome, it is not absolute. If an injured person can prove that the defendant had the last clear chance to avoid a crash or accident and failed to do so, the presumption is overcome. Also, if an injured person can show that the other party's actions that caused their injury or damage were willful (intentional) or wanton (reckless), a contributory negligence defense can be defeated.
A claimant injured in a car accident who is found to be contributory negligent may be able to receive compensation from the other driver was intoxicated, excessively speeding, or racing. This is called gross negligence on the part of the offending driver and can be established if there's proof that the other driver was fully aware of their dangerous actions.
Getting Your Full and Fair Compensation After an Accident
Renewed efforts to change North Carolina's outdated and unfair contributory negligence law are focused on changing it through the court system, like in Ms. Saunders' case. Forty-six states have abandoned contributory negligence in favor of comparative fault. Hopefully, North Carolina will soon be the forty-seventh.
If you have been in an accident, consulting an experienced personal injury lawyer will increase your odds of receiving full and fair compensation. Schedule a free consultation today.