I ran out of gas. I had a flat tire. I didn’t have enough money for cab fare. My tux didn’t come back from the cleaners. An old friend came in from out of town. Someone stole my car. An earthquake. A terrible flood. Locusts. IT WASN’T MY FAULT!
The North Carolina Legislature is set to debate a new bill to end contributory negligence and adopt the Uniform Apportionment of Tort Responsibility Act This is a pretty big deal in North Carolina and will impact a lot of people in years and decades to come and its flying under the radar of most people. What the bill does is modify the rule of Contributory Negligence.
Contributory Negligence is a defense in a negligence action. The basic idea is that if it is somebody else’s fault you are hurt; you can recover from that person. To get a little more in depth, Negligence refers to a person's failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury. A person's failure to use ordinary care is negligence. For example, if you are driving a car down Michigan Ave. at 100mph you were not exercising ordinary care and were negligent. If you hit somebody because of that, they would have a negligence action against you.
Contributory negligence is the defense that says that if the person hurt was also at fault, she can’t recover. So if you are speeding and hit somebody who was looking down trying to find a radio station and therefore didn’t see you in time to avoid the accident, you could argue they were also at fault and guilty of contributory negligence and if the jury so found, the person you hit wouldn’t recover anything.
Defense attorneys, and I’ve been one, therefore could argue before a jury that if the Plaintiff (the injured party and the one bringing the action) was only one percent at fault, and the Defendant (the one answering for the action) was ninety-nine percent at fault, the Plaintiff couldn’t recover. This sounds harsh and there have been a few work-arounds in North Carolina law that have sprung up over the years to alleviate it somewhat. In addition, I know that (despite clear instructions from judges NOT to do this) juries will sometime do some deal making when they are trying to reach a unanimous decision, with the pro-Defense jurors voting for liability if the damages are kept down.
All but four states, North Carolina being one, have gone away from the strict contributory negligence in favor of a modified version, also called “comparative negligence.” This is what the new bill being debated will do if passed. Basically, as long as the Plaintiff is less than 50% at fault, she can still recover, with the amount of her recovery lessened by the percentage she is found at fault. So if a Plaintiff is found one percent at fault, and the jury finds her damages to be $10,000, she still gets $9,900. Under the current law, she would get $0. So that is a pretty big change in the way the law has been in North Carolina since Raleigh was a person and not a place.
–Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation. Please contact him at (910) 772-1678.