Negligence – Contributory versus Comparative

Forrest P. Merithew, Attorney at Law, has experience and primarily practices in the civil and commercial arena, including civil and commercial litigation.  If you have been sued in a negligence matter, or other personal injury, toxic tort, or liability exposure case, or wish to proceed against another on the basis of such claims, it is recommended you contact a knowledgeable attorney to know your rights, claims, damages, and defenses, as well as experienced problem solving to find the most cost effective way to go about your matter with the greatest potential of success.

Negligence – Contributory versus Comparative:

There have been several prior blog articles written on negligence and negligence defense, particularly for the outdoor recreation industry.  Here, we discuss how defendants in North Carolina may prevent plaintiffs in negligence actions from being successful by pleading that a plaintiff him or herself was negligent in some capacity as well.  In a negligence action, or possibly a warranty or product liability matter, juries and courts will not only look to determine if a defendant was negligent (breached a duty to plaintiff), but will also evaluate the plaintiff’s actions or inactions to determine if plaintiff was in anyway at fault for the injuries or damages he, she, or it incurred.  The two primary legal theories governing plaintiff’s potential fault are comparative and contributory negligence.  North Carolina is one of only a handful of states that still uses contributory negligence, while most states have evolved to a system of comparative negligence.

Contributory negligence means that a plaintiff cannot collect or win any recovery of damages if he or she were negligent in anyway (even 1%), and that negligence was one of the proximate causes of the injuries or damages plaintiff incurred.  However, juries maybe reluctant to assign blame to victims because they can view this “all or nothing” standard as overly harsh and unfair.  And, if a plaintiff can show that they may have been negligent, but his or her negligence was not a cause of the injury or damages claimed, then he or she can still potentially recover the claimed amounts.

In contrast, comparative negligence allows for an allocation and apportionment of negligence against the plaintiff.  In other words, comparative negligence allows a plaintiff to potentially still recover damages against a defendant or defendants even if he or she were partly at fault (or negligent); however, the award would be reduced by the percentage of plaintiff’s fault in causing or bringing about the incurred injury or damages.

North Carolina courts have determined that a plaintiff is contributorily negligent when he or she fails to exercise the care an ordinarily prudent person would under the particular circumstances.  And, such failure was a factor in the injury or damages the plaintiff suffered.  The evaluation of whether or not the plaintiff is contributorily negligent is generally made by the jury.  Finally, contributory negligence may be imputed where a claimant’s or plaintiff’s agent is found negligent and that negligence led to the damages claimed.

Exceptions:

There are several exceptions to the contributory negligence rule, led most commonly by the “last clear chance” doctrine.  If, after plaintiff’s initial act of negligence, the defendant then had an opportunity to avoid causing injury or damages to plaintiff but failed to do so, the plaintiff should still be able to get full recovery from defendant (if the defendant is ultimately found guilty of negligence).  Another exception to the doctrine is where a defendant’s conduct amounts to gross negligence, generally defined as intentional, willful, malicious, or wanton conduct with a conscious or reckless disregard for the rights or safety of others, as long as defendant’s gross negligence is a proximate cause of plaintiff’s injury or damages.  So, even if plaintiff was negligent in some capacity, if defendant was grossly negligent, then he or she may be unable to use contributory negligence as a bar to plaintiff’s claims.

Other exceptions to the contributory negligence doctrine involve a plaintiff’s incapacity due to minor age, limited abilities, or illness.  A child under 7 years of age is presumed to be incapable of contributory negligence, and a youth between the ages of 7 and 14 carries a similar presumption, but it can be overcome by evidence showing capacity or ability.  Where a plaintiff has a cognitive impairment, the negligent actions of the plaintiff will be compared to the actions a reasonable person with that same impairment would have taken.  A final exception may exist for a volunteer rescuer.  Where one attempts to assist another from imminent peril caused by the negligence of another, he or she cannot be charged with contributory negligence, provided the rescue attempt is not reckless or grossly negligent.

Conclusion:

North Carolina’s contributory negligence doctrine creates a very different type of analysis and valuation for cases, than that which occurs under comparative negligence in most states.  Feel free to contact Forrest P. Merithew, Attorney at Law, to discuss a negligence matter, or any other potential, imminent, or active civil or commercial litigation matter.

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