Todd Nesnick
The Problems With North Carolina’s Pure Contributory Negligence Law
North Carolina is one of the four states with a pure contributory negligence law. Contributory negligence is the inattentive conduct of the injured party that contributed to the defendant’s negligence in causing damage or injury to the plaintiff.
The law requires that each person capable of practicing ordinary care for their safety against injury should do so. Failure to exercise care which conjoins with the negligence of another party causing injury, the plaintiff is guilty of contributory negligence.
Ordinary care is the caution that an ordinarily reasonable person would practice under similar circumstances. Contributory negligence law says that the damaged person cannot receive compensation for damages if they are found to be even at 1% fault.
For the Pure contributory negligence law to apply, the defendant must prove that the injured did not take reasonable or ordinary care towards their safety which led to the injury. They must also show that the victim was fully capable of understanding their actions and had actual knowledge of the risk inherent.
The awareness of the risk involved and failure to act upon it is interpreted as voluntary acceptance of the risk. Risk awareness is a tactic that most defendants and insurers focus on while arguing out their cases in court to shelter their defense and avoid compensation. On the other hand, the plaintiff must establish that they exercised their duty of care, and the defendant breached their duty to exercise care which resulted in damage.
Pure contributory negligence is considered harsh and unfair to the plaintiff because the chances of proving they were not at fault are minimal. It is also unfair because insurance companies use this law to increase their profitability rather than focus on their client’s or plaintiffs’ well-being.
This law bars recovery by a negligent plaintiff, completely disregarding the defendant’s more significant contribution to the injury. It leaves the burden squarely on the plaintiff, who clearly was not at fault because a 1% margin is negligible. Denying the injured any recovery from the party that caused a more significant percentage of the injury is one-sided.
This law does not meet agreeable social needs because it lacks a defensible rationale and marginalizes people who are at risk, such as pedestrians and cyclists. Enforcing the contributory negligence law threatens public trust and respect for a legal system that fails to conduct and rule fairly.
A plaintiff can counter the defendant’s accusation of contributory negligence by applying the Last Clear Chance doctrine. This doctrine enables them to recover damages from the defendant if they prove that the last clear chance lay with the defendant and refused to take it.
The Last Clear Chance Doctrine Requires the Injured to Prove That:
• The defendant was reasonably aware of the plaintiff’s inability to evade the damage, even if they knew of the imminent risk.
• The defendant had enough time and the capability to use reasonable care to avoid causing damage to the victim.
• The defendant did not use that capability and the time to avoid causing injury to the victim.
A case example would be a motorist who hit somebody changing a tire on the highway. The victim could partially be at fault for changing a tire on the highway, but the defendant had the chance to avoid hitting the victim by driving not too close to him.
The victim could be aware of the imminent danger, but given the current situation, he could not avoid being hit by a car. His only safety measure was to place lifesaver signs on the road, visible to any driver, not unless the defendant was speeding.
Pure contributory negligence is a tricky balance for the victim; thus, a car accident lawyer in Durham needs to help you navigate the process and increase the chances of recovery from the defendant.