Contributory Negligence

This seems like a great topic since I've neglected to post anything here for some time (I will blame Summer craziness).

North Carolina is one of a handful of states which still retain the doctrine of contributory negligence.  Most states have moved to comparative negligence in some form or another.  Contributory negligence essentially means that if the plaintiff is herself negligent, and that negligence is a proximate cause of her injuries, she recovers nothing.  So, if in a car wreck case both drivers are speeding, and the speeding caused the wreck (and resultant injuries and damages) if one driver sues the other, they may lose because of their own negligence.  Of course, it is the defendant's burden to prove contributory negligence, but is obviously a powerful weapon for defendants (I know as a defense attorney I always used it when i could), and in my opinion, can have harsh results.  Even if a plaintiff's negligence is only viewed as 1% of cause of damages by a jury, he still gets zilch.  Many states abandoned the doctrine for this very reason, and instead use comparative negligence, whereby a negligent plaintiff's damages are offset by amount of his negligence.  There are a few variants of it, but essentially it's more of a weighing  of the fault of both parties rather than absolute denial of recovery for plaintiff who is in any way negligent.

The North Carolina legislature has entertained the idea of moving to comparative negligence, but I am skeptical it'll happen anytime soon given the current "tort reform" climate and the aggressive lobbying of corporate interests in the legislature.

-will

Comments

[Ron Miller]

Maryland is working on it too. But it is not happening this year, maybe next. One of the problems we are having here is that legislatures are trying to tie comparative with the loss of joint and several liablity. - Ron Miller