Understanding Contributory Negligence



Basics of Contributory Negligence

Determining who is legally responsible (“at fault”) for a motor vehicle accident can be a difficult process. Add in North Carolina’s archaic contributory negligence law, and determining liability can sometimes become a nearly impossible feat.

The doctrine of contributory negligence essentially bars an injured party from receiving recovery if the damages suffered are partially their own fault. North Carolina is one of only four states to still follow this old common law principle. Under this rule, whenever a person is found to share any responsibility for his or her damages, they are barred from recovering compensation for those damages. This means that even if you are found to be only 1 percent at fault for an accident, you cannot collect damages from the other party, despite the other party being 99 percent at fault.

“[A] plaintiff’s contributory negligence is a bar to recovery from a defendant who commits an act of ordinary negligence.” Sorrells v. M.Y.B. Hospitality Ventures, 332 N.C. 645, 648 (1992). This is not to say your situation is hopeless, even if you believe you may have contributed to your damages. There are exceptions to contributory negligence that can be asserted, and they will be briefly discussed later in this article.

Determining Liability

To determine liability, an injured party must first prove that the at-fault driver was negligent. But even if you are able to prove negligence, the at-fault driver may be able to avoid liability by establishing a defense of contributory negligence. Under North Carolina state law, contributory negligence is a defense to a claim of negligence. The doctrine of contributory negligence bars the plaintiff from recovering any compensation if the defendant can prove that the plaintiff acted negligently and contributed to the damages in any way. In order to establish contributory negligence, a defendant must prove that the plaintiff contributed to the damages to some degree.

So How Do I Know If I was Contributorily Negligent?

In determining negligence, North Carolina follows the ordinary/reasonable care standard. This means every person is required to use reasonable care to protect his or her own safety as well as the safety of others. If you fail to do so, you are likely being negligent and could be considered partly at fault if you are involved in an accident.

Everyone has a duty to use ordinary care to protect oneself and others from injury or damage. Ordinary care means the degree of care that a reasonable person would use under the same or similar circumstances. “A plaintiff is contributorily negligent when he fails to exercise such care as an ordinarily prudent person would exercise under the circumstances in order to avoid injury.” Newton v. New Hanover County Board of Education, 342 N.C. 554, 564 (1996). For more information on negligence please visit our article on the topic.

Important Note: Contributory negligence typically applies when the plaintiff actually contributed to the cause of the accident. For example, if a plaintiff was speeding, but it was shown that speeding didn’t cause the accident, the plaintiff will not be barred from recovery. With this being said, remember the 1 percent threshold is a very small burden to overcome. Therefore, it would likely be a very tall task to prove that your speeding did not to some degree contribute to your damages.

Defenses/Exceptions to Contributory Negligence

This section will briefly touch on some of the exceptions (often called a “defense to the defense”) to contributory negligence. We will discuss these further in the section about defenses to contributory negligence.

Minor Children and the Rule of Sevens

A child under the age of seven is presumed to be incapable of contributory negligence. Between the ages of 7 and 14 there is a presumption of incapacity, but this may be overcome by evidence showing capacity. This includes evidence that the child did not use the care that a child of its age, capacity, discretion, knowledge and experience would ordinarily have exercised under the same or similar circumstances. Please click the following link for more information on North Carolina’s Rules of Seven.

Cognitive Impairment

In a situation in which a plaintiff has a cognitive impairment, that person will be compared to a reasonable person with that particular disorder. For example, a plaintiff with Alzheimer’s could only be compared to another reasonable person with Alzheimer’s and not to someone without that cognitive impairment.

Last Clear Chance

Last clear chance is the most complex exception to the defense of contributory negligence. If a plaintiff can prove that a defendant had the last clear chance to avoid the injury, then the plaintiff is excused from his contributory negligence and may still be able to recover damages. This doctrine is applicable when the plaintiff and defendant have been negligent and the defendant had time to avoid the injury. In order for the plaintiff to prove last clear chance:

  • The plaintiff must show they were in an unavoidable position of peril.
  • The plaintiff must prove that the defendant discovered, or should have discovered, the plaintiff’s position of peril and had the time and means to avoid the injury or damage but negligently failed to do so.
  • Finally, the plaintiff must demonstrate that the defendant’s negligence caused their injury or damage.

One example of this is shown in the case of a 62-year-old plaintiff with limited vision who placed herself in a position of helpless peril when she attempted to cross a street without traffic control signals or a marked crosswalk. Although the defendant did not actually know of the plaintiff’s presence in the roadway, he had a duty to maintain a lookout and could have seen the plaintiff for five seconds prior to impact. See VanCamp v. Burgner, 328 N.C. 495, 498-499 (1991).

Gross Negligence

Another exception to contributory negligence is when the defendant’s conduct constitutes “gross negligence.” A defendant is grossly negligent if he or she engages in willful or wanton conduct that is a proximate cause of the plaintiff’s injury or damages. An act is considered “willful” if the defendant intentionally fails to carry out some duty imposed by law or contract that is necessary to protect the safety of a person. An example of gross negligence would be if the defendant were intoxicated. For more information, please read our article entitled Last Clear Chance. [LINK]


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