Contributory Negligence

You may be wondering what contributory negligence is. Contributory negligence is a defense that if the accident was your fault in even the slightest way, you will not be able to recover any money from the opposing party. There is good news and bad news for to this. The good news is that many states in this country have a different approach in that the amount you are responsible for the accident comes out of the money you are awarded. The bad news is that North Carolina is not one those states. North Carolina still recognizes contributory negligence which means that if you are going to sue for an accident of some sort, then you better have not played any role in acquiring your injuries. If you have, then you will likely to be subject to a contributory negligence defense meaning you will not be awarded any money if the court feels that your injury was your fault in any way.

However, there is a pinhole of light at the end of the tunnel. North Carolina does provide a way to circumvent a contributory negligence defense. Again, this a good news but bad news situation. The good news is that a contributory negligence defense can be circumvented by something called the “last clear chance doctrine”. The bad news is that establishing last clear chance can be very difficult. Last clear chance doctrine says that the defendant (person being sued) could be liable if the defendant saw that the plaintiff (person who is suing) was in danger and the defendant does not take action to avoid the the injury. Often times, this is hard to prove because most accidents happen in a manner where no one has time to avoid it. Needless to say, overcoming a contributory negligence defense rarely happens.

To give you a real life situation. I had a client who was hit by a car while walking across the parking lot then hit by another car while she was on the ground. The first driver’s insurance company raised a contributory negligence defense based on my client failing to look both ways before crossing. I planned to bring a last clear chance defense. I soon realized that I would probably not succed because my client and the vehicle saw each at the same time. There was no way the defendant had enough time to see my client in danger and to avoid the accident. However, if I could prove that the driver was speeding when they hit my client, then I could have argued that they would have had time to avoid the accident if they had not been speeding. I could not prove that the driver was speeding so I could not overcome the contributory negligence defense. It’s not all sad though, because I was able to help my client recover from the other driver who hit her while she was on the ground.

To paraphrase, if you have been in an accident and you are planning to bring a lawsuit be sure to examine all the facts. If there is the slightest indication that any of your actions caused the accident, you should be prepared for a contributory negligence defense from the opposing side. Now, keep in mind that contributory negligence is a defense that the defendant must raise. If they do not raise it then your chances for a good outcome are never guaranteed but they do improve. As a defendant, if the person who is suing you was at fault even a little bit, you definitely want to raise a contributory negligence defense. If the court agrees with you, the person who is suing you will not be able to get any money.

By Shawntae Crews

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