Only four states — North Carolina, Alabama, Maryland and Virginia — still follow contributory negligence. In cases where a plaintiff is found to have contributed to their damages, then a plaintiff is barred from recovery, including cases such as auto and trucking accidents, premises liability, product liability, and professional liability.
In North Carolina, negligence follows the ordinary or reasonable care standard. Everyone is under a duty to use ordinary care to protect himself and others from injury or damage. Ordinary or reasonable care means the care that a reasonable and prudent person uses under the same or similar circumstances. Failure to use ordinary care is negligence.
When a plaintiff’s contributory negligence is a proximate cause of their injuries for which the plaintiff seeks to recover, it acts as a complete bar to recovery, and the plaintiff recovers nothing.
Unlike the majority of other states that follow comparative negligence, there is no apportionment of fault in North Carolina. The plaintiff is completely barred from recovery if his fault was in any way a cause of the incident, accident or event, even when the defendant was also at fault.
In negligence case in which a defendant asserts contributory negligence, the issues boil down to:
- Was the plaintiff injured/damaged by the negligence of the defendant?
- Did the plaintiff contribute to his/her own damages?
- What amount of damages is the plaintiff entitled to recover from the defendant?
If you are a defendant, you win with a “No” to Number 1, or a “Yes” to Number 1 and a “Yes” to issue Number 2.
If the plaintiff can prove that a defendant had the last clear chance to avoid the injury, then a plaintiff is excused from their contributory negligence and may still be able to recover damages. The doctrine of last clear chance is applied when both the plaintiff and defendant have been negligent, but the defendant has time to avoid the injury.
In order to prove the last clear chance, the plaintiff must prove that they were
- In a position of peril
- From which the plaintiff could not remove himself
- Defendant knew or should have known the plaintiff’s peril
- Defendant had the time and means to avoid the injury or damage, but negligently failed to act
- Failure of the defendant to act caused the plaintiff’s injury or damage
If a plaintiff can prove that a defendant was “grossly negligent,” then the plaintiff’s own contributory negligence will not bar recovery. However, a plaintiff’s “grossly contributory negligent” can recovery, even when a defendant is grossly negligent.
A defendant is grossly negligent if they willfully or wantonly cause the plaintiff’s injury or damage. In automobile cases, NC courts have found willful wanton negligence where at least one of three factors is present:
- Defendant was intoxicated
- Defendant is driving at excessive speeds
- Defendant is engaged in racing
We Can Help
The experienced attorneys at Charles G. Monnett III & Associates provide free initial consultations, support, and assistance in finding resources to help you and your family deal with injuries caused by other’s negligence. We can also help you pursue legal action.