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, a plaintiff is barred from recovery, including cases such as auto and trucking accidents, premises liability, product liability, and professional liability.
Ordinary Care Standard
In North Carolina, negligence follows the ordinary or reasonable care standard. Everyone must use “ordinary” care to protect himself and others from injury or damage. Ordinary (or “reasonable”) care is a reasonable and prudent person’s care under 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 most other states that follow comparative negligence, North Carolina has no apportionment of fault. The plaintiff cannot recover damages if his fault was in any way a cause of the incident, accident, or event, even when the defendant was also at fault.
Determining Fault
In a negligence case in which a defendant asserts contributory negligence, the issues boil down to the following:
- Was the plaintiff injured/damaged by the negligence of the defendant?
- Did the plaintiff contribute to their 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.
The Last Clear Chance
If the plaintiff can prove that a defendant had the last clear chance to avoid the injury, then contributory negligence does not apply. In this case, the plaintiff can still recover damages. The doctrine of last clear chance applies when both the plaintiff and defendant act negligently, but the defendant has time to avoid the injury.
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
- The defendant knew or should have known the plaintiff’s peril
- The 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,” the plaintiff’s contributory negligence will not bar recovery.
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
- The defendant is driving at excessive speeds
- The defendant is engaged in racing
North Carolina Contributory Negligence Attorneys
The experienced attorneys at Maginnis Howard 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.
Visit our contact page to send an email to our intake staff or find information about the Maginnis Howard office closest to you. We are conveniently located across the state in Charlotte, Raleigh, and Fayetteville. We also travel to meet our personal injury clients who are unable to visit our offices..
