North Carolina is one of only a small handful of states with a “pure contributory negligence” rule that applies in personal injury cases. If you’ve been hurt in an accident in North Carolina, that doctrine can have huge implications for your case.
Under this rule, a finding of even minimal fault on your part that contributed to the accident happening can bar your right to compensation entirely, regardless of how much the other party was to blame and regardless of how badly injured you were.
Here’s what you need to know about how North Carolina’s contributory negligence rule works in practice and how our experienced attorneys can help protect your claim.
What Is the Meaning of Contributory Negligence?
Contributory negligence is a legal doctrine that bars an injured person from getting any compensation in a personal injury claim if their own actions contributed to the incident that harmed them. In other words, if but for your negligent action the accident would not have happened, you were contributorily negligent. Because North Carolina has no set minimum threshold for fault, even the smallest degree of contributory negligence on an injury victim’s part means they cannot obtain compensation.
How Does North Carolina’s Contributory Negligence System Work?
If a case goes to trial, the judge will use the North Carolina Pattern Jury Instructions to instruct the jury on how to decide the case. The court will give the jury a piece of paper called the “verdict sheet” with questions the jury must answer. North Carolina Pattern Jury Instruction, Motor Vehicle Volume 104.10 asks juries the question: “Did the plaintiff, by his own negligence, contribute to his [injury] [damage]?”
The defendant (the person being sued) has the burden to prove the plaintiff (the injured party suing the defendant) was negligent and that the plaintiff’s negligence was a “proximate cause” of the accident that caused his/her injuries.
If the defendant proves both issues, North Carolina courts will deny the plaintiff’s compensation claim – even if the defendant’s conduct contributed to the incident far more than the plaintiff’s did. This is true regardless of how badly injured the plaintiff was.
Examples of Pure Contributory Negligence
Because North Carolina’s contributory negligence law sets no minimum threshold for fault, even minor missteps can cost an injured person their entire recovery. Here are a couple of example scenarios that illustrate just how unforgiving this rule can be:
- David crossed the street on foot outside of a designated crosswalk and was struck by James, who was speeding while driving. James was clearly breaking the law, but a jury could find that David’s decision to jaywalk contributed to the accident. Under North Carolina law, that finding would completely bar David from getting any compensation from James. However, David’s lawyer might argue that James would have hit him anyway even if he had been in the crosswalk. David’s lawyer is arguing that, while his client might have been a little negligent, that negligence wasn’t the proximate cause of the accident.
- Samuel was texting while walking through the grocery store and didn’t notice a puddle of water on the floor. After he slipped and fell, he noted the fact that there was no wet floor sign. Still, the judge finds that Samuel likely would have seen the spill if he weren’t looking at his phone, which means the grocery store isn’t liable.
- Mary got rear-ended by Steven, another driver, at an intersection. Mary’s brake lights weren’t working at the time of the collision. Steven may have been following too closely or driving distracted, but Mary’s faulty brake lights could lead a jury to find her partially at fault. In North Carolina, that’s all it would take to bar Mary’s claim entirely.
What Is the Last Clear Chance Doctrine?
The last clear chance doctrine is one of the most important exceptions to North Carolina’s strict contributory negligence rule (North Carolina Pattern Jury Instruction, Motor Vehicle Volume 105.15). It says that even if a plaintiff was partially at fault for putting themselves in a dangerous situation, they can still secure compensation if the defendant had the last clear opportunity to avoid hurting the plaintiff and failed to take it.
The key factor here is whether the defendant was the last person with a realistic chance to prevent the incident. The plaintiff must prove that:
- The plaintiff was in a dangerous position that they could not reasonably escape.
- The defendant knew or reasonably should have discovered the plaintiff was at risk.
- The defendant had the time and means to avoid injuring the plaintiff and failed to do so.
- That failure was a proximate cause of the plaintiff’s injuries.
Courts look closely at whether the defendant actually had the ability to avoid the accident and whether the plaintiff was already in a position of peril from which he could not escape in time to avoid the accident. If the plaintiff’s attorney can establish both of those things, the last clear chance doctrine should preserve the plaintiff’s right to recover even when contributory negligence would otherwise shut the door on their claim.
Are There Any Other Exceptions?
There are a few more exceptions to North Carolina’s contributory fault law, including:
- Proximate cause doctrine – Contributory negligence only bars recovery if a plaintiff’s conduct was actually a proximate cause of their injury. If the plaintiff’s actions were careless but the accident would have happened anyway, a court may find that their negligence doesn’t meet that threshold.
- Willful or wanton conduct by defendant — North Carolina Pattern Jury Instruction, Motor Vehicle Volume86 contains another very important exception to the contributory defense. The contributory negligence rule only applies to cases involving ordinary negligence (Sorrells v. M.Y.B. Hospitality Ventures, 332 N.C. 645, 648 (1992)). If the plaintiff can prove that the defendant’s conduct went beyond everyday carelessness and crossed into willful or wanton conduct, the plaintiff’s own partial fault generally won’t bar their claim. The instruction defines willful conduct, “An act is willful if the defendant intentionally fails to carry out some duty imposed by law or contract which is necessary to protect the safety of the person or property to which it is owed.” It also defines wanton conduct, “An act is wanton if the defendant acts in conscious and intentional disregard of and indifference to the rights and safety of others.” Courts treat this category of conduct differently because the law doesn’t protect defendants who acted with extreme disregard for other people’s safety simply because a victim made a minor mistake. However, if the defendant can prove that the plaintiff’s conduct was also willful and wanton, the plaintiff still loses.
- Real life example – Many years ago Chip Younce tried a case in which a 17 year boy was in the front passenger seat of a “Boss Mustang” being driven by a 20 year old with two other 20 year olds in the back seat. When a police car behind them turned on lights and siren, the driver of the car plaintiff was in took off through a 35 mph residential neighborhood at speeds up to 95 mph. During the chase the two back seat passengers allegedly screamed at the driver to let them out. Chip’s client, who died in the accident and was thus not there to dispute the passengers’ statements, allegedly replied, “You guys are just scared.” When the Boss Mustang inevitably crashed, the 17 year old took the worst of it and died. The other occupants were only moderately injured. To make matters worse, someone put a gun under the front passenger seat for the police to find. To make a long story short, the jury answered the first question about whether the driver was negligent “Yes”. They answered the second question about the plaintiff 17 year old’s conduct contributed to the accident “Yes”. They answered the third question about whether the driver’s conduct was willful and wanton “Yes”. Finally, while everyone in the courtroom held their breath, the bailiff answered the last question about whether Chip’s client’s conduct was willful and wanton, “No”. Chip was thus able to get the liability policy limits for his client’s mother.
Different standards may also apply when the plaintiff is a minor or suffers from cognitive impairment. An experienced personal injury attorney can discuss whether a contributory negligence defense exists in your case.
How Is Fault Determined?
The process of determining fault often involves multiple stages and several different parties. After an accident, law enforcement officers and insurance adjusters typically conduct investigations and draw their own conclusions about what happened. Attorneys on both sides then gather additional evidence and build competing arguments. If the case doesn’t settle, a judge or jury ultimately decides the case.
Throughout that process, the plaintiff’s attorney will gather evidence to establish the defendant’s fault, while the defense will comb through the facts looking for anything that shows the plaintiff contributed to the accident so their client doesn’t have to pay out. This evidence might include:
- Incident reports
- Witness statements
- Pictures or video footage
- Cell phone records
- Toxicology reports
- Employment or training records
- Prior complaints or violation records
- Medical records
- Expert testimony
How Does Contributory Negligence Affect Your Claim?
If the other party’s insurer believes they can build a contributory negligence argument against you, they’ll use it. Insurance companies in North Carolina know exactly how powerful this defense is, and they’re not shy about deploying it to avoid paying out on legitimate claims. Even a minor detail, such as a bad split-second decision you made or a traffic rule you bent, can become the basis for an argument that you contributed to your own injuries.
One common mistake people make is telling the adjuster in a recorded statement, “They came out of nowhere!” When you think about it, the defendant didn’t come out of nowhere. That’s literally impossible. The natural conclusion of anyone reading that statement is that the driver saying that didn’t see or notice the other car before the collision. That is why they seemed to come out of nowhere. The adjuster may use that statement to build a case of contributor negligence against you.
This is why it’s so important to speak with an attorney before you say anything to an insurance adjuster or sign anything related to your claim. An experienced personal injury attorney can assess the specific facts of your situation, identify whether any exceptions to the contributory negligence rule might apply, and build the strongest possible case for your recovery.
How Can Our Personal Injury Attorneys Protect Your Case?
When you work with the North Carolina personal injury attorneys at Younce, Vtipil, Baznik & Banks, you get a team that knows what it takes to build a strong claim under North Carolina’s unforgiving negligence standards. Here are just a few of the ways we can go to work for you:
- Conducting an independent investigation into the circumstances of the injury accident
- Gathering and preserving critical evidence before it disappears or gets destroyed
- Identifying all liable parties who may share responsibility for your injuries
- Documenting all injuries and losses you can include in your claim
- Interviewing witnesses and securing statements while details are still fresh
- Working with accident reconstructionists and other experts to establish what happened
- Explaining how contributory negligence may affect your case
- Anticipating and countering contributory negligence arguments before they gain traction
- Analyzing whether exceptions such as the last clear chance doctrine or willful and wanton conduct apply to your case
- Handling all communications with insurance companies and opposing counsel on your behalf
- Negotiating aggressively for a fair settlement that fully reflects your losses
- Taking your case to trial if the other side refuses to offer fair compensation
Call Our Personal Injury Lawyers in Raleigh, NC to Get Help with Your Case
The law of contributory negligence in North Carolina leaves little room for error, so you need and deserve a legal team that genuinely has your back when you file a North Carolina injury claim. When you work with Younce, Vtipil, Baznik & Banks, that’s exactly what you’ll get.
Our team has over 100 years of combined legal experience and a record of more than $150 million in case results for our clients.* We’re also committed to providing the hands-on, personal attention your case deserves from start to finish. From your first call to your final payout, you’ll never have to worry about getting lost in the shuffle with us.
Here’s how one former client describes what our commitment looks like in practice:
“Only positive feedback when it comes to me. They are such a good team. Blessed to have them as my family now. Check in with these guys and get the help you deserve.” – Melissa Newsome
Ready to learn more about what our team can do for you? Call us at (919) 661-9000 for a free initial consultation now, and let our attorneys help you explore your options.
*Each case is unique, and past results do not guarantee future outcomes.
About the Author
David E. Vtipil
David Vtipil is an attorney at Younce, Vtipil, Baznik & Banks, P.A. and concentrates his law practice on personal injury and workers' compensation. David E. Vtipil was selected by his peers for inclusion in the 21st Edition of The Best Lawyers in America in the field of Workers’ Compensation Law.
