You have been in a car accident. You slipped at the store. You were bitten by a neighbor’s dog. You did not cause your resulting injuries. Someone else’s negligence caused you to get hurt. But someone told you that you cannot even be 1% at fault in order to collect in a North Carolina personal injury claim. Well, they are right, but not without exception.
North Carolina is one of four remaining states to retain Contributory Negligence. Contributory negligence is the “failure to exercise due care for your own safety.” Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904 (1950). This is not a test of complete and perfect care. The law adopts an objective standard: How would a reasonable person act under the circumstances?
Contributory negligence is asserted as a defense when a plaintiff, the person injured, brings a negligence claim. This theory bars recovery if a plaintiff contributed to or was at fault for their injuries. This is a complete defense and if proven, no recovery will be given.
North Carolina and fellow holdout states have been criticized for clinging to this arguably archaic law. There are some “defenses” or more accurately, exceptions, to the defense of contributory negligence.
Firstly, the party asserting the defense of contributory negligence has the burden of proof which is the responsibility of producing evidence and persuasion. Should defendants, the person who caused the injury, fail to produce this defense, it is waived and cannot be used.
Secondly, any contribution you may have made to the accident must be related to the injury. Your
involvement cannot be some remote or unrelated “negligence” that occurred.
Sometimes, defendants conduct is so egregious that contributory negligence is unavailable. Essentially, when defendants completely disregard the possibility of injury, the last clear chance rule may apply to allow a claim to proceed where the defendant had the last opportunity to avoid the injury.
Finally, minors have special exceptions to contributory negligence. North Carolina adopts the “Rule of 7’s.” Children under 7 are incapable of contributory negligence, children 7-14 are presumed incapable but this can be disproved, and children 14 and up are presumed capable but this can be disproved.
You do not have to interpret these complicated legal theories on your own. Attorney Maggie Shankle is an experienced personal injury attorney with over 20 years of experience, Maggie is here to help. Contact us to schedule a free consultation with Attorney/Owner, Maggie Shankle. At Shankle Law Firm, we can help educate you on your rights, as well as other components surrounding your injury and treatment.