Contributory Negligence in North Carolina – Sharing Fault in an Accident May Limit Your Recovery.
Most personal injury cases in North Carolina start by addressing the concept of negligence – whether an individual acted or failed to act as a reasonably prudent person would act under the circumstances.
For example, you are a pedestrian walking across a roadway. A vehicle is driving toward you and is unable to stop in time to avoid a collision. You are injured by the vehicle. You may successfully argue that the driver of the vehicle failed to take reasonable precautions to avoid a collision, such as slowing down to a safe speed that would allow adequate stopping space. Under these limited facts you should expect to recover damages from the driver.
However, let’s add the following facts: You fail to look both ways before you cross the street, you have headphones on while you are walking, and the driver is blaring his horn. We now have an issue of contributory negligence.
What is Contributory Negligence?
Contributory negligence is defined as the failure to exercise due care for one’s own safety. A reasonably prudent person under the circumstances would remove their headphones and/or look both ways before crossing the street. In North Carolina, contributory negligence is an affirmative defense to suit where contributory negligence was a proximate cause of the injury. This means that if your conduct was the factual cause of your injuries, and the risk of such injury was reasonably foreseeable, you cannot recover. In the example above, you would have seen the vehicle had you looked both ways, and you would have heard the vehicle had you removed your headphones. It is reasonably foreseeable that by failing to take these actions, you might suffer some injury. In North Carolina, you may not recover from the driver under this fact pattern. At the least, the jury will get to decide whether you initially caused the accident by failing to take reasonable care for yourself.
Even if I was at fault, is there anything I can do?
Finally, one exception. The “Last Clear Chance” doctrine imposes a duty upon the driver in the above example to exercise ordinary care to avoid injuring you, one who has negligently placed himself in a situation of danger. This means, if the driver sees you walking in the road way, oblivious to his blaring horn, and he can avoid hitting you, he has a duty to do so. If the driver fails to avoid you when he could have, then he can still be held liable, even though you were at fault for failing to take care to avoid injury to yourself.
Additional exceptions exist to the general rule in North Carolina that one who is contributorily negligent may not recover. Contact my office for a free consultation regarding your situation.