• David Omer

Contributory Negligence, or "Personal Injury Kryptonite"

 Contributory negligence? Kryptonite?! Sounds scary!

I remember once when I was a kid, my parents left my brother and sister and I

at home alone while they went out for the evening.  My brother Matt

is seven years older than me, so he was the babysitter that night.


After Mom and Dad left, Matt and I got bored and Matt suggested that we play

a new game that he had invented.  His game involved throwing grapes at the

kitchen wall, as hard as possible, to see who could make a bigger splatter.  It

was great fun; we went through every grape in the refrigerator, refined our

technique, and Matt ended up winning in a very close contest.  

When Mom and Dad got home later that night, they were somewhat,

uh, displeased with our game.  In an attempt to cut their apoplexy off at the

pass, I tried to impress on them that it wasn't my idea.  Matt was nearly twice

my age at that point, he invented the game, and it was his idea to play.  If I

had refused, who's to say that I wouldn't have received a noogie, a wedgie or

even the dreaded swirly? My parents disagreed on the grounds that I was

complicit; I played the game, destroyed the kitchen wall and depleted the

family grape supply right along with my brother.  When the smoke cleared,

Matt and I both got grounded even though Matt was 99 percent at fault.  Matt,

if you're reading this, I still blame you.

And this has, uh, what to do with personal injury?

As it turns out, North Carolina follows a similar approach to my parents when

it comes to negligence.  Most states use what's known as "comparative

negligence," meaning that when two or more parties engage in negligent

conduct resulting in damages, each party is assigned a degree of fault, and

the damages are prorated and split up accordingly.  For example, if a guy t-bones you in an intersection and it's determined that he was eighty percent at fault in causing the accident, then he's basically liable for eighty percent of your damages. While this approach is necessarily subjective and requires a ton of oversight, it's generally regarded as the most fair and equitable way to ensure that each party is assigned the appropriate

degree of liability.

North Carolina uses "contributory negligence;"; our state's equivalent to the

Omer Family Penal Code.  Contributory negligence means that if one party

bears partial fault in causing the damages, even if it's just one percent, that

party is barred entirely from recovering anything.  Our state is one of only four

that still use contributory negligence.

That doesn't seem completely fair.

Let's look at an example.  Sarah is a pedestrian waiting at an intersection to

cross the street.  Her light is red, but she crosses the street anyway because

she doesn't figure there is a lot of traffic around.  Meanwhile, Kenny is driving

down the road in his Ford Fiesta.  He's speeding, playing with the radio and

taking selfies with his phone.  Kenny fails to notice Sarah and hits her as she's

crossing the intersection.

In this example, let's say that Kenny bears about 95 percent of the fault for the

accident.  He was going too fast, he wasn't watching the road, and he was

distracted by the radio and his phone.  Sarah bears a minute portion of liability

because she didn't check both ways before beginning to cross the road.  In

nearly every State, Kenny would bear the brunt of the liability, and therefore

the brunt of the damages.  However, since we're in North Carolina and since

Sarah was partially responsible, albeit just a little bit, she will not be able to

recover anything from Kenny under the doctrine of contributory negligence.

Does this seem unfair to anyone else?  Yeah, me too. As you can probably imagine, contributory negligence is a favorite in the insurance adjuster's arsenal, mainly because it can be implicated in so many different sets of facts.  It often seems like it's hard to come by a case that doesn't at least carry an argument for contributory negligence.However, it's something that we live with for now.  Look out for contributory negligence, and also be on the lookout for my forthcoming articles on Sudden Emergencies and the No Contact Rule.

As always, please feel free to give us a call with any questions. We like talking about this stuff!

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