Matthews North Carolina personal injury and auto accident attorneys and Charlotte North Carolina personal injury and auto accident and motorcycle accident attorneys.
What is contributory Negligence in North Carolina.
Contributory negligence is defined as:
the failure to exercise due care for one's own safety.
In North Carolina a contributorily negligent plaintiff may not recover damages if his contributory negligence was a proximate cause of the injuries for which he seeks recovery.
Thus, contributory negligence is a complete defense in North Carolina.
North Carolina remains one of the few states to adhere to this doctrine. An overwhelming majority of jurisdictions have adopted some form of comparative negligence, in which the plaintiff's lack of due care may limit the extent of his recovery, but does not necessarily operate as a complete bar.
As with negligence, the test is objective; it does not depend on the plaintiff's subjective appreciation of danger or the plaintiff's individual abilities. The question is always whether the plaintiff acted or failed to act as would an ordinarily prudent person under the circumstances.
Limitations: The Issue of Proximate Cause
The plaintiff is barred from recovery only if his contributory negligence is a proximate cause of his injury. This means the plaintiff's conduct must have been a factual cause of the injuries, and that the risk of the harm to the plaintiff must have been reasonably foreseeable.
For example, crossing a busy street without looking left and right creates an unreasonable risk of being struck by a car. Likewise, driving and texting can also be considered a contributing factor as well as any other violation of the North Carolina traffic laws.
Limitations: Last Clear Chance
The contributory negligence of the plaintiff will not bar recovery if the defendant had the last clear chance to avoid the accident that resulted in injury to the plaintiff.
As the Court in Exum v. Boyles stated:
The last clear chance doctrine is the duty imposed by the humanity of the law upon a party to exercise ordinary care in avoiding injury to another who has negligently placed himself in a situation of danger.
If the jury determines the issue of contributory negligence against the plaintiff, it may then consider whether the defendant had the last clear chance to avoid the accident.
The North Carolina courts have formulated this rule in terms of five prerequisites for application :
- Plaintiff, by his own negligence, placed himself in a position of peril from which he could not escape (e.g. Plaintiff was texting and driving);
- Defendant saw, or by the exercise of reasonable care should have seen and understood, the perilous position of the plaintiff;
- Defendant had the time and the means to avoid the accident if the defendant had seen or discovered plaintiff's perilous position;
- The defendant failed or refused to use every reasonable means at his command to avoid impending injury to plaintiff; and
- Plaintiff was injured as a result of defendant's failure or refusal to avoid impending injury.
Where a motorist strikes a pedestrian, the doctrine has been stated in the following terms: Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver ... , he must establish these four elements:
- [t]hat the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care;
- that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian's perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands;
- that the motorist had the time and the means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian's perilous position and his incapacity to escape from it; and
- that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him.
Index of Relevant Terms: