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Contributory Negligence: The All or Nothing Doctrine

Currently, only three States in the United States follow the doctrine of “Contributory Negligence,” and North Carolina is one of them.

What this doctrine says is that if an injured or wrongfully deceased person is found to be even as little as 1% at fault for his or her injuries or death, then the plaintiff gets nothing from the defendant, despite the fact that the defendant was still 99% at fault for the subject injuries or death.

Most people believe that the doctrine of “Contributory Negligence” is unfair, and as a result, the vast majority of states have implemented a “Comparative Negligence” system.

With “Comparative Negligence,” a plaintiff’s total amount of recovery is decreased according to the percentage of fault assigned to the injured or deceased person. Whether the plaintiff is denied recovery once he or she (or his or her decedent) has reached a certain percentage of fault depends on which type of “Comparative Negligence” system the State has adopted. In pure “Comparative Negligence” jurisdictions, plaintiffs are entitled to recover some damages, even if they are assigned the greater portion of fault for causing the accident. For example, if the plaintiff is found to be 90% at fault and the defendant is found to be 10% at fault, the plaintiff still can recover 10% of the total damages from the defendant. Thirteen states have pure “Comparative Negligence” rules. Thirty-three states have a modified “Comparative Negligence” rule. Twelve of the states follow a 50% rule in which plaintiffs are barred recovery if they are found to be 50% or greater at fault for their injuries. Twenty-one states follow a 51% rule in which plaintiffs are not barred recovery unless they have been found 51% or greater at fault for their injuries.

In rare North Carolina cases, the “Contributory Negligence” defense can be overcome. If the plaintiff can prove that the defendant’s willful and wanton acts caused the injury, then the defendant cannot prevent the plaintiff from recovery. Likewise, if the plaintiff can show that the defendant had the last clear chance to avoid an accident and did not do so, then the defendant can still be held accountable even if a plaintiff is found to be one or more percent at fault.

Robby JessupContributory Negligence: The All or Nothing Doctrine