Contributory negligence is a common excuse for insurance companies to deny your personal injury claim. You have just been in a serious automobile accident. You owe thousands of dollars in medical bills, a car you can no longer even drive, and are out of work because of your injury. In an attempt to recover from your losses you file a personal injury lawsuit against the other driver in the accident. While you are unsure whether the other driver is 100% responsible, you are confident that he is at least partially responsible for your losses. The Judge, however, disagrees and finds that you are partly responsible for the accident – 5% of it. What does this mean? In most states it would mean that you can still recover 95% of what the jury awards you. In North Carolina, however, because of contributory negligence, you could not recover anything.
North Carolina follows an old common law rule called “contributory negligence”, and it makes it very difficult for injured persons to recover for their injuries in North Carolina. Under this rule, if the injured person is even partially responsible for their own injuries, the person is cannot recover compensation for those injuries. If an injured person is found to be even as little as 1% at fault, then that person will get nothing from the defendant, even though the defendant still is 99% at fault.
There are some exceptions to the contributory negligence law. If the defendant’s actions are willful and wanton, or malicious (such as drinking and driving) then the defendant cannot claim that the injured person is guilty of contributory negligence. Another exception is called the “last clear chance”. If the injured person can show that the defendant had the last clear chance to avoid the accident and failed to do so, the defendant is still held accountable even if the injured party is found contributorily negligent.
Only 3 other states and Washington D.C. 3 share a similar contributory negligence law. Attempts to change the contributory negligence law have been unsuccessful. Unfortunately, insurance companies will deny claims from injured parties based on contributory negligence very quickly, hoping that a person will become confused and frustrated and not hire an attorney. It is important to understand the exceptions to the law in order to argue to an insurance company that contributory negligence does not apply in your case. A personal injury lawyer will help you navigate this confusing law to make sure you receive fair compensation for your injuries.
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James Minick is a criminal defense attorney in Asheville, NC and is the owner of Minick Law, P.C.