In North Carolina, injured motorists and other Personal Injury (PI) plaintiffs are frequently denied coverage of their injury claims by Insurance Companies and other defending parties on the grounds of Contributory Negligence. This blog provides a general outline of how Contributory Negligence impacts PI cases
in North Carolina.
What is Contributory Negligence?
Contributory Negligence is an affirmative defense to plaintiffs’ claims of Negligence that dates back to English common law. Contributory Negligence has been replaced by the more proportionate standard of Comparative Negligence in all U.S. jurisdictions (at the time this blog was written) except North Carolina, Virginia, the District of Columbia, and Maryland. Contributory Negligence prevents a PI plaintiff from recovering any damages from a defendant (or their Insurance Company) if the plaintiff is proven to be as little as 1% at fault for causing the injuries they incurred. An example of where contributory negligence can be asserted is by a manufacturer of Tide pods who is sued in a products liability action by the parents of a child who ate the Tide pod. This creates a very powerful avenue for tortfeasors and their insurers to evade liability and payment of compensation to injured parties. In the jurisdictions with Comparative Negligence, (which is subdivided into Pure Comparative Negligence jurisdictions and Modified Comparative Negligence jurisdictions) liability is determined by apportioning percentages of fault to plaintiffs and defendants, meaning that plaintiffs who are partially responsible for their own injuries may often still recover damages from defendants minus their assigned percentage of fault. However, we strongly encourage you to consult a Licensed PI Attorney in any Comparative Negligence jurisdiction that you may have a case in because the Comparative Negligence rule varies between different jurisdictions.
Denial of Compensation
Often times Insurance Adjusters will deny compensation to injured parties by claiming that the injured parties are partially responsible for incurring their own injuries, and are thus barred from recovery by Contributory Negligence. However, these denials are frequently erroneous and asserted before all the facts are presented to the denying Insurance Adjusters. Therefore, it is strongly recommended that you seek the advice and counsel of a Florida Personal Injury Attorney or North Carolina Personal Injury Attorney immediately after another party or parties injure you so that the Attorney can accurately determine whether you have a case that could enable you to recover compensation from those who caused your injuries.
Last Clear Chance
If you are injured and you believe that a tortfeasor’s Insurance Company may deny you coverage by asserting that you are Contributorily Negligent, there may be one final path to recovering compensation. If a defendant asserts that you’re Contributorily Negligent, which bars you from all recovery, you can assert that the defendant had the Last Clear Chance to avoid injuring you. As North Carolina case law has explained, to prove Last Clear Chance, the plaintiff must, by the plaintiff’s own negligence put the plaintiff in a position of helpless peril; the defendant discovered, or reasonably should have discovered, the plaintiff’s position; the defendant had the time and ability to avoid the injury; the defendant negligently failed to do so; and the plaintiff was injured as a result of the defendant’s failure to avoid the injury.
This blog is not to be construed as legal advice nor do we encourage anyone to eat Tide pods or similar products. We strongly encourage you to seek the advice of a North Carolina Personal Injury Attorney if you incur injuries due to the fault of others. To schedule a consultation today, contact Biazzo Law, PLLC.
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