— Posts About Contributory Negligence

Burton Writes on Comparative Fault Legislation

Burton Craige has published an article entitled “The Road to Comparative Fault in North Carolina” in this month’s issue of The Litigator, the regular publication of the North Carolina Bar Association’s Litigation Section.

Summary:  North Carolina is one of only five jurisdictions that retain the antiquated doctrine of contributory negligence. Here, as in Alabama, Maryland, Virginia and the District of Columbia, a plaintiff whose negligence makes the slightest contribution to his injury is barred from recovering any damages against the tortfeasor. The other 46 states, either by judicial decision or by statute, have adopted some form of comparative fault, allocating damages based on the degree of fault among the plaintiff and the defendants.

In May 2009, the North Carolina House of Representatives passed a bill that would abolish contributory negligence, adopt a system of modified comparative fault, and modify joint and several liability.  Modeled on the Uniform Apportionment of Tort Responsibility Act (UATRA), the bill attracted bipartisan sponsorship and support.  After the sponsors agreed to several last-minute amendments that favored defendants, the bill (HB 813) passed by a margin of 67-50, overcoming strong opposition from business and insurance interests.

In the 2010 session, the North Carolina Senate will consider HB 813.  If the bill passes the Senate, it will end the long, harsh regime of contributory negligence, and bring North Carolina tort law into the modern era.  This article discusses the provisions of UATRA, the amendments adopted in the House, and the principal objections to the bill.

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This Week’s Personal Injury Case from the NC Court of Appeals

The court issued an unpublished opinion about a pedestrian-vehicle auto accident in Hill v. Thompson this week.  In the case, the 15-year-old plaintiff crossed a highway near her home, not at a crosswalk, and was struck by defendants’ vehicle.  Defendants argued that plaintiff could not recover at all because she was contributorily negligent (partially at fault) for crossing the street without paying attention.  The court agreed that the plaintiff was contributorily negligent, under the rule that “If the road is straight, visibility unobstructed, the weather clear. . . a plaintiff’s failure to see and avoid defendant’s vehicle will consistently be deemed contributory negligence as a matter of law.”

The court disagreed, however, that defendants were entitled to summary judgment because of the last clear chance doctrine.  Under the doctrine, even if the plainitff’s negligence puts her in a dangerous position, the defendant can still be liable if he has a clear chance to and unreasonably fails to avoid colliding with the plaitniff.  Here, the driver saw the plaintiff near the road as he started down the hill, but didn’t start applying his brakes until the plaintiff was in the highway.  The court concluded that a jury should therefore decide if the last clear chance doctrine applied.

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Burton Writes on UATRA, Reforming Negligence Law

Burton Craige has written an article, entitled Should North Carolina Enact the Uniform Apportionment of Tort Responsibility Act?, for an issue of Trial Briefs, the publication of the North Carolina Advocates for Justice. The article discusses possible reform of contributory negligence, and related laws for personal injury and negligence cases.

Summary: North Carolina is one of only five jurisdictions that retain the antiquated doctrine of contributory negligence. Here, as in Alabama, Maryland, Virginia and the District of Columbia, a plaintiff whose negligence makes the slightest contribution to his injury is barred from recovering any damages against the tortfeasor. The other 46 states, either by judicial decision or by statute, have adopted some form of comparative fault, allocating damages based on the degree of fault among the plaintiff and the defendants. In 2007, four Republican state legislators introduced a bill to adopt UATRA in North Carolina. The proposed legislation would revolutionize North Carolina tort law by ending contributory negligence, adopting a system of comparative fault, and modifying joint and several liability. Legislators are likely to reintroduce the bill in 2009. If North Carolina adopts UATRA, it will be the first state to do so.

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