Unfortunately, North Carolina still resides in the 19th century in its assessment of liability when people suffer injuries due to the negligence of others. Legal responsibility for damages arising out of an accident in North Carolina is based upon an assessment of fault. The legal term is negligence. Negligence is the failure to use due care to avoid injury to others either by things that we do or things that we fail to do. In North Carolina a complete defense to a claim of negligence is that the person injured was contributorily negligent. Thus our rule of law is that if the driver of a vehicle is 95% at fault in an accident and the injured pedestrian was 5% at fault, there will be no recovery by the victim regardless of how devastating the injury may have been, up to and including death.
Forty-six of the 50 states have abandoned the rule of contributory negligence in favor of a more equitable system of assessing liability known as comparative negligence. Only North Carolina, Alabama, Maryland, Virginia and the District of Columbia still adhere to the contributory negligence rule that unless your injury is 100% the responsibility of the other party, you are without legal remedy. In comparative negligence states, when a jury apportions responsibility 70% to the one who caused the accident and 30% to the victim, then when damages are assessed for the victim’s hospital bills, loss of earnings, permanent disability, disfigurement, pain and suffering, etc., the victim receives 70% of the damage award. Thus in a comparative negligence state, the victim would receive only $35,000 of a $50,000 damages judgment. However, in North Carolina upon a finding of any percentage of contributory negligence by the party injured, the jurors would not ever reach the damages issue and the injured person would receive no recovery for their losses.
Efforts have been made from time to time to change the law in North Carolina through the General Assembly. Such efforts have lobbied for by victims advocacy groups, but have been successfully resisted by the liability insurance companies and business interests. During this session of the General Assembly, it is expected that legislators will again consider the Uniform Apportionment of Tort Responsibility Act. Legislators are responsive to constituent concerns. If you feel that North Carolina needs to come into the 21st century and join the over-whelming majority of jurisdictions which have found comparative negligence to be more just, equitable and fair, please write your legislators and encourage their support of this legislation.
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