Amber Harrison
Insurance Law TH 2:00pm
April 1st, 2013
Contributory negligence in my point of view consists of a plaintiff and defendant. If the
plaintiff files a claim against the defendant they cannot be at fault as little as one percent. If the
plaintiff were to be at fault by as little as one percent, they will not receive any damages towards
their claim. Also a person has to exercise ordinary care in order to not contribute to their injury.
If a person fails to exercise ordinary care then they are at fault of contributory negligence and
will receive no damages. As described in the article it is an “all or nothing proposition.” I believe
it to be very harsh especially because car accidents happen on a daily basis and normally no one
is completely at fault unless they were at a dead stop but that usually doesn’t happen.
A clever plaintiff’s attorney might be able to avoid contributory negligence by using the
following limitations:
1. Last Clear Chance exception which evidence must provide as stated in the article:

that plaintiff, by his own negligence, placed himself in a position of peril (or a
position of peril to which he was inadvertent)

that defendant saw, or by the exercise of reasonable care should have seen, and
understood the perilous position of plaintiff

that he should have so seen or discovered plaintiff's perilous condition in time to have
avoided injuring him

that notwithstanding such notice defendant failed or refused to use every reasonable
means at his command to avoid the impending injury; and

that as a result of such failure or refusal plaintiff was in fact injured.
The defendant’s attorney can conclude that they do not agree with the Last Clear Chance
because it is “intervening negligence”. Basically allowing comparative negligence and allowing
the plaintiff to receive damages because of their negligence because they were a percentage at
fault. Therefore, going against the law of contributory negligence.
2. Willful and Wanton Defendant
a. This exception states that if the defendant willfully and wanted to injure the
plaintiff and the plaintiff was at fault in any form then they are excluded from the
contributory negligence doctrine and may receive damages.
b. Also allows a plaintiff to show that a defendant had willful misconduct therefore
receiving damages in full
A defendant’s attorney could say that the plaintiff was willful and wanted to seek damages.
Also, that the plaintiff plotted to receive damages, therefore allowing the defendant to not have
to pay damages by proving there was negligence on the plaintiff’s side.
3. Burden of Proof
a. Contributory negligence is an affirmative defense against the burden of proof.
The burden of proof is where the defendant is able to show that the plaintiff
showed negligence or did not exercise proper duty of care.
A good lawyer would be able to prove that the burden of proof was not exercised properly
and not have to pay damages.
4. Contributory Negligence as a Matter of Law
a. There can be no reasonable question that the plaintiff contributed to their injury.
The defense can provide evidence or an example that they were at fault for their
injury.
b. Facts have to be provided
5. Plaintiff's Status
a. Excludes some plaintiffs from contributory negligence such as:
i. Plaintiffs suffering injuries through their employers. Basically if an
employee is on the job and they get hurt or poisoned and they knew that it
was unsafe and did not exercise reasonable care they are still excluded
from contributory negligence because it was the employer’s
responsibility.
ii. Children under the age of 14 are able to be excluded from the contributory
negligence doctrine
iii. Rescue Doctrine states that if a person is trying to rescue the defendant
they are excluded from the contributory negligence doctrine if they have
any type of negligence involved during the rescue attempt.
A defendant could argue that a child over the age of fourteen lacking knowledge could be
excluded from contributory negligence. Also, the rescue doctrine could prove that the rescue
attempt was done carelessly and should not be excluded from the contributory negligence.
I believe some of the benefits from retaining contributory negligence being able to
receive 100% in damages if you are found not at fault. Also, it makes it easier on the court
system to dismiss cases if a plaintiff shoes as little as one percentage at fault. It does protect
children and rescue plaintiffs as well.
The faults include that contributory negligence is harsh. It makes it easier on the court
system to dismiss a case instead of fully examining percentages of fault on both sides. Most
states adopt the comparative negligence doctrine. A lot of people lose money in car accidents
because they are a little at fault and because of this they are left with a huge bill while the other
person who was mostly at fault gets by without having to pay any damages. It is basically an
unfair law.
A plaintiff would benefit from changes in the law if comparative negligence were
adopted because they would receive some compensation for their injuries. Jurors would also
benefit from the law because they wouldn’t feel guilty for disobeying the judge’s instructions to
apply contributory negligence. I think the court system would suffer because they would have to
revise their laws and learn more about it. The court system would also have a lot more cases
coming into the court room because every plaintiff would be able to receive damages in some
percentage form.
The effect of Uniform Apportionment of Tort Responsibility Act includes allowing a
plaintiff to receive damages even if they are found negligent. It essentially would have dismissed
contributory negligence. The court system has to figure out who is more responsible. They also
need to examine the conduct of the damages claimed. Then base their decision off how much the
plaintiff receives in damages. I believe the doctrine was a form of the modified comparative
negligence doctrine and it would have passed because it stated the plaintiff could not recover if a
plaintiff contributes to more than fifty percent of negligence. The allocations are similar to the
comparative negligence system when it comes to employers being responsible for their
employees even if the employee did not exercise proper duty of care. The doctrine also states
that if the plaintiff was willful then they will not receive damages. I believe the last thing the
doctrine sated that was slightly different then comparative negligence is that there would be no
strict liability in product cases. I essentially do not agree with the proposed bill. I believe the
pure comparative negligence system is more just compared to the modified comparative
negligence. It allows for damages to be paid regardless of percentage at fault.
If I were a member of the General Assembly I would vote to change their current law of
contributory negligence. I believe it is unjust. I would not keep it the same. I would change the
law to comparative negligence. In comparative negligence a person is able to seek damages for
the proportion that they are not at fault. For example, if a plaintiff was 30% at fault in a car
accident then they would be able to receive 70% in damages. I would adopt the pure comparative
negligence system to appropriate damages because twelve other states already have the system in
place and I believe it is the fairest. In the pure comparative negligence system even if a plaintiff
has a greater at fault percentage compared to the defendant they are still able to seek damages.
For example, if a plaintiff contributes to 60% of negligence, they are still able to recover 40% of
damages from the defendant. I believe North Carolina should adopt the pure comparative
negligence doctrine.