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Contributory Negligence In North Carolina - Time For A Change?

| William S. Durr William S. Durr

Recent Tort Reform

With the passage of House Bill 542 as Session Law 2011-283 ("House Bill 542") and Senate Bill 33 as Session Law 2011-400 ("Senate Bill 33") in 2011, the North Carolina General Assembly substantially altered the practice of personal injury litigation in North Carolina. 

Prior to the enactment of House Bill 542, a plaintiff could introduce evidence of past medical expenses by offering to the jury the amount charged by a health care provider.  Often this amount was greater than the amount actually accepted by the health care provider due, in large part, to the provider's agreement with the injured plaintiff's health insurance company to accept a lower, or discounted, payment.  Insurance companies and defense counsel argued that introducing evidence of the actual amount charged by the health care provider artificially inflated the amount of a plaintiff's damages.  To address this perceived false and misleading impression, one provision of House Bill 542 restricted the introduction of medical expense evidence to the discounted amount, rather than the original, undiscounted amount charged. 

Senate Bill 33 also included a significant reform to the trial of tort actions.  Specifically, it changed the rule regarding bifurcation of a trial.  Generally speaking, trial of a tort action requires that two separate questions be answered:

  • Was the plaintiff injured by an act of the defendant, legally entitling the plaintiff to recover damages (the "liability" question); and,
  • If so, what is the dollar amount the defendant must pay the plaintiff to compensate the plaintiff for the injuries (the "damages" question).

Bifurcation refers to the division of the liability question and the damages question into separate and distinct trials.  One variation of bifurcation occurs when a single jury first hears evidence only as to liability and makes a decision on the liability question; then, if the defendant is found liable, the jury for the first time hears evidence regarding the plaintiff's damages. 

Prior to the enactment of Senate Bill 33, it was within a North Carolina trial court's discretion as to whether a trial would be bifurcated.  Senate Bill 33 creates a presumption that the trial of tort actions will be bifurcated in all cases where the plaintiff seeks damages in excess of $150,000. 

Senate Bill 33 applies to all tort claims arising after October 11, 2011.  Thus, many personal injury trials now and in the future will be subject to the bifurcation presumption.  The end result is that a jury will hear nothing about the issue of damages until after the issue of liability is decided.  A degree of jury confusion certainly is possible in a bifurcated setting, in part due to the portrayal of jury trials on television and in movies.  Jurors presumably "tuned in" to the way trials are conducted on television and in movies become confused when they are not afforded an opportunity to learn all of the facts – both the how and why of the accident and the damages suffered by the plaintiff – before they are required to determine if the defendant is liable at all.       

These reforms, heralded by some and vilified by others, have unquestionably shifted the balance of power toward the defense in personal injury actions.  Combined with a defendant's longstanding weapon of the doctrine of contributory negligence, many legal commentators argue that the pendulum has swung too far to the defense side and a correction is needed.  Such a correction could be the rejection of the contributory negligence doctrine in North Carolina and the adoption of a comparative negligence standard.

The Contributory Negligence Doctrine in North Carolina

In 1967, the Supreme Court of North Carolina defined contributory negligence as:

[N]egligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant…to produce the injury of which the plaintiff complains.  It does not negate negligence of the defendant as alleged in the Complaint, but presupposes or concedes such negligence by him. 

In other words, regardless of a defendant's negligent actions resulting in injury to a plaintiff, the plaintiff is completely barred from recovering damages from the defendant if the plaintiff's own negligence contributed to the plaintiff's injuries, even if the plaintiff was only slightly negligent.  While it is the defendant's burden to prove contributory negligence, if the defendant meets that burden, the plaintiff recovers nothing, regardless of however little the plaintiff's actions contributed to the plaintiff's injury, or however much the defendant's actions contributed to that injury. 

Comparative Negligence – The Majority View

The contributory negligence doctrine, often referred to as the "all or nothing" rule, has been widely criticized.  In fact, North Carolina is one of only four states that, along with the District of Columbia, still follow that doctrine.  The remaining 46 states have rejected the contributory negligence doctrine and have adopted a form of comparative negligence. 

In a comparative negligence analysis, the finder of fact (typically a jury) first determines whether the defendant was negligent and whether this negligence was a proximate cause of the plaintiff's injuries.  If the answer to both of these questions is "yes," then the next question is whether the plaintiff's own negligence was a proximate cause of the plaintiff's injuries.  If the answer to this question is also "yes," then the finder of fact must apportion responsibility between the plaintiff and the defendant.  Once a decision has been made regarding the amount of damages necessary to compensate the plaintiff for the injuries suffered, the damage award is adjusted based upon the comparative fault of each party. 

Different Variations on the Comparative Negligence Standard

A minority of comparative negligence jurisdictions follow a "pure" comparative negligence analysis which allows plaintiffs to recover some amount of damages, even if they are assigned the greater portion of fault.  For example, in these jurisdictions, if the plaintiff is found to be 95% at fault and the defendant is found to be 5% at fault, the plaintiff still may recover 5% of the total amount of damages from the defendant. 

The remainder of the states follow some variation of a "modified" comparative negligence analysis.  In some of those states, if a plaintiff is found to be 50% or greater at fault, the plaintiff is barred from recovering anything from the defendant.  Other states follow a 51% rule in which the plaintiff is not barred from recovery unless the plaintiff is found to be 51% or greater at fault. 

Given North Carolina's reluctance to shed the ancient doctrine of contributory negligence, it is extremely unlikely that North Carolina would adopt a "pure" comparative negligence model.  Moreover, the two forms of "modified" comparative negligence standards best address the reality of situations resulting in personal injury and also constitute a compromise to satisfy the inherent tension between the interests of injured persons and the insurance industry.        

The State of Comparative Negligence in North Carolina

Over a period of years, the North Carolina General Assembly has considered several bills designed to eliminate the contributory negligence doctrine in favor of a comparative negligence standard.  However, not one has made it to the Governor's desk.  It does not appear likely that any change will occur soon.  In fact, even the effort to create a joint select committee to study the adoption of a comparative negligence standard has so far not made it out of legislative committee. 

Conclusion

Regardless of the various special interest groups supporting or opposing the adoption of a comparative negligence standard in North Carolina, it is difficult to imagine any argument that the ancient contributory negligence doctrine accurately reflects the reality of situations that result in injury to persons.  To require persons seeking to recover damages for their injuries from defendants who are clearly at fault to be absolutely free from culpability is neither reasonable nor a reflection of reality.  Rather, it is much more likely that actions or inactions of both the plaintiff and the defendant worked together to result in the injury to the plaintiff.  The majority of states now recognize this reality and allow the fact finder to assess the percentage of culpability of each party and apportion the damages accordingly. 

It is time for a change.  North Carolina should adopt a comparative negligence standard and align itself with the 46 states that have adopted the modern rule.

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© 2016 Ward and Smith, P.A. For further information regarding the issues described above, please contact William S. Durr.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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