The title of this article is how a Winston-Salem; North Carolina personal injury attorney describes the archaic law of contributory negligence. The comment arises in a Winston-Salem Journal article describing the injustice to 7-year-old Luly Beckles-Palomares who was riding her bike in a quiet residential neighborhood when she was struck and killed by a drunk driver who had already beaten 3 previous drunk driving charges.
The law of contributory negligence is alive and well in North Carolina as it is in 3 other states and the District of Columbia. In a nutshell the law precludes recovery for injuries and damages for the negligence of others provided the victim contributed in anyway to the injury. That means if a defendant in a civil case is determined to be 99% at fault and the victim is determined to be 1% at fault the victim is totally bared from recovery. There are some exceptions such as intentional negligence, willful and wanton conduct and last clear chance but for the most part the doctrine acts as a total bar to recovery.
Because the law is so harsh most states have come into the modern era and replaced contributory negligence with a form of comparative negligence where the amount the victim can recover is based on the percentage of the defendant’s liability. In North Carolina both the Appellate Courts and the legislature have looked the other way while the insurance industry has employed armies of lobbyists and lawyers to insure the systems remain in place. When a change of the law is proposed, the insurance company lobby will not even discuss the issue without demanding a slew of concessions to slant another area of tort law in their favor.
In North Carolina and other states that hold on to this ancient and outdated law, it is time for a change and the change should not require the citizens to give up one right for another. If you live in a contributory negligence state (North Carolina, Alabama, Maryland, Virginia or the District of Columbia) write your elected officials and demand a change. If you do not do it for yourself, do it for the hundreds of victims like Luly who are victimized each year by this hard cold law.