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"Contributory Negligence" Standard Pondered by Legislature
North Carolina is one of only four remaining states using a contributory negligence standard in personal injury lawsuits, and the state's trial lawyers would like to see that change.
June 12, 2010 /Personal Finance PR News/ -- North Carolina is one of only four remaining states using a contributory negligence standard in personal injury lawsuits, and the state's trial lawyers would like to see that change. But while those attorneys believe that comparative fault would be a more fair method for assessing liability, the insurance industry opposes the change. Senate Bill 813 would make comparative negligence the law in North Carolina.
Under contributory negligence, if an injured party contributed in any way to his own injury, he can't recover damages in a lawsuit against anyone else who played a role in causing the injury, even if the other party's fault greatly exceeds the injured party's fault. Comparative fault standards, by contrast, allow recovery when the injured party is partially at fault but reduce the damages to reflect the contribution of the injured party to his own injury.
To illustrate the difference, imagine a lawsuit where an injured party was 10% responsible for his injury, the other tortfeasor was 90% at fault, and a jury awarded $100,000. In a state with comparative fault, the injured party would receive $90,000 (the jury award minus his own responsibility); under North Carolina's current system of contributory negligence, the injured party would receive nothing.
Contributory negligence rules burden the injured party with the entire cost associated with the injury, even if someone else's action was mostly responsible for the injury. Trial lawyers argue that comparative fault is more fair, allowing each party to bear costs proportionate to their responsibility in causing the injury.
Although there could be an increase in lawsuits filed if SB 813 passes, that would not necessarily indicate that any of the new cases lack merit. Trial lawyers who take contingency fee cases get paid only if they are successful; with a comparative fault standard, they would likely be more willing to take cases that might otherwise be thrown out due to minor acts by the injured party that a jury might consider negligent, thus broadening the ability of injured parties who can't afford to pay a lawyer to obtain representation.
The vast majority of the country seems to have reached consensus that comparative fault is preferable to contributory negligence. Whether North Carolina will follow the prevailing trend is now in the hands of its legislature.
Article provided by The Law Office of Elam & Rousseaux, P.A.
Visit us at www.er-lawfirm.com
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