The Curious Case of Contributory Negligence

I remember once when I was a kid, my parents left my brother and sister and I at home alone while they went out to visit with some friends.  My brother Matt is seven years older than me, so he was the babysitter that night.  

After Mom and Dad left, Matt and I got bored and Matt suggested that we play a new game that he had invented.  His game involved throwing grapes at the kitchen wall, as hard as possible, to see who could make a bigger splatter.  It was great fun; we went through every grape in the refrigerator, refined our technique, and Matt ended up winning in a very close contest.  

When Mom and Dad got home later that night, they were somewhat, uh, displeased with our game.  In an attempt to cut their apoplexy off at the pass, I tried to impress on them that it wasn't my idea.  Matt was nearly twice my age at that point, he invented the game, and it was his idea to play.  If I had refused, who's to say that I wouldn't have received a noogie, a wedgie or even the dreaded swirly? My parents disagreed on the grounds that I was complicit; I played the game, destroyed the kitchen wall and depleted the family grape supply right along with my brother.  When the smoke cleared, Matt and I both got grounded even though Matt was 99 percent at fault.  Matt, if you're reading this, I still blame you.

As it turns out, North Carolina follows a similar approach to my parents when it comes to negligence.  Most states use what's known as "comparative negligence," meaning that when two or more parties engage in negligent conduct resulting in damages, each party is assigned a degree of fault, and the damages are split up accordingly.  While this approach is necessarily subjective and requires a ton of oversight, it's generally regarded as the most fair and equitable way to ensure that each party is assigned the appropriate degree of liability.

North Carolina uses "contributory negligence;" our state's equivalent to the Omer Family Punitive Code.  Contributory negligence means that if one party bears partial fault in causing the damages, even if it's just one percent, that party is barred entirely from recovering anything.  Our State is one of only four that still use contributory negligence.

Let's look at an example.  Sarah is a pedestrian waiting at an intersection to cross the street.  Her light is red, but she crosses the street anyway because she doesn't figure there is a lot of traffic around.  Meanwhile, Kenny is driving down the road in his Ford Fiesta.  He's speeding, playing with the radio and taking selfies with his phone.  Kenny fails to notice Sarah and hits her as she's crossing the intersection.

In this example, Kenny probably bears about 90 percent of the fault for the accident.  He was going too fast, he wasn't watching the road, and he was distracted by the radio and his phone.  Sarah bears a minute portion of liability because she didn't check both ways before beginning to cross the road.  In nearly every State, Kenny would bear the brunt of the liability, and therefore the brunt of the damages.  However, since we're in North Carolina and since Sarah was partially responsible, albeit just a little bit, she will not be able to recover anything from Kenny under the doctrine of contributory negligence.

Does this seem unfair to anyone else?  Contributory negligence is a favorite in the insurance adjuster's arsenal.  It often seems like it's hard to come by a case that doesn't at least carry an argument for contributory negligence.  However, it's something that we live with for now.  Look out for contributory negligence, and also be on the lookout for my forthcoming articles on Sudden Emergencies and the No Contact Rule.