In nearly any negligence case, the parties immediately wish to blame the other for the accident. This “blame game” can occur in a number of ways, but most often it comes in the form of a contributory negligence defense. Across the country, each state tends to treat the negligence of a plaintiff in different ways. The majority of states have adopted the comparative negligence scheme. This means that even if a plaintiff is negligent in the accident, the plaintiff will still be able to recover and will only have to reduce his/her recovery by the amount of his/her negligence.

On the other hand, a rogue minority of states continues to adopt the contributory negligence scheme, including North Carolina. Contributory negligence means that if the plaintiff is at least 1% negligent, at all negligent in causing the accident, the plaintiff’s complete claim is barred.

For example, if a Wake County driver is rear-ended by a Harnett County driver, you would immediately assume that the Wake County driver will be able to recover. However, if the Wake County driver was driving without her lights on, her claim would be barred under contributory negligence if the act of driving without her lights on caused, however slight, the damages that she suffered. As you can see, contributory negligence is a very powerful tool in personal injury actions.

It is important to note that contributory negligence is not a defense to intentional torts. For instance, if a Durham County citizen battered a Johnston County citizen, the Durham County citizen would not be able to plead contributory negligence even if the plaintiff said the worst things possible to provoke him. Each intentional tort has its own elements that must be proved, but contributory negligence is not a defense to an intentional tort.

As these types of issues come up in nearly every case, especially in North Carolina, it always important to consult with your lawyer about how to either raise the defense, or defend against a claim of contributory negligence.

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