Contributory negligence is a very complex law which has been misconstrued by claimants, lawyers and insurance adjusters alike. To add to the complexity there are two types of contributory negligence. The first, deals with the negligent actions of the plaintiff as a bar to recovery as a question of fact, i.e. to be determined by a jury. The second contributory negligence deals with the actions of the plaintiff as a matter of law. An example of the later is if you get into a vehicle with someone who you know or should know is intoxicated. As a matter of law you are deemed to be contributorily negligent.
For this article we will focus on the former type of contributory negligence, as it also is the most common (and most misconstrued). By way of example we will assume a car accident in Charlotte, North Carolina involving two vehicles. For this accident there are two witnesses who saw the Plaintiff speeding and saw the defendant run a red light. The collision took place when the Plaintiff T-Boned the Defendants vehicle.
It is not unusual for insurance companies, hearing the above fact pattern to deny the Plaintiff’s claims. They will typically allege that the Plaintiff’s speeding was negligent, and as such they are barred from recovery. While this is a misstatement of the law, unfortunately for many injured people this is where they stop pursuing their case.
First, contributory negligence has to be a proximate cause of the accident. In other words if the accident was going to happen regardless of the Plaintiff’s speeding then it is not a proximate cause. To determine this, many times a reconstruction engineer is brought in to reconstruct the wreck.
Even if the contributory negligence is a proximate cause of the accident this is not the end of the investigation. North Carolina has a statute referred to as Last Clear Chance. The jury instruction for Last Clear Chance reads – Did the Plaintiff by his own negligence put himself in a position of peril for which he could not escape and did the Defendant have the last clear chance to avoid the accident?
To determine Last Clear Chance the jury would have to parse the jury instruction and answer three questions (all of which are the Plaintiff’s burden to prove): (1)Did the Plaintiff by his own negligence put himself in a position of peril (2)for which he could not escape (3)and did the Defendant have the last clear chance to avoid the accident?
A recent case we handled highlights the Last Clear Chance argument. Our client was riding his bicycle at night in Charlotte without any reflective gear or lights. There was no moon but the weather was clear. The road was flat and straight for approximately 800 feet behind the plaintiff. The defendant was driving his vehicle behind the plaintiff when he ran into the back of the bicycle. The plaintiff did not hear the defendant’s car before being hit. The claim was denied by the insurance company prior to our office becoming involved.
The successful argument we made during the course of litigation was that even though the Plaintiff was operating his bicycle in violation of the North Carolina statutes (which require reflectors on bicycles) the defendant had the Last Clear Chance to avoid the accident. Clearly the plaintiff by his own negligence put himself in a position of peril. He was riding his bicycle without lights. He could not see or hear the defendants vehicle prior to the impact and as such he could not escape the situation. Our engineer performed a reconstruction thereby proving that the defendant would have been able to see the bicycle that night had he been paying attention.
As such, even though plaintiff was negligent we still had a successful settlement of the case arguing Last Clear Chance. Last Clear Chance is a very complex law. There are dozens of appellate cases dealing with each element of the law. Each case is fact specific. Many times it comes down to what the parties said following the accident. This is why it is highly suggested not to speak with any insurance company following a car accident. To discuss your case please contact us for a free no obligation consultation,
“I have never dealt with anyone as professional as Mr. Matt Fleishman. He is truly an attorney that wants the best service for his client…If I ever need an attorney again Matt Fleishman is the only one I would think to call. Thanks Matt you made me and my family very happy.”
Martin Paschal (Greensboro, NC)
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