Contributory Negligence in North Carolina in Slip and Fall Cases
Contributory negligence is particularly critical in North Carolina. If a plaintiff has been injured due to a slip and fall accident the property owner could possibly claim that the plaintiff is partially responsible for the accident and subsequent injuries. In the proceeding trial if a defendant is able to prove with legal evidence that the plaintiff shares some of the blame it is possible that the plaintiff ends up with no damages recovered. Most states follow a rule in personal injury cases known as comparative negligence. Under this rule, if a plaintiff is partially responsible in a state that follows comparative negligence the damages recovered by the plaintiff will be reduced based on the percentage of fault deemed to be on the plaintiff.
North Carolina, however, does not follow the rule of comparative negligence. North Carolina is a state that follows the rule of contributory negligence. If the plaintiff in North Carolina contributed to their own damages that person could be barred from recovering damages from the property owner.
A property owner could try and claim many factors that lead to a plaintiff being partially at fault. They could claim that a plaintiff was in a part of the property that was marked as employees only, that reasonable steps were taken to protect visitors such as cones or signs, dangerous conditions should have been obvious to the plaintiff, the plaintiff was wearing unsafe footwear, or even that a plaintiff was texting which led to their injuries. This does not mean that a situation, however, is hopeless for a plaintiff who may be contributed to their injuries or damages.
The burden of proof for contributory negligence will fall on the defense. The defense must prove that the actions of the plaintiff caused his or her injuries. Even if the defense claims that the plaintiff caused his or her own injuries this does not necessarily mean that contributory negligence will apply. There are defenses that the plaintiff can assert in application to the rule. There are several exceptions to contributory negligence; this is often referred to as a defense to the defense.
A plaintiff may have a cognitive impairment. The plaintiff will be compared to another person with that specific disorder. The Court of Appeals has stated that “one whose mental faculties are diminished, not amounting to total insanity, is capable of contributory negligence, but is not held to the objective reasonable person standard. Rather, such a person should be held only to the exercise of such case as he was capable of exercising.” Stacy v. Jedco Const., Inc., 457 S.E.2d 875 (1995). For example, a plaintiff with dementia is only compared to someone else with dementia.
A property, or person responsible for care of that property may be guilty of gross negligence. The defendant would be guilty of gross negligence if they engage in willful or wanton conduct that is a proximate cause of the plaintiff’s injury or damages. Wanton conduct is simply a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an indifference to a person’s own safety and the safety of others. In most slip and fall cases, a property owner or employee acts with ordinary negligence. In ordinary negligence, a person fails to take reasonable precautions that any reasonable person would take. It is very difficult to prove gross negligence in a slip and fall case as a defense to the defense of contributory negligence.
Another defense that a plaintiff may assert is known as the rule of sevens. This specific rule sets up an exception for minor children. A child under the age of seven is not capable of contributory negligence. In a slip and fall case if a young child falls in a store, but they are in a place where they should not be the child would not be found responsible for contributory negligence. Children who are between the ages of seven and fourteen there is a presumption of incapacity, which could be overcome by showing evidence of capacity. For example, a fourteen-year-old child should know what areas are employee only and stay away from those areas. If a fourteen-year-old child were to slip and fall in an employee only situation they may be a contributor to the negligence. The court has this to say on the matter: “A child must exercise care of prudence equal to his capacity. If it fails to exercise such care and the failure is one of the proximate causes of the injuries in suit, the child cannot recover.” Wooten v. Cagle, 150 S.E.2d 738 (1966).
Another common way that a plaintiff may fight against a claim of contributory negligence is last clear chance. Last clear chance simply means that even if a plaintiff is negligent, that will not matter if the defendant could still have avoided the accident by reasonable care in the final moments before the accident. The last clear chance theory is an acceptable defense of the defense because although the plaintiff may have been negligent, their actions were no longer the cause of the accident because the defendant still could have prevented the accident. The burden of proof in for last clear chance would fall on the plaintiff. The plaintiff must prove that the defendant discovered the plaintiff’s position of peril and had time and means to avoid the injury or damage, but failed to do so. The plaintiff must show they were in an unavoidable position of peril. The plaintiff must also prove that the defendant’s negligence caused their damage.
In conclusion, it is especially important to be aware of all the elements of contributory negligence, as North Carolina is one of four states that uses it as a doctrine. It is possible that a plaintiff contributed to his or her own injuries by the way of negligence. North Carolina case law states that a party cannot be guilty of contributory negligence unless he or she had knowledge and appreciation of the danger of injury that their conduct involved.
Just because the defendant or insurance company is claiming contributory negligence, it doesn’t mean your case is unwinnable. Please contact us at (704) 714-1450 to discuss your case. You will speak with a personal injury lawyer who can discuss the law and your rights. There is no fee for an initial consultation.