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How To Beat Contributory Negligence

Contributory negligence is the law of the land in North Carolina for personal injury cases.  Most states have comparative negligence, which reduces the amount the Plaintiff is entitled to receive by the own negligence.  There are numerous variations of comparative negligence but each operates under the general premise that the Plaintiff should still recover even if they contributed, to some degree, to the personal injury.   Contributory negligence operates under the premise that the Plaintiff should not recover if they contribute in any way to causing the personal injury.  While there have been many attempts over the years to change North Carolina’s statutory structure to do away with contributory negligence none have succeeded.

Many times insurance companies mistakenly argue that a Plaintiff was contributory negligent, when in fact they weren’t.  In those situations, many times a competent personal injury attorney is able to change their mind or succeed in court.  In other situations (which is the focus of this article) the insurance company has a legitimate argument that the Plaintiff was contributory negligent. In those situations there are legal arguments that can be made, which allows the Plaintiff to recover even if they were contributorily negligent.

Last Clear Chance 105.15 N.C.P.I. MV 105.15

Let’s assume at this time that the defendant has carried their burden and has found the Plaintiff to be contributorily negligent.  The Plaintiff, assuming they have either filed a Reply (with exceptions) or presented evidence can argue the defendant had the Last Clear Chance to avoid the accident.  The burden is on the Plaintiff to prove, by a greater weight of the evidence, four elements:

(1) that the plaintiff negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care. (2) that the defendant knew, or by the exercise of reasonable care should have discovered, the plaintiff's position of peril and inability to escape from it. (3) that the defendant had the time and means to avoid the injury to the plaintiff and failed to exercise reasonable care to do so.  (4) That such failure proximately caused the plaintiff's injury. N.C.P.I. MV 105.15 Last Clear Chance-burden of Proof; Definition; Final Mandate. (north carolina Pattern Jury Instructions for Motor Vehicle Negligence Cases (2018 Edition))

The typical example where Last Clear Chance comes in can be found where a Plaintiff is a pedestrian crossing the street outside of a crosswalk and/or against the light.  The number of lanes and the location in the road where the car accident took place is going to determine the likelihood of success of the Last Clear Chance argument. 

For example, if the Plaintiff is hit immediately after stepping into the road Last Clear Chance is not likely to be admissible or successful.  However, assume the same Plaintiff is struck after crossing through 90% of the road.  Further, assume the road is straight for 200 feet prior to the impact.  In that situation Last Clear Chance is applicable and has a much better chance of being successful. 

Willful & Wanton Conduct  102.86 N.C.P.I. MV 102.86

Willful and Wanton Conduct is conduct by the defendant, which is beyond normal negligence but not quite intentional.  The most common example is driving while impaired.  The jury instruction for Willful and Wanton Conduct is as follows:

The plaintiff must prove, by the greater weight of the evidence, that the defendant engaged in willful or wanton conduct and that such conduct was a proximate cause of the plaintiff's injury. The tests for negligence and contributory negligence which I defined and explained to you previously are not the same tests which you will apply in considering this issue. The issue here is whether the defendant's conduct was willful or wanton. An act is willful if the defendant intentionally fails to carry out some duty imposed by law or contract which is necessary to protect the safety of the person or property to which it is owed. An act is wanton if the defendant acts in conscious and intentional disregard of and indifference to the rights and safety of others.  (North Carolina Pattern Jury Instructions for Motor Vehicle Negligence Cases (2018 Edition))

Let’s take a common example of two cars entering a lighted intersection.  Let’s assume that a witness observed the Plaintiff speeding as he goes through the intersection and observed the defendant entering the intersection on a red light.  In that situation the jury would be able to find the Defendant negligent and (assuming the defense carried its burden) the Plaintiff contributorily negligent.  However, if the Plaintiff was able to show that the defendant was under the influence of an impairing substance (alcohol) his Willful and Wanton Conduct would trump the contributory negligence of the Plaintiff.  Therefore, in that situation the Plaintiff would be able to recover.

Willful and Wanton Conduct has the added benefit of allowing the Plaintiff to seek punitive damages, which raises the value of the case.  Obviously the defense would prefer to hide or limit evidence of Willful and Wanton Conduct.  In many situations the Defendant can ask for and will be able to bifurcate the trial.  Bifurcation forces the Plaintiff to try the punitive damages portion of the claim separate from the main case. This allows the defendant to limit any evidence of Willful and Wanton Conduct during the main portion of the trial.  However, if the defendant is claiming contributory negligence the Plaintiff can present evidence of Willful and Wanton Conduct during the main case. 


One thing to think about is the effect of making the argument of contributory negligence to the jury.  The risk to the defense, if the argument is meritless, is angering the jury.  Juries, typically try to do what is fair.  However, when juries get angry they can punish either side.  If they feel the defense has wasted their time or refuse to take responsibility they can punish them with a larger jury award.  In those cases we almost want the defense to make the argument since it only helps our clients. However, if the argument has merit the jury can still find for the Plaintiff but can reduce their award.  Therefore the agreement can have the effect of reducing the damage to the insurance company.

If you or a loved one was injured and the insurance company is claiming contributory negligence please contact us at (704) 714-1450.  You will speak with an attorney who can answer all of your questions and provide options on your case.  There is no fee for an initial consultation. 

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