by Edward Knox

North Carolina is one of several states that permits contributory fault as a bar to recovery. Injured parties have the burden of proving negligence (fault) and that the defendant’s negligence was the proximate cause of the injuries. Proximate cause means the defendant must have foreseen the consequences of his or her negligence. But there is more required to succeed and the injured party must also be free of negligence (contributory fault).

Most states have adopted comparative fault. It means simply that the jury establishes the ratio of fault. If the jury determines that a defendant is 90% at fault and the injured party is 10% at fault, and the damages are assessed by the jury to be $100,000, then the injured party may collect only $90,000. Cases settle more readily under comparative fault than when there is the two prong test of negligence- contributory negligence. Most injured parties are quick to give the defendant’s insurance company a statement of how an accident occurred. In many instances, a skillful adjuster can get the injured party to say something that may block their recovery. If the defendant is grossly negligent or has the last clear chance to avoid the accident, either overrides the defense of contributory negligence. Otherwise defendants may argue that if the injured party is 1% to blame, they are barred from recovery.

Everyday, you see someone jay walking within the city limits. The law requires when crossing a city street that you walk within the cross walk or if there is not a cross walk that you must walk within a perpendicular path parallel to the adjoining road, or recovery is barred.

Other examples of contributory fault may include but are not limited to, the following:

Failure to blow your horn outside the city limits when danger exists;

Not outrun your headlights;

Failing to look left or right before proceeding after you have a green light;

Improper lookout or failure to keep your vehicle under control;

Riding with intoxicated driver.

These are but some of potential contributory issues.

The test of all negligence both fault and contributory fault is based primarily on the reasonable man concept except where a statute expressly provides that a violation of the act is negligence per se (negligence within itself).

Children are treated differently. A child under 7 years of age is presumed to be incapable of contributory fault. A child between 7 years and 14 years is presumed to be incapable of contributory fault but it is a rebuttable presumption. Children over 15 yeas are held to the reasonable person test.

Until the law in North Carolina is modified, take extreme care to look out for yourself. Importantly, before giving a statement surrounding the events of an accident, get competent legal advice.

H. Edward Knox is the managing partner with the Knox Law Center. He is a certified trial specialist, a member of the National Board of Trial Attorneys as well as a member of Legal Elite Hall of Fame (2003,2005, 2006) and NC Super Lawyers (2006,2007). Visit our website at Please call 704-315-2363 or 866-704-9059 (Toll free)

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