Kelly & West Attorneys
If you get into a car accident, you, of course, want to make sure the at-fault driver’s insurance pays for damage and medical bills. At the outset of your case, you may hear about contributory negligence versus comparative negligence. What do those terms mean, and why does it matter in your case?
First, negligence itself refers to who is at fault. Sometimes, figuring out who is at fault is not easy. For example, let’s say a person while visiting a store, slips and falls on something dark spilled on a white tile floor in the store. The person did not see the spill, but if she had looked, she could have seen it as it was clearly visible. Who is at fault? Most of us would assume that the store is more at fault in causing the accident as they should have cleaned up the spill so that any guests visiting the store would not slip. But an argument could also be made that the person could have seen it had she looked since it was clearly visible.
If you are involved in a negligence claim, you will want to get a better understanding of the differences between contributory and comparative negligence.
North Carolina is one of four states (and the District of Columbia) that still recognize contributory negligence in personal injury law. This law prevents a person from recovering money in a personal injury lawsuit if he or she had even the slightest bit of responsibility for his or her injuries.
So, in our slip and fall example above, while the store might clearly be negligent for not properly cleaning up the spill, it is likely that the person who fell is also at least 1% at fault — she could have seen the spill had she looked, and she had a duty to look at where she was going. Thus, in N.C., the person who fell in the store is likely to recover nothing in N.C.
This is not so in other states.
Comparative negligence allows the fault to be distributed between both parties — depending on who is more or less responsible for the injury. However, there are different versions of comparative negligence. Some states have “pure comparative negligence.” This means that if the plaintiff (the person who was injured) was found to be at fault by some percentage, say 25% for example, then the plaintiff would only recover 75% of his or her damages (100% less the 25% for the plaintiff’s fault).
So, in our slip and fall example in a state that practices pure comparative negligence, if the person who fell is awarded $10,000 in damages but is determined to be 25% at fault, then that person would recover $7,500 or 75% of her damages.
More commonly, states use “modified comparative negligence,” which means that the plaintiff will only recover if he or she is not more than 50% at fault.
So, in our slip and fall example, if it is determined that the person who fell is 25% at fault, that person would recover 75% of her damages, same as above. However, if the person is determined to be 51% at fault for some reason, say maybe she was running in flip flops after an employee had alerted her of the spill, then in a state that practices modified comparative negligence, that person would recover nothing because she is more than 50% at fault.
Your North Carolina case may be affected by contributory negligence, as North Carolina law does not allow for comparative negligence. This means you may not recover anything if you are even just 1% at fault in North Carolina. In most personal injury cases, it’s best to contact an attorney who can help you sort out your approach before you talk with anyone about how the accident occurred.
Contact us if you have been hurt and would like to speak with an experienced and caring attorney.
“Reggie Kelly is a fantastic attorney with fantastic paralegals. My wife and I have been using him and his firm since 1983 when we first purchased property in Harnett County 37 years ago. He offers excellent legal advice and guidance. He never gets in a hurry to get us out the door because of his next appointment. He always takes the time needed to check out all of the issues that might come up. Reggie Kelly is a proud American and he loves our country and he wants everyone to do well. Reggie Kelly is an even finer person than he is a fantastic attorney and we are very fortunate to also be able to call him and his wife Cheryl our friends. We give him a 10 STAR Review!”
