, , ,

HB 813 has now passed the House of Representatives and is pending in the Senate Judiciary I Committee. Should the bill pass it will be the end of contributory negligence in North Carolina. Currently only five jurisdictions including N.C. retain the doctrine of contributory negligence.

Under the contributory negligence doctrine, a plaintiff cannot recover from a defendant in a tort action if the plaintiff is even one percent responsible for his or her own injuries. Plaintiffs’ attorneys argue that the doctrine is unfair and that it only remains the law in N.C. due to heavy lobbying by the insurance companies who reap the rewards by not having to pay out claims. Insurance companies argue that changing from a contributory negligence state to a comparative negligence state will cause insurance premiums to go up stating that currently N.C. has the sixth lowest premiums of any state in the country. However, Scott Sexton points out in an article for the Winston Salem Journal that state Insurance Commissioner Jim Long has to approve any rate increases and that he is the real reason N.C. insurance rates remain among the lowest in the country not because the state is a contributory negligence state.

So how would negligence be apportioned if we do away with contributory negligence? Under HB 813 N.C. would become a modified comparative negligence state. Under a pure comparative negligence doctrine fault is directly apportioned based on the degree of fault for each party. For instance if in a tort action if the plaintiff is 90% at fault and the defendant is 10% at fault the plaintiff can still recover for the defendant’s  10% negligence. Under a modified approach, recovery is barred if the plaintiff is 50% or more responsible for his or her own injuries.