Contributory negligence bars a plaintiff from ANY compensation should they be found at fault, to ANY degree, for their damage.
Unlike most states, which apply the comparative negligence doctrine, or some modified version of it, North Carolina is one of five states that follow the contributory negligence rule.
Below, our Charlotte-based personal injury lawyers review the history of our contributory negligence law and explain how the last clear chance doctrine can be used to counter a contributory negligence defense.
What Is Contributory Negligence?
To illustrate the contributory negligence rule, let’s review the first known case to use the argument: Butterfield v. Forrester.
It’s 1809. The defendant (Forrester) is making repairs to his house in England. He rests a pole against his home and part of the pole stretches into the street. The plaintiff (Butterfield) rides “violently” in the street (on a horse!) and hits the pole.
Chief Justice, Lord Ellenborough, said this about the landmark case:
“A party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right …. One person being in fault will not dispense with another’s using ordinary care for himself.”
The doctrine says when an injured person assumes even the slightest share of liability, contributory negligence leaves that person with no chance to recover compensation for any losses stemming from the accident.
A century after the birth of contributory negligence, in 1908, the U.S. congress passes the Federal Employers Liability Act, which contradicts contributory negligence by allowing workers to hold railroad companies liable for work-related injuries, even if the worker contributed to the injury, “rather than pursuant to a pre-determined benefits schedule under workers’ compensation.”
States soon began to incorporate this new idea of comparative fault into legislation. The comparative fault doctrine reduces damages proportionate to whatever degree the plaintiff’s own negligence contributed to cause the injury.
Today there are only four states that use the old contributory negligence rule: North Carolina, Alabama, Maryland, and Virginia—Washington D.C. also ascribes to contributory negligence laws.
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The Last Clear Chance Doctrine
The last clear chance doctrine, sometimes called the last opportunity rule, was first proposed in another English case: Davies v. Mann.
It’s 1845. The plaintiff (Davies) leaves his fettered donkey in the road; the defendant (Mann) drives a horse-drawn wagon at a “smartish pace” and collides with the donkey. The donkey dies.
According to Justice James Parke:
“…the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway was no answer to the action, unless the donkey’s being there was the immediate cause of the injury.”
In this case, Mann had the last opportunity to avoid the accident (i.e., Mann could have driven slower or with common and ordinary caution).
The last clear chance doctrine aims to identify which party has the last, or better, chance to avoid the damage. The party with the last opportunity to act can be held liable for damages.
According to one law review, the last chance doctrine “intended to mitigate the rigidness of the old contributory negligence rules.”
Under the last clear chance doctrine, the plaintiff CAN recover damages (even in a contributory negligence state) when his negligence is merely a condition or remote cause of his injury, and the defendant is the sole, proximate cause.
Today, the last clear chance doctrine is as much an argument for the plaintiff as it is a potential defense.
Should a victim somehow contribute to their injury, a skilled personal injury lawyer can help build a case using the last clear chance rule.
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