In the United States, there are only 6 jurisdictions that continue to bar recovery for a plaintiff if their own negligence contributed in any way to the cause of their injuries- Virginia, Maryland, South Dakota, Alabama, the District of Columbia and North Carolina. (South Dakota does allow recovery where the plaintiff’s negligence is slight in comparison to the negligence of the tortfeasor.) While it is clear that the theory of contributory negligence is a dinosaur among legal doctrines, those jurisdictions that continue to follow it have shown little signs of giving it up- until now.
North Carolina House Bill 732, known as the Tort Reform Act of 2011, is currently under consideration in the North Carolina legislature. If it is passed, House Bill 732 could impact recoveries both in and out of North Carolina in a number of ways.
First, House Bill 732 would abolish contributory negligence in favor of a modified comparative negligence scheme. A “pure” comparative negligence scheme allows a plaintiff to recover that amount of damages that are attributable to the torfeasor regardless of any proportion of the plaintiff’s own negligence in causing their injuries. Under the modified scheme currently proposed in the bill, a plaintiff would be able to recover damages for injuries as long as the plaintiff’s own negligence was not equal to or greater than the combined responsibility of all other parties and released persons determined to have caused the injury. For subrogation purposes, this means that as long as your insured’s actions constitute less than half of the negligence leading to the injuries, you can recover the proportion of total damages caused by the tortfeasor(s).
Second, House Bill 732 would abolish sovereign immunity for governmental entities. Sovereign immunity currently bars most actions against state agencies and their employees from suit as long as the agency was performing a governmental function (police, fire, etc.). The Bill would limit the damages that are recoverable and would also make the Industrial Commission the forum of first impression for cases of negligence against the State, but this portion of the bill could potentially open up formerly unavailable avenues of recovery against governmental agencies.
Finally, as noted, these few hold-out jurisdictions have shown little inclination in the recent past to change their stance on contributory negligence. If North Carolina breaks ranks, it is possible that other jurisdictions will be spurred to follow suit. If so, large metropolitan areas like Baltimore, Richmond and Washington D.C. may soon be more fertile than ever for future recovery.
