Contributory Negligence

North Carolina is one of a minority—fewer than five—states that still practices contributory negligence in personal injury law. Simply stated, contributory negligence bars a person from recovering in a personal injury lawsuit if that person contributed to their own damages.

The majority of states use variations of the comparative negligence model, which by contrast looks at the percentage of fault involved for each party and calculates damages accordingly. For example, a plaintiff with $100 in damages who is determined to be 10 percent at fault would only be able to recover $90 from the defendant who was 90 percent at fault.

However, the doctrine of contributory negligence is much harsher. In the situation above, the plaintiff who was only 10 percent at fault would be completely barred from recovery. To better understand contributory negligence, first we must look at the element of causation in any negligence claim. An element is one of the factors a plaintiff must prove in order to succeed on a claim. Negligence’s other elements include duty, breach of duty, and injury to the plaintiff.


There are two types of causation, both of which must be present:

  • Cause in Fact: Also known as factual cause, or “but for” cause. If the plaintiff’s injuries would not have occurred without the defendant’s negligence, there is cause in fact.
  • Proximate Cause: This type of causation examines whether the plaintiff’s injuries were a reasonably foreseeable consequence of the defendant’s behavior. Even if there is cause in fact, legal liability will not be imposed for negligence if the plaintiff’s injuries were not sufficiently connected in time and space. If something is a direct, uninterrupted consequence of the defendant’s actions, it will most likely have proximate cause.
    • It is possible for an event to be an injury’s cause in fact without being a proximate cause. For example, suppose that Abe jumps out from a cabinet to surprise his new friend Hannah, an apparently healthy 23-year-old, and she had a heart attack. Even if it is medically proven that the scare is what caused the heart attack, if it was not reasonably foreseeable that Hannah would have a heart attack from such a minor cause then Abe would not be a proximate cause of Hannah’s injury.

If the injured party’s own negligence 1) contributed in any amount to their injuries and 2) is a proximate cause of the injury (more on this below), the comparative negligence doctrine typically bars the injured party from recovering any damages from the defendant.

There are several doctrines the courts in North Carolina employ to help mitigate harsh and potentially unfair effects of comparative negligence to the plaintiff. These include the last clear chance doctrine, proximate cause and gross negligence.

“Last Clear Chance” Doctrine

This doctrine allows a contributorily negligent plaintiff to still recover from a defendant if the plaintiff can prove that the defendant had the last clear chance to avoid the incident that caused injury and did not. An injured plaintiff must prove the following in order to invoke the last clear chance doctrine:

  • That the plaintiff negligently put themselves in a position of danger that they could not escape with reasonable care
  • The defendant knew or could have reasonably discovered the plaintiff’s perilous position and inability to escape without injury
  • The defendant had the time and means to use reasonable care to avoid injury to the endangered plaintiff
  • And the defendant negligently failed to use the time and means available to avoid the plaintiff’s injury.
Proximate Cause Doctrine

Another way that courts in North Carolina soften the effects of contributory negligence is by requiring that the plaintiff’s contributory negligence amount to a proximate cause of their injury. The question of proximate cause examines whether 1) a foreseeable result occurred in an unforeseeable or extraordinary way; 2) the extent or type of the harm was reasonably foreseeable; and 3) whether the person injured was within the group of foreseeably-affected victims. If the court finds that the plaintiff’s own negligence does not rise to the level of a proximate cause for his or her injury, the plaintiff will not be barred from recovering under contributory negligence.

Gross Negligence Doctrine

If the defendant’s negligence was “willful or wanton,” then the plaintiff can still recover in damages even if he or she was also negligent. Willful or wanton behavior is when the defendant consciously and intentionally disregards or is indifferent to the rights and safety of others.

If you have suffered a personal injury because of someone else’s reckless, negligent or intentional behavior, it is important to speak with a personal injury attorney. Arnold & Smith, PLLC is a civil and criminal litigation firm with years of experience based in Charlotte, North Carolina serving the Queen City and surrounding areas. Contact us today for a free consultation about your case with one of our personal injury attorneys.

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