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Don't let the insurance company create "contributory negligence"

Charlotte personal injury attorney Gary Mauney reports on the unfair and outdated North Carolina law known as "contributory negligence."


It’s often been said, and with good reason, that the contributory negligence defense is “an insurance company’s dream” and A plaintiff’s “worst nightmare.” Under the common law doctrine of contributory negligence in North Carolina, there is no comparison of fault between a wrongdoer and an injured person. If the injured person is even 1% at fault in a way that significantly contributes to cause the injury, the injured person loses. Technically, this prohibits an injured person from making a recovery from an accident claim even if the other person (the defendant) is 99% responsible for causing the accident. (There are exceptions to this harsh rule, which is why the advice of an attorney is so important after you suffer an accident-related injury.)


For example, let’s say that the defendant was driving on a one-way road the wrong way, and the plaintiff, a pedestrian, was walking along the edge of the road when struck from behind by the defendant. The defendant’s insurance company could argue that the plaintiff was negligent for walking on the road. As a result — and conceivably without any real fault on the plaintiff — the insurance company may claim the plaintiff is contributorily negligent and thus barred from making any recovery, and refuse to pay voluntarily.


Any negligent act by the plaintiff is not enough to bar his claim; the act of negligence must be a “proximate cause” of the injury. The “proximate cause” test is whether the negligent act is a cause which, in natural and continuous sequence, produced the injury. In practical terms, it’s an act where the injury would not have occurred without the act, so that the act “caused” the injury. For instance, suppose a driver is traveling 5 miles per hour over the speed limit when another driver runs a stop sign and broadsides him. Clearly the negligent act of driving 5 miles too fast is not a “proximate cause” of the accident, because the accident would have happened anyway.


Only a very few states, including North Carolina, still have contributory negligence on the books. Most states follow what is called “comparative negligence,” where if an injured person is also negligent, then any recovery they receive is reduced by their share of fault. For instance, if an injured person is 1% at fault in causing their injury, then their recovery or award is reduced by 1%. In North Carolina and the other contributory negligence sates, an injured person who is 1% at fault, and whose negligence is a proximate cause of their injury, receives nothing (unless an “exception” applies, such as the defendant having the “last clear chance” to avoid the accident).


It has been my experience having previously worked both sides of the fence – for an insurance company and also for injured persons – if there is one piece of advice I would give to an injured person with a claim, it would be to not to give a recorded or signed statement to an adjuster for the insurance company. Contact an attorney first, and let your attorney guide you through the process and speak for you with the insurance adjuster.


As a contributory negligence state, North Carolina is a place where an injured person may need the advice of an attorney more than in comparative negligence states. An adjuster is a paid professional whose job is to make sure a claim costs the insurance company as little as possible. Usually that means that the objective is to give the injured person as little as possible. Contributory negligence is one way an adjuster may try to deny a claim. Sometimes just the way an injured person describes the accident may help a smart adjuster to deny the claim.

IF YOU HAVE BEEN INJURED, SPEAK WITH AN ATTORNEY BEFORE YOU SPEAK WITH AN INSURANCE ADJUSTER – CONTACT ATTORNEY GARY MAUNEY

If you or a family member have been injured in an accident by the negligence of another, don’t do further harm to yourself by saying something to the insurance adjuster that may end your right to a recovery. Charlotte attorney Gary Mauney of Mauney PLLC can help guide you through the process and make sure your legal rights are protected. Your case will not be handed off to a paralegal or junior attorney. Instead, you will get the help of an attorney with 25 years of handling multi-million dollar injury cases from start to finish. Contact Gary Mauney for a confidential and free consultation at info@mauneypllc.com or call Mauney PLLC at 704/945-7185.