How Does Contributory Negligence Affect Compensation in a North Carolina Accident Case?

Personal Injury Law Book

Under North Carolina law, a negligent person who causes injuries to others in an accident is responsible for compensating those victims. However, if a victim’s contributory negligence also caused the accident, the state’s contributory negligence rule may prevent the victim from recovering any compensation.

Negligence and Contributory Negligence in North Carolina

The legal concept of negligence involves a duty to act (or refrain from acting) and breach of that duty. In general, negligence is failure — or breach of the duty — to exercise the care that an ordinarily prudent person would use under the circumstances.

There are three requirements necessary for a victim to recover from a negligent person:

  • The person responsible for the accident behaved in a negligent manner;
  • The negligence caused the accident and the victim's injuries; and
  • The victim suffered measurable injuries and damages.

For a victim to recover compensation, the victim must demonstrate all three of these elements.

However, demonstrating the three requirements is not alone sufficient to entitle the victim to compensation in North Carolina. The state applies a principle known as strict contributory negligence in accident cases.

Under the strict (or pure) contributory negligence rule, if a victim’s own negligence contributed to causing the accident to any degree, the victim recovers nothing. Even if the negligent person is 99% responsible, and the victim 1% responsible, the victim does not recover any compensation from the at-fault person. It is a harsh rule with results that are sometimes very unfair.

North Carolina is one of only five jurisdictions that still use the contributory negligence rule. Virginia, Maryland, Alabama, and the District of Columbia also apply it. Other states use a rule called comparative negligence (or a variation of that rule), under which a contributorily negligent victim may be able to recover some portion of damages for their injuries.

Exceptions to the Strict Contributory Negligence Rule

Limited situations exist in which contributory negligence may not prevent a victim from recovering. They include the following circumstances and rules.

Last Clear Chance Doctrine

North Carolina recognizes an important rule called the last clear chance doctrine. Under the rule, if the negligent driver had the last clear chance to avoid the accident that caused the injury, but did not take the necessary action, the injured victim may recover even if he or she was contributorily negligent.

There are four requirements necessary for the last clear chance doctrine to apply:

  • The victim’s own actions put himself or herself in a position of danger with no ability to escape;
  • The other person knew or should have known of the victim’s dangerous position;
  • The other person had the time and means to avoid the accident, but negligently failed to do so; and
  • The other person’s negligence caused the accident and the victim’s injuries.

Cases involving the last clear chance doctrine are factually complex. Whether the doctrine enables an injured victim to recover compensation despite his or her own contributory negligence depends entirely on the evidence and facts of the accident.

Gross Negligence

In circumstances where the at-fault person’s negligence rises to the level of gross negligence, the victim’s own contributory negligence will not prevent recovery of compensation. Gross negligence is a higher level than the simple negligence that makes a person responsible for an accident.

Gross negligence exists when a person consciously and intentionally disregards the risk of harm to others or is indifferent to the safety of others. Whether gross negligence exists depends on the facts of each case. Common situations in which gross negligence may apply include drunk driving and driving at excessive rates of speed.


A special rule applies to children under the age of seven. There is a conclusive presumption that a child younger than age seven is incapable of contributory negligence. If a small child suffers injuries in an accident, the child’s own negligence will not prevent recovery, even if it contributed to causing the accident.

The law also creates a presumption that children between the ages of seven and 14 are incapable of contributory negligence. However, for a child in that age group, evidence of capacity can overcome the presumption. Contributory negligence may be established by showing that the child did not exercise the degree of care that a child of the same capacity, age, knowledge, and experience would ordinarily exercise in the same or similar circumstances.

Mentally Impaired Individuals

An exception also applies in cases involving victims with mental impairment. In determining whether contributory negligence exists, the standard of care is that of a reasonably prudent person with the same level of impairment.

Individuals who are fully mentally incapacitated are presumptively incapable of contributory negligence.

Will Contributory Negligence Prevent You From Receiving Compensation?

If you suffered serious injuries in an accident that was another person’s fault, you should not attempt to determine on your own whether contributory negligence might prevent you from receiving compensation. Talking with an experienced personal injury attorney after a significant injury is always in your best interest.

Any accident involving serious injuries is factually and legally complex. Any accident that may involve contributory negligence presents a case that requires detailed investigation and analysis by a knowledgeable accident lawyer.

If someone else’s negligence caused the accident that seriously injured you, it is extremely important not to talk with that person’s insurance company or adjuster before you consult with a lawyer. That is especially true if you think your own negligence may have contributed to the accident. You could make statements that hurt your ability to recover compensation.

Talk With Our North Carolina Car Accident Lawyers

If you suffered significant injuries in a car accident in northeastern North Carolina and the accident might be someone else’s fault, our experienced personal injury attorneys at The Twiford Law Firm are here to help.

With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Call us at 252-338-4151 (Elizabeth City) or 252-435-2811 (Moyock) or complete our online form to schedule an initial consultation.

Categories: Personal Injury