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Developments in Contributory v. Comparative Negligence in NC

Legislative attempts to pass Comparative Negligence in North Carolina are dead for 2010. The legislation got bogged down in committee during the short session of the North Carolina Legislature. Proponents of Comparative Negligence came close to passing it in 2009 and came back in 2010 to try and get the law passed. Opponents rallied to the defense of contributory negligence, driving back attempts to pass comparative negligence. It appears certain that the issue will come back again during the 2011 long session of the Legislature. However, with Republicans taking control of the North Carolina State House, following the recent election, passage of Comparative Negligence may be less likely.

For those who are unfamiliar with this issue, North Carolina is one of 4 states following the doctrine of contributory negligence. The doctrine states that in a negligence case, if a jury finds that a plaintiff is found to be even 1% negligent in causing an accident, the plaintiff is completely barred from any recovery for injuries or damages, even if the defendant is found to be 99% at fault for the accident. The majority of States employ comparative negligence, allowing a jury to apportion the percentage of negligence between a plaintiff and defendant, and allowing a plaintiff to recover a reduced amount of damages, so long as the plaintiff is less than 50% at fault. A plaintiff cannot recover if the plaintiff is more than 50% at fault.

The prior version of the Bill in North Carolina for Comparative Negligence included provisions to allow apportionment of percentage of fault among multiple Defendants whereas North Carolina currently uses joint and several liability for multiple Defendants. This means under the current law, if one Defendant is 1% at fault and the other Defendant is 99% at fault, both Defendants are equally responsible for a verdict or judgment in the case and if one Defendant is unable to pay, the other Defendant can be forced to pay the entire amount. Under the previously proposed Comparative Negligence Bill, a Defendant pays only their percentage of fault and if the Defendant’s percentage is less than the Plaintiff’s percentage of fault, that Defendant cannot be forced to pick up the share of another co-defendant who is unable to pay.

The prior Bill also contained a proposal changing how medical expenses are calculated and presented to a jury in trial. Currently, a Plaintiff may introduce the total amount of the medical bills from the medical provider, without taking into consideration any reductions or write offs for medicare or health insurance. In fact, such reductions or write offs are not admissible. Opponents of the Comparative negligence Bill included a provision making a plaintiff’s measure of damages for medical expenses the amount actually incurred by the plaintiff rather than amount shown on the face of the medical bill. This would allow for admissibility and consideration of reductions and write-offs. These proposed additions to the Bill were a source of conflict between the proponents and opponents of the Bill, ultimately keeping the Bill from passing.

Whether these proposals will be included in the next version of the Bill, and what other amendments and proposals will be included when this issue comes back in 2011, remains to be seen.

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