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Contributory negligence is a legal theory that attempts to pinpoint the party responsible for an accident's resulting injuries or property damage. (Gardner 2). The defendant must pay damages if their carelessness caused the plaintiff's harm or loss of property, in which case they are lawfully obligated to do so. However, before the judges rule on such a case, they must establish whether the defendant was directly responsible for the plaintiff's injury. (Statsky 76). The concept of contributory negligence is one of the theories that aids the judges in making this determination. The doctrine is used when the defendant claims that the plaintiff's negligence contributed to their injury or loss of property. If the defendant proofs the full or partial contribution of the claimant to their injury, then the plaintiff may be denied compensation rights. The concept of the contributory negligence doctrine is that an individual must act reasonably (Dunham 187). If a person acts in a non-reasonable manner and an accident occurs, then that individual is partially or entirely responsible for the injury despite the involvement of another party in the accident.
If for example, an injury occurs as a result of an individual ignoring the road signs and crossing the road carelessly, the individual's irresponsible actions have directly led to their injuries. According to the doctrine of contributory negligence, the injured person is barred from recovery against the driver regardless of whether the driver was also negligent. The concept has been criticized as harsh and unfair (Statsky 325).
How would a Clever Plaintiff's Attorney Seek to avoid this Rule, and what Exceptions or Doctrines might he or she Cite? How Would Counsel for the Defense Answer these Exceptions or Doctrines?
The plaintiff's attorney has the chance to argue their case before the judges. This opportunity should be used to counter the contributory negligence doctrine presented by the defendant. The attorney should cite the last clear chance doctrine to convince the court that the accused had an opportunity to avoid the injuries but failed to do so (Gardner 21). In this argument, the plaintiff must prove that the defendant ignored an opportunity to prevent the accident. If the judges find that the defendant had the last best chance to avoid the accident but did not utilize it, then the plaintiff will be fully entitled to the recovery benefits (Statsky 281).
The plaintiff's attorney should proof to the court that actions that could have prevented the injury such as swerving into the empty lane or braking were deliberately ignored. Also, the plaintiff should prove that there exist specific actions of negligence that contributed to the injury. These activities may include willful and wanton behaviors including driving while under the influence of alcohol (Dunham 281). In this case, the defendant cannot claim that the plaintiff is guilty of contributory negligence. As such, if the claimant's attorney proofs this, then the plaintiff is guaranteed of all the recovery benefits. However, the attorney should also counter any argument by the defendant that suggest that the plaintiff had the last chance to avoid an accident. The course of the case depends on the exoneration or not thereof; of the plaintiff from negligence.
The counsel for the defense should rebuttal the argument. The attorney can argue that the plaintiff willingly got involved in the accident to obtain compensation. Also, they should give evidence to the court to prove that the defendant did not engage in an activity, before the accident, which directly contributed to the injuries (Statsky 212). They should proof attempts by the respondent to avoid the accident to little success. The defendant's attorney should also be careful to show that the plaintiff had the last opportunity to prevent the injury but failed to do so (Dunham 106). If the accused's counsel proofs this without an iota of doubt, then the plaintiff will not obtain the recovery benefits.
What are the Benefits of Retaining this Doctrine? What are the Detriments of Retaining the Doctrine? Who would benefit from Changes in the Law, and who would suffer?
Retaining the doctrine of contributory negligence has benefits on the part of the defendant. This is because the court can dismiss the case even if the plaintiff is at one percentage fault (Dunham 245).
On the other hand, retaining the doctrine has various disadvantages. The concept of contributory negligence is harsh. It lowers the threshold required by the court to dismiss a compensation case in case of an injury (Gardner 18). As a result, a lot of injuries escape payment and leave the affected individuals with lifetime suffering. This is evident in the cases of pedestrian and motorcycle accidents where the defendants easily proof the plaintiff negligence leading to a denial of the recovery from the defendants. The doctrine does not allow the examination of the degree of fault of both the defendant and the plaintiff which leads to unfair judgments (Statsky 97). Most countries have scrapped off the doctrine and adopted the comparative doctrine which allows a comparison of the degree of fault on both sides leading to a fair judgment.
A lot of people are left in financial crisis due to small mistakes leading to accidents while the individuals with significant faults escape the payment of damages (Dunham 98). This makes the law very unfair.
If the law is changed, the plaintiffs will benefit since they would receive the compensation in a fair court hearing. The court would determine the degree of fault of the two parties and determine the amount of compensation needed. The jurors would also feel comfortable in implementing the judges' findings in comparative negligence as opposed to the complex implementation of the contributory law (Statsky 288).
The court systems and the defendant would suffer (Gardner 9). The probability of the defendant paying the damages would increase since comparative negligence ensures that compensation is made depending on the degree of fault. On the other hand, the courts would have to learn more about the comparative negligence.
What Effect would the Uniform Apportionment of Tort Responsibility Act have on the Doctrine of Contributory Negligence? What Doctrine would have Become Law if the Bill had passed? (It Stalled in the NC Senate and was Never Put to the Vote, although it was Passed by the NC House.) Do you Think that this Proposed Bill from 2009-2010 is a Good Proposal?
The Uniform Apportionment of Tort Responsibility Act would have allowed the plaintiff to receive compensation even when they are at a certain degree of fault (General Assembly of North Carolina 5). The Act was designed to replace the harsh and unjust law of contributory negligence. The courts were obliged to listen to the cases presented to them and then determine the percentage fault of the parties involved. They were also expected to evaluate the damages claimed to determine their magnitude and fair compensation (Dunham 124).
I believe that the proposed Act is a good law that would bring justice to both the defendant and the claimants. The aspect of calculating every party's involvement in the injury or loss of property is a good way of ensuring that no party is denied justice. The Act offers clarity on the situations that would guarantee exceptions thus eliminating vagueness in the law. Such situations include willful plaintiff (General Assembly of North Carolina 4). If the court determines that the plaintiff willfully acquired the injury to seek compensation, then the damages are not awarded. Also, if the court realizes that there was equal percentage contribution, then the plaintiff does not receive any damage.
From these considerations, the act is similar to the comparative negligence doctrine where the employer can have a certain percentage of responsibility despite the employees violating the duty of care. However, there exists a slight difference between the Act and the comparative negligence system because the former does not allow strict liability in product cases (Gardner 15). Comparative negligence law is, therefore, a better law since it permits the payment of damages regardless of the degree of fault.
If you were a Member of the General Assembly, would you Vote to Change the Current Law, or would you keep it the same? If you voted To Change the Law, what System would you put in Place to Distribute Fault?
If I were a member of the General Assembly, I would vote to change the doctrine of contributory negligence. The doctrine leaves room for unfairness and injustice for the plaintiff. The allowance has brought problems to pedestrians and cyclists who are rarely compensated for injuries inflicted by drivers. (Statsky 143). I would recommend putting in place comparative negligence to distribute the fault among the parties involved. The comparative negligence system determines the percentage degree of negligence among the parties involved. The compensation is determined based on this factor which makes it easier for the plaintiff to obtain justice (Gardner 8). For example, if the court finds the plaintiff to be at 20% fault, they are still able to acquire 80% compensation.
Additionally, I would push for a full comparative negligence law that would allow the plaintiff to be paid damages despite being largely at fault. For example, the plaintiff should get 15% damages even when they were found to be at 75% fault. This would deter avoidable injuries and improve the lives of the pedestrians and the cyclists who suffer the most from the effects of the contributory negligence system.
Dunham, Beth Walston. Introduction to Law. CengageBrain Publishers, 2012.
Gardner, Steven. "Contributory Negligence, Comparative Negligence, and Stare Decisis in North Carolina." The Campbell Law Review (1996): 8-45.
General Assembly of North Carolina. "Uniform Apportionment of Tort Responsibility." An Act to Enact the Uniform Apportionment of Tort Responsibility Act. General Assembly of North Carlina, March 2009.
Statsky, William P. Torts: Personal Injury Litigation. CengageBrain Publishers, 2013.
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