The antiquated law of Contributory Negligence is particularly horrible for North Carolina cyclists, but cyclists NOW have a say in abolishing it.
If you’ve met me, you’ve heard talk about contributory negligence many times, including here and here and here. My vocation and my passion as a bike crash attorney is representing injured bicyclists and families of bicyclists who have been killed by careless drivers. Contributory negligence severely impairs the right of these individuals and bicyclists to be fairly compensated.
Now there is a bill pending in the North Carolina legislature that would even the playing field. Senate Bill 477, sponsored by Senators Danny Britt, Jim Perry, and Amy Galey, all Republican legislators, if passed into law, would change North Carolina to a comparative fault state.
Contributory Negligence Must Be Abolished
If you are reading this, you probably already agree that contributory negligence needs to end! In the past several days, Senators have received thousands of emails and calls from citizens (many of whom are bicyclists – thank you!!) supporting this law. But there will be questions and I want you to be ready for them. Those opposed to the change are organizing to defeat the bill and we will start to hear arguments about it. So let me explain this law in a little more detail and hopefully dispel some of the myths that insurance companies have been spreading and will continue to spread.
What is contributory negligence?
Contributory negligence, also known as “contrib,” “pure contributory negligence” and “the 1% rule” is a system by which an injured person who is even 1% at fault for her injuries is entitled to NO damages. Very simply, if someone runs a red light and injures or kills the person with the green light, if the green light person could have seen and avoided a crash, she would not be compensated even one penny for her injuries, even if she ends up in a wheelchair or is otherwise severely injured.
Why is pure Contributory Negligence especially bad for bicyclists?
If you’ve ever had a legal case as a bicyclist, you know the answer to this question. There are hundreds of things the average person misunderstands about bicycling and often we can’t seem to do anything right. You shouldn’t be riding on the road, but you also shouldn’t be on the sidewalk or in a crosswalk.
You should be all the way to the right of the lane; no, you should be more to the middle or the left. Your light is too small. You aren’t wearing a reflective vest. Your clip in pedals are dangerous. These are arguments I hear every day. None are true but all can be effective if all the defense attorney or insurance has to prove is 1%.
How will the new law change things
The language of Senate Bill 477 (“Victims Fair Treatment Act”) might be a little confusing to non-lawyers because it refers to the change as contributory fault, which you may have heard referred to as “comparative fault.” “Comparative fault” is a good description because it compares the fault of the parties. First of all, if the injured person is more than 50% at fault, they still collect nothing for their damages. If they are less than 50% at fault, then they would be compensated for their injuries, less the amount of fault. If the injured person is 10% at fault, they get 90% of their damages; 40% at fault, they get 60% of their damages. You get the idea.
If this law passes, more careless drivers will be held accountable because insurance companies are not going fight cases where there is minimal fault. It’s not worth it. Why hire a lawyer and spend money to fight a case in order to save 1% or 10%? We will see more accountability and greater efficiency in the system.
Abolishing Contributory Negligence will NOT make insurance go up
First of all, insurance rates are regulated by the rate bureau and insurance companies cannot just raise them because they feel like it. More importantly, however, there is no evidence out there that changing to a comparative fault system will raise rates. Remember, North Carolina is one of only 4 states (also MD, VA and AL) in the entire country with this law. Of the comparative states, some have higher rates and some have lower.
There is no correlation to those states having comparative fault systems. Why is this the case? My guess, and it is only a guess, is that the processing of insurance claims in non-contributory negligence states is way more efficient. Fewer lawyers hired and fewer cases tried. Not that I want to legislate myself out of a job, but frankly, I would rather focus my efforts on cases where there are REAL legal issues and not disputes about whether a bicyclist should have been clipped into her pedals or not.
Injured people will still have to prove fault
Here’s an important point the naysayers keep missing. If SB 477 passes and becomes law, an injured person will still first have to prove that the person she is suing is legally negligent, ie. that they did something that the law says is wrong. Nothing about that part will change at all.
If a person buys a product at a store, misuses it and is injured, this law will not change the burden that the injured person has to prove that the store is at fault. Unless the store knew the product was dangerous or altered the product in a dangerous way or had some duty to test the product to make sure it was safe, the store will not be negligent. If a pedestrian jumps into the street in front of a car and the driver is keeping a lookout and following the law but can’t avoid the crash, the pedestrian will not be able to prove that the driver is a fault. That is exactly what the law is now, already, and this bill would not change that.
Ending Contributory Negligence the law will NOT hurt small businesses
First of all, look at the other 46 states that have comparative fault laws. Some of these states even have pure comparative fault, where the injured person is entitled to damages even if more than 50% at fault. Even those states are not lacking in small businesses. Our contributory negligence law does not make North Carolina a haven for small businesses, it makes it a favorite state of major insurers and unscrupulous defense lawyers.
Someone posed a concern that a bike park, for example, would be at risk for people suing for injuries from crashing on obstacles that are supposed to be in the bike park. No, no, no. That is not how this works. Again, the injured person first has to prove that the bike park was negligent. That is the case now and the new law would not change that. Bike parks are supposed to have obstacles that people can crash on. That’s why there are warnings, and waivers. Are there bike parks and other athletic facilities in the 46 states with comparative fault? YES! Are they being hurt by stupid lawsuits? NO!
You don’t even get to the question of comparative fault if you can’t first prove negligence. That will not change, nor should it. Only people who do things wrong, and there are plenty of them out there on the highway texting and driving, should be sued. And they should be held accountable. Right now, in North Carolina, they are not being held accountable. We need to fix that and now is our time.