Tuesday, May 19, 2009
Contributory negligence; and then there were three?
I believe there are only four states that still apply the old common law rule of contributory negligence according to which a negligent plaintiff can't recover from a negligent defendant regardless of how insignificant the plaintiff's negligence may have been. Soon that number may be reduced by one. The Torts Prof Blog is reporting today that a Bill that would change North Carolina to a comparative fault jurisdiction was approved by the North Carolina House of Representatives last week. According to the bill, however, a plaintiff would be allowed to recover only if the plaintiff was less negligent than the defendant. Obviously, this is an example of a so-called "modified" comparative negligence system which I have always argued is no comparative negligence system at all. If anything, it is a modified contributory negligence system since all it does is modify the threshold for the application of the old contributory negligence rule to apply. In other words, jurisdictions that apply a "modified" system in reality are still applying a contributory negligence system, the only difference with the old common law system being the point at which the consequences of the plaintiff's conduct take effect. The only real comparative negligence system is the so called "pure" system, which still appears to be the minority rule among jurisdictions.