North Carolina adheres to the common law doctrine of contributory negligence. The rule, which has been jettisoned by 46 states in favor of some form of comparative fault, bars recovery by a negligent plaintiff, even if a defendant’s negligence joins to cause the injury. On September 15, 2020, the North Carolina Court of Appeals confirmed contributory negligence will remain the law of this state. At least for now.

Saunders v. Hull Property Group is, for all intents and purposes, an ordinary premises liability case. The plaintiff tripped and fell in a mall parking lot. She sued the owner and operator of the mall for negligence. The defense focused, at least in part, on her comparative fault. But the plaintiff saw more than a run-of-the-mill trip and fall case. She saw an opportunity to alter North Carolina’s tort landscape. At trial, the plaintiff acknowledged that contributory negligence is the law. Nonetheless, she asked the trial court judge to instruct the jury on comparative negligence instead. The judge declined the invitation. The judge instructed the jury on contributory negligence, and the jury found negligence on the part of both the plaintiff and the defendants. As such, the plaintiff made no recovery. Aggrieved, the plaintiff sought direct review by the North Carolina Supreme Court.

The plaintiff petitioned the North Carolina Supreme Court for discretionary review prior to a determination by the North Carolina Court of Appeals. This procedure permits a party to seek direct review of a lower court ruling in extraordinary circumstances. Plaintiff, and its amici, argued that contributory negligence should be abolished as a matter of public policy. Plaintiff described the doctrine as “harsh,” “deplorable,” and “heartless.” She noted that North Carolina is one of four states that has retained contributory negligence. Plaintiff cited case law from around the country rebuking the rule, including a 1953 United States Supreme Court opinion that characterized contributory negligence as a “discredited doctrine.” Pope & Talbot v. Hawn, 346 U.S. 406, 409 (1953). Yet the North Carolina Supreme Court declined to join the majority of states and adopt some form of comparative negligence. On November 4, 2019, the Supreme Court denied the petition for discretionary review, effectively ending the plaintiff’s efforts to eliminate contributory negligence in North Carolina.

And yet, the plaintiff continued with her appeal. In a five-page unpublished opinion, the plaintiff effectively conceded that this policy change must come from the Supreme Court or the General Assembly; not the Court of Appeals. For its part, the Court of Appeals recognized that contributory negligence has been the law in North Carolina since 1869, and it is bound to follow this precedent. In its final paragraph, the Court of Appeals wrote that:

We acknowledge that Plaintiff has presented many arguments for why the time has come to abandon contributory negligence and to adopt comparative negligence. Although this Court has no authority to act on those arguments, we acknowledge that they were presented to us and thus are preserved should Plaintiff seek further appellate review in the Supreme Court.

The plaintiff in Saunders must now decide if she wants to take another run at the Supreme Court. On the one hand, the Supreme Court’s prior denial of her petition for discretionary review suggests that the writing is on the wall if a second petition is filed. But then again, three justices are up for re-election this fall, including Chief Justice Cheri Beasley, who is being challenged by her colleague Justice Paul Newby. This race alone ensures that in some form or another, the Supreme Court will change in 2021. Whether this change will alter how the Court views contributory negligence, and the policy arguments advanced in Saunders, is unknown. For now, contributory negligence is the law of North Carolina. But, the arguments against contributory negligence are not going away anytime soon.

Please contact Steven Bader if you have questions about contributory negligence, comparative fault, or North Carolina appellate procedure.