Think of all the times in your life you have pressed the walk button, waited for the lights to change to red, got the “all clear” signal, and then proceeded to cross the street. If a driver ran the red light and hit you while you were in the crosswalk while you had the right of way, they would be at fault and you would be compensated for your injuries, right? Not so fast.
Even if the sequence of events happened as mentioned above, you may not collect anything for damages in North Carolina due to “contributory negligence.” Under the obscure doctrine of “contributory negligence,” people who negligently harm others and are 99% at fault are legally not required to compensate their victims. In our thought experiment above, the driver who ran the red light could argue that you had headphones and couldn’t hear, or that you didn’t look both ways. If a jury agreed that you contributed just 1% to the blame for the crash, you would not be able to recover anything. Stated plainly, contributory negligence means that you cannot recover money for any injuries caused by a negligent person if you are deemed even 1% at fault. The person who hit you would not be accountable for their actions. Not at all.
For those of us who advocate for better walking, biking, rolling, and transit, contributory negligence can be especially unjust and harmful.
As we know all too well, many people consider walking and biking to be inherently risky activities and are all too ready to blame the person walking or riding. Most news coverage tends to subtly shift blame to the victim (“car hits cyclist”, or similar, is the usual passive construction). People are more used to navigating our streets by car than by bike, foot, or bus. This bias is found in police reports, courtrooms, and jury boxes. If most people on a jury think riding a bike is inherently risky, they will be more likely to find that 1% fault regardless of facts. That 1% is all it takes to lose all hopes of recovering even just a small amount of compensation for damages or injury. Check out BikeLawNC to learn more about how the current law negatively impacts people on bikes.
What about insurance? That’s why drivers are required to have it, right? No. With contributory negligence, it is just as difficult, if not more difficult, to recover money from insurance companies as it is in court because insurance companies know that the law plays in their favor. Our friends at BikeLawNC have stories of insurance claims rejected on the basis of contributory negligence. Contributory negligence makes it harder to recover damages in court and harder to receive compensation through insurance companies. This is true even if the person who hits you is negligent and 99% at fault. They can walk away with zero consequence.
There is an opportunity to change this zero sum game for those of us who navigate our streets exposed to negligent drivers. A bill was recently introduced in the NC Senate—Senate Bill 477 The Victims’ Fair Treatment Act— to move away from contributory negligence and use comparative negligence like 45 other states. Comparative negligence essentially eliminates the “all-or-nothing” framework and increases the likelihood of compensation for victims.
Our friends at BikeLawNC have written more extensively about putting an end to contributory negligence. Bike Durham has asked our state lawmakers to support the Victim’s Fair Treatment Act. To support The Victims’ Fair Treatment Act yourself, take a moment to join the movement and contact your lawmaker.
Tyler J. Dewey (he/him) is a Bike Durham volunteer and full-time bike commuter. Prior to transitioning to Durham, he worked as the executive director of a bicycle non-profit organization in Athens, GA where he facilitated bicycle education programs, headed up bicycle advocacy, and co-ran a bike recycling program.