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Strong Business Defense Shuts Down Legal and Legislative Pathways to Comparative Fault Standard – For Now

Editor’s note: Interested in aligning with other North Carolina job creators to shape a top-10 business legal climate here in our state? Contact NC Chamber Legal Institute President Ray Starling to learn what you stand to gain from your engagement and support.

On April 14, the N.C. Supreme Court brought an end to the case of Saunders v. Hull Property Group, LLC, the latest legal challenge to the longstanding doctrine of contributory negligence at the core of North Carolina’s balanced civil liability system.

In a win for job creators – and for anyone who enjoys paying reasonable liability insurance rates or navigating a manageable litigation climate – an attempt by plaintiffs’ lawyers’ advocates to litigate North Carolina’s abandonment of contributory negligence was stopped short by our state’s highest court. Acting with proper adherence to established law, the Supreme Court denied a petition for discretionary review of a unanimous N.C. Court of Appeals ruling against the plaintiff’s unlawful argument in this case.

The contributory negligence doctrine, which the N.C. Supreme Court has long recognized as the common law rule in North Carolina, is based on the rational notion that a plaintiff generally should not recover damages for an injury caused by their own negligence. It also stems, at least in part, from a similar notion: that individuals have an obligation to take reasonable steps to keep themselves safe.

There are, of course, exceptions to contributory negligence for situations like those involving a defendant’s gross negligence or willful misconduct. These provide sensible guard rails and ensure that fair outcomes are fostered for both plaintiffs and defendants while controlling litigation-related costs in our state.

The facts in Saunders v. Hull involve a plaintiff who sustained serious injuries when she tripped over an uneven area of pavement in the parking lot of Hendersonville’s Blue Ridge Shopping Mall. In the ensuing lawsuit, a Superior Court jury found that the plaintiff’s negligence had contributed to her injury. Consequently, she was denied any recovery. The plaintiff’s lawyers unsuccessfully urged the Superior Court judge to instruct the jury that the plaintiff’s negligence was outweighed by that of the defendants, such that her recovery should be offset only to the degree that her negligence contributed to the cause of her injury.

This argument is the essence of the comparative fault standard, a doctrine holding sway in many other states that gives negligent plaintiffs and their lawyers significant leverage to recover exorbitant settlements. And this claim is reinforced by research: A notable study from the 1990s concluded that states abandoning contributory negligence in favor of a partial or full comparative fault standard should do so only with the expectation of seeing costs rise across their liability systems – a sure sign of an out-of-control lawsuit climate if I’ve ever heard one.

Fortunately, the Superior Court jurors in Saunders v. Hull, bound as they were by the settled law of our state, denied the argument put forth by the plaintiff and her lawyers. After the N.C. Supreme Court refused the plaintiff’s attempt to directly appeal in that venue, the case went to the N.C. Court of Appeals. There, members of a three-judge panel – also recognizing their solemn duty to uphold established North Carolina law – unanimously affirmed the Superior Court’s judgment.

The plaintiff again sought review at the N.C. Supreme Court, though the Court was not obligated to take the case given the 3-0 decision in the Court of Appeals. The NC Advocates for Justice, an organization of plaintiffs’ lawyers, and the NC Association of Defense Attorneys (NCADA), both appeared as amicus. The NCADA, in its proposed brief, argued that it was not the proper role of the courts to change a longstanding and settled matter of state law like contributory negligence. We agreed, and the NC Chamber Legal Institute (CLI) supported this position along with the NC Chamber.

The saga of Saunders v. Hull, as I mentioned at the start, ended there, with the Supreme Court’s ultimate denial of the plaintiff’s appeal. By this point, however, a new front in the battle between the doctrines of contributory negligence and comparative fault had opened at the General Assembly. On April 1, several weeks before Saunders v. Hull was laid to rest, Senate Bill 477 was introduced in the state legislature, seeking a similar bad policy outcome.

Titled the “Victims’ Fair Treatment Act” – though perhaps more accurately called the “Subsidize Plaintiffs’ Lawyers at the Expense of Our Balanced Legal Climate Act” – Senate Bill 477 sought to more easily enable recovery for negligent plaintiffs and their lawyers by abandoning contributory negligence in favor of comparative fault. If the bill had passed, it would have allowed negligent plaintiffs to recover damages in virtually any case except those where a jury found their percentage of responsibility was greater than the combined responsibility of all other parties involved.

Assigning a precise measure of legal responsibility is, of course, more art than science. And while one might argue we have charged juries with equally difficult duties for centuries, there is reasonable cause for concern whenever a new Pandora’s box is opened to unleash an entirely novel manner of subjective choice in the jury room. Moreover, because Senate Bill 477 would have enabled recovery for negligent plaintiffs so long as their negligence was deemed less severe than the combined negligence of the other parties, it would have incentivized plaintiffs’ lawyers – who can collect nearly half their clients’ settlement costs – to target the largest conceivable number of defendants with every lawsuit.

Fortunately, Senate Bill 477 failed to make it past the General Assembly’s crossover threshold, thanks in part to the staunch resistance of the NC Chamber and a broad swath of the state’s business community. About the best I can say of the bill is that it was bad policy attempted through the proper venue. The legislative branch, not the judicial, is where sweeping policy changes with broad, statewide impacts should be decided on their merits – and in a case like Senate Bill 477, fail on their utter lack thereof.

This is how it would be, in a perfect policy world. I’ve learned all too well, however, that bad policy can come from almost any direction. Too often, I’ve seen our courts become venues for the opponents of growth to successfully achieve their policy aims through litigation. The forced cancellation of the Atlantic Coast Pipeline is just one such recent example.


Ray Starling
NC Chamber Legal Institute