GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2023
H 1
HOUSE BILL 811
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Short Title: Abolish Contributory Negligence. |
(Public) |
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Sponsors: |
Representatives Longest, Logan, Morey, and Harrison (Primary Sponsors). For a complete list of sponsors, refer to the North Carolina General Assembly web site. |
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Referred to: |
Rules, Calendar, and Operations of the House |
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April 19, 2023
A BILL TO BE ENTITLED
AN ACT to abolish contributory negligence and establish modified comparative negligence by ALLOWING recovery if the plaintiff's contributory negligence is less than or equal to the defendant's negligence.
The General Assembly of North Carolina enacts:
SECTION 1.(a) G.S. 1B‑2 reads as rewritten:
"§ 1B‑2. Pro rata shares.
In determining the pro rata shares of tort‑feasors in the entire liability
(1) Their relative degree of
fault shall not be considered;
(2) If equity requires, the collective liability of some as a group shall constitute a single share; and
(3) Principles of equity applicable to contribution generally shall apply."
SECTION 1.(b) G.S. 1‑139 is repealed.
SECTION 1.(c) Article 15 of Chapter 1 of the General Statutes is amended by adding a new section to read:
"§ 1‑139.1. Recovery based upon comparing negligence.
Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or injury to person or property if the contributory negligence was equal to or less than the negligence which must be established in order to recover from the party against whom recovery is sought."
SECTION 2.(a) G.S. 1A‑1, Rule 8(c), reads as rewritten:
"(c) Affirmative
defenses. – In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of
risk, contributory negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of frauds,
statute of limitations, truth in actions for defamation, usury, waiver, and any
other matter constituting an avoidance or affirmative defense. Such pleading
shall contain a short and plain statement of any matter constituting an
avoidance or affirmative defense sufficiently particular to give the court and
the parties notice of the transactions, occurrences, or series of transactions or
occurrences, intended to be proved. When a party has mistakenly designated a
defense as a counterclaim or a counterclaim as a defense, the court, on terms,
if justice so requires, shall treat the pleading as if there had been a proper
designation."
SECTION 2.(b) G.S. 20‑11(l) reads as rewritten:
"(l) Violations.
– It is unlawful for the holder of a limited learner's permit, a temporary
permit, or a limited provisional license to drive a motor vehicle in violation
of the restrictions that apply to the permit or license. Failure to comply with
a restriction concerning the time of driving or the presence of a supervising
driver in the vehicle constitutes operating a motor vehicle without a license.
Failure to comply with the restriction regarding the use of a mobile telephone
while operating a motor vehicle is an infraction punishable by a fine of twenty‑five
dollars ($25.00). Failure to comply with any other restriction, including
seating and passenger limitations, is an infraction punishable by a monetary penalty
as provided in G.S. 20‑176. Failure to comply with the provisions of
subsections (e) and (g) of this section shall not constitute negligence per se or
contributory negligence by the driver or passenger in any action for the
recovery of damages arising out of the operation, ownership or maintenance of a
motor vehicle. Any evidence of failure to comply with the provisions of
subdivisions (1), (2), (3), (4), and (5) of subsection (e) of this section
shall not be admissible in any criminal or civil trial, action, or proceeding
except in an action based on a violation of this section. No drivers license
points or insurance surcharge shall be assessed for failure to comply with
seating and occupancy limitations in subsection (e) of this section. No drivers
license points or insurance surcharge shall be assessed for failure to comply
with subsection (e) or (g) of this section regarding the use of a mobile
telephone while operating a motor vehicle."
SECTION 2.(c) G.S. 20‑126(c) reads as rewritten:
"(c) No person shall
operate a motorcycle upon the streets or highways of this State unless such
motorcycle is equipped with a rearview mirror so mounted as to provide the
operator with a clear, undistorted and unobstructed view of at least 200 feet
to the rear of the motorcycle. No motorcycle shall be registered in this State
after January 1, 1968, unless such motorcycle is equipped with a rearview
mirror as described in this section. Violation of the provisions of this
subsection shall not be considered negligence per se or contributory
negligence per se in any civil action."
SECTION 2.(d) G.S. 20‑137.1(d) reads as rewritten:
"(d) A violation of this section shall have all of the following consequences:
(1) Two drivers license points shall be assessed pursuant to G.S. 20‑16.
(2) No insurance points shall be assessed.
(3) The violation shall not
constitute negligence per se or contributory negligence per se.
(4) The violation shall not
be evidence of negligence or contributory negligence."
SECTION 2.(e) G.S. 20‑137.4(f) reads as rewritten:
"(f) Penalty. – A
violation of this section shall be a Class 2 misdemeanor and shall be
punishable by a fine of not less than one hundred dollars ($100.00). No drivers
license points or insurance surcharge shall be assessed as a result of a
violation of this section. Failure to comply with the provisions of this
section shall not constitute negligence per se or contributory negligence by
the operator in any action for the recovery of damages arising out of the
operation, ownership, or maintenance of a school bus."
SECTION 2.(f) G.S. 20‑137.4A(c) reads as rewritten:
"(c) Penalty. – A violation of this section while operating a school bus, as defined in G.S. 20‑137.4(a)(4), shall be a Class 2 misdemeanor and shall be punishable by a fine of not less than one hundred dollars ($100.00). Any other violation of this section shall be an infraction and shall be punishable by a fine of one hundred dollars ($100.00) and the costs of court.
No drivers license points or
insurance surcharge shall be assessed as a result of a violation of this
section. Failure to comply with the provisions of this section shall not
constitute negligence per se or contributory negligence per se by the
operator in any action for the recovery of damages arising out of the
operation, ownership, or maintenance of a vehicle."
SECTION 2.(g) G.S. 20‑140.4(b) reads as rewritten:
"(b) Violation of any
provision of this section shall not be considered negligence per se or
contributory negligence per se in any civil action."
SECTION 2.(h) G.S. 20‑141(n) reads as rewritten:
"(n) Notwithstanding any
other provision contained in G.S. 20‑141 or any other statute or law
of this State, the failure of a motorist to stop his vehicle within the radius
of its headlights or the range of his vision shall not be held negligence
per se or contributory negligence per se."
SECTION 2.(i) G.S. 20‑158(d) reads as rewritten:
"(d) No failure to stop
as required by the provisions of this section shall be considered negligence
or contributory negligence per se in any action at law for injury to person
or property, but the facts relating to such failure to stop may be considered
with the other facts in the case in determining whether a party was guilty of negligence
or contributory negligence."
SECTION 2.(j) G.S. 20‑158.1 reads as rewritten:
"§ 20‑158.1. Erection of "yield right‑of‑way" signs.
The Department of Transportation,
with reference to State highways, and cities and towns with reference to
highways and streets under their jurisdiction, are authorized to designate main‑traveled
or through highways and streets by erecting at the entrance thereto from
intersecting highways or streets, signs notifying drivers of vehicles to yield
the right‑of‑way to drivers of vehicles approaching the intersection
on the main‑traveled or through highway. Notwithstanding any other
provisions of this Chapter, except G.S. 20‑156, whenever any such
yield right‑of‑way signs have been so erected, it shall be unlawful
for the driver of any vehicle to enter or cross such main‑traveled or
through highway or street unless he shall first slow down and yield right‑of‑way
to any vehicle in movement on the main‑traveled or through highway or
street which is approaching so as to arrive at the intersection at
approximately the same time as the vehicle entering the main‑traveled or
through highway or street. No failure to so yield the right‑of‑way
shall be considered negligence or contributory negligence per se in any
action at law for injury to person or property, but the facts relating to such
failure to yield the right‑of‑way may be considered with the other
facts in the case in determining whether either party in such action was guilty
of negligence or contributory negligence."
SECTION 2.(k) G.S. 20‑175.3 reads as rewritten:
"§ 20‑175.3. Rights and privileges of blind persons without white cane or guide dog.
Nothing contained in this Part
shall be construed to deprive any blind or partially blind person not carrying
a cane white in color or white tipped with red, or being accompanied by a guide
dog, of any of the rights and privileges conferred by law upon pedestrians
crossing streets and highways, nor shall the failure of such blind or partially
blind person to carry a cane white in color or white tipped with red, or to be
accompanied by a guide dog, upon the streets, roads, highways or sidewalks of
this State, be held to constitute or be evidence of contributory negligence
by virtue of this Part."
SECTION 2.(l) G.S. 95‑229.12 reads as rewritten:
"§ 95‑229.12. Application.
Nothing in this Article shall
relieve any person from complying with any safety rule, regulation, or statute
not imposed by this Article. A violation of this Article shall not constitute negligence
or contributory negligence, nor give rise to any cause of action based upon
injury to persons or property. An action may be brought by an owner or operator
of a high‑voltage line to recover the cost of precautionary safety
arrangements or for damage to its facilities. Nothing contained in this Article
shall be construed to alter, amend, restrict, or limit the liability of any
person for violation of that person's duty under law; nor shall any person be
relieved from liability as a result of violations of standards under existing
law where such violations of existing standards of care are found to be a cause
of damage to property, personal injury, or death."
SECTION 2.(m) G.S. 113‑291.8(c) reads as rewritten:
"(c) Failure to wear
hunter orange material in violation of this section shall not constitute negligence
per se or contributory negligence per se.negligence."
SECTION 2.(n) G.S. 143‑291(a) reads as rewritten:
"(a) The North Carolina
Industrial Commission is hereby constituted a court for the purpose of hearing
and passing upon tort claims against the State Board of Education, the Board of
Transportation, and all other departments, institutions and agencies of the
State. The Industrial Commission shall determine whether or not each individual
claim arose as a result of the negligence of any officer, employee, involuntary
servant or agent of the State while acting within the scope of his office,
employment, service, agency or authority, under circumstances where the State
of North Carolina, if a private person, would be liable to the claimant in
accordance with the laws of North Carolina. If the Commission finds that there
was negligence on the part of an officer, employee, involuntary servant servant,
or agent of the State while acting within the scope of his their office,
employment, service, agency agency, or authority that was the
proximate cause of the injury and that there was no contributory negligence
on the part of the claimant or the person in whose behalf the claim is
asserted, injury and any negligence on the part of the claimant or the
person in whose behalf the claim is asserted, was equal to or less than the negligence
on the part of the officer, employee, involuntary servant, or agent of the
State, the Commission shall determine the amount of damages that the
claimant is entitled to be paid, including medical and other expenses, and by
appropriate order direct the payment of damages as provided in subsection (a1)
of this section, but in no event shall the amount of damages awarded exceed the
amounts authorized in G.S. 143‑299.2 cumulatively to all claimants
on account of injury and damage to any one person arising out of a single
occurrence. Community colleges and technical colleges shall be deemed State
agencies for purposes of this Article. The fact that a claim may be brought
under more than one Article under this Chapter shall not increase the foregoing
maximum liability of the State."
SECTION 2.(o) G.S. 143‑299.1 reads as rewritten:
"§ 143‑299.1. Contributory negligence Negligence
a matter of defense; burden of proof.
Contributory Any negligence on the
part of the claimant or the person in whose behalf the claim is asserted shall
be deemed to be a matter of defense on the part of the State department,
institution or agency agency, department, or institution against
which the claim is asserted, and such State department, institution or agency
shall have the burden of proving that the claimant or the person in whose
behalf the claim is asserted was guilty of contributory negligence.negligence
that was equal to or less than the negligence which must be established in
order to prevail against the State agency, department, or institution against
which the claim is asserted."
SECTION 2.(p) G.S. 143‑300.1A reads as rewritten:
"§ 143‑300.1A. Claims arising from certain smallpox vaccinations of State employees.
The North Carolina Industrial Commission shall have
jurisdiction to hear and determine claims in accordance with the procedures set
forth in this Article made against the State by a person who is permanently or
temporarily living in the home of a State employee who receives in employment
vaccination against smallpox incident to the Administration of Smallpox
Countermeasures by Health Professionals, section 304 of the Homeland Security
Act, Pub. L. No. 107‑296 (Nov. 25, 2002) (to be codified at 42 U.S.C. §
233(p)) when the person contracts an infection with smallpox or an infection
with vaccinia or has any adverse medical reaction due to the vaccination
received by the employee. A person covered by this section shall be entitled to
recover from the State damages incurred by the person that are directly
attributable to the vaccination of the employee under this section. No showing
of negligence is required under this section. The provisions of G.S. 143‑299.1
shall not apply to claims made under this section, and contributory
negligence is not a defense for claims under this section. Damages awarded
under this section shall be paid in accordance with G.S. 143‑291(a1)
and shall be subject to the same limits as those which apply to tort claims
under this Article."
SECTION 3. G.S. 1A‑1, Rule 7(a), reads as rewritten:
"(a) Pleadings. – There
shall be a complaint and an answer; a reply to a counterclaim denominated as
such; an answer to a crossclaim, if the answer contains a crossclaim; a third‑party
complaint if a person who was not an original party is summoned under the
provisions of Rule 14; and a third‑party answer, if a third‑party
complaint is served. If the answer alleges contributory negligence, a party
may serve a reply alleging last clear chance. No other pleading shall be
allowed except that the court may order a reply to an answer or a third‑party
answer."
SECTION 4. G.S. 90‑95.5 reads as rewritten:
"§ 90‑95.5. Civil liability – employing a minor to commit a drug offense.
A person 21 years of age or older,
who hires, employs, or intentionally uses a person under 18 years of age to
commit a violation of G.S. 90‑95 is liable in a civil action for
damages for drug addiction proximately caused by the violation. The doctrines
doctrine of contributory negligence and assumption of risk are
is no defense to liability under this section."
SECTION 5. This act becomes effective on October 1, 2023, and applies to claims arising on or after that date.