For years North Carolina has been a “contributory negligence” state meaning that a plaintiff who is even one percent at fault for his injuries is barred from recovery. However, legislation introduced in the North Carolina General Assembly last session could vastly change tort law in North Carolina. Although the legislation did not pass this past session, it remains alive in a Senate subcommittee that could have a final version of a bill for consideration in time for the Assembly’s short session scheduled to begin in May of 2010.

The proposed legislation would abolish the common law doctrine of contributory negligence in favor of some form of comparative negligence. Virginia, Alabama, the District of Columbia and Maryland are the only jurisdictions that retain a pure contributory negligence liability analysis. Some form of comparative fault has been adopted in 46 other states.

The bill under current consideration is the Uniform Apportionment of Tort Responsibility Act or UATRA, which draws on comparative fault systems from around the country. Despite its name, North Carolina would be the first to formally adopt the legislation. Only Connecticut and Oregon have adopted a similar statutory format.

On the positive side for businesses, the proposed legislation could lead to some modification of the operation of the joint and several liability doctrine in North Carolina. Currently, under the joint and several liability doctrine, a defendant who is even one percent negligent is potentially liable for the entire amount of damages awarded to a plaintiff. Thus a company with assets could end up shouldering the entire burden of a judgment when found jointly liable with an insolvent defendant, even if the solvent defendant bore very little responsibility for the accident and resulting damage.

The legislation in large part is being pushed by the N.C. Advocates for Justice (formerly the N.C. Academy of Trial Lawyers). The N.C. Association of Defense Attorneys and N.C. Chamber have opposed the legislation overall but also have pushed for defense oriented revisions to the proposed legislation. Only time will tell whether North Carolina will adopt monumental changes to its tort system.