NC Court of Appeals Decision Reaffirms Contributory Negligence Defense is Not Absolute
Klapp v. Buck, a recent unpublished opinion by Judge Dillon of the North Carolina Court of Appeals revisits the defense of contributory negligence and confirms that this affirmative defense is not absolute.
Background of the Case
This case stems from an accident where Defendant’s vehicle collided with the Plaintiff who was riding her bicycle. The evidence showed Defendant’s vehicle collided with the side of the Plaintiff’s bicycle as the Defendant was attempting a left turn and while Plaintiff was traveling straight through the intersection. The Plaintiff’s bike was equipped with a white blinking light on the front, a red light on the back, and Plaintiff also had a red blinking light attached to the back of her jersey. As she approached the intersection behind stopped cars, the light turned green. The Plaintiff observed the Defendant’s vehicle move into the intersection to make the left turn. The Defendant yielded to the vehicles in front of the Plaintiff. The Plaintiff assumed he would also yield the right of way to her. However, he failed to do so and struck her.
During the trial, the Plaintiff moved for a directed verdict on the issue of contributory negligence contending that there was no evidence to support the defense. This Motion was denied. The jury found the Defendant to be negligent, but also found the Plaintiff to be contributorily negligent, resulting in a defense verdict. The Plaintiff appealed.
On appeal, the Court noted a plaintiff is “not required to anticipate that the defendant [will] be negligent” in the context of a motor vehicle accident. Cicogna v. Holder, 345 N.C. 488, 489, 480 S.E.2d 636, 637 (1997). Further, while a plaintiff has a duty to take due care on the road, “he is entitled to assume, even to the last moment, that [another] driver . . . will comply with the law and stop before [illegally] entering” the highway or intersection. Snider v. Dickens, 293 N.C. 356, 358, 237 S.E.2d 832, 834 (1977) (emphasis in original).
In its opinion, the Court utilized the case Daisy v. Yost, 250 N.C.App. 530, 794 S.E.2d 364 (2016), which considered the same issue and had facts very similar to Klapp v. Buck (albeit car vs car rather than car vs bicycle). The Court in Daisy concluded that a finding of contributory negligence was improper as “there was no more than a scintilla of evidence that the plaintiff was contributorily negligent” and remanded the case back to the trial court on the issue of damages. Daisy v. Yost, 250 N.C.App. 530, 794 S.E.2d 364 (2016). Similarly, in Klapp v. Buck, the Court used the “no more than a scintilla of evidence” language in its opinion and remanded it back to the trial court to determine damages.
Implications of the Decision
The Court’s review of the facts and relevant case law suggests the bicyclist was not negligent in any way.
Interestingly, the “no more than a scintilla of evidence” language used by the Court suggests there was at least some small amount of evidence plaintiff was negligent but was not enough to establish she was contributorily negligence. The presence of some evidence of contributory negligence is not fatal to a plaintiff’s claim, as the law is clear the record must show “more than a scintilla of evidence that plaintiff is contributorily negligent” to establish the defense. Boyd v. Wilson, 269 N.C. 728, 730, 153 S.E.2d 484, 486 (1967) (emphasis added). This case reaffirms that contributory negligence is not an absolute defense in negligence claims.
This case highlights a common misconception related to the application of contributory negligence as an affirmative defense as the law suggests that, where a plaintiff is 1% at fault, the claims should be barred. However, in practice, Courts and juries tend to expect more than that 1% of fault to bar claims based on a plaintiff’s contributory negligence. Even though unpublished opinions hold no precedential value, be ready to distinguish the facts of your case from the Klapp facts because claimants will be pointing to this case for some time as a way to discount the value you place on your contributory negligence defenses.