Plaintiff's Contributory Negligence We first address whether the trial court erred in granting plaintiff's motion for a directed verdict as to plaintiff's contributory negligence. “ ‘Contributory negligence is negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant ... to produce the injury of which the plaintiff complains.’ “ Seay v. Snyder, 181 N.C.App. 248, 251, 638 S.E.2d 584, 587 (2007) (quoting Bosley v. Alexander, 114 N.C.App. 470, 472, 442 S.E.2d 82, 83 (1994)). “A defendant who asserts contributory negligence as a defense has the burden of proving it.”
Unlike Rhode Island, North Carolina applies the doctrine of contributory negligence in tort cases. Bosley v. Alexander, 442 S.E.2d 82, 83, 114 N.C. App. 470, 471 (1994). In the Bosley case, the North Carolina Appellate Court explicitly stated, "The doctrine of contributory negligence, which is a creature of common law followed in this State since Morrison v. Cornelius, 63 N.C. 346 (1869), remains the law of this State until our Supreme Court overrules Morrison."
North Carolina remains one of the few states that continues to recognize the doctrine of contributory negligence. Bosley v. Alexander, 442 S.E.2d 82, 83 (N.C. Ct. App. 1994); Fox v. PGML, LLC, 744 S.E.2d 483, 486 (N.C. Ct. App. 2013). As the North Carolina Court of Appeals explained in Bosley:
" Thompson v. Bradley, 142 N.C. App. 636, 640, 544 S.E.2d 258, 261 (citations omitted), disc. review denied, 353 N.C. 532, 550 S.E.2d 506 (2001). If a plaintiff's own negligence contributed to her injuries in any manner, "she is precluded from recovery irrespective of the acts of others." Culler v. Hamlett, 148 N.C. App. 372, 378, 559 S.E.2d 195, 200 (2002) (emphasis added); see also Bosley v. Alexander, 114 N.C. App. 470, 471, 442 S.E.2d 82, 83 (1994) (noting that the U.S. Supreme Court in Pope Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 98 L. Ed. 143, 150 (1953) "described contributory negligence as a `discredited doctrine which automatically destroys all claims of injured persons who have contributed to their injuries in any degree, however slight'"). Contributory negligence is the controlling doctrine in North Carolina.
However, “[a] finding of contributory negligence is a bar to recovery from a defendant for acts of ordinary negligence." Bosley v. Alexander, 114 N.C.App. 470, 472, 442 S.E.2d 82, 83-84 (1994) . Here, the trial court granted defendant's summary judgment motion as to contributory negligence and denied it as to actionable negligence.
Bosleyv. Alexander, 114 N.C.App. 470, 472, 442 S.E.2d 82, 83 (1994) (quoting Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471 (1967) ). To establish contributory negligence, a defendant must demonstrate: “(1) a want of due care on the part of the plaintiff; and (2) a proximate connection between the plaintiff's negligence and the injury."
Id. at 187, 176 S.E.2d at 794-95. In Bosley v. Alexander, 114 N.C. App. 470, 442 S.E.2d 82 (1994), Judge Wynn undertook an analysis of our State's doctrine of contributory negligence: Contributory negligence is "negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant . . . to produce the injury of which the plaintiff complains."
In North Carolina, “[a] finding of contributory negligence is a bar to recovery from a defendant for acts of ordinary negligence.” Bosley v. Alexander, 114 N.C.App. 470, 472, 442 S.E.2d 82, 83–84 (1994). Summary judgment is rarely appropriate for contributory negligence issues.
Although forty-six states have abandoned the doctrine of contributory negligence in favor of comparative negligence, contributory negligence continues to be the law of this State until our Supreme Court overrules it or the General Assembly adopts comparative negligence. Bosley v. Alexander, 114 N.C. App. 470, 471, 442 S.E.2d 82, 83 (1994). It is therefore beyond this Court's authority to abandon the doctrine of contributory negligence. Corns, 112 N.C. App. at 237, 435 S.E.2d at 91.
In fact, forty-six states have abandoned the doctrine of contributory negligence in favor of comparative negligence. Bosley v. Alexander, 114 N.C. App. 470, 471, 442 S.E.2d 82, 83 (1994). In this state, in 1981, the Legislative Research Commission recommended to the General Assembly that it abolish the doctrines of contributory negligence and last clear chance by enacting the Commission's proposed statute on comparative fault.