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City Spatters One Man's Dream

"Contributory negligence" laws are used to deny justice to those who can't afford to sue


For seven years, Randy Drake worked on the 1971 Harley Davidson Superglide that was his passion. He rebuilt it from the ground up, starting with just a frame, and then added part after part as he scrounged them up.

Drake survives on the disability checks he receives, and the bike was the one extravagance he allowed himself. He scrimped and saved to buy parts, and over the years he put $15,000 into it.

When Drake finally strapped on his helmet this past April 29 to make his maiden voyage on the bike, he envisioned long hours spent riding in the sun in the months ahead. He has instead spent those hours -- hundreds of them -- navigating a bureaucratic maze.

Things began to go downhill when he pulled out of a Statesville Road gas station. Because of the trees and a produce stand near the station, he didn't immediately notice the city paint-striping truck ahead of him in the right lane. He says he'd have had plenty of time to slow down and avoid it had it not been for the other city truck accompanying it. That truck started out in the left lane, then switched into the right lane behind him and rode right up onto Drake's bumper. Drake says he had no choice but to accelerate forward. At that point, he and the motorcycle were blasted with yellow paint that completely covered his sunglasses, momentarily blinding him. All the while, cars whizzed by in the left lane, blocking him from going around the paint truck as the second truck closed in from behind.

The paint destroyed the bike's exterior, choked the engine, and wreaked havoc with its operating systems. Naturally, Drake figured someone owed him some money.

He was about to learn what thousands before him had, one at a time. Because of antiquated mid-19th Century negligence laws in North Carolina, the City of Charlotte didn't have to pay Drake a dime.

North Carolina is one of only four states that still have "contributory negligence" laws on the books. If a person is found to be even one percent at fault in a case in which someone else caused 99 percent of the damage, that other person owes him nothing. Zip.

Drake says the city's risk management department told him he was at fault because he didn't drive around the paint truck, even though Drake's only options at the time were to drive into passing traffic in the left lane or off the road into a ditch. City Risk Manager Scott Denham declined to discuss the details of Drake's case for this article.

Denham did, however, describe how the concept of contributory negligence works when someone gets into an auto accident caused by another driver: "If I turned my head and looked the other way, if I looked up at the mirror and didn't look the other way or I sneezed, then I have contributed to the negligence and therefore cannot hold the other party liable for my loss."

Unlike North Carolina, 46 other states practice some form of comparative negligence, where if a jury finds you are entitled to $10,000 for your injuries, but that you are 10 percent at fault in the accident that caused them, you get $9,000.

"There have been efforts to change to a comparative negligence system [in NC] for more than 30 years and the fact that it hasn't been changed speaks to the strength of the insurance lobby," said Raleigh lawyer Elizabeth Kuniholm.

If insurance companies in North Carolina used the contributory negligence excuse every time one of their clients got into an accident, attorneys say, no one would buy insurance anymore, so they spring it on accident victims here and there in a pattern that seems somewhat random.

Charlotte attorney Richard Peniston says it's quite possible that if Drake took his case to court, a jury would find the city 100 percent responsible. But, say attorneys, both the insurance companies and the city know that most people can't afford to take them to court.

"The abuse is in the city's risk management or the insurance company throwing that up as a defense because it's handy," said Peniston, who said he has handled at least 100 contributory negligence cases involving the city over the years.

Worse yet, even if an accident victim does take the city or an insurance company to court, the most they can usually hope to win is the total amount of damages to their vehicle. Judges occasionally award attorney's fees to accident victims as well, but it's rare. That means most victims have to pay their attorney's fees out of the damages they win, leaving them with insufficient funds to pay their medical bills or fix their vehicles.

Peniston said he and other attorneys couldn't afford to take a case like Drake's. "The end result if you win is $4,000," said Peniston. "It doesn't pay for the overhead."

In another case Peniston is handling at the moment, a driver attempting to pass another driver in front of him crossed a double yellow line and hit the first driver, who had stopped and was attempting to turn left. The insurance company for the driver who caused the accident is now claiming the other driver is partially at fault because his left rear turn signal wasn't working at the time.

The whole thing drives Peniston nuts.

"What the insurance companies like to say is if you are one percent at fault, we don't have to pay," said Peniston. "I just feel like I'll snap if I hear it one more time. We just see it week in and week out."

Unfortunately, the state's contributory negligence laws apply to far more than auto accidents. Kuniholm, the Raleigh lawyer, says it has regularly been used against rape victims suing for damages. After a UNC-Wilmington woman got drunk and passed out at a fraternity party, she was repeatedly raped by fraternity members. When she sued them and the national fraternity for civil damages, her claim was denied because a judge ruled she contributed to her rape by drinking and passing out.

Victims in contributory negligence cases have occasionally gotten mad enough to start online petitions to change the law, but attorneys say there is no one to fight the well-funded, well-organized insurance lobby because no one sees the need to challenge contributory negligence laws until they've experienced their consequences.

Some even see these laws as benefiting the state's business recruitment efforts. The South Carolina-based law firm Nexsen Pruet, for example, advises its manufacturing clients that North Carolina is a good place to do business because contributory negligence laws can help protect them from product liability claims.

None of this makes Drake feel any better about his bike.

"It's your blood, your sweat, your guesswork and your ideas," he said. "They don't even make the engine in that bike anymore."

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