Warner v. Simmons: Contributory Negligence and Premises Liability Actions

Our Charlotte personal injury lawyers understand that contributory negligence can have a significant impact on a plaintiff’s potential recovery.

brokenbone.jpgWarner v. Simmons is a premises liability case in which the plaintiff and some friends were staying at a cabin owned by the defendant while on a float trip. A float trip is an excursion where people rent rafts, canoes, or inner tubes and float down a river.

The rental property consisted of three cabins that were named north, south, and middle. Between the cabins were cedar planks that were placed end to end on the ground to be used a walkway. According to the record, when the plaintiff was returning home from dinner, she stepped on one of the planks and it turned up and hit her foot. This caused her fall, and she was in a great deal of pain. She was taken to the hospital and an x-ray was performed.

At the hospital, doctors diagnosed the plaintiff with a broken left tibial plateau that required surgery. After having foot surgery, she needed a walker for the first four months of recovery, could not put weight on the foot, and was in significant pain for over two and half years following the accident, according to her testimony.

The plaintiff filed a lawsuit against the cabin owner, claiming negligence under a premises liability theory. The claim was that the defendant failed to inspect the premises to make sure they were safe for visitors, failed to warn guests of known dangers, and failed to maintain the property in a safe condition.

The defendant filed an answer to the complaint, alleging that the plaintiff was contributorily negligent and thus responsible for the injuries to her foot. The defense’s claim was based on the fact that the plaintiff’s friend testified that she immediately recognized that the board was up, and it was not a good idea to walk on it. The friend made the choice to walk on the grass on either side of the board. This testimony was elicited to show that the raised plank was an obvious danger, and the plaintiff acted negligently when she chose to walk on it.

The case proceeded to trial and a verdict was returned in favor of the defendant. The plaintiff appealed the verdict on grounds that the judge improperly instructed the jury on the law regarding premises liability.

The issue in this case centered on the difference between contributory and comparative negligence. In a contributory negligence jurisdiction, if the plaintiff was in any way negligent, and that negligence contributed in any amount to injuries sustained by the defendant’s negligence, the plaintiff cannot recover. For example, if you are driving a car and slightly cross the double yellow line and hit an intoxicated driver who was swerving all over the road, the fact that you were slightly negligent in crossing the yellow line bars you from recovering anything from the defendant, because you were contributorily negligent.

In a comparative negligence jurisdiction, the finder of fact will assign the relative percentages of negligent conduct on behalf of the parties, and any recovery is offset by the amount assigned. In our example, if you were five percent negligent by crossing the yellow like and the drunk driver was ninety-five percent liable, any money awarded would be reduced by five percent.

Only four states and the District of Columbia are pure contributory negligence jurisdictions. North Carolina happens to be one of those states. This does not necessarily mean that you will be prevented from recovering at trial if you were contributorily negligent; because, your personal injury lawyer may be able use the last clear chance doctrine to counter any such argument.

Contact the Charlotte personal injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Warner v. Simmons, July 3, 2014, Supreme Court of Nebraska

More Blog Entries:

Cox, et al. v. Wal-Mart Stores, Inc.: Usual or Expected Dangers and Their Effect on Premises Liability Actions, June 25, 2014, Charlotte Personal Injury Lawyers Blog

Contact Information