Bill Summary – FastDemocracy

H.B. 811
                          GENERAL ASSEMBLY OF NORTH CAROLINA
                                                                                               Apr 18, 2023
                                      SESSION 2023                                       HOUSE PRINCIPAL CLERK
     H                                                                                                  D
                                    HOUSE BILL DRH10375-NB-146
     Short Title:   Abolish Contributory Negligence.                                              (Public)
     Sponsors:      Representative Longest.
     Referred to:
                                      A BILL TO BE ENTITLED
 AN ACT TO ABOLISH CONTRIBUTORY NEGLIGENCE AND ESTABLISH MODIFIED
      COMPARATIVE NEGLIGENCE BY ALLOWING RECOVERY IF THE PLAINTIFF'S
      CONTRIBUTORY NEGLIGENCE IS LESS THAN OR EQUAL TO THE DEFENDANT'S
      NEGLIGENCE.
 The General Assembly of North Carolina enacts:
              SECTION 1.(a) G.S. 1B-2 reads as rewritten:
 "§ 1B-2. Pro rata shares.
      In determining the pro rata shares of tort-feasors in the entire liability
              (1)    Their relative degree of fault shall not be considered;
              (2)    If equity requires, the collective liability of some as a group shall constitute a
                     single share; and
              (3)    Principles of equity applicable to contribution generally shall apply."
              SECTION 1.(b) G.S. 1-139 is repealed.
              SECTION 1.(c) Article 15 of Chapter 1 of the General Statutes is amended by adding
 a new section to read:
 "§ 1-139.1. Recovery based upon comparing negligence.
      Contributory negligence shall not bar recovery in any action by any person or legal
 representative to recover damages for negligence resulting in death or injury to person or property
 if the contributory negligence was equal to or less than the negligence which must be established
 in order to recover from the party against whom recovery is sought."
              SECTION 2.(a) G.S. 1A-1, Rule 8(c), reads as rewritten:
      "(c) Affirmative defenses. – In pleading to a preceding pleading, a party shall set forth
 affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory
 negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
 injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute
 of limitations, truth in actions for defamation, usury, waiver, and any other matter constituting
 an avoidance or affirmative defense. Such pleading shall contain a short and plain statement of
 any matter constituting an avoidance or affirmative defense sufficiently particular to give the
 court and the parties notice of the transactions, occurrences, or series of transactions or
 occurrences, intended to be proved. When a party has mistakenly designated a defense as a
 counterclaim or a counterclaim as a defense, the court, on terms, if justice so requires, shall treat
 the pleading as if there had been a proper designation."
              SECTION 2.(b) G.S. 20-11(l) reads as rewritten:
      "(l)    Violations. – It is unlawful for the holder of a limited learner's permit, a temporary
 permit, or a limited provisional license to drive a motor vehicle in violation of the restrictions
                                   *DRH10375-NB-146*
     General Assembly Of North Carolina                                                    Session 2023
 that apply to the permit or license. Failure to comply with a restriction concerning the time of
 driving or the presence of a supervising driver in the vehicle constitutes operating a motor vehicle
 without a license. Failure to comply with the restriction regarding the use of a mobile telephone
 while operating a motor vehicle is an infraction punishable by a fine of twenty-five dollars
 ($25.00). Failure to comply with any other restriction, including seating and passenger
 limitations, is an infraction punishable by a monetary penalty as provided in G.S. 20-176. Failure
 to comply with the provisions of subsections (e) and (g) of this section shall not constitute
 negligence per se or contributory negligence by the driver or passenger in any action for the
 recovery of damages arising out of the operation, ownership or maintenance of a motor vehicle.
 Any evidence of failure to comply with the provisions of subdivisions (1), (2), (3), (4), and (5)
 of subsection (e) of this section shall not be admissible in any criminal or civil trial, action, or
 proceeding except in an action based on a violation of this section. No drivers license points or
 insurance surcharge shall be assessed for failure to comply with seating and occupancy
 limitations in subsection (e) of this section. No drivers license points or insurance surcharge shall
 be assessed for failure to comply with subsection (e) or (g) of this section regarding the use of a
 mobile telephone while operating a motor vehicle."
             SECTION 2.(c) G.S. 20-126(c) reads as rewritten:
     "(c) No person shall operate a motorcycle upon the streets or highways of this State unless
 such motorcycle is equipped with a rearview mirror so mounted as to provide the operator with
 a clear, undistorted and unobstructed view of at least 200 feet to the rear of the motorcycle. No
 motorcycle shall be registered in this State after January 1, 1968, unless such motorcycle is
 equipped with a rearview mirror as described in this section. Violation of the provisions of this
 subsection shall not be considered negligence per se or contributory negligence per se in any civil
 action."
             SECTION 2.(d) G.S. 20-137.1(d) reads as rewritten:
     "(d) A violation of this section shall have all of the following consequences:
             (1)      Two drivers license points shall be assessed pursuant to G.S. 20-16.
             (2)      No insurance points shall be assessed.
             (3)      The violation shall not constitute negligence per se or contributory negligence
                      per se.
             (4)      The violation shall not be evidence of negligence or contributory negligence."
             SECTION 2.(e) G.S. 20-137.4(f) reads as rewritten:
     "(f)    Penalty. – A violation of this section shall be a Class 2 misdemeanor and shall be
 punishable by a fine of not less than one hundred dollars ($100.00). No drivers license points or
 insurance surcharge shall be assessed as a result of a violation of this section. Failure to comply
 with the provisions of this section shall not constitute negligence per se or contributory
 negligence by the operator in any action for the recovery of damages arising out of the operation,
 ownership, or maintenance of a school bus."
             SECTION 2.(f) G.S. 20-137.4A(c) reads as rewritten:
     "(c) Penalty. – A violation of this section while operating a school bus, as defined in
 G.S. 20-137.4(a)(4), shall be a Class 2 misdemeanor and shall be punishable by a fine of not less
 than one hundred dollars ($100.00). Any other violation of this section shall be an infraction and
 shall be punishable by a fine of one hundred dollars ($100.00) and the costs of court.
     No drivers license points or insurance surcharge shall be assessed as a result of a violation of
 this section. Failure to comply with the provisions of this section shall not constitute negligence
 per se or contributory negligence per se by the operator in any action for the recovery of damages
 arising out of the operation, ownership, or maintenance of a vehicle."
             SECTION 2.(g) G.S. 20-140.4(b) reads as rewritten:
     "(b) Violation of any provision of this section shall not be considered negligence per se or
 contributory negligence per se in any civil action."
             SECTION 2.(h) G.S. 20-141(n) reads as rewritten:
     Page 2                                                                         DRH10375-NB-146
     General Assembly Of North Carolina                                                      Session 2023
     "(n) Notwithstanding any other provision contained in G.S. 20-141 or any other statute or
 law of this State, the failure of a motorist to stop his vehicle within the radius of its headlights or
 the range of his vision shall not be held negligence per se or contributory negligence per se."
             SECTION 2.(i) G.S. 20-158(d) reads as rewritten:
     "(d) No failure to stop as required by the provisions of this section shall be considered
 negligence or contributory negligence per se in any action at law for injury to person or property,
 but the facts relating to such failure to stop may be considered with the other facts in the case in
 determining whether a party was guilty of negligence or contributory negligence."
             SECTION 2.(j) G.S. 20-158.1 reads as rewritten:
 "§ 20-158.1. Erection of "yield right-of-way" signs.
     The Department of Transportation, with reference to State highways, and cities and towns
 with reference to highways and streets under their jurisdiction, are authorized to designate
 main-traveled or through highways and streets by erecting at the entrance thereto from
 intersecting highways or streets, signs notifying drivers of vehicles to yield the right-of-way to
 drivers of vehicles approaching the intersection on the main-traveled or through highway.
 Notwithstanding any other provisions of this Chapter, except G.S. 20-156, whenever any such
 yield right-of-way signs have been so erected, it shall be unlawful for the driver of any vehicle
 to enter or cross such main-traveled or through highway or street unless he shall first slow down
 and yield right-of-way to any vehicle in movement on the main-traveled or through highway or
 street which is approaching so as to arrive at the intersection at approximately the same time as
 the vehicle entering the main-traveled or through highway or street. No failure to so yield the
 right-of-way shall be considered negligence or contributory negligence per se in any action at
 law for injury to person or property, but the facts relating to such failure to yield the right-of-way
 may be considered with the other facts in the case in determining whether either party in such
 action was guilty of negligence or contributory negligence."
             SECTION 2.(k) G.S. 20-175.3 reads as rewritten:
 "§ 20-175.3. Rights and privileges of blind persons without white cane or guide dog.
     Nothing contained in this Part shall be construed to deprive any blind or partially blind person
 not carrying a cane white in color or white tipped with red, or being accompanied by a guide dog,
 of any of the rights and privileges conferred by law upon pedestrians crossing streets and
 highways, nor shall the failure of such blind or partially blind person to carry a cane white in
 color or white tipped with red, or to be accompanied by a guide dog, upon the streets, roads,
 highways or sidewalks of this State, be held to constitute or be evidence of contributory
 negligence by virtue of this Part."
             SECTION 2.(l) G.S. 95-229.12 reads as rewritten:
 "§ 95-229.12. Application.
     Nothing in this Article shall relieve any person from complying with any safety rule,
 regulation, or statute not imposed by this Article. A violation of this Article shall not constitute
 negligence or contributory negligence, nor give rise to any cause of action based upon injury to
 persons or property. An action may be brought by an owner or operator of a high-voltage line to
 recover the cost of precautionary safety arrangements or for damage to its facilities. Nothing
 contained in this Article shall be construed to alter, amend, restrict, or limit the liability of any
 person for violation of that person's duty under law; nor shall any person be relieved from liability
 as a result of violations of standards under existing law where such violations of existing
 standards of care are found to be a cause of damage to property, personal injury, or death."
             SECTION 2.(m) G.S. 113-291.8(c) reads as rewritten:
     "(c) Failure to wear hunter orange material in violation of this section shall not constitute
 negligence per se or contributory negligence per se.negligence."
             SECTION 2.(n) G.S. 143-291(a) reads as rewritten:
     "(a) The North Carolina Industrial Commission is hereby constituted a court for the
 purpose of hearing and passing upon tort claims against the State Board of Education, the Board
     DRH10375-NB-146                                                                                Page 3
     General Assembly Of North Carolina                                                    Session 2023
 of Transportation, and all other departments, institutions and agencies of the State. The Industrial
 Commission shall determine whether or not each individual claim arose as a result of the
 negligence of any officer, employee, involuntary servant or agent of the State while acting within
 the scope of his office, employment, service, agency or authority, under circumstances where the
 State of North Carolina, if a private person, would be liable to the claimant in accordance with
 the laws of North Carolina. If the Commission finds that there was negligence on the part of an
 officer, employee, involuntary servant servant, or agent of the State while acting within the scope
 of his their office, employment, service, agency agency, or authority that was the proximate cause
 of the injury and that there was no contributory negligence on the part of the claimant or the
 person in whose behalf the claim is asserted, injury and any negligence on the part of the claimant
 or the person in whose behalf the claim is asserted, was equal to or less than the negligence on
 the part of the officer, employee, involuntary servant, or agent of the State, the Commission shall
 determine the amount of damages that the claimant is entitled to be paid, including medical and
 other expenses, and by appropriate order direct the payment of damages as provided in subsection
 (a1) of this section, but in no event shall the amount of damages awarded exceed the amounts
 authorized in G.S. 143-299.2 cumulatively to all claimants on account of injury and damage to
 any one person arising out of a single occurrence. Community colleges and technical colleges
 shall be deemed State agencies for purposes of this Article. The fact that a claim may be brought
 under more than one Article under this Chapter shall not increase the foregoing maximum
 liability of the State."
              SECTION 2.(o) G.S. 143-299.1 reads as rewritten:
 "§ 143-299.1. Contributory negligence Negligence a matter of defense; burden of proof.
     Contributory Any negligence on the part of the claimant or the person in whose behalf the
 claim is asserted shall be deemed to be a matter of defense on the part of the State department,
 institution or agency agency, department, or institution against which the claim is asserted, and
 such State department, institution or agency shall have the burden of proving that the claimant or
 the person in whose behalf the claim is asserted was guilty of contributory negligence.negligence
 that was equal to or less than the negligence which must be established in order to prevail against
 the State agency, department, or institution against which the claim is asserted."
              SECTION 2.(p) G.S. 143-300.1A reads as rewritten:
 "§ 143-300.1A. Claims arising from certain smallpox vaccinations of State employees.
     The North Carolina Industrial Commission shall have jurisdiction to hear and determine
 claims in accordance with the procedures set forth in this Article made against the State by a
 person who is permanently or temporarily living in the home of a State employee who receives
 in employment vaccination against smallpox incident to the Administration of Smallpox
 Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L.
 No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) when the person contracts an
 infection with smallpox or an infection with vaccinia or has any adverse medical reaction due to
 the vaccination received by the employee. A person covered by this section shall be entitled to
 recover from the State damages incurred by the person that are directly attributable to the
 vaccination of the employee under this section. No showing of negligence is required under this
 section. The provisions of G.S. 143-299.1 shall not apply to claims made under this section, and
 contributory negligence is not a defense for claims under this section. Damages awarded under
 this section shall be paid in accordance with G.S. 143-291(a1) and shall be subject to the same
 limits as those which apply to tort claims under this Article."
              SECTION 3. G.S. 1A-1, Rule 7(a), reads as rewritten:
     "(a) Pleadings. – There shall be a complaint and an answer; a reply to a counterclaim
 denominated as such; an answer to a crossclaim, if the answer contains a crossclaim; a third-party
 complaint if a person who was not an original party is summoned under the provisions of Rule
 14; and a third-party answer, if a third-party complaint is served. If the answer alleges
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     General Assembly Of North Carolina                                                    Session 2023
 contributory negligence, a party may serve a reply alleging last clear chance. No other pleading
 shall be allowed except that the court may order a reply to an answer or a third-party answer."
             SECTION 4. G.S. 90-95.5 reads as rewritten:
 "§