Exceptions to Contributory Negligence in North Carolina

December 29, 2023 | - News & Insights

It is a general principle of personal injury law that a tortfeasor (i.e., the party who commits a tort) is liable to the party injured by their behavior. However, like virtually all legal doctrines, this one has limits. The calculus changes if the defendant can show that the plaintiff was also negligent and that the plaintiff’s negligence contributed to their injuries. North Carolina law generally prohibits plaintiffs from recovering damages in such cases, but again, there are limits to that doctrine. To find out if an exception applies in your case, please consider speaking with a North Carolina personal injury defense attorney.  

The Contributory Negligence Doctrine 

Not all defendants are 100% to blame for the injuries caused by their negligence, just as not all plaintiffs are 100% blameless. The contributory negligence doctrine holds that an injured plaintiff is barred from recovering damages from an at-fault defendant if the plaintiff was partially at fault for their own injuries. It typically arises in litigation where the plaintiff did not cause the accident that led to the injuries, but the plaintiff’s actions contributed to the injuries in some way. For example, assume that a pedestrian goes to cross a busy street, looking for oncoming traffic to the left but not the right. The pedestrian is then struck by a vehicle approaching from the right. A reasonable pedestrian would have looked both ways when crossing the street. As such, the pedestrian likely would be barred from recovery under the contributory negligence doctrine, as their own negligence contributed to their injuries. 

Exceptions to the Contributory Negligence Doctrine 

North Carolina’s contributory negligence scheme is not absolute. In some cases, whether due to the identity of the plaintiff or the circumstances surrounding the alleged negligence, plaintiffs may still be able to recover even if they were partially at fault.  


The law treats minors differently than adults. In the law of negligence, the general rule is that most minors lack the age, capacity, and experience necessary to be found liable for negligence. However, minors are not a monolithic group; in some cases, minors can be found liable for negligence — and, therefore, contributory negligence.  

North Carolina courts follow the “rule of sevens” when evaluating whether a child’s age, capacity, and experience are sufficient to find them liable for negligence. A child under the age of seven is incapable of negligence as a matter of law. A child between the ages of seven and 14 is presumed to be incapable of negligence, but that presumption is rebuttable by evidence showing capacity. To determine whether a child in this age range is capable of negligence, courts consider whether the child acted as a child of similar age, capacity, discretion, knowledge, and experience would ordinarily have acted under similar circumstances. This is akin to the “reasonable person” standard used in negligence cases involving adults. A child age 14 or older is presumed to be capable of negligence, but that presumption is rebuttable with evidence that the child lacks the capacity to be sensible of danger. 

Proving that a child under the age of 14 possesses the requisite capacity for negligence can be tricky. The best way to do so is with the help of an experienced North Carolina personal injury defense attorney

Lack of Capacity 

Just as minors are presumed to lack the capacity necessary to be liable for infringement, adults may also be entitled to that presumption in some instances. The general rule in North Carolina is that a plaintiff is contributorily negligent only when he has the capacity to understand and avoid a known danger and fails to take advantage of the opportunity to avoid the danger and is injured. As such, one cannot be guilty of contributory negligence if he fails to act with knowledge and appreciation of the risk that his conduct involves. For adults who suffer a lack of capacity but are not totally incompetent — whether due to mental illness, advanced age, disease, or senility — the standard of care is whether that person exercised such care as a person of like mental capacity under similar circumstances.  

Gross Negligence/Willful and Wanton Conduct 

Ordinary negligence occurs where the defendant’s conduct falls below the duty of care a reasonable person would have exercised in similar circumstances. Gross negligence, on the other hand, occurs when the defendant engages in willful or wanton conduct that shows a conscious and intentional disregard of or indifference to the rights of others. It could occur, for example, when a defendant drives his car at a reckless speed (e.g., 55 mph in a 25 mph residential zone). Even if the defendant struck a pedestrian who was negligently crossing the street, as in the prior example above, the defendant would have a much harder time pleading contributory negligence. 

Last Clear Chance 

The last clear chance doctrine holds that a plaintiff who is contributorily negligent can nonetheless recover damages from a defendant if the defendant had the last clear chance to avoid the accident. It requires the plaintiff to show the following five elements

  1. The plaintiff put himself in a position of helpless peril by his own negligence 
  2. The defendant discovered or should have discovered, the plaintiff’s position
  3. The defendant had the time and ability to avoid the injury 
  4. The defendant negligently failed to do so
  5. The plaintiff was injured as a result 

This doctrine could also arise in the context of a pedestrian accident. For example, assume that a plaintiff pedestrian negligently steps into the street. The driver of an oncoming vehicle sees the pedestrian step into the street and realizes that the pedestrian is unaware that the driver is approaching. While the driver has ample opportunity to safely swerve and avoid the pedestrian, he does not do so, striking her and causing injury. Although the plaintiff was contributorily negligent in this case, the plaintiff likely could still recover damages, as the defendant had the last clear chance to avoid the accident. 

Raise a Contributory Negligence Defense With Help From a North Carolina Personal Injury Defense Attorney

Contributory negligence is an affirmative defense, meaning that a defendant must raise it and prove it by a preponderance of the evidence. The best way to wield the contributory negligence defense effectively is with the assistance of a North Carolina personal injury defense attorney. For more information, please contact Harris, Creech, Ward & Blackerby by calling 252-638-6666 or using our online contact form.

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