Many personal injury cases, especially those involving automobile accidents, focus on the issue of negligence. Negligence can be understood as the failure of one party to exercise a reasonable degree of care owed to a second party, which results in injury to that second party’s person or property. Reasonable care is the degree of caution that a rational person would exercise in a given situation.
However, in North Carolina, the at-fault party’s negligence does not necessarily mean recovery for the injured party. North Carolina negligence law follows the common law doctrine of “contributory negligence,” whereby the injured party may not recover for injuries sustained if their own negligence contributed to the injury. Under this doctrine, if the injured party is at fault at all, he or she cannot recover for their injuries, no matter how negligently the other party acted.
Minors are held to a different standard than adults when determining whether they are contributorily negligent. North Carolina law measures a minor’s capacity for contributory negligence by their age and ability to discern and appreciate the circumstances of danger. Understandably, many minors cannot be held to the same degree of care as adults who have been able to garnish more life experiences. The standard of care for a minor varies with the age, capacity and experience of the child. In addressing the contributory negligence of a minor, there are three so-called age categories/ranges in which a minor may fall within.
Legally, a child under seven years of age is conclusively presumed to be incapable of negligence, meaning the child cannot be held liable for any contributory negligence regardless of how intelligent the child might be. Take, for example, a child playing with a ball that rolls into the street. The child then chases the ball into the street and into the path of an oncoming vehicle. As long as the child is under the age of seven, the law conclusively presumes that the child is incapable of negligence.
The second category begins at age seven and ends when the minor becomes fourteen. Between the ages of seven and fourteen, a minor is presumed to be incapable of contributory negligence. However, this presumption may be overcome by evidence that the child did not use the care that a child of their age, capacity, discretion, knowledge and experience would have exercised under the same or similar circumstances. If the minor fails to exercise such care and the failure is one of the proximate causes of the injuries in suit, the child cannot recover. Wooten v. Cagle, 268 N.C. 366.
Examples from North Carolina cases help illustrate how this age range works. In the first example, four boys were playing hockey on roller skates in a driveway. One of the boys was moving fast on his skates immediately after scoring a goal. As a result, he was unable to slow down, and he rolled into the street. The defendant was operating a motor vehicle on the wrong side of the road, at an excessive speed, and he did not beep his horn to forewarn the minor. The 12-year-old boy testified that he could not stop or slow down as he began to roll down the driveway. He further testified that he even tried rolling into the grass in an attempt to slow down but was unable to do so. In considering the age, discretion and activity in which the boys were engaged, the jury found that the injured minor was not contributorily negligent.
In evaluating the issue on appeal, the North Carolina Supreme Court stated, “The courts recognize that the love of play is instinctive in childhood, and that children may be expected to act as children and upon childish impulses.” Hollingsworth v. Burns, 210 N.C. 40. The court continued, “The law wisely takes into consideration the fact that a small boy will have only the understanding and the thought of a child, not that of a man” Id. When the defendant argued that the minor’s own negligence barred his recovery, the court explained that to hold the minor contributorily negligent would require of him a higher degree of care, judgment and discretion than one of his age and experience.
The case with a different 12-year-old boy went another direction. Here, a group of children were gathered at a school bus stop. Two boys were playing with a golf ball that bounced over to the other side of the street, and they ran to get it. Once on the other side of the street, the decedent minor (12 years old) said, “There comes the school bus,” to the other boy, who had crossed the street with him, and started running. At the same time, two cars were coming around a curve. The curve was straight and level, and there were no obstructions along either side, resulting in a collision with the second car, driven by the defendant. North Carolina case law provides that a motorist “must recognize that children have less discretion than adults and may run out into the street in front of his approaching automobile unmindful of the danger. Therefore, proper care requires a motorist to maintain a vigilant lookout, to give a timely warning of his approach, and to drive at such speed and in such a manner that he can control his vehicle if a child, in obedience to a childish impulse, attempts to cross the street in front of his approaching automobile.” Wainwright v. Miller, 259 N.C. 379. However, while the jury found that the defendant was negligent in the operation of his vehicle, they also found that the 12-year-old failed to use due care for his own safety in that he failed to yield the right of way when he saw or should have seen defendant’s approaching car.
It is important to note that age is not the sole factor. When considering capacity and discretion, each child within the given age range will have a different level of comprehension. Factors that are considered include: how well the child is doing in school, how they interact with others at home and in school, and whether they suffer from a particular cognitive disability. Similarly, when looking at knowledge and experience, each child’s ability to appreciate a foreseeable danger varies. To continue the example of the ball rolling in the street from above, experience tells us that one should not run into the street after anything because of the danger of oncoming traffic. At a young age, we are taught to look both ways before crossing a street. The younger the child, the more likely it is that he or she has not learned these lessons or had experience in potentially dangerous situations. Thus, the activity in which the child is engaged, and the relative cognitive abilities of the child are crucial in making a determination for contributory negligence.
The third category starts at age fourteen and ends when the minor reaches the age of eighteen. Again, the minor is held to a standard of care corresponding with their age. They are presumed to have sufficient capacity to be sensible of danger and to have the power to avoid it. Thus, the presumption is that the child is as capable of such discretion as that of an adult, and the presumption will stand until rebutted by clear proof of the absence of such discretion. Welch v. Jenkins, 271 N.C. 138. Therefore, evidence can be introduced to show that the particular minor in question was nevertheless incapable of negligence because the minor did not possess the same capacity to be sensible of the danger.