Rule of Sevens

Ages Seven to Thirteen

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.

The case with a different 12-year-old boy went another direction. Here, a group of children was 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.

Ages Fourteen to Seventeen

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.