Exceptions to Contributory Negligence

Determining who is legally responsible (“at fault”) for a motor vehicle accident can be a difficult process. If you have been injured in a car accident and you believe that your own actions may have contributed to your injuries, please contact a lawyer to discuss your next steps.

What is Contributory Negligence?

As we have discussed previously, the doctrine of contributory negligence essentially bars an injured party from recovery if the damages suffered are partially their own fault. North Carolina is one of only four states to still follow this old common law principle. Under this rule, whenever a person is found to share any responsibility for his or her damages, they are barred from recovering compensation for those damages. This means that even if you are found to be only 1% at fault, you cannot collect damages from the other party, despite the other party being 99% at fault. “[A] plaintiff’s contributory negligence is a bar to recovery from a defendant who commits an act of ordinary negligence.” Sorrells v. M.Y.B. Hospitality Ventures, 332 N.C. 645, 648 (1992). This is not to say your situation is hopeless if you believe you may have contributed to your damages. There are defenses to contributory negligence, which we will now discuss.

A Defense to the Defense: Exceptions to Contributory Negligence

Exceptions to contributory negligence are often referred to as a “defense to the defense.” There are several exceptions to contributory negligence. We will discuss the most common ones in this article.

Rule of 7s

The Rule of 7s sets up the exceptions for minor children. A child under the age of seven is conclusively presumed to be incapable of contributory negligence. For example, imagine that a three-year-old little girl runs into the road without looking and is hit by a vehicle. If she were an adult, she would likely be found guilty of contributing to her injuries and may be barred from recovery. However, since she is a minor child under the age of 7, she would be able to make a full recovery for her injuries.

If a child is between the ages of 7 and 14 there is a presumption of incapacity, but this may be overcome by evidence showing capacity. There may be evidence that the child did not use the care that a child of its age, capacity, discretion, knowledge, and experience would ordinarily have exercised under the same or similar circumstances. For example, if the child in the above scenario were 14 years old, he may be barred from recovery, as a 14-year-old would be expected to look both ways before attempting to cross a street. “A child must exercise care of prudence equal to his capacity. If it 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, 150 S.E.2d 738 (1966).

Cognitive Impairment

In a situation that involves a plaintiff with a cognitive impairment, the plaintiff will be compared to a reasonable person with that particular disorder. The Court of Appeals has stated that, “one whose mental faculties are diminished, not amounting to total insanity, is capable of contributory negligence, but is not held to the objective reasonable person standard. Rather, such a person should be held only to the exercise of such case as he was capable of exercising.” Stacy v. Jedco Const., Inc., 457 S.E.2d 875 (1995). For example, a plaintiff with Alzheimer’s disease could only be compared to another reasonable person with Alzheimer’s and not to someone without that cognitive impairment.

Gross Negligence

Another more complicated exception to contributory negligence is when the defendant’s conduct constitutes gross negligence. A defendant is grossly negligent if he engages in willful or wanton conduct that is a proximate cause of the plaintiff’s injury or damages. An act is considered willful if the defendant intentionally fails to carry out some duty imposed by law or contract that is necessary to protect the safety of a person. Gross negligence is a far more severe failure. A person may commit gross negligence when they deliberately act in a way that they know, or should know, is very likely to cause harm.

Examples of gross negligence include:

  • Driving while intoxicated.
  • Driving at excessive speeds.
  • Driving recklessly in a parking lot where pedestrians are visible.
Last Clear Chance

Last clear chance is the most complex exception to contributory negligence. The question that is asked is, “Did the defendant have the last clear chance to avoid the plaintiff’s injury or damage?” If a plaintiff can prove that a defendant had the last clear chance to avoid the injury, then the plaintiff is excused from his contributory negligence and may still be able to recover compensation.

This doctrine is applicable when both the plaintiff and defendant have been negligent and the defendant had time to avoid the injury. The burden of proof is on the plaintiff and they must prove, by the greater weight of the evidence, the following things:

  • The plaintiff must show they were in an unavoidable position of peril.
  • The plaintiff must prove that the defendant discovered, or should have discovered, the plaintiff’s position of peril and had the time and means to avoid the injury or damage but negligently failed to do so.
  • Finally, the plaintiff must demonstrate that the defendant’s negligence caused their injury or damage.

For example, Joe begins to drive through a busy multi-lane intersection and proceeds through a stop sign. He realizes that he will be unable to clear the intersection safely when he sees traffic entering the intersection from the other road on both sides of him, so he stops. Sam is on the intersecting road and sees Joe stopped in the road. Sam has the time and room to move around Joe and avoid the accident, but instead hits him in the side. Clearly, Joe was negligent because he had a stop sign and Sam did not, but Sam just as clearly had the last clear chance to avoid this accident and did not avoid the collision. Joe will likely be able to defend the personal injury claim that Sam attempts to make against his insurance policy.


Claims involving contributory negligence are frequently complicated, especially when the last clear chance doctrine is also involved. An experienced personal injury lawyer can assist you by providing expert legal advice and guidance. Click here to be directed to our Lawyer Locator page.

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