Minors and Contributory Negligence
Posted by
Staff Writer April 03, 2007 4:22 PMHypothetical: A car is speeding through a neighborhood, and the car strikes and injuries a child who ran across the road to check the mail.
This hypothetical raises at least three legal issues: 1) was the driver negligent? 2) was the child negligent? 3) and, did the driver have the last clear chance to avoid the collision? This article focuses on the second issue: was the child contributorily negligent? If the child was contributorily negligent, North Carolina law precludes any monetary recovery whatsoever by the child from the driver. This makes the issue of the child's negligence a key issue in the case.
It is widely understood that children do not exercise the same degree of judgment as most adults. In general, children are not as capable as adults at foreseeing danger. Children tend to be impulsive and have a great desire to play. These fundamental facts raise the following question: can a child be contributorily negligent? The short, lawyerly answer is: it depends.
The law of contributory negligence, as applied to children, has developed under the basic assumption that as children age, their ability to make good decisions increases. North Carolina law derives from the common law of England. The law of contributory negligence is explained in more detail in another article on this site. To answer the question of whether a child may be contributorily negligent, the law has established the following three categories:
1. Children Under the Age of 7
Children under the age of 7 are incapable of contributory negligence. The law makes an absolute presumption that children in this category lack the discretion and mental capacity to recognize and appreciate danger.
2. Children 7 and up to14 Years of Age
Children in this category are presumed to be incapable of contributory negligence. However, this presumption is rebuttable. Children in this category are not held to the same standard of care as adults, but they are held to the same standard of care as children of the same age. In other words, children in this category must exercise the same degree of discretion, knowledge and experience as a typical child of the same age. If the child fails to meet this standard, the presumption of no contributory negligence is rebutted, and the child will be held to be contributorily negligent.
3. Children 14 Years of Age and Over
North Carolina law generally holds that children become adults at age 18. However, children age 14 and over are held to the same standard of care as adults for the purpose of determining negligence and contributory negligence.
We can now apply the law to the above hypothetical. If the running child was age 5, then the child would not be contributorily negligent. If the child was age 11, then the parties should closely examine evidence as to whether the child acted in a way that was typical of 11 year old children in general. If the child was age 15, then the child would be expected to have exercised the same judgment as a reasonable and prudent adult to avoid foreseeable injury and to exercise due care.