North Carolina is one of the few remaining states adhering to the law of pure contributory negligence. This is an all-or-nothing rule that bars an injured party from recovering compensation if he did anything to contribute to the cause of the injury. But what does the law say when the victim is a child? For example, if your daughter picks up a knife in a kitchen store and cuts herself severely, can the store be held responsible?
For purposes of contributory negligence, child plaintiffs fall into three categories according to age:
- Younger than seven years
- Seven years and older, but younger than 14
- Fourteen years and older, but younger than 18
Children in the first category are legally incapable of negligence, and therefore cannot commit contributory negligence. A judge must forbid any discussion of the issue.
Children in the second category are presumed to be incapable of negligence, but the defendant can present evidence to rebut that presumption. The defendant would have to show that a reasonable child of that age would have the capacity to act carefully, based on the typical knowledge and experience of a youngster, but simply did not exercise the necessary care. This is a question of fact that the jury must decide.
Children in the third category are presumed to be capable of negligence, but they may present evidence to rebut that presumption. In this case, the plaintiff would have to show that a reasonable child of the plaintiff’s age would not have the discretion to act carefully under the circumstances in which the plaintiff was injured. Again, this is a question of fact for the jury.
Although the law presents opposite presumptions for children in the second and third age categories, the practical difference in almost negligible. The question remains the same: did the injured juvenile plaintiff act with age-appropriate care under the circumstances that led to the injury?
If you’re the parent of an injured child, be sure to consult an experienced personal injury attorney with specific knowledge of North Carolina’s contributory negligence statute and relevant case law. Call the Law Offices of Brian deBrun at [ln::phone] today or contact our office online to schedule a free initial consultation.