Understanding North Carolina's "last clear chance" doctrine

Recently, an 11-year-old Stokesdale boy was struck by a motor vehicle and killed while he was attending a Halloween trunk-or-treat event at an Oak Ridge church. While the families and communities involved continue to mourn this heart-breaking loss, some are left wondering how the law treats such cases.

A negligence analysis of a case such as this starts with the officer’s investigation and report. News stories and witness interviews can also be critical in such cases. Once a basic timeline of events is established, theories of negligence can start to be formulated. In most cases involving pedestrians, the actions of the driver of the vehicle involved must be carefully scrutinized. However, the potential negligence of other parties must also be considered. Is it possible that an event host or sponsor could be held liable? Was effective traffic control contemplated and provided? Did the time of day or the weather play a role? And should the potential negligence of the injured pedestrian be considered?

The last question is always crucial, but difficult to think about in cases where a minor has been seriously injured or killed. In cases involving minors, the age of the minor is important. But first, let’s start with the unfortunate truth that North Carolina is a contributory negligence state, meaning that if you are injured by the negligence of another person or entity, if a judge or jury determines that you yourself are also negligent, you lose. Sadly, North Carolina is one of a small handful of states still clinging to this outdated notion.

 

In evaluating this type of case and contemplating the potential contributory negligence of a minor, the age of the minor plays an important role. Some children are simply too young to be considered capable of negligence - or contributory negligence. Minors between the ages of 7 and 14 are presumed to be incapable of negligence or contributory negligence, but that presumption is rebuttable. In such instances, a minor between the ages of 7 and 14 cannot be held to be negligent or contributorily negligent unless a judge or jury is persuaded by the evidence that the minor did not use the care that a child of his or her age, capacity, discretion, knowledge, and experience would have used under the same or similar circumstances. That’s a mouthful, but it basically means that consideration must be given as to whether a minor of that age behaved as other minors of that same age would have behaved.

Another important factor to consider in cases like this is whether or not the driver of the vehicle had the last clear chance to avoid hitting the pedestrian. North Carolina recognizes a theory of law referred to as “last clear chance.” Under this theory, even if the injured person is found to be contributorily negligent, if the vehicle driver had the last clear chance to avoid the accident, but failed to do so, the injured party can still prevail.

In order to prevail on a theory of last clear chance, the injured person must establish 4 important elements: 1) That the injured person placed himself or herself in a position of peril from which they could not escape; 2) That the vehicle driver knew or should have known of the other person’s perilous position; 3) That the driver had the time and means to avoid injury to the other person; and 4) That the driver negligently failed to use the available time and means to avoid hitting the other person. If these 4 factors can be established, a judge or jury can consider whether last clear chance applies and the injured person, even if contributorily negligent, can still prevail.

In this tragic case, as in all cases, there are many factors to consider, many of which may be unknown until a proper investigation and evaluation can be done. It may be that no one was at fault, or that multiple parties were at fault. For this reason, it is important to talk with someone with the knowledge and experience to evaluate all of the relevant factors and determine all of the potential theories of negligence against all of the relevant parties involved.

The attorneys at Egerton Law can help you sort through this confusing area of law. If you or someone you know has been injured, call us at 1-800-800-4LAW to speak to an experienced lawyer.

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