North Carolina is one of a handful of jurisdictions that still follow the contributory negligence rule. In states where contributory negligence applies, if the plaintiff is even slightly at fault for their injuries or damages, they cannot receive compensation from the defendant. Most states follow some form of comparative negligence which allocates fault among the parties in an action for negligence. Due to the harsh effects of the contributory negligence rule on plaintiffs, certain doctrines exist to mitigate these effects and allow for recovery. Recent North Carolina appellate decisions have addressed these and other negligence doctrines. This post will explore how these doctrines work by reviewing the details of this recent precedent.

Look Before You Leap: Contributory Negligence

The Fall. “The law expects individuals to take reasonable steps to protect themselves from open and obvious risks. For this reason, plaintiffs ordinarily cannot recover damages from defendants who created such risks if the plaintiffs could have avoided harm through due regard for their own safety.” Cullen v. Logan Developers, Inc., 386 N.C. 373 (2024). So begins the North Carolina Supreme Court’s opinion in Cullen, a case involving a homeowner’s fall through the attic and onto her bathroom floor, resulting in a concussion, a broken heel, and a broken thumb and aggravating preexisting back injuries. The fall occurred when the homeowner stepped into a scuttle hole that the developers had cut into the attic floor to comply with a Building Code regulation requiring the air handler to be no more than 20 feet from an opening. The hole was filled with insulation on the attic floor side but was covered on the bathroom ceiling side to appease the homeowner’s wish for a smooth finish to the ceiling.

The Procedural History of the Case. After the fall, the homeowner sued the developers, alleging negligence and gross negligence based on the condition of the attic floor. Following discovery in the case, the developers filed a motion for summary judgment, a procedure that allows the court to dispose of a case without a hearing if there are no genuine issues of material facts and the moving party is entitled to judgment as a matter of law. The developer’s motion alleged that the homeowner was contributorily negligent and had not set forth facts sufficient to establish that the developers committed gross negligence. The trial court granted the developer’s summary judgment motion, but the Court of Appeals vacated the trial court’s order. The supreme court granted the developer’s petition for discretionary review, reversed the court of appeals, and reinstated the trial court’s order granting summary judgment for the developers.

Open and Obvious Condition. Because of her contributory negligence, the homeowner could not recover from the developer for her injuries. The decision was based in part on the homeowner’s admission in pretrial discovery that she would have seen the insulation covering the scuttle hole and not stepped in it if she had looked behind her before she stepped off the plywood flooring. The court reasoned that the condition that caused the injury was open and obvious, meaning detectable by any person of ordinary intelligence using her eyes in an ordinary manner, and the homeowner should have looked before she stepped.

The Worst Offender: Gross Negligence

Definition and Example. Gross negligence differs substantially from ordinary negligence. Yancey v. Lea, 354 N.C. 48, 53-54 (2001).  Gross negligence is wanton conduct, meaning the act is done with conscious or reckless disregard for the rights and safety of others. Id. Ordinary negligence involves a defendant acting inadvertently or carelessly. Contributory negligence is a defense to ordinary negligence, but it does not bar the plaintiff from recovering for the defendant’s gross negligence if it is the proximate cause of plaintiff’s injuries. The proximate cause produces the injury in a continuous sequence of events, and without which it would not have occurred, and from which a person of ordinary prudence could have foreseen that such a result was probable under all the existing circumstances. Ramsbottom v. Atlantic Coast Line R. Co., 138 N.C. 38 (1905).

Examples of gross negligence arise in the area of motor vehicle negligence when one or a combination of three factors is present: (1) defendant is intoxicated, (2) defendant is driving at excessive speeds, or (3) defendant is engaged in a racing competition. Yancey v. Lea, 354 N.C. 48, 53-54 (2001). In all three circumstances the defendants know that driving in any of these ways can result in injury, but they act with reckless indifference to the safety of others by engaging in the activities anyway. A plaintiff injured as a result of defendant’s gross negligence can recover from the defendant even if the plaintiff may have been contributorily negligent in the accident. If an injured plaintiff also commits gross negligence, then the plaintiff’s gross contributory negligence would bar the plaintiff’s recovery for defendant’s gross negligence.

Building Code Violations. Returning to the Cullen case, the homeowner alleged that the developer’s violation of the Building Code created a dangerous condition, and that the developer acted willfully and in conscious disregard of the homeowner’s safety. The problem with this argument is that North Carolina precedent establishes that a Building Code violation without more does not qualify as gross negligence. Bashford v. N.C. Licensing Bd. for Gen. Contractors, 107 N.C. App. 462, 467 (1992).

In Cullen, the developer cut the scuttle hole in the bedroom ceiling creating the access to the air handler required by the Building Code. When the homeowners saw the scuttle hole in the bathroom ceiling, they were displeased and wanted a smooth finish. To satisfy the homeowners, the developer covered the scuttle hole on the bathroom ceiling side but left it open on the attic side in an effort to stay in compliance with the building code. The evidence failed to show that the developer acted for some bad purpose or with a reckless indifference to the homeowner’s rights. The insulation-filled scuttle hole posed the same risk to the homeowner as the other areas of the attic floor that were filled with insulation and not covered by plywood.

Eyes on the Ball: Last Clear Chance Doctrine

Definition and Example. Another exception to contributory negligence is the last clear chance doctrine. The last clear chance doctrine requires the plaintiff to show the following elements:

1. The plaintiff, by his own negligence, put himself into a position of helpless peril;
2. The defendant discovered, or should have discovered, the position of the plaintiff;
3. The defendant had the time and ability to avoid the injury;
4. The defendant negligently failed to do so; and
5. The plaintiff was injured as a result of defendant’s failure to avoid the injury.

Outlaw v. Johnson, 190 N.C. App. 233 (2008). In Outlaw, a construction worker was injured when the steamroller he was moving out of a construction zone on Highway 70 at approximately five or six miles per hour was struck by a tractor-trailer. The truck driver argued the construction worker was contributorily negligent for failing to see the vehicles coming behind him and to get out of the roadway. The court of appeals upheld a verdict for the construction worker, despite his contributory negligence, because the truck driver had the last clear chance to avoid injuring the construction worker but failed to do so. The court reasoned that the construction worker placed himself in a position of peril by failing to observe his surroundings, but that the truck driver should have discovered the position of the construction worker and had the time and ability to avoid hitting the steamroller but failed to do so.

Not Par for the Course. In Moseley v. Hendricks, 292 N.C. App. 258 (2024), a weekend golf outing among friends turned into a lawsuit when one of the golfing buddies took a golf ball to the eye. In addition to golf, the buddies were also partaking in beer and moonshine. Mr. Moseley imbibed more than his friends, and his consumption combined with an empty stomach rendered him “heavily impaired” according to one witness. After the round of golf was completed, the friends headed to the driving range in golf carts.

The golf carts were parked on the asphalt lot facing the driving range. Mr. Hendricks and two others proceeded to the tee-off area, while Mr. Moseley remained in the golf cart. Mr. Hendricks checked his target line, and it was clear. As he had been taught since high school, he kept his head down and eyes on the ball and took the shot. Sometime between Mr. Hendricks checking the target line and taking the shot, Mr. Moseley managed to get himself onto the driving range in the golf cart. Before Mr. Hendricks could even yell, “Fore!” the ball struck Mr. Moseley in the eye.

The Procedural History of the Case. Mr. Moseley filed an action for negligence against Mr. Hendricks. Mr. Hendricks filed and won a motion for summary judgment. The Court of Appeals affirmed the trial court’s summary judgment order. The court found no material issue of fact as to Mr. Moseley’s contributory negligence due to his failure to maintain awareness of his surroundings due in part to his level of intoxication.

Mr. Moseley raised the last clear chance doctrine and argued that Mr. Hendricks should have discovered Mr. Moseley’s position of peril on the driving range. The court disagreed with Mr. Moseley because testimony from the golfing buddies and the golf course’s pro indicated that it was standard practice for a golfer not to look up again after they had started to address the ball. Mr. Hendricks could not have acted in time to avoid Mr. Moseley’s injury; thus, the doctrine did not apply to overcome Mr. Moseley’s contributory negligence.

Act Fast: Sudden Emergency Doctrine

Definition and Example. Another argument a party might use to avoid liability for negligence is the sudden emergency doctrine. A party who has caused injury to another party may avoid liability if the party can prove (1) there was an emergency situation requiring immediate action to avoid injury, and (2) the emergency was not created by the negligence of the party invoking the doctrine. Long v. Harris, 137 N.C. App. 461 (2000). The doctrine provides a less strict standard of care for one who, through no fault of his own, is suddenly and unexpectedly confronted with imminent danger to himself or others. Id.

For example, the plaintiff sues the defendant for pulling onto the road in front of the plaintiff causing the plaintiff to collide with the rear of defendant’s vehicle. The defendant argues that the plaintiff should have slammed on brakes to avoid the accident and should be barred from recovery because of plaintiff’s contributory negligence. The plaintiff argues that he had only seconds to act and believed slamming on the brakes would cause a head-on collision, so he swerved and hit the rear corner of the defendant’s vehicle instead. In essence, the plaintiff is arguing that the sudden emergency doctrine covers his actions and that he reacted as a reasonable person would react in similar emergency circumstances.

Hit the Brakes. In Chadhi v. Mack, 288 N.C. App. 520 (2023), a store clerk was injured when the driver’s vehicle struck the convenience store in which he was working, and a display fell onto his arm. While driving her grandmother’s vehicle, the driver experienced a brake failure. The driver did not stop immediately because her choices were either a more populated parking lot where she might hit cars and people, or a gas station parking lot known to be unsafe. Instead, to stop the vehicle, she turned into the convenience store parking lot where she collided with the store while going 10 mph. The impact of the car hitting the store caused a display to fall and injure the store clerk.

The Procedural History of the Case. The store clerk sued the driver for negligently operating the vehicle. The driver argued that her conduct was not negligent because she reacted as a reasonably prudent person would react to similar emergency circumstances. At the trial, the district court judge instructed the jury on the sudden emergency doctrine, and the jury returned a verdict for the driver. The store clerk appealed the jury verdict arguing that it was error for the trial court to instruct the jury about the sudden emergency doctrine because the driver failed to react immediately and drove for several miles before reaching the collision site.

The Court of Appeals held that it was not an error to instruct the jury on the doctrine, and in fact, where evidence exists of a sudden brake failure caused not by the driver’s own negligence, it is prejudicial error not to instruct the jury on the doctrine. Before reaching the convenience store, the driver’s other options for stopping the vehicle were not safe or feasible. The driver is not required to make the wisest choice of conduct, but a choice that a reasonable person, similarly situated, would have made.

Final Takeaways and Conclusion

• Contributory negligence bars recovery if the plaintiff shares any fault for the injuries or damages.
• The plaintiff can overcome this bar if the plaintiff can prove the defendant committed gross negligence or that the defendant had the last clear chance to avoid the injury and failed to do so.
• Either party may invoke the sudden emergency doctrine to defend against an allegation of negligence if the party acted as a reasonably prudent person would act in similar emergency circumstances.

American newspaper columnist, George Matthew Adams, said, “Negligence always carries a high price. It costs nothing to avoid it!” Unfortunately, it’s probable that a time will come in all our lives when we will fail to act as a reasonably prudent person. We might forget to look when walking around the attic, have one too many drinks at the golf course, or experience a sudden brake failure. Who is ultimately at fault will depend on the success or failure of the doctrines outlined above.