Last night, an 88-year-old man in Lenoir was killed while crossing the street to get to his mailbox. According to troopers, the man looked both ways before crossing the street and saw the car heading north on Hartland Road but did not see the car heading south. He walked directly into the path of the car heading south and was struck. He was pronounced dead at the scene of the accident.
Nothing in the reports suggests that the deceased man suffered from diminished mental capacity, and by all accounts he was in good mental health. However, let’s consider a case where an elderly man who suffered from dementia was attempting to cross the street and was hit by the car. Would that man’s diminished mental capacity change our liability analysis?
North Carolina statute provides that pedestrians crossing the street while not in a crosswalk must yield the right-of-way to cars on the road. G.S. 20-174(a) states that “[e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.”
However, motorists also have a duty to look out for others on the roadway while driving and G.S. 20-174(e) provides that
Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.
So even if a pedestrian breaches his duty to yield the right-of-way to a vehicle while crossing the street not in a crosswalk, a driver still has to “exercise due care to avoid colliding with” that pedestrian.
Furthermore, a driver has a special duty if he observes “any child or any confused or incapacitated person upon a roadway” and must exercise “proper precaution” and “give warning by sounding the horn” pursuant to North Carolina statute G.S. 20-174(e). While we haven’t seen any cases involving “confused or incapacitated” pedestrians being struck by cars, the North Carolina courts have several cases dealing with children pedestrians being struck by cars. In such a case, the North Carolina Supreme Court has stated that
It has been frequently declared by this Court to be the duty of one driving a motor vehicle on a public street who sees, or by the exercise of due care should see a child on the travelled portion of the street or apparently intending to cross to use proper care with respect to speed and control of his vehicle, the maintenance of vigilant lookout and the giving of timely warning, to avoid injury, recognizing the likelihood of the child’s running across the street in obedience to childish impulses and without circumspection.
Sparks v. Willis (NC SCt 1947)
Therefore, a driver must not only keep a vigilant lookout to see children near a roadway, but if a driver does see a child near a roadway, the driver cannot ignore the possibility that the child will run into the street. The fact scenarios of the North Carolina cases that deal with this special duty typically involve eight- or nine-year-old children.
Although it is not clear that the same analysis would apply to a pedestrian of diminished mental capacity, it gives us an idea of the special duty owed to these types of pedestrians. However, it would certainly be more difficult to identify a pedestrian with diminished mental capacity than to identify a child pedestrian. We might imagine that a court would require the pedestrian to exhibit traits that would lead a reasonable person to suspect that the pedestrian suffered from diminished mental capacity in order for the special duty to apply.
Another portion of our liability analysis that would change is the issue of the pedestrian’s contributory negligence. A pedestrian that fails to yield the right-of-way to vehicles on the roadway can be found contributorily negligent and barred from recovering damages, even if the motorist is found to be negligent. Children under the age of 7 years are incapable of contributory negligence as a matter of law. Children between the ages of 7 and 14 years are presumed incapable of contributory negligence, but this presumption may be rebutted. And children over the age of 14 years are presumed capable of contributory negligence, but this presumption may also be rebutted.
What about the contributory negligence of adults with diminished mental capacity? In a 1995 case, Stacy v. Jedco, the North Carolina Court of Appeals held that an injured plaintiff with diminished mental capacity is not held to the objectively reasonable person standard but instead to the standard of care that a person of similar mental capacity would exercise in similar circumstances. In Stacy, a man suffering from senility fell and was injured on a worksite. His estate sued the employer for damages.
In its analysis, the court stated that
Our Supreme Court has held “one who has capacity to understand and avoid a known danger” is contributorily negligent if he fails to take advantage of the opportunity to avoid the danger and is injured, and one cannot be guilty of contributory negligence “unless he acts or fails to act with knowledge and appreciation, either actual or constructive, of the danger of injury which his conduct involves.” It is generally held that one “who is so insane or devoid of intelligence as to be totally unable to apprehend danger and avoid exposure to it is not a responsible human agency and cannot be guilty of contributory negligence.” However, where an injured plaintiff suffers from diminished mental capacity not amounting to insanity or total incompetence, it is a question for the trier of fact as to whether he exercised the required degree of care for his own safety, and the effect of his diminished mental faculties and capabilities may be taken into account in determining his ability to perceive and avoid a particular risk of harm. Thus, we hold 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 care as he was capable of exercising, i.e., the standard of care of a person of like mental capacity under similar circumstances.
Therefore, the court concluded that the question of the man’s contributory negligence was an issue for the jury.
If you have been injured in a car accident, call an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.