The Contributory Negligence of Emergency Vehicles in North Carolina

We talked recently about the negligence of emergency vehicles in motor vehicle accidents which causes injury to another person, but in some cases an emergency responder is injured in an accident and the defendant raises the defense of the emergency vehicle’s contributory negligence. In these cases, North Carolina courts have held that, while the driver of an emergency vehicle does not always have to strictly comply with certain traffic laws, that driver must still use due care under the circumstances to not be held contributorily negligent.

Much like in the cases where an injured plaintiff alleges the negligence of an emergency vehicle, a showing of a statute violation does not mean that an emergency vehicle driver is negligent per se. The North Carolina Court of Appeals noted in City of Winston-Salem v. Rice (1972) that

[o]ur research reveals that a majority of jurisdictions by statutes or ordinances exempt emergency vehicles (such as police cars, ambulances and fire department apparatus) from strict compliance with traffic regulations. However, the allowance of these special privileges (which include traveling through a red traffic light and exceeding speed limits) has been held generally not to relieve the operator of the emergency vehicle from the exercise of ordinary, reasonable care commensurate with the circumstances.

In Rice, the trial court determined that the plaintiff/firefighter was contributorily negligent as a matter of law. The firetruck slowed down when approaching a red light, although it did not stop, and then proceeded through the intersection in a westerly direction. The northbound traffic at the intersection was stopped and the driver of the firetruck saw no southbound traffic. At the time of the collision with the defendant, the fire truck’s lights and siren were in operation.

The City of Winston-Salem had an ordinance which granted “special privileges to emergency vehicles including that of 'proceeding past a red or stop signal or stop sign.'” However, “these privileges are not absolute [because] [t]he driver of an emergency vehicle is not relieved from the standard of due care commensurate with the circumstances but must drive with regard for the safety of all persons.” The court of appeals held that the facts in Rice presented a question of the plaintiff’s contributory negligence for the jury and that the trial court erred in determining that the plaintiff was contributorily negligent as a matter of law.

More recently, the court of appeals looked at another case involving an injured firefighter. In Sharp v. CSX Transportation, Inc. (2003), a firefighter was driving the firetruck back to the station after responding to a call. On his way back, he was approaching a train crossing when a train approached, causing the crossing gate to lower. Just after crossing the road, the train stopped, but the gate remained lowered. The trains in the area had a widely known practice of stopping “for extended periods of time in close proximity to crossing gates thereby causing the gates to remain lowered.” Because the firefighter was alone in the firetruck, he was not allowed to put the truck in reverse. Fire station policy also required him to return promptly to the fire station after a call. The firefighter believed that the gate was lowered only because of the train that had stopped. After waiting for a little while to see if the train would move, the firefighter proceeded to go around the gate, at which point an Amtrak train approached and hit the fire truck, killing the firefighter.

The defendant argued that the firefighter was contributorily negligent as a matter of law because he violated a North Carolina statute. G.S. 20-142.1(b) states that

No person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is being opened or closed, nor shall any pedestrian pass through, around, over, or under any crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is being opened or closed.

However, subsection (d) of the statute provides that “[v]iolation of this section shall not constitute negligence per se.” Therefore, a violation of the statute, without more, does not establish a plaintiff’s contributory negligence. The court explained that "The distinction, between a violation of a statute ... which is negligence per se and a violation which is not, is one of duty. In the former the duty is to obey the statute, in the latter the duty is due care under the circumstances." To prove the plaintiff’s contributory negligence, the defendant must show that he failed to exercise “due care under the circumstances.”

The court stated that “[t]he fact that [the firefighther] bypassed the crossing gate in violation of the statute is evidence that may be considered, together with all of the other facts and circumstances, in deciding whether [the firefighter] breached his common law duty of exercising ordinary care.”

The court also looked at its decision in Rice in stating that “a majority of jurisdictions by statutes or ordinances exempt emergency vehicles (such as police cars, ambulances and fire department apparatus) from strict compliance with traffic regulations.” Because the firefighter needed to return the fire truck to the fire station, this was “another factor that may be considered in deciding whether he used due care.”

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