Active vs. Passive Negligence (Law note)

whole hog sign“As long as I was in, and in for good, I might as well go the whole hog.”

–Huck Finn, The Adventures of Huckleberry Finn by Mark Twain


If you work on a North Carolina construction project, you, too, are in “the whole hog” if you are negligent.  That is, if you are negligent at all, you are on the hook for the full lot.  As we’ve discussed, joint tort-feasors (that is, two negligent parties who are jointly & severally liable) are generally not entitled to indemnity from one another.

However, there are exceptions, and today we’re talking about one such exception– the passively negligent party.  

What is passive negligence?

Active negligence is an action which causes damage.  In contrast, passive negligence is negligence due to inaction, omission, or the failure to do something that you are legally obligated to do.   The actively negligent party is primary responsible for paying any damages, and the passively negligent party is only secondarily liable.

For example, if a subcontractor is actively negligent in constructing the framing for a building, and the general contractor failed to notice the defect, the subcontractor is actively negligent and the general contractor is passively negligent. 

Indemnity of the passively negligent party

Where the active negligence of one tort-feasor and the passive negligence of another combine to proximately cause injury to a third party, the passively negligent tort-feasor who is compelled to pay damages to the injured party is entitled to indemnity from the actively negligent tort-feasor.  This is called common-law indemnity, as opposed to contractual indemnity, which we discussed in an earlier blog post. 

In our example above, the subcontractor, as the actively negligent party, is the party ultimately responsible for the poor framing and the resulting damages.  If the general contractor is sued by the owner, he can in turn sue the subcontractor for the damages which were caused by the sub.

Questions about active versus passive negligence?  Drop me a line in the comments below.


Photo “Whole Hog Heaven BBQ” by Bill.Roehl via Flickr/Creative Commons license.

LEED, HealthyBuilt Homes, and Green Building classes (Tues Tip)


More classes from the NC Solar Center to help get you up to speed on the latest in green construction building in North Carolina.  This time, 3 half-day workshops in Raleigh:

11/3  Morning:  NC HealthyBuilt Homes (HBH) Program Orientation – an intro to HealthyBuilt Homes, statewide residential green building certificate program

11/3  Afternoon:  LEED for Homes Program Orientation – an intro to LEED for Homes, a national residential green building certificate program

11/4  Afternoon:  Green Residential Verifier/Inspector Basics Workshop – a workshop on  best practices as a “green verifier” for the various residential green building programs in North Carolina

Will you be attending one or more of these classes?  If so, drop me a line and let me know what you think of the courses you take.  Know of a course or class that might interest construction professionals in North Carolina?  Let me know in the comments below.


Photo “pencil” by via Creative Commons licnese. 

Free marketing webinar for homebuilders

Good Friday morning to you all!

bar graph increasing resultsJust got in word last night of a *free* upcoming webinar (this coming Thursday).  The webinar is to help homebuilders market themselves.  The details:

What:  “How to Profit from Your Most important Brand-Yourself” 
When:  Thursday, October 28th at 8pm (Eastern Time) 
Who:    Mike Jeffries of Rivers of Revenue/ Construction Programs & Results (CPR)
Why:   Learn free tips to market yourself in this tough economy
How:  Register (for free), then attend via web and/or telephone

If you sign up, drop me a note afterwords to let me know if you felt the program was worthwhile.  I strive to inform my readers of upcoming events they may enjoy, but want to make sure I mention only quality programs.  So, feedback (good, bad, or indifferent) is appreciated!


Photo “Bar Graph” by  KevinZHengli via Flickr/Creative Commons license.


Contributory Negligence on the construction project (law note)

scale of justiceI’m sometimes asked if the percentage of “fault” is something that a client can rely on to reduce the amount of money they may owe on construction project gone bad.  The short answer:  no.   As I mentioned in my post on joint & several liability, if you are even 1% liable for the damages on a project, you can be hit with 100% of the damages. 

 This is not true in many other jurisdictions, where proportional fault (called comparative negligence) is often allowed.  In those states, if you are found 20% liable, you only have to pay 20% of the damages. Not so in North Carolina.  Here, unless you are entirely passively negligent (a concept we’ll discuss next week), you may be on the hook for the full amount.

That’s not fair!

Perhaps.  But, that’s life on a North Carolina construction project.  One concept that helps to reduce the unfairness factor is the concept of contributory negligence.  In North Carolina (but few other states), if a party is negligent at all (even 1%), they cannot recover from another negligent party.  

For example:  the owner of a project sues its general contractor on a project for a late project delivery which costs the owner money.  While almost all of the delay was the contractor’s fault, the owner also caused delay by failing to deliver owner-furnished equipment in time to meet the critical path of the project.  The owner’s own failure means that the owner itself is contributorily negligent and, under North Carolina law, the owner cannot recover the rest of its damages from the contractor.

But wait! There’s more.

Before you get too excited about contributory negligence, you need to understand the concept of  jury nullification.  When contributory negligence is explained to a jury, the jury may sometimes decide not to find fault where they might otherwise apportion fault, to avoid what they perceive as an unjust result. 

In the above example, the jury might decide the owner’s failure was not really contributing to the delay after all, and therefore award the owner damages.  This is called jury nullification, and it can take the sting out of contributory negligence.

Change to NC’s Contributory Negligence law?

The concept of contributory negligence (and its complete bar to any recovery) is one which many would like to change.  There has been legislation in the NC General Assembly in recent years to abolish contributory negligence in favor of a comparative-fault  negligence, as is common in most states.  So far, this has not happened.  As they say, however, the jury is still out on whether such a change will occur.  

Do you have an opinion on contributory negligence vs. comparative negligence? Think NC’s law should change to one based on percentage of fault?  Share in the comments below.


Photo “Scale—Image”  by Matthias Kulka/Corbis via Picasa/Creative Commons License

Pre-holiday reminder: plan for delays (Tues Tip)

colored leafAs the weather (finally) begins to turn to fall, people begin to make plans for fall and winter holidays with family and friends.  While negotiating the ins and outs of whos turn is it to get you for Thanksgiving this year, remember to plan for holiday delays on your construction projects.

Schedules matter.  And yet, vacations, holidays, weather, sickness, and other delays happen.  As I’ve written about previously on this blog, it is important that you prepare for delays in advance & document unanticipated delays

You know you will not have a full crew working 100% between Thanksgiving and Christmas, or between Christmas and the start of the new year.   Neither will your subcontractors.   Plan on it, and accomodate those delays now, ahead of time.

You also need to make temporary arrangements to fill in the gaps during holidays and vacations– both your own absence from the project and that of other trades.    Figure out who should be the contact person in charge in your absence.  Notify everyone who needs to know.  Inquire of your subs, owners, and material suppliers how they are staffing around the holidays.  Advance planning now equals fewer chances for costly delays.

Think of it as an early present to yourself to save yourself from last minute problems!


Photo “Fall Color, Autumn Colour, New England” by via Creative Commons License. 

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