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.

4 thoughts on “Active vs. Passive Negligence (Law note)

  1. Devon says:

    If for some reason the contractor was found the be part of the active negligence even to a small degree. Would the contractor still be entitled to an indemnity claim against the sub-contractor?

    • Melissa Dewey Brumback says:

      Thanks for your question, Devon. The answer is “it depends”. If there is a contractual indemnity provision between them, *and* it is legally written to comply with state statute, then a contractor may still be entitled to indemnity for the portion of the claim that was not caused by the contractor’s negligence. However, this is difficult to argue/prove, since generally a court will find that they are joint tortfeasors, in states where apportionment is not done (including NC). I’d still make the argument, but whether it wins the day is up for debate.

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