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Barking up the wrong tree

When it comes to contributory negligence, few cases are as clear and unfortunate as the one that the state Court of Appeals analyzed in Proffitt v. Gosnell.

The Dec. 19 decision centered on an 18-year-old who stood atop a tree that had fallen across a road near Asheville during an October evening in 2015. The teen’s father had asked him to “to get across the tree and try to wave traffic down,” while they waited for a chainsaw to be delivered.

But as a vehicle approached in the oncoming lane around a curve, the teen held his position on the tree, which was densely covered in branches. The teen’s father testified that his son was “goofing off, [being a] teenager.”

He also said that instead of trying to climb down from the tree to safety, the teen began waving his arms and saying, “Hey, big dummy, I’m standing here.”

Needless to say, the driver didn’t hear or see him.

When the teen finally tried to jump down it was too late. His pants snagged on a limb and, as the car smashed into the tree, a branch whacked the teen in the back of his head, sending him flying. He landed on his back in the roadway.

In affirming a trial judge’s ruling granting the driver summary judgment, the Court of Appeals rejected the teen’s argument that he could not be contributorily negligent because his IQ at the time of the incident was “around 65,” which means he “falls into the category of mild mental retardation.”

But the court found that the teen’s low IQ was not “factually analogous to senility.” The court noted that the teen had graduated high school and was planning to study automotive mechanics at a local tech college. He also had a driver’s license (he passed his driver’s test the first time) and was very familiar with the stretch of road where he was injured.

The court went on to shoot down the teen’s assertions that his suit should survive because he did not fail to yield to the right of way of other vehicles and that the driver had the last clear chance to avoid the crash.

When asked during his deposition if he thought it would’ve been safer to go around or under the tree to warn oncoming traffic, the teen replied, “I guess.”

Asked if he regretted climbing the tree, he said, “It’s a Samaritan’s job to help.”

At least his heart was in the right place.

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