Jan302026
Wrongful Death

What happens if the driver says it was an accident or tries to blame my child? – North Carolina

Short Answer

In North Carolina, a driver can still be legally responsible even if the driver claims the crash was an “accident.” The key question is whether the driver was negligent (careless) and whether that negligence caused the death. North Carolina also follows a strict contributory negligence rule, so if the defense proves the child’s own negligence contributed to the crash, it can bar recovery in many cases—but the driver has the burden to prove that defense, and special rules often matter when the person blamed is a minor.

Understanding the Problem

In a North Carolina wrongful death case involving a child hit by a car, the main decision point is whether the driver can avoid responsibility by calling it an accident or by claiming the child caused the collision. The issue usually turns on whether the driver failed to use reasonable care under the circumstances and whether the defense can prove a legally valid “shared fault” defense. The wrongful death claim is brought through the child’s estate rather than directly by family members, and the case often depends on early evidence about speed, visibility, right-of-way, and what each person did in the seconds before impact.

Apply the Law

Under North Carolina law, “accident” is not a legal shield by itself. If a driver’s negligence (for example, failing to keep a proper lookout, driving too fast for conditions, or not yielding when required) caused the death, the estate may have a wrongful death claim. However, North Carolina recognizes contributory negligence as a complete defense in many negligence cases, meaning the defense may try to argue the child’s conduct contributed to the collision. These cases are typically filed in North Carolina Superior Court by the personal representative of the child’s estate, and the general deadline to file a wrongful death lawsuit is two years from the date of death.

Key Requirements

  • Negligence by the driver: The evidence must show the driver failed to use reasonable care under the circumstances (not just that a collision happened).
  • Causation: The driver’s negligence must be a cause of the fatal injuries (the defense often disputes what caused the impact and whether it was avoidable).
  • No proven contributory negligence that bars the claim: The defense may try to prove the child’s negligence contributed to the collision; if proven and no exception applies, it can defeat the claim.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the report is that a child was hit by a car and died at the scene. If the driver failed to keep a proper lookout, drove too fast for conditions, was distracted, or failed to yield when required, that can support negligence and causation even if the driver describes the event as an “accident.” If the driver tries to blame the child, the defense typically must prove facts showing the child acted negligently and that the child’s conduct contributed to the collision; in practice, the child’s age and the surrounding circumstances often become central to how that argument is evaluated.

Process & Timing

  1. Who files: The personal representative (executor/administrator) of the child’s estate. Where: North Carolina Superior Court in the county with proper venue (often where the crash happened or where the defendant lives). What: A civil complaint for wrongful death and related filings required by the court. When: Generally, the lawsuit must be filed within two years from the date of death.
  2. Investigation and preservation: The estate’s attorney typically gathers the crash report, 911 calls, body-cam/dash-cam footage if available, scene photos, vehicle data, phone records when relevant, and witness statements. This step matters because “it was an accident” defenses often rely on missing or unclear evidence.
  3. Litigation and fault defenses: The driver (and insurer) may raise contributory negligence and other defenses in a formal answer, then both sides exchange evidence (discovery). The case may resolve through settlement discussions or proceed to motions, mediation, and trial depending on the disputed facts.

Exceptions & Pitfalls

  • “Accident” versus “unavoidable accident”: A driver can argue the collision was unavoidable, but that defense usually depends on specific facts (visibility, speed, reaction time, and whether the driver was attentive). A label alone does not defeat a wrongful death claim.
  • Contributory negligence arguments: North Carolina’s contributory negligence rule can be harsh. The defense may focus on where the child was, whether the child entered the roadway suddenly, and what the driver could see and do. The defense has the burden to prove contributory negligence. See N.C. Gen. Stat. § 1-139.
  • Minor-specific issues: When the person being blamed is a child, the analysis often turns on age and capacity and what is reasonable for a child in that situation. Treating a child’s behavior exactly like an adult’s behavior can be a major litigation mistake.
  • Evidence disappears quickly: Video footage can be overwritten, vehicles can be repaired, and skid marks fade. Delays can make it easier for the defense to argue the event was unavoidable or that the child caused it.
  • Wrong party filing: In North Carolina, the wrongful death claim must be brought by the personal representative of the estate, not simply by a parent filing in an individual capacity. Filing incorrectly can cause delay and deadline risk.

For more on early proof issues in these cases, see what kind of evidence should be gathered right away.

Conclusion

In North Carolina, a driver does not avoid liability just by calling a fatal pedestrian collision an “accident.” The estate must show the driver was negligent and that negligence caused the death, while the defense may try to prove contributory negligence to bar the claim. A wrongful death case is filed by the personal representative of the child’s estate, and the general deadline is two years from the date of death—so the next step is to have the personal representative file a wrongful death complaint in the proper North Carolina Superior Court before that two-year deadline.

Talk to a Wrongful Death Attorney

If you’re dealing with a driver who says the crash was an accident or tries to shift blame to a child, our firm has experienced attorneys who can help explain how North Carolina wrongful death law and fault defenses work and what timelines apply. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Wrongful Death

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.