When a driver crashes into someone because the driver did not slow down even though the driver was within the posted speed limit, is failure-to-decrease-speed only a civil negligence question, or can the State also charge it as a crime?

Plain-English summary

A Winston-Salem public safety attorney asked whether North Carolina's duty to decrease speed when necessary to avoid a collision was both a criminal offense and a civil standard of care. The 1979 Attorney General answered yes. The opinion says N.C.G.S. § 20-141(m) creates a misdemeanor under § 20-176(a), with the penalty then stated in § 20-176(b): a fine up to $100, jail up to 60 days, or both.

The opinion also calls subsection (m) a safety statute. Citing Davis v. Imes, it says safety statutes prescribe the standard of care for civil negligence. It cites State v. Gainey for the statement that a safety-statute violation may also be criminal if committed in a criminally culpably negligent manner and proximately causing injury; State v. Massey says culpable negligence requires more than actionable negligence in tort law.

The opinion gives both its misdemeanor conclusion and that culpable-negligence statement. It does not reconcile them into a rule for separate classes of offenses. It does not discuss death-by-vehicle charges or whether a near miss could be charged.

Currency note

This opinion was issued in 1979 and quotes the penalty then in force. Verify current North Carolina traffic statutes, penalties, and case law before applying it today.

What this means for you

Drivers. The opinion says driving below the posted limit does not remove the duty to slow when needed to avoid a collision and injury.

Public safety officials. The AG's express conclusion is that subsection (m) can support a misdemeanor under § 20-176. Its discussion of culpable negligence and injury should be read as written; the opinion gives no separate offense ladder or no-injury charging guidance.

Civil litigants. The opinion says a safety statute can supply the standard of care in a civil negligence action. It does not decide causation or liability in any particular crash.

Common questions

Could failure to decrease speed be criminal under this opinion?

Yes. Its conclusion says subsection (m) creates a misdemeanor under § 20-176(a), punishable as described in the 1979 version of subsection (b).

Did the opinion say culpable negligence is always required for that misdemeanor?

It does not resolve that precise question. A later passage says safety-statute violations may also constitute a criminal violation when committed with culpable negligence and proximately causing injury. The opinion does not explain how that statement fits its earlier misdemeanor conclusion.

Did it discuss death-by-vehicle offenses?

No. It names no such offense and gives no test for an escalated charge.

Can a safety statute also matter in a civil case?

Yes. The AG cites Davis v. Imes for the proposition that safety statutes prescribe a standard of care applicable to civil negligence.

Background and statutory framework

N.C.G.S. § 20-141(m), quoted in the opinion, says driving below statutory speed limits does not relieve a driver of the duty to decrease speed as needed to avoid collision and injury. The AG linked this duty to the general misdemeanor provision in § 20-176(a) and the then-applicable penalty in subsection (b).

The opinion also traces subsection (m) to former § 20-141(c). It says State v. Gainey held that the older duty remained encompassed in § 20-141(a) after a 1973 rewrite, and that the 1977 addition of subsection (m) substantially restated prior law. For civil and criminal standards, it cites Davis, Gainey, and Massey as described above.

Citations

• N.C.G.S. § 20-141
• N.C.G.S. § 20-141(m)
• N.C.G.S. § 20-176(a)
• N.C.G.S. § 20-176(b)
• 1973 Session Laws, Chapter 1330 § 7
• Poultry Co. v. Thomas, 289 N.C. 7 (1975)
• State v. Gainey, 292 N.C. 627 (1977)
• Davis v. Imes, 13 N.C. App. 521 (1972)
• State v. Massey, 271 N.C. 557 (1967)

Source

• Landing page: https://ncdoj.gov/opinions/motor-vehicles-failure-to-decrease-speed/

Original opinion text

Requested By: Ms. Mary Claire McNaught, Public Safety Attorney, Winston-Salem, N.C.

Question: Does N.C.G.S. § 20-141(m) create a criminal offense of failure to decrease speed as necessary to avoid a collision as well as a "standard of care" in establishing civil negligence?

Conclusion: Yes.

N.C.G.S. § 20-141(m) does create a criminal offense of failure to decrease speed as necessary to avoid a collision under N.C.G.S. § 20-176(a) declares a misdemeanor punishable under N.C.G.S. § 20-176(b) "by a fine of not more than one hundred dollars ($100.00) or by imprisonment in the county or municipal jail for not more than 60 days, or by both such fine and imprisonment."

N.C.G.S. § 20-141(m) provides:

"The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the operator of a vehicle from the duty to decrease speed as may be necessary to avoid colliding with any person, vehicle or other conveyance on or enter the highway, and to avoid injury to any person or property."

N.C.G.S. § 20-176 penalty for misdemeanor (a) provides: "It shall be unlawful and constitute a misdemeanor for any person to violate any of the provisions of this Article unless such violation is by this Article or other law of this State declared to be a felony."

N.C.G.S. § 20-141 establishes the legal speed restrictions for North Carolina. Subsections (m) establishes a mandatory duty to decrease the speed of a vehicle to avoid a collision even though the speed is lower than the legal limit. Subsection (m) is a safety statute enacted by the legislature for the public welfare. The legislature in passing this safety statute had the intent of making a violation of the duty a criminal offense thereby shifting to the individual the burden to know whether his conduct is within the statutory requirements. See Poultry Co. v. Thomas, 289 N.C. 7 (1975).

The predecessor of N.C.G.S. § 20-141(m) was found in N.C.G.S. 20-141(c) (1965).

"The fact that the speed of a vehicle is lower than the (statutory limits) shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highways, in compliance with legal requirements and the duty of all persons to use due care."

Former subsection (c) was not reincorporated in N.C.G.S. 20-141 when it was rewritten, 1973 Session Laws, Chapter 1330 § 7, effective 1 January 1975, but was held in State v. Gainey, 292 N.C. 627 (1977) to be encompassed in N.C.G.S. 20-141(a) (1975) and thus to still constitute a valid standard for criminal conduct. The legislature amended N.C.G.S. § 20-141 in 1977 adding subsection (m) which substantially restates the prior law. This Office has previously ruled that former subsection (c) created a criminal offense of failure to decrease speed to avoid a collision. See, Opinion of the Attorney General, May 1, 1969.

The safety statutes do prescribe standard of care that is applicable for civil negligence. Davis v. Imes, 13 N.C. App. 521 (1972). Violations of the safety statutes may also constitute a criminal violation if the violation occurred in a criminally culpably negligent manner and was the proximate cause of injury, State v. Gainey, 292 N.C. 627 (1977). Criminal or culpable negligence requires something more than actionable negligence in the law of torts, State v. Massey, 271 N.C. 557 (1967).

N.C.G.S. § 20-141(m) therefore establishes a duty that by intent and precedent can support either or both civil and criminal actions.

Rufus L. Edmisten
Attorney General

William W. Melvin
Deputy Attorney General