John M. Kirby March 28, 2014

On October 16, 2012, the Court of Appeals held that, as a matter of law, a worker was contributorily negligent in operating an electric drill near water, and his Estate could not recover for his wrongful death against other persons allegedly responsible for the death.

In this case, Mr. Thorpe was working on a pier and dock near the water. He was attaching braces at the dock, near the water. Other workers had informed him that the outlet did not have a Ground Fault Circuit Interruption device. Another worker refused to work close to the water with electical tools, and so Mr. Thorpe did so. The workers told him it was not safe, and they suggested they come back in the morning when the tide was lower. While holding his drill, a boat rode by, causing a large wake. The swell of water caused the drill to become submerged (or wet), and Mr. Thorpe was electrocuted as a result. His Estate sued various parties involved with the project contending, among other things, that they were negligent for not having a GFCI installed.

The lower court granted summary judgment for the defendants, and the Court of Appeals affirmed. The first issue was whether North Carolina state law, or federal admiralty law, applied. (Under federal law, Mr. Thorpe’s contributory negligence would have reduced his recovery, and not completely prevented it.) The court held that federal admiralty law did not apply did not apply because the injury did not take place on navigable waters. (The court’s final opinion superseded a prior opinion that had a slightly different analysis on this issue.) The court then ruled that Mr. Thorpe was aware of the risk and chose to work in risky conditions, and that his claim was therefore barred as a matter of law. The case of Thorpe v. TJM Ocean Isle Partners is a good application of North Carolina’s law on contributory negligence. The court held that Mr. Thorpe could not assume that the outlet was in compliance with electrical regulations because he was on specific notice to the contrary.