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1. Motor Vehicles--collision with passing truck--gross negligence
The trial court did not err by refusing to instruct the jury on the issue of defendant Lea's
gross negligence in an accident which occurred when Lea's tractor trailer collided with decedent's
automobile as defendant attempted to pass decedent while decedent was making a left turn. The
evidence tended to show that decedent had slowed her vehicle and activated her left turn signal
prior to the collision, Lea conceded being aware that decedent was slowing, and Lea testified that
he did not see decedent's turn signal or brake lights. Although negligence on the part of Lea was
essentially undisputed, there was no evidence that he was either intoxicated or traveling at an
excessive speed, nor was there substantial evidence of other conduct that lies somewhere between
ordinary negligence and intentional conduct. Moreover, North Carolina courts have never held
that singular acts of simple negligence, considered cumulatively or in combination, may comprise
wilful and wanton negligence.
2. Negligence--comparative--not adopted in North Carolina
The trial court did not err by failing to instruct the jury on the doctrine of comparative
negligence; neither the North Carolina Supreme Court nor the General Assembly has adopted
comparative negligence as the law of the state.
Judge HUNTER dissenting.
Glenn, Mills & Fisher, P.A., by William S. Mills, for
plaintiff-appellant.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Steven M. Sartorio, for defendant-appellees.
JOHN, Judge.
Plaintiff George C. Yancey, administrator of the estate of
Lucy W. Yancey (decedent), appeals judgment entered upon a jury
verdict finding defendant Artie Sylvester Lea (Lea) negligent and
decedent contributorily negligent in the automobile collision whichcaused decedent's death. Plaintiff asserts the trial court erred
by failing to instruct the jury as to the alleged gross negligence
of Lea and on the doctrine of comparative negligence. We conclude
the trial court did not err.
Relevant background information includes the following:
Decedent was killed in a collision between her automobile and a
tractor-trailer truck operated by Lea and owned by defendant Huss,
Incorporated. At approximately 9:00 p.m. on 6 September 1996,
decedent and Lea were proceeding in a northerly direction on
Highway 15 in Granville County, decedent's vehicle preceding that
of Lea. As decedent turned left from the northbound lane into her
sister's driveway, Lea was attempting to pass on decedent's left
and collided with her automobile in the southbound lane.
Evidence at trial further indicated Highway 15 at the point of
the accident is a two-lane, straight highway with unobstructed
visibility for a substantial distance in either direction, and that
Lea attempted to pass decedent in a valid passing zone.
Decedent's grandson, Bobby Elliott (Elliott), a passenger in her
automobile, testified that the turn signals on his grandmother's
vehicle made a loud noise when activated and that he specifically
remembered decedent had activated her left turn signal just prior
to the collision. Elliott also stated to the investigating officer
that Lea failed to sound his horn prior to passing decedent's
automobile. Two other non-passenger witnesses reported decedent's
left turn signal was flashing following the collision. In his testimony, Lea stated he never saw a turn signal
activated on decedent's vehicle. Lea observed decedent slow down
and acknowledged he could have stopped behind her vehicle without
striking it. However, he attempted to pass and flashed his high
beam headlights to signal he was doing so. Lea related he had
chosen Highway 15 because it had less traffic and would likely
require less travel time in consequence of the recent passage of
Hurricane Fran than an alternative route on Interstate Highway 85.
Another truck driver testified that as he was traveling in his 1965Chevrolet pickup at 50 to 53 miles per hour in a 55 mile per hour
zone on Highway 15 approximately one mile before the collision
site, Lea passed him traveling at a speed of 55 to 65 miles per
hour.
Plaintiff subsequently filed the instant wrongful death
action, alleging Lea's negligence proximately caused decedent's
death. Defendants answered denying negligence on the part of Lea
and asserting decedent's contributory negligence in bar of
plaintiff's claim. At trial, the jury found Lea negligent and
decedent contributorily negligent and judgment was entered in favor
of defendants. Plaintiff timely appeals.
[1]Plaintiff first asserts the trial court erred by refusing
to instruct the jury on the issue of Lea's gross negligence as a
proximate cause of decedent's death. At the outset, we note
plaintiff's complaint failed to include an allegation of gross
negligence. Ordinarily, when a claim of negligence can be drawn
from the evidence but has not been pled, it may not be considered
by the jury, as there must be both allegation and proof. Poultry
Co. v. Equipment Co., 247 N.C. 570, 572, 101 S.E.2d 458, 460
(1958). However, the trial transcript reveals that plaintiff moved
at the charge conference to amend the pleadings to conform to the
evidence of Lea's gross negligence. See N.C.G.S. § 1A-1, Rule
15(b) (1999) (Rule 15(b)).
The effect of Rule 15(b) “is to allow
amendment by implied consent to change the
legal theory of the cause of action so long as
the opposing party has not been prejudiced in
presenting his case, i.e., where he had a fair
opportunity to defend his case.”Shore v. Farmer, 133 N.C. App. 350, 354, 515 S.E.2d 495, 498
(quoting Roberts v. Memorial Park, 281 N.C. 48, 59, 187 S.E.2d 721,
727 (1972)), rev'd on other grounds, 351 N.C. 166, 522 S.E.2d 73
(1999). While the trial court granted plaintiff's motion, it
nonetheless denied his request to submit to the jury the issue of
Lea's gross negligence.
“The issue of gross negligence should be submitted to the jury
if there is substantial evidence of the defendant's wanton and/or
wilful conduct.” Cissell v. Glover Landscape Supply, Inc., 126
N.C. App. 667, 670, 486 S.E.2d 472, 474 (1997), rev'd on other
grounds, 348 N.C. 67, 497 S.E.2d 283 (1998).
Wilful or wanton conduct in the context of the
contributory negligence issue has sometimes
been referred to as gross negligence, but the
use of that term cannot be read to describe
conduct less negligent than that suggested by
the phrase “wilful or wanton conduct.” Indeed
it is only where the term “gross negligence”
is defined to “refer to misconduct which is
. . . described as wilful, wanton or reckless
. . . [that] the contributory negligence of
the plaintiff is not a bar to recovery for an
injury caused by such conduct on the part of
the defendant.”
Id. at 669-70, 486 S.E.2d at 473 (citations omitted) (footnote
omitted).
The requisite wilful conduct “'involves a deliberate purpose
not to discharge some duty necessary to the safety of the person or
property of another.'” Bailey v. R.R., 149 N.C. 123, 127, 62 S.E.
912, 914 (1908) (quoting Thompson on Negligence § 20 (2d ed.)).
Such conduct is distinguishable from a wilful and deliberate
purpose to inflict injury, which is an intentional tort. Siders v.Gibbs, 39 N.C. App. 183, 187, 249 S.E.2d 858, 860 (1978). Wilful
and/or wanton conduct “encompasses conduct which lies somewhere
between ordinary negligence and intentional conduct.” Id. at 186,
249 S.E.2d at 860. “An act is wanton when it is done of wicked
purpose, or when done needlessly, manifesting a reckless
indifference to the rights of others.” Foster v. Hyman, 197 N.C.
189, 191, 148 S.E. 36, 37-38 (1929).
The evidence viewed in the light most favorable to plaintiff,
see Cockrell v. Transport Co., 295 N.C. 444, 449, 245 S.E.2d 497,
500 (1978), tends to show decedent had slowed her vehicle and
activated the left turn signal thereon prior to the collision. Lea
conceded having been aware decedent was slowing down, but testified
he did not see decedent's turn signal in flashing mode. According
to Lea, he observed decedent's vehicle while attempting to pass it
until the two vehicles were “nose-to-nose,” and although decedent's
vehicle was reducing its speed, at no time did he see either brake
lights or a turn signal.
Under previous decisions of our courts, we conclude the
foregoing fails to comprise “substantial evidence,” Cissell, 126
N.C. App. at 670, 486 S.E.2d at 474, that Lea's conduct, while
constituting negligence, was either “deliberate,” Bailey, 149 N.C.
at 127, 62 S.E. at 914, or “reckless[ly] indifferen[t],” Foster,
197 N.C. at 91, 148 S.E. at 37-38; accord Enyeart v. Borgeson, 374
P.2d 543, 545 (Wash. 1962) (if defendant did not observe
plaintiff's left turn signal, attempting to pass turning vehicle
“admits to negligence only and not wilful misconduct”); 57A Am.Jur. 2d Negligence § 272 (1989) (to constitute wilful
and wanton
conduct, “the defendant must have been aware of th[e] situation and
ignored it”).
Indeed, the appellate courts of this State have determined an
instruction on wilful and wanton conduct to be proper only in
situations where the defendant's underlying negligence was coupled
with a clear indication of reckless indifference to the rights of
others. For example, in Boyd v. L.G. DeWitt Trucking Co., 103 N.C.
App. 396, 405 S.E.2d 914, disc. review denied, 330 N.C. 193, 412
S.E.2d 53 (1991), submission of the issue was approved where the
negligence of a truck driver whose vehicle struck the rear of a
stalled automobile in his lane of travel was compounded by evidence
tending to show he
was intoxicated at the time of the accident, .
. . was traveling in excess of the posted
speed limit, . . . and . . . no attempt was
made to avoid the accident prior to its
occurrence.
Id. at 402, 405 S.E.2d at 918; see also Berrier v. Thrift, 107 N.C.
App. 356, 360, 420 S.E.2d 206, 208 (1992), disc. review denied, 333
N.C. 254, 424 S.E.2d 918 (1993) (instruction warranted where
defendant, who lost control of vehicle in curve, had blood alcohol
content of 0.184 two hours following the accident and had made
“deliberate decision” to drive despite being aware of consequences
of driving while impaired). Similarly, evidence tending to show
the defendant was driving at an excessive rate of speed, see Baker
v. Mauldin, 82 N.C. App. 404, 408, 346 S.E.2d 240, 242 (1986) (100
miles per hour), or was engaged in a “speed competition” withanother vehicle, see Lewis v. Brunston, 78 N.C. App. 678, 685
, 338
S.E.2d 595, 600 (1986) (75 miles per hour in 45 mile-per-hour
zone), may suffice to take the issue of wilful and wanton conduct
to a jury.
By contrast, our courts have determined facts tending to show
a defendant's failure to drive in the right lane of an interstate
highway while cognizant of the potential of running out of fuel,
combined with failing to remove her stopped automobile out of the
left travel lane after running out of gas and her failure to warn
other motorists of the stopped automobile, did not justify an
instruction on wilful and wanton conduct. Dixon v. Weaver, 41 N.C.
App. 524, 527, 255 S.E.2d 322, 324 (1979). Further, a defendant's
failure to warn oncoming traffic of a truck and trailer parked in
the right travel lane on a wide, straight highway on a sunny
morning likewise did not constitute wilful and wanton conduct.
Cissell v. Glover Landscape Supply, I nc., 348 N.C. 67, 497 S.E.2d
283 (1998) (adopting dissenting opinion of John, J., Cissell, 126
N.C. App. at 671-72, 486 S.E.2d at 474-75).
While cognizant of the points raised by the dissent in the
case sub judice, we believe the circumstances herein fall into the
category of cases, such as Dixon and Cissell, in which an
instruction on wilful and wanton conduct was not warranted.
Although negligence on the part of Lea was essentially undisputed,
there was no evidence he was either intoxicated or traveling at an
excessive speed. Further, in our view, neither plaintiff nor the
dissent has identified “substantial evidence,” Cissell, 126 N.C.App. at 670, 486 S.E.2d at 474, of other conduct on the pa
rt of Lea
that “lies somewhere between ordinary negligence and intentional
conduct,” Siders, 39 N.C. App. at 186, 249 S.E.2d at 860. In light
of the precedent cited above, therefore, we hold the trial court
properly denied plaintiff's request to submit to the jury the issue
of Lea's wilful and wanton negligence.
Notwithstanding, the dissent asserts the combination of
several factors operated to constitute substantial evidence of
wilful and wanton negligence: the weight of defendant's truck, his
choice to travel a secondary road, as well as evidence he may have
exceeded the speed limit, failed to sound his horn, and was in a
hurry to get home. However, our courts have never held that
singular acts of simple negligence, considered cumulatively or in
combination, may comprise wilful and wanton negligence and we
decline to so hold herein.
[2]Finally, plaintiff raises the question of the trial
court's failure to instruct the jury on the doctrine of comparative
negligence. As this Court has previously observed:
The common law doctrine of contributory
negligence has been the law in this State
since Morrison v. Cornelius, 63 N.C. 346
(1869) . . . . Although forty-six states have
abandoned the doctrine of contributory
negligence in favor of comparative negligence,
contributory negligence continues to be the
law of this State until our Supreme Court
overrules it or the General Assembly adopts
comparative negligence.
Jones v. Rochelle, 125 N.C. App. 82, 89, 479 S.E.2d 231, 235
(citation omitted), disc. review denied, 346 N.C. 178, 486 S.E.2d
205 (1997). At the present time, neither the North CarolinaSupreme Court nor the North Carolina General Assembly has adopted
comparative negligence as the law of this state. Further, as
conceded by plaintiff in his appellate brief, this Court lacks
authority to do so in the absence of action by one of those bodies.
Accordingly, whatever may be the private views of the individual
members of this panel, plaintiff's second assignment of error is
unavailing.
No error.
Judge MCGEE concurs.
Judge HUNTER dissents in separate opinion.
HUNTER, Judge, dissenting.
I respectfully dissent on the first issue in the majority
opinion, as I believe there was substantial evidence warranting a
jury instruction on gross negligence.
Beyond the facts recounted in the majority opinion, the
evidence in the case sub judice shows that Lea was driving an
80,000 pound truck when he struck the decedent's 1989 Buick. The
highway patrolman who investigated at the scene reported that when
he arrived, he observed no skid marks from Lea's vehicle before the
point of collision. Decedent's vehicle was pushed 170 feet before
it came to a stop. The patrolman also stated that there were no
driveways to the right at the collision point that decedent could
have been turning into as she slowed down prior to the accident.
Lea testified that he had been driving since 9:00 p.m. the night
before the accident for a total of fifteen and a half hours drivingtime within a twenty-four hour period. At the time of the
collision, he had been driving continuously for five and a half
hours, covering a distance of 467 miles. Lea admitted he had taken
Highway 15 because it had less traffic and he thought it would be
quicker than an alternative route on Interstate Highway 85. He
also admitted he observed decedent's vehicle slow down and could
have stopped without striking it.
Willful and/or wanton conduct “encompasses conduct which lies
somewhere between ordinary negligence and intentional conduct.”
Siders v. Gibbs, 39 N.C. App. 183, 186, 249 S.E.2d 858, 860 (1978).
“'An act is wanton when it is done of wicked purpose, or when done
needlessly, manifesting a reckless indifference to the rights of
others. . . .'” Brewer v. Harris, 279 N.C. 288, 297, 182 S.E.2d
345, 350 (1971) (quoting Foster v. Hyman, 197 N.C. 189, 191, 148
S.E. 36, 37-38 (1929)). Therefore, willful and wanton conduct is
neither always intentional, nor always done with wicked purpose,
but always is indicative of careless and reckless disregard for the
rights of others.
I have reviewed several cases where the courts of this state
have addressed what actions constitute gross negligence, and none
of them are similar to the factual circumstances in the present
case. In Boyd v. L. G. DeWitt Trucking Co., 103 N.C. App. 396, 405
S.E.2d 914, disc. review denied, 330 N.C. 193, 412 S.E.2d 53
(1991), this Court held that there was sufficient evidence to
support the jury's findings that a truck driver had been recklessly
indifferent to the rights of others when plaintiff's evidencetended to show that the driver at issue was intoxicated, was
speeding while carrying a fully-loaded rig and an unauthorized
female passenger, and made no attempt to avoid the accident prior
to its occurrence. In another case, this Court held that the issue
of gross negligence should have been submitted to the jury when the
defendant (1) had been driving a vehicle and his blood alcohol
content was 0.184, (2) had approximately ten beers within several
hours before the accident but did not tell his passengers, and (3)
defendant was aware that his driving after drinking alcohol was a
risk because it impaired his reaction time. Berrier v. Thrift, 107
N.C. App. 356, 420 S.E.2d 206 (1992), disc. review denied, 333 N.C.
254, 424 S.E.2d 918 (1993). Also, when there is some evidence that
defendant was not driving as though intoxicated, but there is also
evidence that immediately prior to the accident he was driving 100
miles per hour, the issue of defendant's gross negligence should be
left to the jury. Baker v. Mauldin, 82 N.C. App. 404, 346 S.E.2d
240 (1986). The facts in the foregoing cases are not identical to
the facts in the present case; however, the cases where our courts
have held that a gross negligence instruction was not proper are
also dissimilar to the present case.
This Court held that the jury should not be charged on gross
negligence of a defendant when he failed to drive in the right lane
of an interstate highway while knowing of the possibility of
running out of gas, failed to push a stopped automobile out of the
left lane after running out of gas, and failed to warn other
motorists of the stopped automobile. Dixon v. Weaver, 41 N.C. App.524, 255 S.E.2d 322 (1979). In Cissell v. Glover Landscape Su
pply,
Inc., 348 N.C. 67, 497 S.E.2d 283 (1998), our Supreme Court agreed
with Judge John's dissent in Cissell v. Glover Landscape Supply,
Inc., 126 N.C. App. 667, 486 S.E.2d 472 (1997), that willful and
wanton conduct is not constituted by a driver who did not warn
oncoming traffic, on a sunny morning, that he left his eight-foot
wide truck and trailer on the right-hand paved portion of a thirty-
six foot wide, straight and level highway, which had no
obstructions to hinder approaching motorists' view. Contrary to
the cases where gross negligence was evident, the drivers in these
cases did not drive at high speeds, nor while their faculties were
impaired -- they simply failed to push their stopped vehicles off
the roadway and then warn oncoming drivers.
If a party argues that an opponent's acts or omissions
constitute a particular claim for relief,
the trial court must submit the issue with
appropriate instructions if there is evidence
which, when viewed in the light most favorable
to the proponent, will support a reasonable
inference of each essential element of the
claim . . . .
Cockrell v. Transport Co., 295 N.C. 444, 449, 245 S.E.2d 497, 500
(1978). “If the facts are such that reasonable men could differ
upon whether the negligence amounted to willful and wanton conduct,
the question is generally preserved for the jury to resolve.” Siders, 39 N.C. App. at 186, 249 S.E.2d at 860 (emphasis a
dded).
Viewing the evidence in the present case in the light most
favorable to plaintiff, it indicates that Lea was speeding in a
forty-five mile per hour speed limit zone while driving a loaded
eighteen-wheel truck and trailer rig weighing 80,000 pounds, on a
dark night, on a two-lane rural highway which was not familiar to
him. He did not notice the lead car's left turn signal, and
attempted to pass it without blowing his horn, as required by
statute. Driving an 80,000 pound load, Lea would have been aware
that any collision between his vehicle and a much smaller vehicle
would be very dangerous. Lea admitted he was in a hurry to get
home, and the evidence supports an inference that Lea's hurried
attitude and demanding driving schedule had detrimental impact on
his driving ability. Logic would demand that a driver in a hurry
take an interstate highway, which is meant for higher speeds of
travel and has more traffic access lanes. Defendant, either
consciously or unconsciously, failed to see decedent's signal,
disregarded the speed limit, and failed to keep a proper lookout as
to decedent's turning vehicle. Our Supreme Court has stated that
it is the duty of a driver to
keep a proper lookout ahead in the direction
he [is] travelling, to watch out for signals
from the driver of any vehicle ahead to turn,
stop or start, to give due regard to them, and
in the exercise of ordinary care be prepared
to avoid danger in case of any movement of the
vehicle ahead which is properly signaled. The
driver of the automobile behind in failing to
observe plain turning or stopping signals
given by the motorist ahead may be guilty of
contributory negligence in the event of a
collision and injury to himself.
Weavil v. Trading Post, 245 N.C. 106, 113, 95 S.E.2d 533, 539
(1956) (citations omitted). In that case, the Court also stated:
[W]here the driver of the stopped [vehicle]
has given no clear signal of his intention to
make a left turn, but the [vehicle] standing
on the right of the highway merely has on the
left rear and left fender a red light flashing
on and off, it would seem that the driver of
an automobile approaching at night from the
rear, in the exercise of ordinary care, is
bound to approach with his automobile under
control, so as to reduce his speed or stop, if
necessary, to avoid injury.
Id. at 114, 95 S.E.2d at 540. The evidence indicates that Lea
disregarded his duty, in the exercise of ordinary care, to approach
the decedent's vehicle under control by reducing his speed or
stopping in order to avoid injury. All of the these factors, in
toto, support an inference that Lea's conduct was at least as
careless, reckless, and dangerous as a driver who travels at an
extremely high rate of speed. See Baker v. Mauldin, 82 N.C. App.
404, 346 S.E.2d 240.
It is not our duty to review whether or not the evidence is
sufficient to prove that Lea was grossly negligent. We must only
review it to determine if there is sufficient evidence such that
reasonable men could differ as to whether or not Lea was grossly
negligent on the night in question. I believe reasonable men could
differ on this issue. Accordingly, I believe that the alleged
gross negligence of Lea should have been submitted to the jury, and
thus would remand to the trial court for a new trial.
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