Motor Vehicles--contributory negligence--accident--summary judgment improper
The trial court erred by granting summary judgment in favor of defendants in an
automobile accident where plaintiff hit a truck parked on the side of the street in an attempt to
avoid hitting a vehicle stopped and parked in the middle of the road, because a genuine issue of
material fact exists concerning plaintiff's contributory negligence based on the parties' pleadings
and affidavits contesting whether plaintiff's conduct was reasonable under the circumstances.
Harvey D. Jackson for plaintiff-appellant.
Baker, Jenkins, Jones & Daly, P.A., by Ernie K. Murray, for
defendant-appellee Miguel Canela.
Yates, McLamb & Weyher, L.L.P., by John W. Minier, for
defendant-appellees Horace Vernon Pendergrass, Jr. and Camper
Products, Inc.
HUNTER, Judge.
The superior court granted summary judgment to defendants
Miguel Canela, Horace Vernon Pendergrass, Jr., and Camper
Products, Inc. (collectively “defendants”), finding as a matter of
law that: (1) plaintiff's contributory negligence was a proximate
cause of the injuries alleged in her complaint; and (2) the
doctrine of “last clear chance” does not apply. Virginia Blue
(“plaintiff”) appeals. Upon review of the record before us, we
reverse the trial court's order, and remand the case for trial by
jury.
The facts pertinent to this case are as follows. At about2:00 p.m. on 29 July 1994, plaintiff was driving her empl
oyer's van
on Lynnbank Road in Henderson, North Carolina. Lynnbank Road is a
curvy, hilly, two-lane road, and it was raining on the day in
question. Soon after the vehicle (a Volkswagon) immediately in
front of her turned left onto a dirt road, plaintiff noticed
another car in front of her -- a station wagon operated by
defendant Canela.
In her complaint, dated 28 July 1997, plaintiff alleged that
“it was raining, the weather conditions were very cloudy, and
visibility was poor[,]” when she first observed the station wagon.
Plaintiff believed the station wagon to be moving when, in fact, it
had stopped and parked in the middle of the road. The station
wagon had no brake, rear, or any other type of lights operating to
warn approaching traffic, and by the time plaintiff realized it was
not moving, she could not bring her van to a stop, nor could she
pass the vehicle because of oncoming traffic to her left. In her
effort to avoid hitting defendant Canela's occupied vehicle,
plaintiff attempted to swerve to the right shoulder. However, a
truck, owned by defendant Camper but operated by defendant
Pendergrass (Camper's employee) who lived directly across the
street, was parked on the right shoulder. Seeing the truck there,
plaintiff attempted to fit her van between defendant Canela's
vehicle and the truck, but could not. Consequently, plaintiff hit
the truck causing serious injury to herself. Plaintiff brought her complaint against defendant Canela on
the grounds that he was negligent in: carelessly and recklessly
parking his car in the middle of the road, willfully and wantonlydisregarding the rights and safety of others, operating his vehicle
with defective equipment, and creating a danger to other vehicular
traffic on the highway due to the inclement weather conditions at
the time. Against defendant Pendergrass, plaintiff alleged
negligence in his parking the truck on the side of the road.
Against defendant Camper, plaintiff imputed Pendergrass' negligence
as Camper was his employer and owner of the truck.
In considering defendants' motion for summary judgment, the
trial court reviewed all pleadings on file, plaintiff's deposition
and attached exhibits, plaintiff's affidavit, and the affidavit of
F. Darryl Barile, a photographer who later took pictures at the
scene of the accident. Stating it
ha[d] determined as a matter of law that
plaintiff's contributory negligence was a
proximate cause of the injuries alleged
. . . ; and
ha[d] considered plaintiff's argument that
defendant Miguel Canela had the “last clear
chance” to avoid the alleged accident and
ha[d] determined as a matter of law that the
doctrine of “last clear chance” does not
apply;
the trial court granted defendants' summary judgment motion.
Plaintiff brings forward only one assignment of error, that
the trial court erred in granting defendants' summary judgment
motion because there were genuine issues of material fact before
the court. Plaintiff argues that the trial court erred in finding
as a matter of law that she was contributorily negligent and that
the doctrine of last clear chance did not apply to Canela. We
agree. The North Carolina Rules of Civil
Procedure provide that summary judgment will
be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact and that any party is entitled
to a judgment as a matter of law.” N.C.R.
Civ. P. 56(c). The burden of establishing a
lack of any triable issue resides with the
movant. . . .
“The movant may meet this burden by proving
that . . . the opposing party cannot . . .
surmount an affirmative defense which would
bar the claim.”
Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414
S.E.2d 339, 341-42 (1992) (quoting Collingwood v. G.E. Real Estate
Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). However,
“all conflicts are resolved against the moving party[] . . . [and
this Court must] therefore view allegations in the light most
favorable to plaintiff[.]” Dobson v. Harris, 134 N.C. App. 573,
580, 521 S.E.2d 710, 716, (1999). Furthermore:
As a general rule, one who has capacity
to understand and avoid a known danger and
fails to take advantage of that opportunity,
and injury results, he is chargeable with
contributory negligence, which will bar
recovery. Burgess v. Mattox, 260 N.C. 305,
132 S.E.2d 577; Huffman v. Huffman, 271 N.C.
465, 156 S.E.2d 684; Tallent v. Talbert, 249
N.C. 149, 105 S.E.2d 426. In such event,
[summary judgment] is proper on the theory
that defendant's negligence and plaintiff's
contributory negligence are proximate causes
of the injury. . . .
Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967)
(emphasis added). Therefore, if no genuine issue of material fact
exists as to plaintiff's having been contributorily negligent, sheis precluded from any recovery based on the negligence of another
party in the same accident. Id.
Applying then the doctrine of contributory negligence to the
case at bar, we disagree with the trial court and defendants that
plaintiff “was contributorily negligent as a matter of law.”
(Emphasis added.) On this issue, we find Meeks v. Atkeson, 7 N.C.
App. 631, 173 S.E.2d 509 (1970) dispositive. In that case,
defendant argued that plaintiff was contributorily negligent in
hitting his unlighted vehicle which was “parked across both lanes
of a two-lane highway, while defendant searched for his lost
cat[.]” Id. at 636, 173 S.E.2d at 511. Holding that these facts
were “clearly sufficient to require submission [to the jury] of an
issue as to defendant's actionable negligence[,]” id., this Court
reversed the trial court's granting of defendant's nonsuit, stating
that: “'Judgment of involuntary nonsuit on the ground of
contributory negligence should be granted when, and only when, the
evidence, . . . establishes plaintiff's contributory negligence so
clearly that no other reasonable inference or conclusion may be
drawn therefrom. . . .'” Id. at 636, 173 S.E.2d at 512 (quoting
Brown v. Hale, 263 N.C. 176, 178, 139 S.E.2d 210, 212 (1964)).
In the case sub judice, plaintiff's evidence considered in the
light most favorable to her supports finding that: (1) plaintiff
was driving at a reasonable speed (which defendants do not
contest); (2) the weather conditions were rainy, cloudy, with poor
visibility (none of which defendants contested before the trial
court); (3) the road was wet, hilly and curvy; (4) plaintiffobserved defendant Canela's vehicle in the road when she was some
400-500 feet away however, there was another car moving between
them and she believed the vehicle to be moving; (5) when the
vehicle between them turned off the road, and plaintiff realized
she was much closer to defendant Canela's vehicle, she applied her
brakes but could not stop; (6) plaintiff would have gone around
defendant Canela's vehicle to the left, but there was oncoming
traffic; (7) defendant Canela's vehicle had no lights burning to
warn approaching traffic that it was stopped in the middle of the
road; (8) when plaintiff attempted to go to the right, she ran into
the truck parked there; and, (9) defendant Canela was behind the
wheel of his vehicle while plaintiff's vehicle was approaching.
These findings support plaintiff's contention that defendant Canela
was negligent, but they do not clearly establish that plaintiff was
contributorily negligent. Defendants' argue that plaintiff failed
to keep a proper lookout and that plaintiff lost control of her
vehicle thus, she was contributorily negligent. However, because
plaintiff's evidence negates defendants' argument, it raises an
issue of material fact -- and defeats defendants' motion for
summary judgment.
“Negligence is the failure to exercise
proper care in the performance of a legal duty
owed by a defendant to a plaintiff under the
circumstances.” Cassell v. Collins, 344 N.C.
160, 163, 472 S.E.2d 770, 772 (1996). . . .
“When there are factual issues to be
determined that relate to the defendant's
duty, or when there are issues relating to
whether a party exercised reasonable care,
summary judgment is inappropriate.” Ingle v.
Allen, 71 N.C. App. 20, 26, 321 S.E.2d 588,
594 (1984).
Holshouser v. Shaner Hotel Grp. Props. One, 134 N.C. App. 391, 394,
518 S.E.2d 17, 21 (1999). Thus, the discrepancy should have been
resolved by a jury and it was inappropriate for the trial court to
decide that plaintiff was contributorily negligent “as a matter of
law.”
Issues of contributory negligence, like
those of ordinary negligence, are ordinarily
questions for the jury and are rarely
appropriate for summary judgment. Only where
the evidence establishes the plaintiff's own
negligence so clearly that no other reasonable
conclusion may be reached is summary judgment
to be granted.
Nicholson v. American Safety Utility Corp., 346 N.C. 767, 774, 488
S.E.2d 240, 244 (1997) (citations omitted). We note that in the
instant case, on the issue of plaintiff's contributory negligence,
“defendants' and plaintiff's pleadings and affidavits contest
whether plaintiff's conduct was reasonable under the
circumstances. . . . Therefore, an issue of fact exists as to the
reasonableness of plaintiff's conduct under the circumstances.”
Id.
We need not reach plaintiff's argument as to the trial court's
determination that the doctrine of last clear chance is
inapplicable as a matter of law.
[B]ecause we hold that a genuine issue of
material fact exists with respect to the issue
of plaintiff's contributory negligence, we
need not address the parties' arguments as to
whether defendants had the last clear chance
to avoid the collision, as that issue is not
material unless plaintiff's contributory
negligence is established. . . .
Monk v. Cowan Transportation, Inc., 121 N.C. App. 588, 592, 468
S.E.2d 407, 410 (1996). Therefore, the trial court's order is
reversed. This case is
Reversed and remanded for jury trial.
Judges GREENE and HORTON concur.
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