Appeal by plaintiff from judgment entered 1 March 2001 by
Judge Catherine C. Eagles in Stanly County Superior Court. Heard
in the Court of Appeals 13 March 2002.
Charles G. Monnett & Associates, by Charles G. Monnett III,
for plaintiff-appellant.
Robinson & Elliott Law Firm, by Kevin D. Elliott, for
defendant-appellees.
TIMMONS-GOODSON, Judge.
Jeffrey Lane Efird (“plaintiff”), administrator of the estate
of Dylan Efird, appeals from an order granting summary judgment in
favor of Charlie Hubbard, Jr. (“defendant”).
On 14 January 1999, Deirdre Bullock Neely (“Neely”) was
traveling in an easternly direction on Rocky River Road (R.P. 1520)
located near Monroe, North Carolina. Accompanying Neely in her
vehicle were Neely's minor child, Jamie Neely, Dylan Lane Efird
(“Dylan”) and Dylan's mother, Esther Davis. At the same time
Neely was traveling east, defendant was traveling south on Rocky
River Road (R.P. 1514). At the intersection of R.P. 1520 and R.P.
1514 was a stop sign which required all traffic turning onto or
crossing R.P. 1520, to yield the right of way to traffic travelingon R.P. 1514. The speed limit for R.P. 1520 and for Neely's
direction of travel was forty-five miles per hour (45 m.p.h.) while
the speed limit for R.P. 1514 and defendant's direction of travel
was fifty-five miles per hour (55 m.p.h.).
Upon traveling on R.P. 1520 at approximately thirty-five miles
per hour (35 m.p.h.), Neely entered the intersection without
stopping at the stop sign or yielding to oncoming traffic. As a
result, the vehicles operated by Neely and defendant collided at
the intersection of R.P. 1520 and R.P. 1514. On 20 January 1999,
Dylan and Jamie Neely died from the injuries sustained as a result
of the collision.
State Trooper J.B. Moser (“Trooper Moser”) of the North
Carolina State Highway Patrol investigated the collision. The
investigation revealed that defendant was traveling at a speed of
fifty miles per hour (50 m.p.h.). During the course of the
investigation, Trooper Moser detected an odor of alcohol on
defendant and noticed that defendant's eyes were “bloodshot.”
Trooper Moser obtained defendant's consent to take a blood sample
for testing by the State Bureau of Investigation. Laboratory tests
later revealed defendant's blood alcohol concentration to be 0.068
grams of alcohol at the time of the collision, less than the legal
standard of 0.08 for driving while impaired as provided in N.C.
Gen. Stat. § 20-138.1.
At deposition, defendant presented the testimony of Brian
Anders (“Anders”), an engineer with Engineer Design and Testing.
Anders gathered information concerning the accident coupled withthe information given to him by Trooper Moser. Based on
measurements and the weight of the vehicle along with his analysis
of the average perception reaction time in which to avoid impact,
Anders determined that there was insufficient time for defendant to
have avoided the accident with Neely once she proceeded through the
intersection without stopping.
On 27 December 2000, defendant filed a motion for summary
judgment. On 1 March 2001, the trial court entered an order
granting defendant's motion for summary judgment. Plaintiff
appeals.
In his first assignment of error, plaintiff contends that the
trial court erred by granting defendant's motion for summary
judgment. We disagree.
Summary judgment is proper when the pleadings, depositions,
answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue of
material fact and that any party is entitled to judgment as a
matter of law. N.C. Gen. Stat. § 1A-1, Rule 56 (c)(2001). The
moving party has the burden of “positively and clearly showing that
there is no genuine issue as to any material fact and that he or
she is entitled to judgment as a matter of law.”
James v. Clark,
118 N.C. App. 178, 180, 454 S.E.2d 826, 828,
disc. review denied,
340 N.C. 359, 458 S.E.2d 187 (1995). The record is viewed in the
light most favorable to the non-movant, and all inferences will be
drawn against the non-movant.
Bruce Terminex Co. v. Zurich Ins.Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
In general, summary judgment is not appropriate where issues
of negligence are involved.
Sink v. Andrews, 81 N.C. App. 594,
596, 344 S.E.2d 831, 832 (1986). “'It is only in exceptional
negligence cases that summary judgment is appropriate, since the
standard of reasonable care should ordinarily be applied by the
jury under appropriate instructions from the court.'”
Thompson v.
Bradley, 142 N.C. App. 636, 641, 544 S.E.2d 258, 261 (quoting
Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980)),
disc. review denied, 353 N.C. 532, 550 S.E.2d 506 (2001).
“However, if the evidentiary forecasts establish either a lack of
any conduct on the part of the movant which would constitute
negligence, or the existence, as a matter of law, of a complete
defense to the claim, summary judgment may be properly allowed.”
Sink, 81 N.C. App. at 596, 344 S.E.2d at 832
.
The complaint in the instant case alleged that defendant's
negligent driving caused the collision that claimed Dylan's life.
“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). In order to state a claim for
negligence, the party asserting negligence must show that defendant
owed a duty to plaintiff, breached that duty, and that such breach
was an actual and proximate cause of plaintiff's injuries.
See
Pulley v. Rex Hospital, 326 N.C. 701, 705, 392 S.E.2d 380, 383
(1990). “Proximate cause is a cause which in natural andcontinuous sequence, unbroken by any new and independent cause,
produced the plaintiff's injuries, and without which the injuries
would not have occurred.”
Hairston v. Alexander Tank & Equip. Co.,
310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984). “It is not enough
to establish liability if all that can be shown is that the actor
was negligent. There must be a showing or determination of
proximate cause.”
King v. Allred, 309 N.C. 113, 117, 305 S.E.2d
554, 557 (1983),
disc. review denied, 315 N.C. 184, 337 S.E.2d 857
(1985).
“Unquestionably[,] a motorist is guilty of negligence if he
operates a motor vehicle on the highway while under the influence
of intoxicating liquor.”
Atkins v. Moye, 277 N.C. 179, 186, 176
S.E.2d 789, 794 (1970).
Such conduct, however, will not constitute
either actionable negligence or contributory
negligence unless -_ like any other negligence
_- it is causally related to the accident.
Mere proof that a motorist involved in a
collision was under the influence of an
intoxicant at the time does not establish a
causal connection between his condition and
the collision. His condition must have caused
him to violate a rule of the road and to
operate his vehicle in a manner which was the
proximate cause of the collision.
Id.
In the instant case, although plaintiff presented proof that
defendant had a blood alcohol content of 0.068 at the time of the
accident, plaintiff failed to present any evidence that would
establish a causal relationship between defendant's blood alcohol
content and the accident.
See King, 309 N.C. at 118, 305 S.E.2d at
558 (holding that although the defendant's affidavit clearlyindicates that she was under the influence of intoxicants at the
time of the accident, it does not settle “nor determine as a matter
of law, the causal relationship between her negligence and the
accident”). Indeed, the plaintiff produced no evidence showing
that defendant's blood alcohol content caused him to violate a rule
of the road and to operate his vehicle in a manner which was the
proximate cause of the collision. Instead, the evidence only
established that Neely, while operating her vehicle, proceeded
through the stop sign, without yielding to oncoming traffic, and
thus collided with defendant's vehicle. We therefore hold that
although the plaintiff produced evidence that defendant had a blood
alcohol content of 0.068 at the time of the accident, plaintiff
failed to forecast any evidence that defendant's blood alcohol
content proximately caused the accident in question.
Accordingly, the trial court's order granting summary judgment
in favor of defendant is,
Affirmed.
Judges WYNN and TYSON concur.
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