NO. COA02-211
TERESA A. CROSS,
Defendant.
Appeal by plaintiff from judgment and order entered 23 October
2001 by Judge William C. Griffin, Jr., in Pitt County Superior
Court. Heard in the Court of Appeals 15 October 2002.
Ward and Smith, P.A., by Lynwood P. Evans and A. Charles
Ellis, for plaintiff-appellant.
Gaylord, McNally, Strickland, Snyder & Holscher, L.L.P., by
Danny D. McNally, for defendant-appellee.
MARTIN, Judge.
Teresa A. Cross (“plaintiff”) brought this action alleging
that she sustained injuries as a proximate result of negligence on
the part of defendant Deborah N. Hines (“defendant”). Defendant
filed an answer denying her own negligence and asserting
plaintiff's contributory negligence as a defense.
Briefly summarized as relevant to our decision, the evidence
at trial tended to show that on the afternoon of 28 November 1998,
plaintiff was a passenger on a motorcycle being driven on a rural
road in Pitt County by her boyfriend, James Williams. Williams had
purchased the motorcycle approximately two months earlier; it wasa used motorcycle and had been damaged in a previous accident.
Williams was in the process of repairing the front end of the
motorcycle, which he described as “wrecked.” The necessary
repairs included repair to the front headlight of the motorcycle.
Williams testified that on the day of the accident, the motorcycle
had been fixed to the point it was rideable, but that he had not
yet had the motorcycle inspected. Shortly before 12:30 p.m.,
Williams picked up plaintiff at her home, and the two set out to
visit friends.
After riding the motorcycle about five miles, Williams and
plaintiff encountered a vehicle being driven in the opposite
direction of the two lane road by defendant. As Williams and
plaintiff approached defendant, defendant stopped her vehicle and
prepared to make a left-hand turn into her driveway. Defendant
testified that upon stopping, she looked for oncoming vehicles, but
did not see any. She then turned her head to the right to look at
her dog, which was standing on the opposite side of the road from
defendant's house, as she turned her vehicle to the left.
Defendant testified she did not see the motorcycle approaching.
Williams testified defendant pulled in front of the motorcycle
while making the left turn, requiring that he bring the motorcycle
to the ground in order to avoid a collision with defendant's
vehicle. Plaintiff was thrown from the motorcycle and landed on
the road at the entrance to defendant's driveway. Plaintiff
suffered various injuries, including head injuries, as a result.
Plaintiff testified that at the time of the collision, she waswearing a helmet which she had purchased new approximately one to
two months prior thereto. Evidence was conflicting as to whether
a sticker affixed to the helmet was an official Department of
Transportation sticker, or one which read “I wear this helmet in
protest.” There was also conflicting evidence as to whether the
motorcycle's headlight was illuminated at the time of the accident,
but for purposes of this appeal, plaintiff stipulates the headlight
was not illuminated.
The trial court denied plaintiff's motion for a directed
verdict on the issue of contributory negligence at the close of all
evidence and instructed the jury on the law of contributory
negligence with respect to plaintiff's alleged failure to wear a
proper safety helmet and her riding a motorcycle without the
headlight illuminated. The jury returned a verdict in favor of
defendant, finding defendant negligent and plaintiff contributorily
negligent. Plaintiff's motion for judgment notwithstanding the
verdict, or in the alternative, a new trial was denied and the
trial court entered judgment on the verdict. Plaintiff appeals.
By six of the seven assignments of error contained in the
record on appeal, plaintiff argues the trial court erred in
instructing the jury on contributory negligence, and in denying her
motions for directed verdict, judgment notwithstanding the verdict,
and new trial because the evidence of contributory negligence was
insufficient, as a matter of law, to be submitted to the jury. For
the reasons which follow, we agree that there was insufficientevidence to allow the jury to consider whether plaintiff was
contributorily negligent based on her failure to wear a proper
helmet. Consequently, because the jury may have based its finding
of contributory negligence, in whole or in part, upon such failure,
plaintiff is entitled to a new trial.
“'[I]n order for a contributory negligence issue to be
presented to the jury, the defendant must show that plaintiff's
injuries were proximately caused by his own negligence.'”
Cobo v.
Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365 (1998). “In order to
avoid a directed verdict for plaintiff on contributory negligence,
defendants must have presented more than a scintilla of evidence
that plaintiff was negligent.”
Maye v. Gottlieb, 125 N.C. App.
728, 730, 482 S.E.2d 750, 751 (1997). “Evidence creating a mere
possibility or conjecture is not sufficient to warrant submission
to the jury.”
Id.
In the present case, defendant asserted that plaintiff was
contributorily negligent in failing to wear a helmet in compliance
with G.S. § 20-140.4, making it illegal for any person to “operate
a motorcycle or moped upon a highway or public vehicular area . .
. [u]nless the operator and all passengers thereon wear safety
helmets of a type approved by the Commissioner of Motor Vehicles.”
N.C. Gen. Stat. § 20-140.4(a)(2) (2002). However, the only
evidence that plaintiff's helmet was not an approved helmet was
that it bore a sticker proclaiming “I wear this helmet in protest.”
However, there was no evidence as to the intent or implication of
the sticker, and its presence on the helmet amounts only to merepossibility or conjecture that the helmet was not of a type
approved by the Commissioner of Motor Vehicles. While the sticker
could have been placed on the helmet in protest of the law
requiring helmet use, such action does not logically lead to the
conclusion that the helmet was not an approved helmet. There is
simply no evidence tending to show the helmet was not in compliance
with G.S. § 20-140.4(a)(2).
Even if defendant had presented sufficient evidence that the
helmet did not comply with the statute, the burden remained upon
defendant to forecast more than a scintilla of evidence that
plaintiff's failure to wear an approved helmet was a proximate
cause of her injuries. Again, there is simply a complete lack of
evidence on this necessary element. Defendant did not present any
evidence -- medical or otherwise -- tending to show that an
approved helmet would have prevented a single injury sustained by
plaintiff. Therefore, the issue of contributory negligence based
on plaintiff's failure to wear a proper helmet should not have been
submitted to the jury. We explicitly do not address, however,
plaintiff's argument that G.S. § 20-140.4(a)(2) is
unconstitutionally vague, because that specific constitutional
argument was not made to the trial court.
See,
e.g.,
Augur v.
Augur, 149 N.C. App. 851, 854, 561 S.E.2d 568, 570 (2002) (“We
re-affirm this Court's general rule that we will not decide
constitutional issues in the first instance when the trial court
has not ruled upon them.”).
Plaintiff also argues the issue of her contributory negligencebased on the fact she was riding a motorcycle that did not have its
headlight illuminated, in violation of G.S. § 20-129(c) should not
have been submitted to the jury. Plaintiff argues there was no
evidence to show that she had any way of knowing the headlight was
not illuminated, and even if she had known it was not illuminated,
the failure to illuminate the headlight did not proximately cause
the accident.
Our Supreme Court has observed that in order to be
contributorily negligent, a plaintiff need not have been aware of
the danger of injury to which her conduct exposed her; contributory
negligence is sufficiently established where the plaintiff's
conduct ignores unreasonable risks which would not have been
ignored by a prudent person exercising ordinary care.
Cobo, 347
N.C. at 545-46, 495 S.E.2d at 365. We believe the evidence in this
case was sufficient to allow the jury to consider whether a
reasonable person in plaintiff's position would have taken steps to
ascertain the status of the headlight before riding the motorcycle.
The evidence revealed plaintiff had ridden motorcycles with
Williams several times, including on extended road trips; that
plaintiff had purchased clothing to wear while riding with
Williams; that Williams and plaintiff often discussed motorcycles,
including the riding of motorcycles and that Williams owned
motorcycles; that plaintiff was familiar with Williams' riding
habits; that Williams had purchased the motorcycle in a wrecked
condition and had been repairing it over the course of the two
months prior to the accident, which repairs included fixing theheadlight; and that at the time of the accident, Williams had just
fixed the motorcycle to the point it was rideable, but the
motorcycle had not been inspected. Moreover, according to
defendant's testimony, the accident occurred because she was unable
to see the motorcycle approaching, from which an inference can be
drawn that the failure to illuminate the light contributed to her
inability to see the motorcycle. We hold that it was a proper
issue for the jury as to whether, based on the evidence, defendant
would have seen the motorcycle approaching had its headlight been
illuminated.
See Cobo, 347 N.C. at 545, 495 S.E.2d at 365 (“The
trial court must consider any evidence tending to establish
plaintiff's contributory negligence in the light most favorable to
the defendant, and if diverse inferences can be drawn from it, the
issue must be submitted to the jury.”). Nevertheless, as it is
impossible to ascertain from the verdict sheet the basis for the
jury's finding of contributory negligence, and the extent to which
the jury considered plaintiff's failure to wear a proper helmet in
so finding, plaintiff is entitled to a new trial.
In light of our decision, we need not address plaintiff's
remaining assignment of error.
New trial.
Judges GREENE and BRYANT concur.
Report per Rule 30(e).
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