ALLAN R. ADDISON
Plaintiff-Appellant,
v
.
Durham County
No. 01 CVS 4937
RENEE COUCH KYE
Defendant-Appellee.
Charles M. Putterman for plaintiff-appellant.
Bryant, Patterson, Covington, Idol & Lewis, P.A., by David O.
Lewis, for defendant-appellee.
McGEE, Judge.
Allan R. Addison (plaintiff) filed a complaint on 25 October
2001 alleging that Renee Couch Kye (defendant) failed to keep a
reasonable lookout, failed to keep her vehicle under proper
control, attempted to turn without first seeing that a move could
be made safely, failed to yield the right-of-way to plaintiff, and
drove carelessly in willful and wanton disregard of the safety of
others, which proximately resulted in a collision between the
vehicle operated by plaintiff and the vehicle operated by
defendant. Plaintiff alleged that, as a result of the collision,
he sustained damages including personal injury, medical expenses,
loss of earning capacity, and temporary loss of enjoyment of life. Defendant filed an answer on 13 December 2001 alleging
plaintiff was contributorily negligent in failing to keep a proper
lookout, in failing to decrease his speed, and in failing to yield
right-of-way. Plaintiff filed a reply on 18 March 2003 alleging
that defendant had the last clear chance to avoid the collision.
At trial, the jury found defendant negligent and plaintiff
contributorily negligent. Based on that verdict, the trial court
entered judgment against plaintiff, ordering that plaintiff have
and recover nothing from defendant, and that the action be
dismissed with prejudice. Plaintiff appeals.
Plaintiff's evidence tended to show that on 19 January 2001,
at approximately 6:20 p.m., plaintiff was driving east and
defendant was driving west on Old Chapel Hill Road in Durham
County, North Carolina. Plaintiff's North Carolina driver's
license contained a restriction which required him to wear
corrective lenses when driving; however, at this time plaintiff was
not wearing corrective lenses. As defendant approached the
entrance to the Five Oaks apartment complex (Five Oaks), off Old
Chapel Hill Road, she slowed down in order to make a left turn into
Five Oaks. Defendant engaged her left turn signal, and plaintiff
was able to see both defendant's vehicle and her left turn signal
as he approached. Defendant's vehicle came to a stop, prepared to
make a left turn, "crawled" forward "a bit," and stopped again. As
plaintiff was passing the entrance to Five Oaks, defendant
accelerated and began to turn left into Five Oaks. Defendant's
vehicle collided with plaintiff's vehicle, resulting in injuries. Plaintiff argues that the trial court erred in denying his
request for a jury instruction on the doctrine of last clear
chance. We have held the following regarding the application of
the last clear chance doctrine: "The issue of last clear chance,
'must be submitted to the jury [only] if the evidence, when viewed
in the light most favorable to the plaintiff, will support a
reasonable inference of each essential element of the doctrine."
Culler v. Hamlett, 148 N.C. App. 372, 379, 559 S.E.2d 195, 200
(2002) (quoting Kenan v. Bass, 132 N.C. App. 30, 32-33, 511 S.E.2d
6, 7 (1999)). The elements of last clear chance are as follows:
1)The plaintiff, by [plaintiff's] own
negligence put [plaintiff] into a position of
helpless peril;
2)Defendant discovered, or should have
discovered, the position of the plaintiff;
3)Defendant had the time and ability to avoid
the injury;
4)Defendant negligently failed to do so; and
5)Plaintiff was injured as a result of the
defendant's failure to avoid the injury.
Trantham v. Estate of Sorrells, 121 N.C. App. 611, 613, 468 S.E.2d
401, 402, disc. review denied, 343 N.C. 311, 471 S.E.2d 82 (1996).
Plaintiff contends that all five elements were satisfied in this
case. We disagree for the reasons stated below.
With regard to the first element, we conclude that plaintiff
did place himself in a position of helpless peril by virtue of his
own negligence. It has been recognized that the doctrine of last
clear chance is applicable only when "the plaintiff has negligently
placed himself in a position of peril from which he cannot, at thetime of the accident, extricate himself . . . [or] if at the time
of the accident he is incapable of averting harm by the exercise
of reasonable care." Restatement (Second) of Torts § 479, Comment
on Clause (a) (1965).
In the case before us, plaintiff failed to exercise reasonable
care by failing to slow down, failing to wear corrective lenses,
and failing to pay attention. After placing himself in a perilous
position, plaintiff could have driven more carefully, observed the
posted speed limit, worn his glasses and paid attention. However,
despite these measures, plaintiff could still have found himself
helpless at the moment he passed defendant, who very quickly
accelerated into a left turn and collided with plaintiff. Thus,
although plaintiff contributed to his peril by his own negligence,
he was helpless in his peril, and could not have escaped the
situation even by the utmost exercise of reasonable care.
Therefore, plaintiff satisfied the first element of the last clear
chance doctrine.
With regard to the second element, the evidence presented at
trial supports a reasonable inference that even if defendant did
not discover plaintiff's peril, she should have discovered it since
defendant "'owe[d] plaintiff a duty to maintain a proper lookout
whereby, through "the exercise of reasonable care, [defendant]
could have discovered plaintiff's perilous position."'" Womack v.
Stephens, 144 N.C. App. 57, 66, 550 S.E.2d 18, 24 (citations
omitted), disc. review denied, 354 N.C. 229, 555 S.E.2d 27 (2001).
Thus, the second element of last clear chance is also satisfied. However, there is no evidence to support a finding as to the
third element of last clear chance _ "time and ability to avoid the
injury." The doctrine of last clear chance contemplates a last
"clear" chance rather than a last "possible" chance to avoid
injury. Culler, 148 N.C. App. at 379, 559 S.E.2d at 200.
Plaintiff contends that defendant, by exercising reasonable care,
should have discovered plaintiff's helplessness under the
circumstances. We agree that defendant, having a duty of proper
lookout, should have discovered plaintiff's peril, and the
existence of such duty in this instance satisfies the requirements
of the second element of last clear chance. Nonetheless, the duty
of proper lookout, and its breach by defendant, has no bearing on
defendant's time and ability to avoid the injury. Rather, it is
well established that to satisfy the third element of last clear
chance "there must be an appreciable interval of time between the
plaintiff's negligence and his injury during which the defendant,
by the exercise of ordinary care, could or should have avoided the
effect of plaintiff's prior negligence." Bass, 149 N.C. App. at
158, 560 S.E.2d at 846 (based on the defendant's testimony that he
"couldn't see [the plaintiff's car] until it was too late[,]" the
trial court held that the defendant did not have the time and means
to avoid the accident); Culler, 148 N.C. App. at 380, 559 S.E.2d at
201 (holding that where the defendant did not see the car until the
moment of the accident, and where there was no place to pull over,
the defendant, notwithstanding his negligence, had no time and
means to avoid the accident); Watson v. White, 309 N.C. 498, 506,308 S.E.2d 268, 273 (1983) (holding that while the interval of 1.28
seconds may have been sufficient for a last possible chance to
avoid an injury, such interval did not amount to a last clear
chance); Clodfelter v. Carroll, 261 N.C. 630, 635, 135 S.E.2d 636,
639 (1964) (holding that last clear chance contemplates a chance
that would enable a reasonably prudent man in similar circumstances
to have acted effectively).
In the case before us, plaintiff did not present evidence
supporting the existence of an interval between plaintiff's
negligence and defendant's negligence. Thus, plaintiff failed to
prove that, notwithstanding defendant's negligence, defendant had
an actual clear chance to avoid a collision with plaintiff. In
fact, there was evidence to the contrary. At trial, testimony was
presented that when "[defendant] started to make the turn,"
plaintiff "was right there." Although defendant may have had the
last possible chance to avoid the collision, she did not have, as
a matter of law, the last clear chance. Watson, 309 N.C. at 506,
308 S.E.2d at 273. Thus, the third element of the last clear
chance doctrine is not satisfied.
We note that the record supports reasonable inferences that
defendant was negligent in failing to avoid the collision and that
plaintiff was injured as a result of defendant's actions. These
inferences would satisfy the fourth and fifth elements of the last
clear chance doctrine. However, the third element was not
satisfied for the foregoing reasons and it is essential to the
applicability of the last clear chance doctrine that each of thefive elements be satisfied. Because plaintiff failed to prove the
third element, the trial court did not err in denying plaintiff's
request for an instruction on the doctrine of last clear chance.
No error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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