Appeal by plaintiff from judgment entered 15 October 2003 by
Judge Michael E. Helms in Buncombe County Superior Court. Heard in
the Court of Appeals 4 November 2004.
CLONINGER, LINDSAY, HENSLEY & SEARSON, P.L.L.C., by John C.
Hensley, Jr., for plaintiff-appellant.
COGBURN, GOOSMANN, BRAZIL & ROSE, P.A., by Steven D. Cogburn
for defendant-appellant.
TIMMONS-GOODSON, Judge.
Ellison Pearce (“plaintiff”) appeals the trial court's entry
of directed verdict in a negligence action in favor of Robert T.
Rosenblum (“Rosenblum”) and John G. Dermas (“Dermas”)
(collectively, “defendants”). For the reasons stated herein, we
affirm the trial court's judgment.
The evidence presented at trial tends to show the following:
At approximately 6:00 p.m. on 14 October 2001, plaintiff parked his
car in a lot on the southbound side of the Blue Ridge Parkway in
Buncombe County, North Carolina. Plaintiff walked across to the
northbound side of the parkway to take pictures at the BeaverdamGap Overlook. As plaintiff returned to his car, he stopped before
crossing the parkway to look both ways for oncoming traffic.
Seeing no traffic, plaintiff crossed to the center line where he
stopped again to look for traffic in the southbound lane. At that
point, plaintiff saw three cars approaching. Plaintiff ran across
the southbound lane in front of the approaching traffic, and as he
crossed the road, his trailing left leg was hit by a car driven by
Rosenblum. The owner of the car, Dermas, was following Rosenblum
in a second vehicle. The impact caused plaintiff to suffer a
broken leg.
Plaintiff filed the underlying complaint against defendants
for negligent operation of a motor vehicle. Defendants answered
the complaint, citing a defense of contributory negligence. In
plaintiff's reply to defendants' answer, plaintiff alleged that
Rosenblum had the last clear chance to avoid the accident.
The case was tried before a jury on 30 September and 1 October
2003. At the close of plaintiff's evidence, defendants made a
motion for directed verdict. The trial court denied the motion for
directed verdict with respect to the issues of negligence and
contributory negligence, but granted the motion for directed
verdict on the issue of last clear chance. Defendants did not
present any evidence, and the case was submitted to the jury. The
jury found defendants guilty of negligence and found plaintiff
guilty of contributory negligence. Plaintiff appeals the trial
court's directed verdict on the issue of last clear chance.
As an initial matter, we note that plaintiff's brief contains
arguments supporting only one of the original four assignments of
error on appeal. The omitted assignments of error are deemed
abandoned pursuant to N.C.R. App. P. 28(b)(6) (2004). We therefore
limit our review to the assignment of error addressed in
plaintiff's brief.
The sole issue raised on appeal is whether the trial court
erred by granting defendants' motion for directed verdict on the
issue of last clear chance. We conclude that the trial court did
not err.
“A directed verdict should be granted in favor of the moving
party only where the evidence so clearly establishes that fact in
issue that no reasonable inferences to the contrary can be drawn,
and if the credibility of the movant's evidence is manifest as a
matter of law.”
Culler v. Hamlett, 148 N.C. App. 372, 374, 559
S.E.2d 195, 198 (2002) (citations and quotations omitted).
A pedestrian who has negligently contributed to his injury can
assert the last clear chance doctrine against the driver of a motor
vehicle only where the pedestrian establishes the following
elements:
(1) [t]hat the pedestrian negligently placed
himself in a position of peril from which he
could not escape by the exercise of reasonable
care; (2) that the motorist knew, or by the
exercise of reasonable care could have
discovered, the pedestrian's perilous position
and his incapacity to escape from it before
the endangered pedestrian suffered injury at
his hands; (3) that the motorist had the time
and means to avoid injury to the endangeredpedestrian by the exercise of reasonable care
after he discovered, or should have
discovered, the pedestrian's perilous position
and his incapacity to escape from it; and (4)
that the motorist negligently failed to use
the available time and means to avoid injury
to the endangered pedestrian, and for that
reason struck and injured him.
Culler, 148 N.C. App. at 378, 559 S.E.2d at 200 (citations
omitted).
[A] pedestrian who is attempting to walk
across a street, and is about to walk in front
of an oncoming vehicle, is obviously in peril
before she steps directly in front of the car.
To invoke the doctrine of last clear chance
such peril must be helpless or inadvertent.
Helpless peril arises when a person's prior
contributory negligence has placed her in a
position from which she is powerless to
extricate herself; while inadvertent peril
focuses on failure to focus on one's
surroundings and discover her own peril.
The
doctrine is, however, inapplicable where the
injured party is at all times in control of
the danger and simply chooses to take the
risk.
148 N.C. App. at 379
-80, 559 S.E.2d at 201 (citations and
quotations omitted) (emphasis added). “[U]nless all the necessary
elements of the doctrine of last clear chance are present, the case
is governed by the ordinary rules of negligence and contributory
negligence.”
Id. at 379, 559 S.E.2d at 200.
In the present case, plaintiff's evidence does not satisfy the
first element of the doctrine of last clear chance. The evidence
fails to establish that plaintiff was in helpless or inadvertent
peril at the time of the accident. Plaintiff testified about the
incident as follows: COURT: When you saw this car, what did
you do? What did you think?
What was your reaction?
WITNESS: My mind said, “You're not going
to make it. Run.”
Q: Why did you think you were not going to
make it?
A: From the look of the cars, how fast they
were going.
Q: And what did you do when you told
yourself you were not going to make it?
A: I ran.
Q: And tell the jury what happened after
that.
A: Well, I was running and I heard a hit and
my mind said, “You didn't make it.” And
then I remember falling forward, and then
I was laying there and lifted up my leg
and saw it was broke[n]. My wife came
running up about that time, and I told
her my leg was broken but not to worry,
that I was okay.
Plaintiff further testified on cross-examination that he did not
take the time to observe whether there was traffic approaching in
the northbound lane:
Q: At no time was there any traffic in the
northbound lane, was there?
A: Not to my knowledge because I didn't look
back to the left, either.
. . . .
Q: If you'd stayed in that northbound lane
the car wouldn't have hit you?
A: Yes, sir.
Q: The car never got out of the southbound
lane, did it?
A: To the best of my knowledge.
Plaintiff was not in helpless peril because he was not in a
position from which he was powerless to extricate himself.
Plaintiff could have checked the northbound lane for traffic, and,
if there was no traffic, he could have retreated into the
northbound lane in order to avoid being struck by the car that
Rosenblum was driving. Plaintiff was not in inadvertent peril
because he was fully aware of his surroundings and discovered his
own peril. We conclude that plaintiff was at all times in control
of the danger and simply chose to take the risk of running in front
of the car that Rosenblum was driving. Thus, we affirm the trial
court's entry of directed verdict on the issue of last clear
chance.
AFFIRMED.
Judges TYSON and GEER concur.
Report per Rule 30(e).
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