An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1562


Filed: 15 November 2005



v .                         Wake County
                            No. 03 CVS 6450


    Appeal by plaintiff from judgment entered 19 July 2004 by Judge W. Osmond Smith, III in Wake County Superior Court. Heard in the Court of Appeals 18 August 2005.

    Jones, Martin, Parris & Tessener Law Offices, P.L.L.C., by Sean A. B. Cole, for plaintiff-appellant.

    Larcade & Heiskell, PLLC, by Christopher N. Heiskell, for the defendant-appellee.

    JACKSON, Judge.

    On 1 March 2002, Ameshulah Ruth Proctor (“plaintiff”) was driving in the southbound lanes of Six Forks Road in Raleigh, North Carolina. During the lunch time hour, and in moderately heavy traffic, plaintiff turned left onto Six Forks Road and entered the center turn lane. She then proceeded to shift into the inside southbound lane and to move along with traffic. As plaintiff traveled, she quickly changed into the outside southbound lane, at which point she was involved in an accident with Christopher McGinnis (“defendant”). Defendant had been turning right into theoutside southbound lane of Six Forks Road from a private drive which serviced a large business. Plaintiff testified that she did not see defendant until the moment of impact. As a result of the accident, plaintiff sustained personal injuries, and both plaintiff and defendant sustained damage to their vehicles.
    The investigating officer's report stated that plaintiff's vehicle did not leave any skid marks or tire impressions prior to the impact with defendant's vehicle. Defendant testified that he had an unobstructed view of Six Forks Road, and that he looked back and forth seven to eight times before turning into his lane. Defendant also stated that there were no cars approaching him in his lane of travel when he began to turn onto the road. Nonetheless, as he began to turn onto Six Forks Road, he and plaintiff collided.
    Defendant testified that following the accident, plaintiff told him she was in a hurry, that she was speeding, and that the accident was her fault. At the time of the accident, witness David Bryant (“Bryant”) was traveling directly behind plaintiff. Bryant testified that plaintiff made a quick lane change from the inside southbound lane to the outside southbound lane, and that if she used her turning signal, she did so simultaneously with the lane change. Bryant went on to testify that the accident occurred the moment after plaintiff moved into defendant's lane of travel. He stated that in his opinion, plaintiff was “obviously somebody in a hurry” and that there was no warning that she was going to change lanes.     On 13 May 2003, plaintiff filed a complaint alleging negligence on the part of defendant. In defendant's answer, he alleged plaintiff was contributorily negligent. Plaintiff answered pleading the doctrine of last clear chance. The trial court denied plaintiff's motion for directed verdict on the issue of contributory negligence and submitted the issue to the jury. The court also denied plaintiff's request for a jury instruction on the doctrine of last clear chance. The jury found defendant negligent and plaintiff contributorily negligent. Plaintiff's motions for a new trial and judgment notwithstanding the verdict were denied.
    Plaintiff alleges the trial court erred in denying plaintiff's motion for directed verdict on the issue of contributory negligence. Plaintiff contends defendant failed to prove any breach of duty by plaintiff or any proximate relationship between her conduct and the collision.
    The purpose of a party's “motion for directed verdict is to test the legal sufficiency of the evidence to take the case to the jury and to support a verdict for [the nonmoving party].” Wallace v. Evans, 60 N.C. App. 145, 146, 298 S.E.2d 193, 194 (1982). “When considering a motion for directed verdict, the trial court must consider all the evidence in the light most favorable to the nonmoving party and the nonmoving party is to receive the benefit of every reasonable inference that can be drawn from the evidence.” Bass v. Johnson, 149 N.C. App. 152, 155, 560 S.E.2d 841, 844 (2002). “The heavy burden carried by the movant is particularly significant in cases . . . in which the principal issues arenegligence and contributory negligence.” Taylor v. Walker, 320 N.C. 729, 734, 360 S.E.2d 796, 799 (1987).
    In order to establish contributory negligence, the defendant must show “(1) a want of due care on the part of the plaintiff; and (2) a proximate connection between the plaintiff's negligence and the injury.” Whisnant v. Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850 (2004) (citing Construction Co. v. R.R. , 184 N.C. 179, 180, 113 S.E. 672, 673 (1922)). A directed verdict is rarely appropriate on the issue of contributory negligence. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 138, 539 S.E.2d 331, 333 (2000). A directed verdict on the issue of contributory negligence is only appropriate “[w]hen the evidence adduced at trial establishes contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom.” Bass, 149 N.C. App. at 155-56, 560 S.E.2d at 844. “Where more than one conclusion can reasonably be drawn, determination of the issue is properly left for the jury.” Id. at 156, 560 S.E.2d at 844.
    In the instant case, there was sufficient evidence presented to the court regarding plaintiff's alleged contributory negligence for determination to be left to the jury. Defendant presented evidence that plaintiff admitted both that she was speeding and that the accident was her fault. Both plaintiff and witness Bryant testified that plaintiff made a quick and abrupt shift into the lane in which defendant had begun to turn. Testimony also showed that the traffic on Six Forks Road that day was moderately heavydue to both the time of day and the various office buildings in the area.
    “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). Defendant presented more than a “scintilla of evidence” which would support the trial court's denial of plaintiff's motion for a directed verdict on the issue of contributory negligence. Therefore we hold that, although there was conflicting testimony regarding the specific details of how the accident occurred, the trial court properly denied plaintiff's motion for directed verdict and left those conflicts for resolution by the jury. See Williams v. Davis, 157 N.C. App. 696, 702, 580 S.E.2d 85, 89 (2003).
    Plaintiff also contends the trial court erred in denying her motion to instruct the jury on the application of the doctrine of last clear chance. Plaintiff argues that she presented evidence as to all of the elements of the doctrine of last clear chance, and thus was entitled to a jury instruction on the issue.
    In order to support a jury instruction on the doctrine of last clear chance, there must be evidence supporting the following elements:
        (1) that the plaintiff negligently placed [herself] in a position of helpless peril; (2) that the defendant knew or, by the exercise of reasonable care, should have discovered the plaintiff's perilous position and [her] incapacity to escape from it; (3) that the defendant had the time and ability to avoid the injury by the exercise of reasonable care;(4) that the defendant negligently failed to use available time and means to avoid injury to the plaintiff and (5) as a result, the plaintiff was injured.

Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184, 186 (2004) (citing Kenan v. Bass, 132 N.C. App. 30, 33, 511 S.E.2d 6, 7-8 (1999)), disc. review denied, 359 N.C. 411, 612 S.E.2d 322 (2005). “The issue of last clear chance, 'must be submitted to the jury 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, 132 N.C. App. at 32-33, 511 S.E.2d at 7). When a plaintiff fails to satisfy all necessary elements of the doctrine of last clear chance, “the case is governed by the ordinary rules of negligence and contributory negligence.” Id.
    Plaintiff contends that she was in a position of peril from which she could not escape, due to her being unaware of defendant's intention to turn into the outside lane of traffic. She further argues that defendant, in the exercise of reasonable care, should have discovered her perilous condition, and that defendant had the time and means to avoid injuring plaintiff, and that he negligently failed to do so.
    The evidence presented tended to show that neither plaintiff nor defendant had time to react prior to the collision, and that neither party saw the other before the moment of impact. The doctrine of last clear chance should be invoked only when it can be shown that “'there was an appreciable interval of time between theplaintiff's negligence and his injury during which the defendant . . . should have avoided the effect of plaintiff's prior negligence.'” Watson v. White, 309 N.C. 498, 506, 308 S.E.2d 268, 273 (1983) (quoting Mathis v. Marlow, 261 N.C. 636, 639, 135 S.E.2d 633, 635 (1964)). “Where there is no evidence that a person exercising a proper lookout would have been able, in the exercise of reasonable care, to avoid the collision, the doctrine of last clear chance does not apply.” Id. Our courts consistently have held that while a defendant may have had the last “possible” chance to avoid the injury, the doctrine does not apply when a defendant does not have a last “clear” chance to act. See Watson, 309 N.C. at 506, 308 S.E.2d at 273; Battle v. Chavis, 266 N.C. 778, 781, 147 S.E.2d 387, 390 (1966); Culler, 148 N.C. App. at 379, 559 S.E.2d at 200; Grant v. Greene, 11 N.C. App. 537, 541, 181 S.E.2d 770, 772 (1971).
    Here, the evidence presented at trial clearly showed that the collision occurred suddenly, and that neither party had time to react prior to the impact. Thus, there was not sufficient evidence presented indicating that defendant had any clear opportunity to avoid the collision. Therefore, we hold that the trial court acted properly in denying plaintiff's request to instruct the jury on the application of the doctrine of last clear chance.
    No error.

    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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