Appeal by plaintiff from an order entered 24 January 2006 by
Judge Michael E. Helms in Wilkes County Superior Court. Heard in
the Court of Appeals 5 March 2008.
Law Offices of Timothy D. Welborn, P.A., by Timothy D. Welborn
and John R. Smerznak, Jr., for plaintiff-appellant.
Bennett & Guthrie, P.L.L.C., by Rodney A. Guthrie and Roberta
B. King; Joines & Greene, P.L.L.C., by Timothy B. Joines, for
defendant-appellee Linnie Pauline Jarvis.
Robin Hinson filed a complaint as administratrix of the estate
of Billy Douglas Hinson, Jr., and as guardian ad litem for minors
Wayne Hinson and Tristin Craig Hinson (plaintiffs) against Linnie
Pauline Jarvis (defendant) for negligence, gross negligence,
negligent entrustment, and negligence pursuant to the Family
(See footnote 1)
Plaintiffs now appeal the trial court's grant
of summary judgment in favor of defendant. After careful
consideration, we affirm the ruling of the trial court.
This cause of action arose on 31 March 2003 when plaintiffs,
who were in a vehicle together waiting at a stoplight in
Wilkesboro, North Carolina, were struck head-on by a vehicle
defendant's husband, Mr. Jarvis, was operating. Defendant, riding
with Mr. Jarvis at the time of the collision, testified that Mr.
Jarvis may have had a seizure moments before the impact. BillyHinson was killed in the collision, and Robin and Tristin Hinson
were seriously injured. Mr. Jarvis also died as a result of the
It is undisputed that Mr. Jarvis had suffered seizures in the
past and that his driver's license had not been renewed upon its
last expiration date. Defendant testified that she was not
comfortable with her husband driving and had admonished him not to
do so. In spite of her concerns, she would still travel with her
husband while he drove from time to time, including on the day in
which the accident occurred. Mr. Jarvis's vehicle, the one
involved in the accident, was owned exclusively by Mr. Jarvis. The
remainder of the relevant facts and allegations are included in the
discussion section of this opinion.
Plaintiffs present the following issue for this Court's
review: Whether the trial court erred in granting summary judgment
in favor of defendant on all negligence claims brought against her.
We review a trial court's order for summary judgment de novo to
determine whether there is a 'genuine issue of material fact' and
whether either party is 'entitled to judgment as a matter of law.'
Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421,
423 (2007) (quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d
247, 249 (2003)); N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007).
Plaintiffs argue that the trial court erred in granting
summary judgment in favor of defendant on their various claims of
negligence. We address each claim in turn.
 Plaintiffs' first argument is that the trial court erred
in granting summary judgment on the theory of negligence. We
'Actionable negligence in the law of torts is a breach of
some duty imposed by law or a want of due care -- commensurate care
under the circumstances -- which proximately results in injury to
another.' Bowen v. Mewborn
, 218 N.C. 423, 427, 11 S.E.2d 372,
374-75 (1940) (citation omitted). With this well-settled rule in
mind, we review plaintiffs' alleged causes of action.
Plaintiffs allege that defendant, by knowingly riding in a
vehicle with her husband with knowledge that he had suffered from
seizures, breached her duty of due care to plaintiffs. Plaintiffs,
however, have not made any allegations or presented any evidence
that defendant was acting in a negligent fashion such that she
could be a proximate cause of the accident. In support of this
argument, plaintiffs only cite cases pertaining to a situation in
which a third party provides alcohol to an individual before that
individual operates a motor vehicle. See, e.g., Smith v. Winn-
Dixie Charlotte, Inc
., 142 N.C. App. 255, 542 S.E.2d 288 (2001);
Estate of Mullis v. Monroe Oil Co
., 349 N.C. 196, 505 S.E.2d 131
(1998). Assuming that Mr. Jarvis suffered a seizure moments before
the accident, there is no evidence that defendant in any way
brought on that seizure. Moreover, even if Mr. Jarvis did not
suffer a seizure but caused the accident as a result of ordinary
negligence, plaintiffs have presented no evidence that defendant in
any way contributed to that negligence by interfering with his
ability to drive. Accordingly, we find the cases cited byplaintiffs in which a third party provides alcohol to a driver not
applicable to the case at bar. As to any negligence committed on
behalf of defendant's husband, she is not liable strictly by virtue
of their marriage as [n]o married person shall be liable for
damages accruing from any tort committed by his or her spouse[.]
N.C. Gen. Stat. § 52-12 (2007). Plaintiffs' arguments to the
contrary are therefore rejected.
 Plaintiffs next argue that the trial court erred in
granting summary judgment on the issue of whether defendant was
negligent on the theory that she aided and abetted Mr. Jarvis in
operating the vehicle. We disagree.
In plaintiffs' complaint, they alleged that defendant was
negligent for aiding and abetting Mr. Jarvis in violating N.C. Gen.
Stat. §§ 20-7, 20-28, and 20-35 (2007). Section 20-7 requires
those driving on the road to be licensed, and section 20-35 sets
out the punishments and defenses available for such a violation.
Section 20-28, on the other hand, makes it a misdemeanor to drive
with a revoked license.
Defendant counters that none of these sections relate to
plaintiffs' current argument that defendant aided and abetted
defendant in driving negligently. Thus, defendant argues,
plaintiffs are asserting this argument to this Court for the first
time contrary to the mandates of N.C.R. App. P. 10(b)(1). Although
defendant is technically correct, a violation of N.C. Gen. Stat. §
20-7 has been held to be negligent per se
so long as the negligence
was the proximate cause, or a proximate cause, of the injury; thus,plaintiffs have properly presented this issue for review. Hoke v.
., 226 N.C. 692, 698, 40 S.E.2d 345, 349 (1946).
In an effort to establish aiding and abetting in the context
of a tort cause of action, plaintiffs rely on section 876 of the
Restatement of Torts. Section 876, titled Persons Acting in
Concert, contains the following language:
For harm resulting to a third person from the
tortious conduct of another, one is subject to
liability if he
(a) does a tortious act in concert with
the other or pursuant to a common design with
(b) knows that the other's conduct
constitutes a breach of duty and gives
substantial assistance or encouragement to the
other so to conduct himself, or
(c) gives substantial assistance to the
other in accomplishing a tortious result and
his own conduct, separately considered,
constitutes a breach of duty to the third
Restatement (Second) of Torts § 876 (1979).
The Restatement of Torts, however, is not the law of North
Carolina unless a section has specifically been adopted. Cassell
, 344 N.C. 160, 163, 472 S.E.2d 770, 772 (1996), reversed
on other grounds by Nelson v. Freeland
, 349 N.C. 615, 507 S.E.2d
882 (1998). This Court has stated that section 876 of the
Restatement of Torts is adopted as it is applied to the negligence
of joint tortfeasors. Stetser v. TAP Pharm. Prods., Inc
N.C. App. 1, 20, 598 S.E.2d 570, 583 (2004) (citing Boykin v.
, 253 N.C. 725, 118 S.E.2d 12 (1961) (holding all defendants
liable for death of passenger as a result of negligence in racingautomobiles upon a public highway after utilizing law from
Connecticut which had cited section 876)); McMillan v. Mahoney
N.C. App. 448, 393 S.E.2d 298 (1990) (applying section 876 where
child was injured by a negligent act of one defendant but it was
impossible to determine which defendant inflicted the injury).
This Court has cited the section three times but has never
explicitly adopted it. Our Supreme Court has cited Connecticut
law, which quoted an older but substantially similar version of
section 876, but has also not expressly adopted Restatement
(Second) of Torts § 876. Upon review of those cases which have
utilized section 876, we find them readily distinguishable from the
facts of the instant case. We address the relevant cases in turn.
(See footnote 2)
, two individuals were racing on a public roadway in
separate vehicles in violation of the racing statute, N.C. Gen.
Stat. § 20-141.3(a) and (b). Boykin
, 253 N.C. at 731, 118 S.E.2d
at 14. As a result of the race, plaintiff, who was a passenger in
one of the vehicles, was killed after that car flipped
approximately five times and threw him from the vehicle. Id
726, 118 S.E.2d at 13. The plaintiff's estate thereafter brought
negligence claims against the drivers of both vehicles. As to theissue of liability of the driver of the vehicle in which the
plaintiff was not a passenger, the Court stated that
'a person is liable if he * * * (b) knows
that the other's conduct constitutes a breach
of duty and gives substantial assistance or
encouragement to the other so to conduct
himself.' Restatement, 4 Torts, § 876. 'If
the encouragement or assistance is a
substantial factor in causing the resulting
tort, the one giving it is himself a
tort-feasor and is responsible for the
consequences of the other's act.' Id
comment on clause (b).
. at 731, 118 S.E.2d at 16 (quoting Carney v. De Wees
, 70 A.2d
142, 145-46 (Conn. 1949)).
In finding that the defendant was liable, the Court held that
both were in violation of a negligence per se
satisfying the knowledge element. Id
. at 732, 118 S.E.2d at 17.
The Court also found substantial encouragement on the ground that
defendant and the other driver were inciting each other to drive
. In the instant case, we have no such substantial
encouragement to breach a duty of care owed by Mr. Jarvis to
plaintiffs; if anything, defendant was only complicit in her
husband's breach of ordinary care and did not incite him to
drive. Moreover, unlike in Boykin
, only Mr. Jarvis, and not
defendant, was in violation of a statute that results in negligence
. We therefore find Boykin
distinguishable from the instant
In McMillan v. Mahoney
, 99 N.C. App. at 451, 393 S.E.2d at
300, the issue was whether the plaintiff had stated a cause of
action where two minor defendants were firing an air rifle and
plaintiff was struck by one of the pellets but unable to establishwhich minor defendant fired the pellet that caused the injury. In
that case, citing section 876, the Court held that the minor
defendants could be held liable as they were acting in concert with
one another. Id
. at 453, 393 S.E.2d. at 301. In this case, there
are no factual issues as to whether Mr. Jarvis or defendant caused
the accident. This is not a case where defendant was aiding her
husband's negligence by interfering with his ability to drive so
that the exact cause of the accident could not be known.
Because both of the above-mentioned cases are readily
distinguishable from the case at bar, we decline to extend
liability under section 876 of the Restatement of Torts to a third
person whose conduct did not fall below an ordinary standard of
care or involve an issue as to which person was the cause of the
harm alleged. Plaintiffs' assignment or error as to this issue is
 Plaintiffs next argue that the trial court erred in
granting defendant's motion for summary judgment on the issue of
joint enterprise. We disagree.
In order to establish joint enterprise, '[t]he circumstances
must be such as to show that the occupant and the driver together
had such control and direction over the automobile as to be
practically in the joint or common possession of it.' James v.
, 233 N.C. 591, 598, 65 S.E.2d 214, 219 (1951) (citations
omitted). Here, the undisputed facts establish that defendant did
not own the vehicle. Although the complaint alleged joint
ownership, both parties agree that this is not in fact the case. Further evidence of defendant's lack of control over the vehicle
include that she was not responsible for its maintenance, did not
own a vehicle, and never drove the vehicle or any other vehicle.
These additional facts make it even less likely that defendant
exercised any control over the vehicle, much less enough to
establish a joint enterprise.
Plaintiffs attempt to combat these undisputed facts by arguing
that defendant and Mr. Jarvis were riding in the car together to go
to a dinner. Our Supreme Court, however, has held that '[a]
common enterprise in riding is not enough; the circumstances must
be such as to show that plaintiff and the driver had such control
[to amount to] joint possession of it[.]' Id
. (citation omitted).
Plaintiffs have failed to present evidence that defendant had any
control over the vehicle in question. Plaintiffs' arguments to the
contrary are therefore rejected.
In summation, the trial court did not err in granting summary
judgment in favor of defendant as plaintiffs have presented no
issues of material fact. The ruling of the trial court is
Judges ELMORE and STROUD concur.