Opinion
No. COA09-1723
Filed 3 August 2010 This case not for publication
Appeal by plaintiff from order entered 1 October 2009 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 27 May 2010.
Thomas Farris, P.A., by Albert S. Thomas, Jr.; and Lawyers East, by R. Alfred Patrick, for plaintiff-appellant. Valentine, Adams, Lamar, Murray, Lewis Daughtry, L.L.P., by Bruce L. Daughtry and Kevin N. Lewis, for defendant-appellee. Poyner Spruill LLP, by Timothy W. Wilson, for unnamed defendant-appellee.
Halifax County No. 08 CVS 68.
Daniel Bradley ("plaintiff") appeals the 30 September 2009 order granting summary judgment in favor of Leon Gay ("Gay") and unnamed defendant North Carolina Farm Bureau Mutual Insurance Company, Inc. ("Farm Bureau"). For the reasons set forth below, we affirm.
On 8 January 2007, at approximately 6:00 p.m., defendant struck plaintiff with his vehicle while plaintiff stood in the middle of North Carolina Highway 30 trying to pull a wounded deer from the roadway. Plaintiff had stopped his car a few minutes earlier to assist the motorist, Edward Price ("Price"), who had hit the deer. Plaintiff parked his vehicle on the side of the road, facing east, with his headlights on. Price stood on the side of the road, watching plaintiff pick up the deer's head and attempt to drag it off the road. As plaintiff attempted to remove the deer from the middle of the road, defendant approached from the east with his headlights on, from approximately "a quarter of a mile away." Traveling down the highway, defendant saw plaintiff's headlights, but the lights obstructed his vision, and he was unable to see plaintiff in the middle of the road. Observing the headlights, defendant slowed down from the posted speed limit of fifty-five miles per hour to approximately twenty-five miles per hour, constantly applying his brakes as he came closer. The undisputed facts are that this was a straight stretch of highway and that the collision occurred on a clear evening.
While watching plaintiff in the middle of the road and upon seeing defendant's vehicle at a distance of approximately one quarter of a mile away, Price verbally warned plaintiff that defendant's car was coming towards them. Price testified in a sworn deposition that plaintiff looked up in the direction of defendant's oncoming car. Specifically, Price testified as follows:
Q: Could you see his reaction when you told him a car was coming?
A: He looked up.
Q: Do you know which direction he looked?
A: Towards where the car was coming.
Plaintiff testified during his deposition that he saw headlights up ahead, but he assumed they belonged to other motorists keeping a lookout and that they were going to stop. Plaintiff continued to try to pull the deer from the roadway after he saw the lights. Approximately twenty to forty seconds after Price gave warning to plaintiff, defendant struck plaintiff with his vehicle. Price testified that, if plaintiff had let go of the deer and moved out of the road when he had been warned and looked up at defendant's car, plaintiff would have had time to avoid the collision. Defendant testified that he saw plaintiff only when he was four feet in front of his vehicle, and that "all at once" plaintiff went from a crouching position to a standing position. Seconds later, defendant's vehicle struck plaintiff.
On 14 January 2008, plaintiff filed a complaint against defendant for motor vehicle negligence seeking compensatory damages for the injuries he sustained in the accident. On 11 March 2008, defendant Gay filed an answer denying the allegations against him and raising the affirmative defense of contributory negligence. On 12 March 2008, defendant Farm Bureau filed an answer denying plaintiff's claims and raised the affirmative defense of contributory negligence. On 14 March 2008, plaintiff filed a reply denying the allegation of contributory negligence and claiming that defendant had the last clear chance to avoid the collision. On 19 June 2009, defendant Gay filed a motion for summary judgment. On 25 June 2009, defendant Farm Bureau also filed a motion for summary judgment. On 1 October 2009, the trial court entered an order granting summary judgment in favor of both Gay and Farm Bureau. Plaintiff appeals.
On appeal, plaintiff argues that trial court erred by granting summary judgment in favor of both defendants on the grounds that plaintiff did not demonstrate an adequate forecast of evidence for a prima facie case of negligence. We disagree.
The Supreme Court of North Carolina has held that "[s]ummary judgment is appropriate `if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Craig v. Hanover, 363 N.C. 334, 337, 678 S.E.2d 351, 353 (2009) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007)). The trial court's granting of summary judgment is reviewed de novo. Id. at 337, 678 S.E.2d at 354. "`The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim . . . would be barred by an affirmative defense.'" Id. (quoting Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)). A defendant in a negligence claim may be entitled to summary judgment if he or she can show "that the plaintiff cannot surmount an affirmative defense." Bartlett Milling Co. v. Walnut Grove Auction, 192 N.C. App. 74, 85, 665 S.E.2d 478, 488 (2008), disc. rev. denied, 362 N.C. 679, 669 S.E.2d 741 (2008). We review all evidence in the light most favorable to the party opposing the motion for summary judgment. Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). Furthermore, "`if the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.'" Azar v. Presbyterian Hosp., 191 N.C. App. 367, 370-71, 663 S.E.2d 450, 453 (2008) (quoting Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)), cert. denied, 363 N.C. 372, 678 S.E.2d 232 (2009).
"Even though summary judgment is seldom appropriate in a negligence case, summary judgment may be granted in a negligence action where there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence." Lavelle v. Schultz, 120 N.C. App. 857, 859, 463 S.E.2d 567, 569 (1995), disc. rev. denied, 342 N.C. 656, 467 S.E.2d 715 (1996) (citing Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983)). See also McCullough v. Amoco Oil Co., 310 N.C. 452, 457, 312 S.E.2d 417, 420 (1984) (explaining that summary judgment is appropriate in a negligence action when the moving party has proven that an essential element of the opposing party's claim is nonexistent, or that the opposing party cannot produce evidence to support an essential element of his or her claim) (citing Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982)).
In order to survive a motion for summary judgment in a negligence claim, a plaintiff must establish a prima facie case of negligence by showing: "`(1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff's injury; and (3) a person of ordinary prudence would have foreseen that the plaintiff's injury was probable under the circumstances.'" Biggers v. Bald Head Island, ___ N.C. App. ___, ___, 682 S.E.2d 423, 425 (2009) (quoting Lavelle, 120 N.C. App. at 859-60, 463 S.E.2d at 569), cert. denied, 363 N.C. 853, ___ S.E.2d ___ (2010).
Here, defendant raised the affirmative defense of contributory negligence in response to plaintiff's negligence claim. It is well-established in this state that a finding of contributory negligence bars plaintiff's negligence claim against defendant. Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 401, 549 S.E.2d 867, 869 (2001). We previously have explained that "`[t]he law imposes upon a person the duty to exercise ordinary care to protect himself from injury and avoid a known danger; and that where . . . there is an opportunity to avoid such a known danger, failure to take such an opportunity is contributory negligence.'" Diorio v. Penny, 103 N.C. App. 407, 409, 405 S.E.2d 789, 791 (1991) (quoting Lenz v. Ridgewood Associates, 55 N.C. App. 115, 122, 284 S.E.2d 702, 706-07 (1981), disc. rev. denied, 305 N.C. 300, 290 S.E.2d 702 (1982)). Courts long have held that a duty to exercise such care is placed upon pedestrians. See Meadows v. Lawrence, 75 N.C. App. 86, 89-90, 330 S.E.2d 47, 50 (1985), aff'd, 315 N.C. 383, 337 S.E.2d 851 (1986) (per curiam) (citing Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967); Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214 (1964)). When coupled with conditions such as a straight road, unobstructed visibility, clear weather, and working headlights, a pedestrian's failure to see and avoid the vehicle will be deemed contributory negligence as a matter of law. See Meadows, 75 N.C. App. at 89-90, 330 S.E.2d at 50.
However, the last clear chance doctrine may provide an exception to a plaintiff's contributory negligence. In order to grant the exception, evidence of four elements must be found:
(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 endangered pedestrian 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 the injury to the endangered pedestrian, and for that reason struck and injured him.
Nealy v. Green, 139 N.C. App. 500, 504-05, 534 S.E.2d 240, 243 (2000) (citing Wade v. Sausage Co., 239 N.C. 524, 525, 80 S.E.2d 150, 151 (1954)).
In the case sub judice, plaintiff contends that defendant's negligence caused his injury. However, on these facts, we need not address defendant's negligence because we hold that plaintiff was contributorily negligent. Furthermore, plaintiff fails to meet the elements required to avail himself of the last clear chance doctrine exception.
The following facts show plaintiff's contributory negligence: (1) by asking Price and at least one other motorist to keep a lookout for cars, plaintiff demonstrated that he was aware of the presence and danger of other vehicles on the highway when he stepped into the middle of the road to move the deer; (2) the road where the collision occurred was "straight as an arrow," and the weather was "dry and clear;" (3) Price warned plaintiff about defendant's vehicle while it was "one quarter of a mile away;" (4) plaintiff looked up at the vehicle with at least twenty seconds — and as much as forty seconds — to move out of the way; (5) plaintiff saw oncoming headlights but assumed the vehicle would stop; (6) if plaintiff had "let go of the deer and moved off of the road when . . . warned, . . . [he] had time to get out of the road . . . [;]" and (7) plaintiff stayed in the road and continued to try to remove the deer. Twenty seconds was ample time for the plaintiff to remove himself from harm's way. We previously have recognized a pedestrian's duty to use "ordinary care to protect himself from injury and avoid a known danger[.]" Diorio, 103 N.C. App. at 409, 405 S.E.2d at 791 (citations omitted). Where, as here, "there is an opportunity [for the pedestrian] to avoid such a known danger, failure to take such an opportunity is contributory negligence." Id. Accordingly, we hold that plaintiff was contributorily negligent.
Furthermore, plaintiff cannot meet all four of the required elements to demonstrate that defendant had the last clear chance to avoid the accident. First, plaintiff cannot demonstrate that he was in a position of peril from which he could not escape. See Nealy, 139 N.C. App. at 504, 534 S.E.2d at 243 (establishing the first element of the last clear chance doctrine requiring that the pedestrian's position be one of "peril from which he could not escape by the exercise of reasonable care[.]"). The following facts support the contention that plaintiff, in fact, was in a position from which he could safely remove himself: (1) Price warned plaintiff that defendant's vehicle was approaching; (2) plaintiff looked up at defendant's vehicle while it was one quarter of a mile away; (3) plaintiff saw oncoming headlights but assumed the vehicle would stop; (4) plaintiff had approximately twenty seconds — and as much as forty seconds — from the time he looked up at defendant's vehicle to the time he was struck; and (5) plaintiff went back to moving the deer out of the road after Price gave him the verbal warning, instead of removing himself from the position of danger.
Having both knowledge of the perilous situation and sufficient time to remove himself from harm's way precludes plaintiff from meeting the first of the required elements of the last clear chance doctrine and bars him from benefitting from this exception to contributory negligence. Accordingly, in the case sub judice, the exception is not available to plaintiff.
For the foregoing reasons, we hold that the trial court properly granted summary judgment in favor of Gay. Consequently, Farm Bureau also is entitled to judgment as a matter of law. See Grimsley v. Nelson, 342 N.C. 542, 548, 467 S.E.2d 92, 96 (1996) (explaining that if a cause of action is dismissed, liability cannot be imposed upon the unnamed defendant, there, a traveler's insurance company) (citing N.C. Gen. Stat. § 20-279.21(b)(3)a. (2005)).
Affirmed.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).