Opinion
No. COA99-364
Filed 4 April 2000
Appeal by plaintiff from judgments entered 21 September and 23 September 1998 by Judge Carl L. Tilghman in Onslow County Superior Court. Heard in the Court of Appeals 6 January 2000.
John W. Ceruzzi, Jeffrey S. Miller and Anne K. O'Connell, for plaintiff-appellant.
Crossley, McIntosh, Prior Collier, by Samuel H. MacRae, for defendant-appellee City of Jacksonville.
Wallace, Morris Barwick, P.A., by P.C. Barwick, Jr. and Elizabeth A. Heath, for defendant-appellee Dixie Faye Pickett.
Plaintiff Lisa Baker Cucina appeals the trial court's grant of summary judgment in favor of defendants City of Jacksonville (the City) and Dixie Faye Pickett (Pickett). We affirm the trial court in part and reverse in part.
Pertinent facts and procedural history include the following: At approximately 6:00 p.m. on 27 January 1996, plaintiff and Pickett were involved in an automobile collision. Plaintiff was traveling north on Pine Valley Road (Pine Valley) in Jacksonsville while Pickett was proceeding west on Brynn Marr Road (Brynn Marr). Traffic at the intersection of the two streets was normally governed by stop signs on Brynn Marr. However, an accident at 3:00a.m. on 27 January 1996 had resulted in the stop sign controlling west-bound traffic on Brynn Marr being knocked down. None of the parties disputes Pickett's failure to stop at the intersection and the subsequent collision between plaintiff's vehicle and that of Pickett. It is further undisputed that plaintiff, who resides on Pine Valley, was cognizant of the 3:00 a.m. incident and had observed the downed stop sign when traveling to work on the morning of 27 January 1996.
Plaintiff filed suit 3 September 1997, asserting Pickett had been negligent, inter alia, in failing to yield the right of way and by failing to keep a proper lookout. Regarding her claim against the City, plaintiff alleged it had been aware of the downed Brynn Marr stop sign for fifteen hours prior to the collision at issue and that it had negligently failed to conduct repairs thereto during that period of time.
Pickett filed answer 30 October 1997 asserting plaintiff's contributory negligence; plaintiff's subsequent reply alleged Pickett was accorded the last clear chance to avoid colliding with plaintiff's vehicle. The City's 3 November 1997 answer denied it had notice of the downed stop sign and further set forth immunity from suit and contributory negligence as defenses.
The City and Pickett subsequently moved for summary judgment, which motions were allowed by the trial court on 21 September and 23 September 1998 respectively. Plaintiff timely appealed.
A motion for summary judgment is properly granted when
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.
N.C.G.S. § 1A-1, Rule 56(c) (1999). A defendant moving for summary judgment bears the burden of showing either that (1) an essential element of the plaintiff's claim is nonexistent; (2) the plaintiff is unable to produce evidence which supports an essential element of its claim; or, (3) the plaintiff cannot overcome affirmative defenses raised in contravention of its claims. Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, accepting the latter's asserted facts as true, and drawing all reasonable inferences in its favor. Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994).
We first consider whether the City met its summary judgment burden. In order to set out a prima facie claim of negligence against the City, plaintiff was required to present evidence tending to show that (1) the City owed a duty to plaintiff; (2) the City breached that duty; (3) such breach constituted an actual and proximate cause of plaintiff's injury; and, (4) plaintiff suffered damages in consequence of the breach. Davis v. Messer, 119 N.C. App. 44, 54-55, 457 S.E.2d 902, 908-09, disc. review denied, 341 N.C. 647, 462 S.E.2d 508 (1995).
The City maintains the public duty doctrine precluded plaintiff from producing an essential element of her claim, i.e., that plaintiff was owed a duty by the City. We agree.
The public duty doctrine
provides that governmental entities, when exercising their statutory powers, act for the benefit of the general public and therefore have no duty to protect specific individuals. Because the governmental entity owes no particular duty to any individual claimant, it cannot be held liable for negligence for a failure to carry out its statutory duties. Absent a duty, there can be no liability.
Stone v. N.C. Dept. of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716, cert. denied, ___ U.S. ___, 142 L.Ed.2d 449 (1998) (citations omitted). Although the doctrine originally arose in the context of a sheriff accused of negligently failing to prevent a crime, see Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991), it has since been applied "to a variety of local governmental operations," Stone, 347 N.C. at 480, 495 S.E.2d at 715; see, e.g., Vanasek v. Duke Power Co., 132 N.C. App. 335, 340, 511 S.E.2d 41, 45 (doctrine barred claim against city asserting negligent failure to warn of downed power line), cert. denied, 350 N.C. 851, ___ S.E.2d ___ (1999); Simmons v. City of Hickory, 126 N.C. App. 821, 823, 487 S.E.2d 583, 585 (1997) (doctrine barred claim against city alleging negligent inspection of homes and issuance of building permits); Davis, 119 N.C. App. at 55-57, 457 S.E.2d at 909-10 (doctrine applied to claim against city for negligent failure to complete effort to extinguish a residential fire). Nonetheless, two exceptions to the public duty doctrine have been recognized in the foregoing cases:
(1) where there is a special relationship between the injured party and the governmental entity; and (2) when the governmental entity creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual's reliance on the promise of protection is causally related to the injury suffered. These exceptions are narrowly construed and applied.
Stone, 347 N.C. at 482-83, 495 S.E.2d at 717 (citation omitted). However, North Carolina has not followed a minority of jurisdictions in validating a third exception
for "high risk" situations, allowing a negligence claim to proceed where the plaintiff shows that "local government officials knew or should have known the plaintiff or members of his class would be exposed to an unusually high risk if care was not taken by local government personnel. . . ."
Vanasek, 132 N.C. App. at 339, 511 S.E.2d at 45 (quoting 2 Sandra M. Stevenson, Antieau on Local Government Law § 35.06[3] (2d ed. 1998)).
Plaintiff argues "the City has a statutorily imposed duty to keep the public streets in a reasonably safe condition" under N.C.G.S. § 160A-296 (1999). Plaintiff relies upon Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976), wherein this Court held a city may be liable for negligently failing to maintain reasonably safe streets. However, Stancill was decided before our Supreme Court recognized the public duty doctrine and is thus inapplicable to the case sub judice. See Stone, 347 N.C. at 480 n. 1, 495 S.E.2d at 715 n. 1. In addition,
[a]lthough [p]laintiff is correct that cities have a statutorily imposed "duty to keep the public streets, sidewalks, alleys, and bridges open for travel and free from unnecessary obstructions," see [G.S. § 160A-296(a)(2)], . . . [that] provision do[es] not impose a "special duty" on [the City]. Even assuming [the City] breached [that] provision, [it] imposes a general duty to the public at large and [does not] provide a private cause of action for individual claimants.
Vanasek, 132 N.C. App. at 340, 511 S.E.2d at 45; compare Isenhour v. Hutto, 350 N.C. 601, 608, 517 S.E.2d 121, 126 (1999) (special duty exception applies to city which employed school crossing guards whose job was "to protect certain children, at certain times, in certain places").
The circumstances sub judice thus are not covered by the first two exceptions and may arguably only be considered to fall within the exception not recognized in this jurisdiction. See Vanasek, 132 N.C. App. at 339, 511 S.E.2d at 45 ("creation of any public duty doctrine exceptions beyond those specifically recognized by our Supreme Court is . . . better left to that Court or to our General Assembly"). In short, by virtue of application of the public duty doctrine, the City met its burden of showing an essential element of plaintiff's claim was nonexistent, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350, i.e., that the City owed a duty to plaintiff, thereby precluding plaintiff from making out a prima facie claim of negligence, see Davis, 119 N.C. App. at 54, 457 S.E.2d at 908. Accordingly, the trial court's grant of summary judgment in favor of the City is affirmed. Notwithstanding, plaintiff argues that the City's purchase of liability insurance acted as waiver of its immunity from suit. However,
[w]hile it is true . . . that a municipality in this State waives the defense of governmental immunity by purchasing liability insurance, it is also true that a waiver of governmental immunity does not create a cause of action where none previously existed.
. . . [The City's] purchase of liability insurance cannot create for [plaintiff] a negligence cause of action where, as here, we have already concluded that the public duty doctrine precludes a finding that [the City] owed any duty to [plaintiff] other than the duty generally owed [her] as a member of the public at large.
Stafford v. Barker, 129 N.C. App. 576, 583-84, 502 S.E.2d 1, 5-6, disc. review denied, 348 N.C. 695, 511 S.E.2d 650 (1998) (citation omitted).
We next review the trial court's grant of Pickett's summary judgment motion.
The purpose of a summary judgment motion is to foreclose the need for a trial when . . . the trial court determines that only questions of law, not fact, are to be decided. Summary judgment may not be used, however, to resolve factual disputes which are material to the disposition of the action. Robertson v. Hartman, 90 N.C. App. 250, 252, 368 S.E.2d 199, 200 (1988) (citation omitted). Further, summary judgment is rarely appropriate in a negligence action. Nicholson v. American Safety Utility Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997).
Thorough review of the record reflects a genuine issue of material fact as to the negligence of Pickett. The uncontradicted evidence was that the stop sign normally controlling the street on which Pickett was traveling had been knocked down. Pickett's conduct thus "must be judged in the light of conditions confronting" her. Dawson v. Jennette, 278 N.C. 438, 446, 180 S.E.2d 121, 126-27 (1971).
N.C.G.S. § 20-155(a) (1999) provides:
When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
As Pickett's vehicle was located on the right, she was entitled to rely upon plaintiff's statutory obligation to yield the right-of-way if the "two vehicles approach[ed] or enter[ed] [the] intersection . . . at approximately the same time." Id.; see Douglas v. Booth, 6 N.C. App. 156, 159-60, 169 S.E.2d 492, 495 (1969) (where plaintiff and defendant approached intersection at approximately the same time and plaintiff "was approaching from [defendant's] left and [the latter] was approaching from plaintiff's right . . ., [defendant] was entitled to rely on G.S. 20-155(a) granting the vehicle on the right the right of way when [two vehicles] approach an intersection at approximately the same time"). However, if plaintiff's vehicle reached the intersection first and had already entered the intersection, [Pickett] was under [a duty] to permit the plaintiff's automobile to pass in safety.
Bennett v. Stephenson, 237 N.C. 377, 380, 75 S.E.2d 147, 150 (1953). In addition, Pickett's conduct was governed by the general duty required of all motorists "to keep a reasonable and proper lookout in the direction of travel and see what [they] ought to see." Keith v. Polier, 109 N.C. App. 94, 99, 425 S.E.2d 723, 726 (1993).
Viewed in the light most favorable to plaintiff, see Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, evidence in the record indicates plaintiff's vehicle entered the intersection first and that Pickett thereby was required to yield the right-of-way, see Bennett, 237 N.C. at 380, 75 S.E.2d at 150. Plaintiff testified in her deposition that she was "almost through the intersection" when the collision occurred. In addition, plaintiff's vehicle was damaged on the passenger side while the front driver's portion of Pickett's vehicle was damaged, suggesting plaintiff's vehicle entered the intersection first and was struck by Pickett's vehicle as plaintiff was attempting to traverse the intersection. Compare Douglas, 6 N.C. App. at 160, 169 S.E.2d at 495 (damage to front of plaintiff's automobile and left front door of defendant's vehicle tended to show plaintiff had not entered intersection first).
While we acknowledge that "the right of way . . . is not determined by a fraction of a second," Dawson, 278 N.C. at 445, 180 S.E.2d at 126, and that the instant case is close, the evidence viewed most favorably to plaintiff, see Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, raises a genuine issue as to which vehicle first entered the intersection and obtained the right-of-way.
The record also reflects a genuine issue of material fact as to whether Pickett was maintaining a proper lookout. The latter testified in her deposition that
[i]t didn't look like no intersection to me. . . . I don't recall seeing [an intersecting street].
To conclude, therefore, a reasonable jury could find that plaintiff entered the intersection first and obtained the right-of-way, that Pickett breached the duty to yield to plaintiff or to keep a proper lookout by proceeding through the intersection, and that such breach was a proximate cause of injury to plaintiff. Plaintiff's evidence thus set out a prima facie case of negligence against Pickett, see Davis, 119 N.C. App. at 54-55, 457 S.E.2d at 908-09, and summary judgment in favor of the latter was inappropriate, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350.
Notwithstanding, Pickett interjects a final argument claiming plaintiff was contributorily negligent as a matter of law because
she knew the stop sign controlling [Pickett's] direction of travel had been knocked down in an accident occurring earlier that morning . . . [but] did not take a single precautionary measure in going through the intersection. . . .
However, assuming arguendo the foregoing contentions sustain a factual issue as to plaintiff's negligence, such negligence is not thereby established as a matter of law.
Issues of contributory negligence, like those of ordinary negligence, are ordinarily questions for the jury and are rarely appropriate for summary judgment. Only where the evidence establishes the plaintiff's own negligence so clearly that no other reasonable conclusion may be reached is summary judgment to be granted. Nicholson, 346 N.C. at 774, 488 S.E.2d at 244 (citation omitted). It therefore remains an issue for the jury whether "a reasonably prudent person exercising ordinary care," Smith v. Wal-Mart Stores, 128 N.C. App. 282, 288, 495 S.E.2d 149, 153 (1998), should have remembered the stop sign was down and consequently taken some sort of precautionary measures upon approaching the intersection many hours later, see id. (jury must determine whether plaintiff's failure to notice wet floor inside store entrance on rainy day constituted contributory negligence barring claim for injuries resulting from fall).
In sum, the trial court's grant of summary judgment in favor of the City is affirmed; however, summary judgment as to Pickett is reversed and this case remanded to the trial court for further proceedings not inconsistent with our opinion herein.
Affirmed in part, reversed in part, and remanded. Judges McGEE and HUNTER concur.