Opinion
No. COA12–144.
2012-10-2
Sandra Carolyn PARKER, Plaintiff, v. Willis Monroe FARLOW, Defendant.
Doran, Shelby, Pethel and Hudson, P.A., by Michael Doran, for plaintiff-appellant. Teague Rotenstreich Stanaland Fox & Holt, P.L.L.C., by Kara V. Bordman, for defendant-appellee.
Appeal by plaintiff from order entered 2 September 2011 by Judge Patrice A. Hinnant in Guilford County Superior Court. Heard in the Court of Appeals 15 August 2012. Doran, Shelby, Pethel and Hudson, P.A., by Michael Doran, for plaintiff-appellant. Teague Rotenstreich Stanaland Fox & Holt, P.L.L.C., by Kara V. Bordman, for defendant-appellee.
ROBERT C. HUNTER, Judge.
Sandra Carolyn Parker (“plaintiff”) appeals from an order of the Guilford County Superior Court granting Willis Monroe Farlow's (“defendant”) motion for summary judgment. Plaintiff alleges the trial court erred in concluding she was contributorily negligent as a matter of law and in granting defendant's motion for summary judgment. After careful review, we reverse.
Background
On 14 December 2007, plaintiff was driving north on U.S. Highway 311, also known as Main Street, in Archdale, North Carolina. Plaintiff worked for a medical services company and had a client in her passenger seat. After plaintiff came to a stop at a stoplight located at the intersection of Ashland Avenue and Main Street, plaintiff's passenger indicated that she wanted plaintiff to stop at a Biscuitville restaurant that was located on the right-hand side of the road immediately beyond the intersection.
When the traffic light changed plaintiff proceeded through the intersection and toward a driveway at the Biscuitville, which opened directly onto Main Street; plaintiff's turn signal was activated. Plaintiff reduced her speed and began to turn into the driveway when she realized that the driveway was, in fact, an exit. The driveway was marked with signs that read “No Right Turn” and “Do Not Enter.” Plaintiff did not see these signs but noticed the painted arrow on the pavement indicating the driveway was an exit from the parking lot, not an entrance.
Plaintiff testified in her deposition that when she noticed the driveway was marked as an exit she decided to proceed to the next driveway opening onto Main Street, which was immediately adjacent to the Biscuitville exit. Before plaintiff had time to straighten her wheels, plaintiff's vehicle was hit from behind by defendant's vehicle. The Archdale police department's accident report indicated that at the time of the impact plaintiff was travelling at 10–15 miles per hour, defendant was travelling at 20–25 miles per hour, and defendant failed to reduce his speed.
Plaintiff filed a complaint against defendant on 2 September 2010 in Guilford County Superior Court alleging that she was injured and her vehicle damaged as a result of defendant's negligence. Defendant answered denying negligence and alleging as an affirmative defense that plaintiff was contributorily negligent and barred from any recovery. Defendant filed a motion for summary judgment on the basis of plaintiff's alleged contributory negligence. After a hearing on the motion, the trial court entered an order granting summary judgment in favor of defendant. The trial court concluded that even if defendant was negligent in causing the accident plaintiff was contributorily negligent as a matter of law and barred from recovering damages from defendant. Plaintiff appeals.
Discussion
“A trial court's grant of summary judgment receives de novo review on appeal, and evidence is viewed in the light most favorable to the non-moving party.” Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C.App. 624, 626, 652 S.E.2d 302, 304 (2007). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ... any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2011). Whether a party's own negligence contributed to her injuries is ordinarily a question for the jury and is rarely appropriate for summary judgment. Blue v. Canela, 139 N.C.App. 191, 195, 532 S .E.2d 830, 833 (2000). “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.” Id . (quoting Nicholson v. American Safety Utility Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997). “When there are factual issues to be determined that relate to the defendant's duty, or when there are issues relating to whether a party exercised reasonable care, summary judgment is inappropriate.” Ingle v. Allen, 71 N.C.App. 20, 26, 321 S.E.2d 588, 594 (1984) (emphasis added), overruled on other grounds by Dep't of Transp. v. Rowe, 351 N.C. 172, 177, 521 S.E.2d 707, 710 (1999). Here, the evidence does not clearly establish that plaintiff was contributorily negligent.
Defendant contends that plaintiff's actions were negligent as she violated N.C. Gen.Stat. § 20–154, which requires that when a driver is turning from a direct line of travel, and such turn may affect the operation of another vehicle, the driver must signal her intention to turn “continuously for the last 100 feet traveled prior to stopping or making [the] turn.” N.C. Gen.Stat. § 20–154(b) (2011). If a driver fails to provide the required signal, however, subsection (d) of this statute provides such violation “shall not constitute negligence per se.” N.C. Gen.Stat. § 20–154(d). We conclude there is insufficient evidence to establish plaintiff failed to provide the signal for the required distance.
Defendant argues the evidence establishes that plaintiff violated section 20–154(b) because the distance “from the intersection” of Highway 311 and Main Street to the Biscuitville driveway is 92 feet, and plaintiff did not activate her signal until after she passed through the intersection. However, as defendant conceded at the hearing on his motion for summary judgment, there is no evidence in the record establishing when plaintiff activated her turn signal; the evidence only establishes that her turn signal was activated. Additionally, in support of his motion for summary judgment, defendant filed the affidavit of a private investigator who measured the distances from several points at the intersection to the Biscuitville restaurant. The affidavit establishes that the distance from the “stop bar” at the intersection to the “No Right Turn” sign at the restaurant is 143.5 feet. Viewed in the light most favorable to plaintiff, the evidence supports the conclusion that plaintiff provided a turn signal for the requisite 100 feet and did not violate N.C. Gen.Stat. § 20–154.
Defendant further argues that plaintiff failed to exercise reasonable care in ascertaining whether her intended turn could be made safely. Although plaintiff admitted that she did not see the “No Right Turn” sign at the restaurant driveway, that fact does not establish that plaintiff failed to exercise reasonable care. Rather, the evidence creates a genuine issue of material fact on this point. The record reveals that the portion of the road along which plaintiff was travelling had multiple businesses with driveways opening onto the road, and the speed limit was 35 m.p.h. Upon approaching the Biscuitville restaurant, plaintiff activated her turn signal, reduced her speed, and began to make a right turn before deciding not to do so. There is no evidence that plaintiff reduced her speed suddenly and without warning or that she made an illegal turn. It is clear from the record that there is another driveway immediately adjacent to the Biscuitville driveway; it was this driveway that plaintiff decided to enter upon realizing that the Biscuitville driveway was marked as an exit.
As plaintiff concedes, there is some evidence of negligence in her actions. However, defendant has failed to meet his burden of providing evidence that clearly establishes that plaintiff was contributorily negligent as a matter of law. See Arvin v. McClintock, 253 N.C. 679, 685, 118 S.E.2d 129, 133 (1961) (Bobbitt, J., concurring in result) (explaining “the oft-used expression, ‘guilty of contributory negligence as a matter of law,’ “ means that the evidence “when considered in the light most favorable to plaintiff, establishes plaintiff's contributory negligence”). Rather, the record creates a genuine issue of material fact as to whether plaintiff exercised reasonable care. The trial court erred in concluding that plaintiff was contributorily negligent as a matter of law and in granting defendant's motion. See Blue, 139 N.C.App. at 195, 532 S.E.2d at 832 (concluding the trial court's conclusion that the plaintiff was contributorily negligent as a matter of law was error and summary judgment for the defendant was improper where the evidence did not clearly establish that the plaintiff was contributorily negligent). Where the record contains “evidence of contributory negligence on the part of [the] plaintiff and also competent evidence from which the jury could reasonably reach a contrary conclusion,” the plaintiff is not guilty of contributory negligence as a matter of law. White v. Mote, 270 N.C. 544, 554, 155 S.E.2d 75, 81–82 (1967). Accordingly, the trial court's order is reversed.
REVERSED.
Report per Rule 30(e).