Opinion
No. COA12–821.
2013-03-5
William PIPPENS, Plaintiff v. Motorro Danyell MAY and Shuneen Monique Dixon, Defendants.
Kellum Law Firm, by J. Heath Finley, for Plaintiff. Walker, Allen, Grice, Ammons & Foy, L.L.P., by O. Drew Grice, Jr., for Defendants.
Appeal by defendants from judgment entered 3 January 2012 by Judge Clifton W. Everett, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 13 November 2012. Kellum Law Firm, by J. Heath Finley, for Plaintiff. Walker, Allen, Grice, Ammons & Foy, L.L.P., by O. Drew Grice, Jr., for Defendants.
ERVIN, Judge.
Defendants Motorro Danyell May and Shuneen Monique Dixon appeal from the trial court's decision to enter a judgment notwithstanding the verdict awarding Mr. Pippens $1,214.49 in compensatory damages. On appeal, Defendants argue that the trial court erred by entering judgment notwithstanding the verdict in Plaintiff's favor with respect to this property damage claim on the grounds that “there was sufficient evidence, when viewed in the light most favorable to [Defendant], that [he] was not the proximate cause of the accident and did not breach any duty owed to [Plaintiff].” After careful consideration of Defendants' challenge to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should be reversed.
Ms. Dixon is party to this litigation solely because she owned the vehicle driven by Mr. May at the time of the collision. As a result, we will refer to Mr. May as “Defendant” throughout the remainder of this opinion.
I. Factual Background
A. Substantive Facts
1. Plaintiff's Evidence
Plaintiff, who was born with spina bifida, is partially paralyzed and suffers from impaired mobility. At about 2:00 p.m. on 8 December 2009, Plaintiff was operating a motorized wheelchair in the “gutter” area on the far left part of the southbound lane of Memorial Drive in Greenville, North Carolina, and moving in the opposite direction from motor vehicles travelling in that lane. Plaintiff's destination was a shopping center known as Buyer's Market, which is located at 2400 South Memorial Drive. Although there was no paved sidewalk beside the portion of Memorial Drive along which Plaintiff was moving, there was a path along the roadside which Plaintiff elected not to use because it was uneven and would “put[ ] more strain on [his] batteries.”
At the time that Plaintiff reached the Buyer's Market parking lot, he saw Defendant, who was driving an automobile, stopped at an exit leading to and from the parking lot at a point at which there was no crosswalk. Plaintiff came to a “complete stop” at a point “maybe two to three feet from [a] fire hydrant” which was “right” in front of “a bush[.]” After stopping, Plaintiff waited to determine in which direction Defendant intended to travel. Although Plaintiff “sat there about three to four minutes” without ever moving his wheelchair, he never saw Defendant turn his head in Plaintiff's direction during that entire interval. However, Plaintiff did see “a lot of traffic” driving towards him on Memorial Drive.
According to Defendant's deposition testimony, which Plaintiff read to the jury, Defendant looked to the right for about a second, then looked to the left for about thirty seconds, and did not see Plaintiff before beginning to enter Memorial Drive and striking Plaintiff's wheelchair.
After “three to four minutes” had elapsed, Defendant began to pull out of the parking lot and moved to his right in such a manner that the front bumper of his car struck Plaintiff's wheelchair. The collision did not cause Plaintiff's wheelchair to tip over, make Plaintiff fall to the ground, or result in bleeding. After the collision, Defendant “jumped out” of his car and told Plaintiff that he had not seen him. With assistance from Defendant and another driver, who stopped upon observing the collision, Plaintiff drove his wheelchair off the roadway and into the parking lot.
According to the emergency room records that were admitted into evidence, Plaintiff told his treating physician that he “[w]as going around a turn when a car hit him coming the other way.”
Although Plaintiff admitted that he was carrying a .44 Magnum handgun that was openly displayed in a holster at the time of the accident, he denied “flashing” his firearm at Defendant. Even though Defendant asked Plaintiff if he needed medical attention, Plaintiff declined to accept assistance from emergency medical service personnel because he knew that he would not be allowed to take his firearm on an ambulance. As a result, after Plaintiff and Defendant exchanged phone numbers, Plaintiff drove home on his wheelchair.
As Plaintiff returned home, he noticed that the wheelchair did not operate as smoothly as usual. Before reaching home, Plaintiff decided to go to the emergency room and called Defendant to let Defendant know that he had made that decision. After attempting to reach Defendant several times, Plaintiff called the police. As a result, an officer came to his house and spoke with both parties. Plaintiff's legs were bruised and his wheelchair needed approximately $1,200.00 in repairs.
Although Plaintiff testified that he went to the emergency room about an hour after the accident, the hospital records indicate that he arrived about five hours after the collision.
2. Defendant's Evidence
On the afternoon of 8 December 2009, Defendant was working at a store located in the Buyer's Market shopping center. At around 2:00 p.m., Defendant planned to drive in a 1994 Honda sedan to a nearby restaurant for lunch. At the time that Defendant reached the parking lot exit, at which a stop sign was located in the vicinity of some bushes, he came to a complete stop and checked the traffic before turning right onto Memorial Drive. Although Defendant initially glanced to the right, he saw no pedestrian traffic in that area. Defendant next looked left in order to check for oncoming traffic. At the time that he looked to the right, Defendant did not see Plaintiff, possibly because there were bushes in the way.
After waiting until there was no oncoming traffic, Defendant started to drive out of the parking lot to the right. As he released the brake and began to enter Memorial Drive, he heard a “thump” and saw Plaintiff's wheelchair rolling in the road. Defendant did not “gun” the Honda's engine and was not moving more than three to five miles per hour at the time that he struck Plaintiff's wheelchair. The collision between Defendant's car and Plaintiff's wheelchair occurred just as Defendant started forward, before the rear of his car had completely left the parking lot, and before his vehicle entered any of the lanes of travel in Memorial Drive. Having failed to see Plaintiff prior to striking his wheelchair, Defendant did not apply his brakes in time to prevent the collision.
Following the collision, Defendant stopped his car, approached Plaintiff, and asked if he had been injured. When Defendant offered to call an ambulance, Plaintiff pulled his shirt aside, “flashed a gun” at Defendant, said they “could handle it” themselves, and asked Defendant if he “had any money on [him.]” Although Defendant asked several times if Plaintiff wanted to call the police or an ambulance, Plaintiff expressed no interest in obtaining that sort of assistance. As a result, Defendant gave Plaintiff his cell phone number and left.
Upon returning to work, Defendant called the police out of concern that the accident had been part of “a scam.” After speaking with the police, who informed him that Plaintiff had already contacted them and directed him to go to Plaintiff's home, Defendant went to Plaintiff's house, at which point both Plaintiff and Defendant talked to a law enforcement officer.
B. Procedural History
On 17 May 2010, Plaintiff filed a complaint seeking to recover damages for personal injury and property damage allegedly sustained as a proximate result of the 8 December 2009 accident. On 10 August 2010, Defendants filed an answer denying the material allegations of the complaint and asserting contributory negligence as an affirmative defense to Plaintiff's claims. On 1 April 2011, Defendants filed an amended answer that provided additional factual support for their contributory negligence defense.
The case came on trial before the trial court and a jury at the 26 October 2011 civil session of Pitt County Superior Court. At the conclusion of all of the evidence, Plaintiff sought the entry of a directed verdict in his favor on the theory that Defendant had negligently failed “to yield the right-of-way” and that the record contained no evidence of contributory negligence. Although the trial court denied Plaintiff's directed verdict motion, it declined to instruct the jury with respect to the issue of contributory negligence. At the conclusion of its deliberations, the jury returned a verdict finding that Plaintiff had not been injured by the negligence of Defendant, at which point Plaintiff orally sought the entry of judgments notwithstanding the verdict. On 3 January 2012, the trial court entered a judgment granting Plaintiff's motion with respect to his property damage claim, denying Plaintiff's motion with respect to his personal injury claim, and ordering Defendants to pay $1,214.49 relating to damage to Plaintiff's wheelchair. Defendants noted an appeal to this Court from the trial court's judgment.
In view of the fact that Defendant has not challenged the trial court's failure to submit a contributory negligence issue to the jury on appeal, the extent to which the record contains evidence tending to show that Plaintiff was contributorily negligent is not properly before us in this case.
Although the trial court “retain[ed] jurisdiction over these proceedings to resolve the issues of costs, interest and attorneys fees to be heard upon appropriate motion by” Plaintiff, that fact does not suffice to deprive this Court of jurisdiction to hear Defendants' challenge to the trial court's judgment. Dafford v. JP Steakhouse, LLC, 210N.C.App.678, ––––, n. 3, 709 S.E.2d 402, 407, n. 3 (2011).
II. Legal Analysis
A. Standard of Review
“Pursuant to Rule 50 of the North Carolina Rules of Civil Procedure, when a party's motion for directed verdict at the close of the evidence is denied, that party ‘may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict[.]’ N.C. Gen.Stat. § 1A–1, Rule 50(b)(1) [ (2012) ]. A motion for [judgment notwithstanding the verdict] provides the trial court with an opportunity to reconsider the question of the sufficiency of the evidence after the jury has returned a verdict and permits the court to enter judgment ‘in accordance with the movant's earlier motion for a directed verdict and notwithstanding the contrary verdict actually returned by the jury.’ “ Primerica Life v. James Massengill & Sons, ––– N.C.App. ––––, ––––, 712 S.E.2d 670, 675 (2011) (quoting Ace, Inc. v. Maynard, 108 N.C.App. 241, 245, 423 S.E.2d 504, 507 (1992) (internal quotation marks and citation omitted), disc. review denied, 333 N.C. 574, 429 S.E.2d 567 (1993)).
The propriety of granting [judgment notwithstanding the verdict] is determined by the same considerations as that of the movant's prior motion for directed verdict—whether the evidence, taken in the light most favorable to the non-movant, is insufficient, as a matter of law, to support a verdict for the non-moving party. Thus, both a motion for directed verdict and a motion for [judgment notwithstanding the verdict] ask “whether the evidence is sufficient ‘to take the case to the jury.’ “ “When a judge decides that a directed verdict [or judgment notwithstanding the verdict] is appropriate, actually he is deciding that the question has become one exclusively of law and that the jury has no function to serve.”
Primerica Life, ––– N.C.App. at ––––, 712 S.E.2d at 675 (citing Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979), and Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986), and quoting Sweatt v. Wong, 145 N.C.App. 33, 41, 549 S.E.2d 222, 227 (2001) (quoting Abels v. Renfro Corp., 335 N .C. 209, 214, 436 S.E.2d 822, 825 (1993)), and Hodgson Constr., Inc. v. Howard, 187 N.C.App. 408, 411, 654 S.E.2d 7, 10 (2007) (internal quotation marks and citation omitted), disc. review denied,362 N.C. 509, 668 S.E.2d 28 (2008)).
“The standard of review of a ruling entered upon a motion for judgment notwithstanding the verdict [or a motion for directed verdict] is ‘whether upon examination of all the evidence in the light most favorable to the non-moving party, and that party being given the benefit of every reasonable inference drawn therefrom and resolving all conflicts of any evidence in favor of the non-movant, the evidence is sufficient to be submitted to the jury.’ “ Branch v. High Rock Lake Realty, Inc., 151 N.C.App. 244, 249–50, 565 S.E.2d 248, 252 (2002)(quoting Fulk v. Piedmont Music Ctr., 138 N.C.App. 425, 429, 531 S.E.2d 476, 479 (2000)), disc. review denied,356 N.C. 667, 576 S.E.2d 330 (2003). “A verdict may never be directed when there is conflicting evidence on contested issues of fact.” Northern Nat'l Life Ins. v. Miller Machine Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984) (citing Cutts v. Casey, 278 N.C. 390, 417, 180 S.E.2d 297, 311 (1971)). As a result, “[i]t is seldom appropriate to direct a verdict in a negligence action.” Stanfield v. Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294, 297 (1995) (citing Taylor v. Walker, 320 N.C. 729, 734, 360 S.E.2d 796, 799 (1987)). A motion for judgment notwithstanding the verdict “should be denied if there is more than a scintilla of evidence supporting each element of the non-movant's claim.' “ Branch, 151 N.C.App. at 250, 565 S.E.2d at 252 (quoting Norman Owen Trucking v. Morkoski, 131 N.C.App. 168, 172, 506 S.E.2d 267, 270 (1998)). As the Supreme Court has noted:
The heavy burden carried by the movant is particularly significant in cases, such as the one before us, in which the principal issues are negligence and contributory negligence. Only in exceptional cases is it proper to enter a directed verdict or a judgment notwithstanding the verdict against a plaintiff in a negligence case. Issues arising in negligence cases are ordinarily not susceptible of summary adjudication because application of the prudent man test, or any other applicable standard of care, is generally for the jury.
Taylor, 320 N.C. at 734, 360 S.E.2d at 799 (citing Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 473–74, 251 S.E.2d 419, 424 (1979), and King v. Allred, 309 N.C. 113, 115, 305 S.E.2d 554, 556 (1983) (other citations omitted). Appellate review of a trial court's ruling on a motion for judgment notwithstanding the verdict is conducted on a de novo basis, with the reviewing court considering the matter anew and freely substituting its own judgment for that of the trial court. Hodgson Constr., 187 N.C.App. at 412, 654 S.E.2d at 11.
B. Applicable Substantive Legal Principles
According to N.C. Gen.Stat. § 20–175.5:
While a person with a mobility impairment as defined in [N.C. Gen.Stat. § ] 20–37.5 operates a motorized wheelchair or similar vehicle ... in order to provide that person with the mobility of a pedestrian, that person is subject to all the laws, ordinances, regulations, rights and responsibilities which would otherwise apply to a pedestrian, but is not subject to Part 10 of this Article or any other law, ordinance or regulation otherwise applicable to motor vehicles.
As a result, given the absence of any dispute that Plaintiff suffers from a mobility impairment and was operating a motorized wheelchair at the time of the accident, his legal rights and duties were governed by the legal principles applicable to the conduct of pedestrians. More specifically, Plaintiff was required to follow the dictates of N.C. Gen.Stat. § 20–174, which provides, in pertinent part, that:
(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
....
(c) Between adjacent intersections at which traffic-control signals are in operation pedestrians shall not cross at any place except in a marked crosswalk.
Where sidewalks are provided, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway. Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the extreme left of the roadway or its shoulder facing traffic which may approach from the opposite direction. Such pedestrian shall yield the right-of-way to approaching traffic.
As a result, Plaintiff was obligated to “yield the right-of-way to all vehicles upon the roadway” and “approaching traffic.” In addition:
“In North Carolina, a pedestrian has a common law duty to exercise reasonable care for his own safety by keeping a proper lookout for approaching traffic before entering the road and while on the roadway.” ... [A] plaintiff's failure to yield a right-of-way in violation of N.C. [Gen.Stat.] § 20–174(a) ... is “evidence of negligence to be considered with other evidence in the case in determining whether the plaintiff is chargeable with negligence which proximately caused or contributed to his injury.”
Culler v. Hamlett, 148 N.C.App. 372, 375, 559 S.E.2d 195, 198 (2002) (quoting Wolfe v. Burke, 101 N.C.App. 181, 185–86, 398 S .E.2d 913, 915–16 (1990) (internal citation omitted)).
Defendant, on the other hand, was operating a motor vehicle. As a result, he was subject to the legal principles governing the operation of an automobile. According to N.C. Gen.Stat. § 20–141(a), “[n]o person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing.” In addition, N.C. Gen.Stat. § 20–174(e) provides that:
(e) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.
“Even in the absence of statute, the rule of the unwritten law [is] that the driver must exercise ordinary care to prevent collisions[.]” Murphy v. Coach Co., 200 N.C. 92, 103, 156 S.E. 550, 555 (1931) (internal quotation omitted). We will now analyze the evidence contained in the record developed at trial in order to evaluate the validity of Defendants' challenge to the trial court's judgment.
C. Evidentiary Analysis
In their brief, Defendants argue that the trial court erroneously granted Plaintiff's motion for judgment notwithstanding the verdict on the grounds that the record evidence, when viewed in the light most favorable to Defendants, permitted a reasonable jury to determine that the damage to Plaintiff's wheelchair did not proximately result from any negligence on the part of Defendant. Plaintiff, on the other hand, argues that, given Defendant's admissions that he moved forward and struck Plaintiff's wheelchair without looking back to the right, the trial court correctly concluded that Defendant was negligent as a matter of law. The position espoused by Defendants is more persuasive than that adopted by Plaintiff given the unusual circumstances present in this case.
At trial, Defendant specifically testified that he looked in Plaintiff's direction and did not see him prior to looking to the left in order to examine the actions of oncoming motor vehicles. As we understand the record, this evidence would support an inference that Plaintiff was not in a position at which he could have been seen at the time that Defendant looked to the right. For example, Plaintiff testified that he stopped at a point “maybe two to three feet from [a] fire hydrant, and right behind the fire hydrant was a bush [.]” Similarly, Defendant testified that he did not see Plaintiff when he looked to the right because there were bushes in his line of vision. Although Defendant clearly had a duty to “keep a reasonably careful lookout,” Tarrant v. Bottling Co., 221 N.C. 390, 396, 20 S.E.2d 565, 569 (1942), and an obligation to “see[ ] what he ought to have seen,” Wall v. Bain, 222 N.C. 375, 379, 23 S.E.2d 330, 333 (1942), Defendant's ultimate conduct must be evaluated using a reasonableness standard. In other words, Defendant is not required to be omniscient; instead, he was only required to act reasonably. Whitson v. Frances, 240 N.C. 733, 738, 83 S.E.2d 879, 881 (1954) (rhetorically inquiring “[i]f defendant had been keeping a proper lookout and his truck had been equipped with proper headlights, could he have seen deceased in time to avoid the collision”); Mitchell v. Melts, 220 N.C. 793, 802, 18 S.E.2d 406, 412 (1942) (noting that “it would be speculative to hold that this evidence is sufficient to show that the intestate was in a position where the driver of the truck could or should have seen him”). When the record is considered in light of that standard, we are unable to say that, having looked to his right and seen nothing, Defendant acted negligently as a matter of law in failing to look to the right again after apparently ascertaining that a cessation in oncoming traffic would allow him to move forward onto Memorial Drive given that he had seen nothing in that sector thirty seconds earlier. Similarly, Defendant's testimony that he looked to the right, saw nothing, looked to the left, ascertained after a relatively brief period of time that he could enter Memorial Drive, and started forward, at which point he immediately struck Plaintiff's wheelchair, when coupled with Plaintiff's statement to a treating physician that the accident occurred as he “[w]as going around a turn when a car hit him coming the other way,” tends to suggest that, instead of remaining in a stationary position, Plaintiff moved forward into Defendant's line of travel immediately prior to the collision. Once again, although a driver is obligated to “anticipate and expect the presence of others,” “the duty of care is mutual,” so that each driver “may assume that others on the highway will comply with this obligation.” Tarrant, 221 N.C. at 396–97, 20 S.E.2d at 569 (citations omitted); see also Rouse v. Jones, 254 N.C. 575, 581, 119 S.E.2d 628, 633 (1961) (stating that “[a] driver is under no duty to anticipate disobedience of the law or negligence on the part of others, but he has the duty to take such action as an ordinarily prudent person would take in avoiding collision with persons or vehicles upon the highway when, in the exercise of due care, danger of such collision is discovered or should have been discovered”) (citing Caughron v.. Walker, 243 N.C. 153, 157, 90 S.E.2d 305, 307 (1955)). As a result, a jury might have reasonably concluded, based upon this evidence, that Defendant did not act unreasonably by failing to anticipate that Plaintiff would move in front of him as he took advantage of an apparent cessation in the ongoing traffic by turning onto Memorial Drive. Thus, the record does, in fact, contain evidence from which a reasonable jury could have found that the accident did not result from Defendant's negligence as well as evidence from which the jury could have reasonably found that Plaintiff's injuries proximately resulted from Defendant's negligence. In light of that set of circumstances, we have no alternative except to hold that the trial court erred by granting Plaintiff's motion for judgment notwithstanding the verdict with respect to Plaintiff's property damage claim.
In seeking to persuade us to reach a different outcome, Plaintiff emphasizes the undisputed evidence that “the collision occurred when [Defendant] was proceeding forward from the parking lot” “into the right, or outer, southbound travel lane;” that Plaintiff's “wheelchair was forward of [Defendant's] vehicle when [Defendant's] vehicle collided with [Plaintiff's] wheelchair;” that Defendant “did not see the motorized wheelchair prior to proceeding forward and entering the southbound travel lane of Memorial Drive;” and that Defendant “did not apply his brakes in time to avoid colliding with the motorized wheelchair being operated by [Plaintiff .].” Although this evidence is certainly undisputed, it does not, standing alone, suffice to show anything more than that a collision occurred, which is not enough to support the allowance of Plaintiff's motion for judgment notwithstanding the verdict. Mitchell, 220 N.C. at 802, 18 S.E.2d at 411 (holding that “[n]egligence is not to be presumed from the mere fact of injury or that the intestate was killed”) (citations omitted).
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court erred by granting Plaintiff's motion for judgment notwithstanding the verdict and entering judgment in favor of Plaintiff with respect to his property damage claim. As a result, the trial court's judgment should be, and hereby is, reversed.
REVERSED. Judges McGEE and BRYANT concur.
Report per Rule 30(e).