Opinion of the Court
I. Background
¶2 Durham BOE operates the Southern School of Energy and Sustainability
(“Southern High School”), a public school located in Durham, North Carolina.
Plaintiff Guilford Archie, III, was a high school student at Southern High School in
2016, during which time he played on the school’s football team. On 3 October 2016,
Plaintiff was hit by a car driven by another student while Plaintiff was walking on
school property on a vehicular service road from the school’s “football film room” to
the school’s field house to change for practice.
¶3 Plaintiff filed a complaint against Durham BOE on 1 October 2019 alleging
negligence and negligent infliction of emotional distress. Durham BOE filed a motion
for summary judgment on 15 January 2021 arguing that “[t]here is no evidence, or
any forecast of evidence, to support a claim for negligence against Defendant; Plaintiff
failed to establish the elements of his negligent infliction of emotional distress claim;
and the evidence supports a finding that Plaintiff’s claims are barred by contributory
negligence.” After a hearing, the trial court granted summary judgment on 2 March
2021 in favor of Durham BOE, finding and concluding that “there is no genuine issue
as to any material fact with regard to the defense of contributory negligence” as “the
evidence supports a finding that Plaintiff’s negligence claim is barred by his own
contributory negligence” and that “Defendant is entitled to judgment as a matter of
law.” Plaintiff timely appealed.
II. Discussion
¶4 Plaintiff argues summary judgment was improper because he was not
contributorily negligent as a matter of law. Plaintiff further contends that, even
assuming he was contributorily negligent, summary judgment was improper as the
jury could have determined that Durham BOE acted willfully and wantonly. We
address each argument in turn.
A. Standard of Review
¶5 We review a trial court’s order granting summary judgment de novo. Proffitt
v. Gosnell, 257 N.C. App. 148, 151, 809 S.E.2d 200, 203 (2017). Under de novo review,
this Court “considers the matter anew and freely substitutes its own judgment for
that of the lower [court].” Blackmon v. Tri-Arc Food Systems, Inc., 246 N.C. App. 38,
41, 782 S.E.2d 741, 743 (2016) (quotation marks and citations omitted).
¶6 Summary judgment is appropriately entered “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021).
The party moving for summary judgment
bears the burden of showing that no triable issue of fact exists. This burden can be met by proving: (1) that an essential element of the non-moving party’s claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential
element of his claim; or (3) that an affirmative defense would bar the [non-moving party’s] claim. Once the moving party has met its burden, the non-moving party must forecast evidence demonstrating the existence of a prima facie case.
CIM Ins. Corp. v. Cascade Auto Glass, Inc., 190 N.C. App. 808, 811, 660 S.E.2d 907,
909 (2008) (citations omitted).
¶7 “[I]n ruling on a motion for summary judgment the court does not resolve
issues of fact and must deny the motion if there is any issue of genuine material
fact.” Singleton v. Stewart, 280 N.C. 460, 464-65, 186 S.E.2d 400, 403 (1972)
(citations omitted). Summary judgment on the ground of contributory negligence
may only be granted “where the [plaintiff’s] forecast of evidence fails to show
negligence on [the] defendant’s part, or establishes [the] plaintiff’s contributory
negligence as a matter of law.” Blackmon, 246 N.C. App. at 42, 782 S.E.2d at 744
(quotation marks and citations omitted). We review all the evidence in the light most
favorable to the nonmoving party and “determine if the evidence is sufficient to be
submitted to the jury.” Hawley v. Cash, 155 N.C. App. 580, 582, 574 S.E.2d 684, 686
(2002) (quotation marks and citations omitted).
1. Contributory Negligence
¶8 “Contributory negligence is negligence on the part of the plaintiff which
joins . . . with the negligence of the defendant alleged in the complaint to produce the
injury of which the plaintiff complains.” Proffitt, 257 N.C. App. at 152, 809 S.E.2d at
204 (quotation marks and citation omitted). Contributory negligence is a bar to
recovery if a plaintiff has contributed to their injury in any way. Sorrells v. M.Y.B.
Hospitality Ventures of Asheville, 332 N.C. 645, 648, 423 S.E.2d 72, 73-74 (1992). “In
order to prove contributory negligence on the part of a plaintiff, the defendant must
demonstrate: (1) a want of due care on the part of the plaintiff; and (2) a proximate
connection between the plaintiff’s negligence and the injury.” Proffitt, 257 N.C. App.
at 152, 809 S.E.2d at 204 (quotation marks, brackets, and citations omitted).
“‘However, a plaintiff may relieve the defendant of the burden of showing
contributory negligence when it appears from the plaintiff’s own evidence that he was
contributorily negligent.’” Id. (quoting Price v. Miller, 271 N.C. 690, 694, 157 S.E.2d
347, 350 (1967)).
¶9 Every person who has the capacity to exercise ordinary care for their “own
safety against injury is required by law to do so[.]” Clark v. Roberts, 263 N.C. 336,
343, 139 S.E.2d 593, 597 (1965) (citations omitted). If a person fails to exercise such
ordinary care, and “such failure, concurring an[d] cooperating with the actionable
negligence of defendant, contributes to the injury complained of, he is guilty of
contributory negligence.” Id. “Ordinary care is such care as an ordinarily prudent
person would exercise under the same or similar circumstances to avoid injury.” Id.
¶ 10 “Pedestrians have a duty to maintain a lookout when crossing an area where
vehicles travel and a duty to exercise reasonable care for their own safety.” Patterson
v. Worley, 265 N.C. App. 626, 629, 828 S.E.2d 744, 747 (2019) (bracket and citation
omitted). While failing to yield the right of way to a motor vehicle is not contributory
negligence per se, summary judgment in a negligence action on the ground of
contributory negligence is proper “when all the evidence so clearly establishes [the
plaintiff’s] failure to yield the right of way as one of the proximate causes of his
injuries[.]” Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964) (citations
omitted). See Proffitt, 257 N.C. App. at 167, 809 S.E.2d at 213 (affirming summary
judgment for defendant and holding plaintiff was contributorily negligent when he
played on a fallen tree in the road and was struck by a vehicle that he thought would
stop).
¶ 11 Our review of the pleadings, depositions, answers to the interrogatories, and
admissions on file, together with the affidavits, supports a conclusion that Plaintiff’s
claim is barred by contributory negligence.
¶ 12 Plaintiff testified in his deposition as follows: He was walking “on the
pavement” of the vehicular service road, and not on the grass or beside the road, when
he was hit. He was wearing his headphones and listening to music. When Plaintiff
had walked on the service road to the field house on prior occasions, he had seen
vehicles driving on and using the service road, including cars and a “Gator” utility
vehicle. As he walked on the right-hand side of the service road, he “was getting
hyped, getting ready for practice, getting in the mood” and was “dancing – in my little
hype moment, but not like breaking-out dancing.” As he listened to his music and
danced, his leg was hit from behind by the front bumper and tire of a car.
¶ 13 Darius Robinson was the Head Football Coach at Southern High School on the
date of the accident. In his affidavit he averred, in pertinent part, as follows:
3. I recall the events of 3 October 2016 when two of my football players, Guilford Archie, III and Ezekiel Jennette, were involved in an accident on a road that runs through campus while going to football practice (hereinafter the “Accident”);
4. I did not personally witness the Accident;
5. I am familiar with the Durham County Public School guidelines for motor vehicles and pedestrians using this road on which the Accident occurred;
6. There is no written policy regarding use of this road;
7. The other coaches and I have on a number of occasions asked that the student athletes driving their vehicles from the school buildings to the football field not use this road;
8. I do not recall giving nor hearing another coach give a verbal reminder of this request on the day of the Accident;
9. Student athletes did sometimes drive their vehicles on this road to travel between the buildings and the athletic fields;
10. Other public vehicles and the school’s gator also use this road to travel between the buildings and the athletic fields;
11. Football players are aware that both pedestrians walking to the football field and vehicles use this road;
12. There is enough room on this road for a vehicle to safely
pass a pedestrian;
13. On October 3, 2016, I was driving down the service road next to the baseball field when I saw the gator in the roadway and a lot of people tending to someone;
14. I approached the gator and saw Guilford Archie in the back of the gator in distress;
15. It was obvious that the Accident had occurred moments before my arrival;
16. I began trying to assist in making Guilford Archie comfortable.
17. As I was holding Guilford Archie, I heard him say the following:
a. “It’s my fault.”
b. “I shouldn’t have had my headphones on.”
c. “I shouldn’t have been dancing.”
d. “I’ve messed up my football career.”
e. “I won’t be able to play again.”
f. “I’m sorry, Coach.”
18. I continued to try to provide comfort to Guilford Archie until the emergency personnel arrived, and I contacted his parents.
¶ 14 Plaintiff’s own evidence shows that he was contributorily negligent, relieving
Durham BOE of its burden of showing contributory negligence. Proffitt, 257 N.C.
App. at 152, 809 S.E.2d at 204. Plaintiff’s testimony and Robinson’s affidavit clearly
show that Plaintiff failed in his pedestrian duty “to maintain a lookout” in “an area
where vehicles travel,” Patterson, 265 N.C. App. at 629, 828 S.E.2d at 747, when he
walked with his back to oncoming traffic, while listening to music via headphones
and dancing in the road, and that this conduct contributed to his injury. As Plaintiff
failed to maintain a safe lookout, the trial court properly granted summary judgment
“when all the evidence so clearly establishes his failure to yield the right of way as
one of the proximate causes of his injuries[.]” Blake, 262 N.C. at 65, 136 S.E.2d at
216.
2. Gross Negligence
¶ 15 Plaintiff next argues that Durham BOE’s “willful and wanton” conduct was
gross negligence. Plaintiff has not preserved this issue for appellate review as the
record before us does not indicate that Plaintiff raised this argument before the trial
court.
¶ 16 In his complaint, Plaintiff’ alleged (1) negligence and (2) negligent infliction of
emotional distress. In his reply to Defendant’s answer, he pled the last clear chance
doctrine in response to Durham BOE’s affirmative defense of contributory negligence.
Plaintiff did not provide this Court with a transcript of the summary judgment
hearing. See N.C. R. App. P. 7(b) (“A party may order a transcript of any proceeding
that the party considers necessary for the appeal.”); N.C. R. App. P. 9(a) (“The
components of the record on appeal include: the printed record, transcripts, exhibits
and any other items . . . filed pursuant to this Rule 9.”); Miller v. Miller, 92 N.C. App.
351, 353, 374 S.E.2d 467, 468 (1988) (“It is the appellant’s responsibility to make sure
that the record on appeal is complete and in proper form.”) (citation omitted). As our
appellate courts have long held, “where a theory argued on appeal was not raised
before the trial court, the law does not permit parties to swap horses between courts
in order to get a better mount[.]” State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5
(1996) (quotation marks and citations omitted). Plaintiff cannot argue gross
negligence for the first time on appeal.
¶ 17 Nonetheless, even assuming arguendo that Plaintiff’s argument is properly
before us, it is meritless. Gross negligence, if established, overcomes the defense of
contributory negligence. Sloan v. Miller Bldg. Corp., 119 N.C. App. 162, 167, 458
S.E.2d 30, 33 (1995). Gross negligence requires evidence tending to show that
conduct is willful, wanton, or done with reckless indifference. Yancey v. Lea, 139 N.C.
App. 76, 79, 532 S.E.2d 560, 562 (2000). Willful conduct is done purposefully and in
deliberate violation of the rights of others. Id. Wanton conduct is “done of wicked
purpose, or when done needlessly, manifesting a reckless indifference to the rights of
others.” Parish v. Hill, 350 N.C. 231, 239, 513 S.E.2d 547, 551-52 (1999) (citations
omitted).
¶ 18 A plaintiff must come forward with particular evidence of gross negligence to
overcome summary judgment. See Lashlee v. White Consol. Indus., Inc., 144 N.C.
App. 684, 694, 548 S.E.2d 821, 827 (2001) (holding that plaintiffs “failed to present
sufficient evidence to support a finding that defendants were willfully or wantonly
negligent”); Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 51, 524 S.E.2d 53, 60
(1999) (holding that plaintiff’s evidence, tending to show that a business took no
security measures to protect customers despite being located in a high crime area,
was not sufficient evidence of gross negligence); Sawyer v. Food Lion, Inc., 144 N.C.
App. 398, 403, 549 S.E.2d 867, 870 (2001) (holding that plaintiff’s evidence, showing
that defendant-employer “allow[ed] holes in the floor to remain uncovered,” did not
establish willful or wanton conduct).
¶ 19 Plaintiff argues that a jury could have determined that Durham BOE’s “failure
to have a policy, or having a policy and not enforcing it, regarding the access road and
safety of students rose to the level of willful and/or wanton conduct.” We disagree.
Lashlee, Benton, and Sawyer require that Plaintiff provide particular evidence of
Durham BOE’s alleged gross negligence, and Plaintiff has failed to do so here. As
BOE was not grossly negligent, Plaintiff’s contributory negligence bars his recovery.
Sorrells, 332 N.C. at 648, 423 S.E.2d at 73-74.
III. Conclusion
¶ 20 As there was no genuine issue of material fact and Durham BOE was entitled
to judgment as a matter of law, the trial court properly granted summary judgment
for Durham BOE. See N.C. Gen. Stat. § 1A-1, Rule 56(c). The trial court’s order is
affirmed.
AFFIRMED.
Judges DIETZ and JACKSON concur.