An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-509 NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
JAMES C. BURGESS, III, Plaintiff,
v. Union County No. 11 CVS 2342 RANDI L. DORTON, Defendant.
Appeal by Plaintiff from order entered 4 December 2012 by
Judge Anna Mills Wagoner in Union County Superior Court. Heard in
the Court of Appeals 8 October 2013.
Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith, and Archibald Law Office, by C. Murphy Archibald, for Plaintiff.
Robinson Elliott & Smith, by William C. Robinson, and Katherine A. Tenfelde, for Defendant.
DILLON, Judge.
James C. Burgess, III (Plaintiff), appeals from the trial
court’s order denying his motion for a new trial. We affirm.
I. Factual & Procedural Background
Plaintiff commenced this action in Union County Superior
Court, seeking damages he sustained when the bicycle he was riding -2- collided with an automobile driven by Randi L. Dorton (Defendant)
on the evening of 6 November 2010. Defendant filed an answer,
generally denying Plaintiff’s allegations of negligence and raising
contributory negligence as a defense to Plaintiff’s claim. The
matter came on for trial in Union County Superior Court on 13
August 2012, at which time the trial court allowed Plaintiff to
amend his complaint to plead that even if his negligence had
contributed to the accident, he was nevertheless entitled to
recover for his injuries based upon Defendant’s “last clear chance”
to avoid the accident.
Plaintiff testified at trial that he “could see real well”
when he mounted his silver Colnago road bicycle on the evening in
question and embarked upon a route he had traveled “hundreds of
times” previously. Plaintiff rode his bicycle eastbound along a
two-lane rural, country road in Union County at a speed of
approximately eight miles per hour. Plaintiff wore a blue jacket
with “a large white V on the front”; a helmet; black bicycle shoes;
and black “luminite” pants, which Plaintiff testified had
reflective qualities that should have made him visible to
motorists. Plaintiff rode without any safety lights on the front
or rear of his bicycle and without any safety reflectors on the
seat, handle bars, or spokes of the bicycle. -3- Defendant testified that “it was dusk” and “getting pretty
dark” when she left her shift as a prison correctional officer in
Polkton, North Carolina, shortly after 6:00 p.m. that evening.
Defendant drove approximately forty-five minutes towards her
boyfriend’s house, which was located on the aforementioned two-lane
country road. Defendant testified that her headlights were on and
that they were set to automatically adjust as lighting conditions
changed. Defendant presented evidence indicating that the sun set
that evening at 6:24 p.m.
Defendant drove westbound towards Plaintiff, as Plaintiff rode
his bicycle eastbound, on the right hand side of the road, towards
Defendant. Defendant testified that it was “very dark” by the time
she approached her boyfriend’s house. Defendant rounded a curve in
the road and, as she came out of the curve, drove “fairly slow” as
she approached her boyfriend’s driveway.
Defendant started to make a left-hand turn (across the road)
into the driveway. Defendant testified that, as she made the turn,
her vehicle collided with Plaintiff, knocking the driver’s side
mirror off her vehicle and knocking Plaintiff off his bicycle.
Defendant testified that although her headlights were on, she did
not see Plaintiff until the moment of impact. Plaintiff likewise
testified that he neither saw nor heard Defendant’s vehicle prior -4- to the moment of impact, and, further, that he could not even
identify the direction in which Defendant had been traveling at the
time. Plaintiff also testified that he “could see fairly well” at
the time of the accident, though he subsequently testified that he
could see “really well out there.” Plaintiff also introduced into
evidence a video recording that he had made with his wife upon
returning to the scene of the accident, asserting that the video
was indicative of the lighting conditions at the time of the
accident.
The parties dispute the time period that elapsed between the
accident and the arrival of Emergency Medical Technicians (EMTs)
and the first responding police officer, Trooper Brian Kirkpatrick
of the North Carolina Highway Patrol. Plaintiff testified that the
EMTs arrived at the scene approximately fifteen minutes after the
accident and that Trooper Kirkpatrick arrived shortly thereafter.
Defendant, in contrast, averred that Trooper Kirkpatrick arrived at
the scene only one to two minutes after the accident occurred, at
6:48 or 6:49 p.m. Trooper Kirkpatrick testified that Plaintiff was
“[h]ard to see” when he arrived at the scene of the accident; that
Plaintiff did not appear to be wearing any reflective clothing; and
that there was “nothing on the bike that reflected.”
On 16 August 2012, the jury returned verdicts concluding that -5- Plaintiff had been injured as a result of Defendant’s negligence,
but that Plaintiff’s own negligence had contributed to his
injuries. Significantly, the trial court had declined to instruct
the jury on the last clear chance doctrine upon concluding that
there was insufficient evidence in support thereof, and thus the
jury did not make any determination on this issue. Accordingly,
Plaintiff was barred from recovering for any of the damages he had
incurred as a result of the accident. The trial court entered a
judgment consistent with the jury’s verdicts on 22 August 2012.
On 31 August 2012, Plaintiff moved for a new trial pursuant to
Rule 59 of the North Carolina Rules of Civil Procedure, contending
that he had presented sufficient evidence to submit the issue of
last clear chance to the jury. Following a hearing on the matter,
the trial court entered an order denying Plaintiff’s motion on 4
December 2012. From this order, Plaintiff appeals.
II. Analysis
Plaintiff contends (1) that the trial court erred in failing
to instruct the jury on the doctrine of last clear chance; and (2)
that the trial court erred in denying his motion for a new trial,
which Plaintiff had asserted based upon the trial court’s alleged
error in failing to submit the issue of last clear chance to the
jury. Because Plaintiff’s arguments both raise the same -6- substantive issue concerning whether application of the last clear
chance doctrine was supported by the evidence presented at trial,
we address them together; and, for the reasons that follow, we
uphold the trial court’s order.
“The issue of last clear chance ‘[m]ust be submitted to the
jury if the evidence, when viewed in the light most favorable to
the plaintiff, will support a reasonable inference of each
essential element of the doctrine.’” Culler v. Hamlett, 148 N.C.
App. 372, 379, 559 S.E.2d 195, 200 (2002) (citations omitted)
(alteration in original).
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-509 NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
JAMES C. BURGESS, III, Plaintiff,
v. Union County No. 11 CVS 2342 RANDI L. DORTON, Defendant.
Appeal by Plaintiff from order entered 4 December 2012 by
Judge Anna Mills Wagoner in Union County Superior Court. Heard in
the Court of Appeals 8 October 2013.
Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith, and Archibald Law Office, by C. Murphy Archibald, for Plaintiff.
Robinson Elliott & Smith, by William C. Robinson, and Katherine A. Tenfelde, for Defendant.
DILLON, Judge.
James C. Burgess, III (Plaintiff), appeals from the trial
court’s order denying his motion for a new trial. We affirm.
I. Factual & Procedural Background
Plaintiff commenced this action in Union County Superior
Court, seeking damages he sustained when the bicycle he was riding -2- collided with an automobile driven by Randi L. Dorton (Defendant)
on the evening of 6 November 2010. Defendant filed an answer,
generally denying Plaintiff’s allegations of negligence and raising
contributory negligence as a defense to Plaintiff’s claim. The
matter came on for trial in Union County Superior Court on 13
August 2012, at which time the trial court allowed Plaintiff to
amend his complaint to plead that even if his negligence had
contributed to the accident, he was nevertheless entitled to
recover for his injuries based upon Defendant’s “last clear chance”
to avoid the accident.
Plaintiff testified at trial that he “could see real well”
when he mounted his silver Colnago road bicycle on the evening in
question and embarked upon a route he had traveled “hundreds of
times” previously. Plaintiff rode his bicycle eastbound along a
two-lane rural, country road in Union County at a speed of
approximately eight miles per hour. Plaintiff wore a blue jacket
with “a large white V on the front”; a helmet; black bicycle shoes;
and black “luminite” pants, which Plaintiff testified had
reflective qualities that should have made him visible to
motorists. Plaintiff rode without any safety lights on the front
or rear of his bicycle and without any safety reflectors on the
seat, handle bars, or spokes of the bicycle. -3- Defendant testified that “it was dusk” and “getting pretty
dark” when she left her shift as a prison correctional officer in
Polkton, North Carolina, shortly after 6:00 p.m. that evening.
Defendant drove approximately forty-five minutes towards her
boyfriend’s house, which was located on the aforementioned two-lane
country road. Defendant testified that her headlights were on and
that they were set to automatically adjust as lighting conditions
changed. Defendant presented evidence indicating that the sun set
that evening at 6:24 p.m.
Defendant drove westbound towards Plaintiff, as Plaintiff rode
his bicycle eastbound, on the right hand side of the road, towards
Defendant. Defendant testified that it was “very dark” by the time
she approached her boyfriend’s house. Defendant rounded a curve in
the road and, as she came out of the curve, drove “fairly slow” as
she approached her boyfriend’s driveway.
Defendant started to make a left-hand turn (across the road)
into the driveway. Defendant testified that, as she made the turn,
her vehicle collided with Plaintiff, knocking the driver’s side
mirror off her vehicle and knocking Plaintiff off his bicycle.
Defendant testified that although her headlights were on, she did
not see Plaintiff until the moment of impact. Plaintiff likewise
testified that he neither saw nor heard Defendant’s vehicle prior -4- to the moment of impact, and, further, that he could not even
identify the direction in which Defendant had been traveling at the
time. Plaintiff also testified that he “could see fairly well” at
the time of the accident, though he subsequently testified that he
could see “really well out there.” Plaintiff also introduced into
evidence a video recording that he had made with his wife upon
returning to the scene of the accident, asserting that the video
was indicative of the lighting conditions at the time of the
accident.
The parties dispute the time period that elapsed between the
accident and the arrival of Emergency Medical Technicians (EMTs)
and the first responding police officer, Trooper Brian Kirkpatrick
of the North Carolina Highway Patrol. Plaintiff testified that the
EMTs arrived at the scene approximately fifteen minutes after the
accident and that Trooper Kirkpatrick arrived shortly thereafter.
Defendant, in contrast, averred that Trooper Kirkpatrick arrived at
the scene only one to two minutes after the accident occurred, at
6:48 or 6:49 p.m. Trooper Kirkpatrick testified that Plaintiff was
“[h]ard to see” when he arrived at the scene of the accident; that
Plaintiff did not appear to be wearing any reflective clothing; and
that there was “nothing on the bike that reflected.”
On 16 August 2012, the jury returned verdicts concluding that -5- Plaintiff had been injured as a result of Defendant’s negligence,
but that Plaintiff’s own negligence had contributed to his
injuries. Significantly, the trial court had declined to instruct
the jury on the last clear chance doctrine upon concluding that
there was insufficient evidence in support thereof, and thus the
jury did not make any determination on this issue. Accordingly,
Plaintiff was barred from recovering for any of the damages he had
incurred as a result of the accident. The trial court entered a
judgment consistent with the jury’s verdicts on 22 August 2012.
On 31 August 2012, Plaintiff moved for a new trial pursuant to
Rule 59 of the North Carolina Rules of Civil Procedure, contending
that he had presented sufficient evidence to submit the issue of
last clear chance to the jury. Following a hearing on the matter,
the trial court entered an order denying Plaintiff’s motion on 4
December 2012. From this order, Plaintiff appeals.
II. Analysis
Plaintiff contends (1) that the trial court erred in failing
to instruct the jury on the doctrine of last clear chance; and (2)
that the trial court erred in denying his motion for a new trial,
which Plaintiff had asserted based upon the trial court’s alleged
error in failing to submit the issue of last clear chance to the
jury. Because Plaintiff’s arguments both raise the same -6- substantive issue concerning whether application of the last clear
chance doctrine was supported by the evidence presented at trial,
we address them together; and, for the reasons that follow, we
uphold the trial court’s order.
“The issue of last clear chance ‘[m]ust be submitted to the
jury if the evidence, when viewed in the light most favorable to
the plaintiff, will support a reasonable inference of each
essential element of the doctrine.’” Culler v. Hamlett, 148 N.C.
App. 372, 379, 559 S.E.2d 195, 200 (2002) (citations omitted)
(alteration in original). Our Supreme Court has articulated the
elements that a plaintiff must establish to invoke the doctrine of
last clear chance as follows:
Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1) That 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 -7- use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him.
Wade v. Jones Sausage Co., 239 N.C. 524, 525, 80 S.E.2d 150, 151
(1954) (citations omitted). “[U]nless all the necessary elements
of the doctrine of last clear chance are present, the case is
governed by the ordinary rules of negligence and contributory
negligence.” Culler, 148 N.C. App. at 379, 559 S.E.2d at 200.
Further, where the last clear chance doctrine does apply, “the
focus is not on the preceding negligence of the defendant or the
contributory negligence of the plaintiff which would ordinarily
defeat recovery. Rather, the doctrine . . . contemplates that if
liability is to be imposed the defendant must have a last ‘clear’
chance to avoid injury.” Id. at 379, 559 S.E.2d at 200-01
(citations and quotation marks omitted).
Defendant’s negligence and Plaintiff’s contributory negligence
have been established and are not at issue on appeal. The question
for this Court is whether the evidence, when viewed in the light
most favorable to Plaintiff, was sufficient to establish each
element of the last clear chance doctrine. We conclude that it was
not.
Plaintiff was required to show that Defendant “had the time
and means to avoid injury to [Plaintiff] by the exercise of -8- reasonable care after he discovered, or should have discovered,
[Plaintiff’s] perilous position and his incapacity to escape from
it.” Wade, 239 N.C. at 525, 80 S.E.2d at 151. “The essence of
this element, and the fundamental difference between a ‘last clear
chance” and a ‘last possible chance,” is that defendant must have
‘the time and the means to avoid the injury to the plaintiff by the
exercise of reasonable care after she discovered or should have
discovered plaintiff’s perilous position.’” Vancamp v. Burgner,
328 N.C. 495, 499, 402 S.E.2d 375, 377 (1991) (quoting Watson v.
White, 309 N.C. 498, 505-06, 308 S.E.2d 268, 273 (1983)) (emphasis
in original). “The reasonableness of a defendant’s opportunity to
avoid doing injury must be determined on the particular facts of
each case. Id. (citing Exum v. Boyles, 272 N.C. 567, 575, 158
S.E.2d 845, 852 (1968)).
Here, Defendant testified that she saw Plaintiff through her
driver’s side window just as her vehicle struck him. Plaintiff
similarly testified that he saw Defendant’s vehicle at or about the
moment of impact and was thus unable to avoid the resulting
collision. In other words, the undisputed evidence indicated that
the accident was imminent and unavoidable by the time Defendant
actually saw Plaintiff and Plaintiff actually saw Defendant.
Further, whatever opportunity Defendant had to avoid the accident, -9- if any, was minimized by Plaintiff’s inconspicuous attire, which
Trooper Kirkpatrick described as “black clothing” with “nothing . .
. that reflected . .. whatsoever.”1 We conclude that these
circumstances distinguish the present case from cases in which a
last clear chance instruction was proper due to the defendant’s
ability to avoid the accident at the last moment, e.g., Vancamp,
328 N.C. at 500, 402 S.E.2d at 377-78 (holding that a last clear
chance instruction was warranted where the evidence indicated that
plaintiff was within defendant’s “clear line of sight for five
seconds before the collision”; that defendant “had ‘ample’ reaction
time in which to see plaintiff and come to a complete stop”; and
that “defendant negligently failed to use the available time and
means to avoid injury to plaintiff”), and align this case with
cases in which the defendant’s lack of ability to avoid the
accident rendered an instruction on last clear chance improper,
e.g., Watson v. White, 309 N.C. 498, 308 S.E.2d 268 (1983) (holding
that there was insufficient evidence of defendant’s last clear
chance to avoid the accident where defendant was traveling forty
miles per hour, saw plaintiff only after coming out of a curve in
1 We note that with only a cold record before us, we lack the perspective that the trial court had in observing first-hand the clothing worn by Plaintiff at the time of the accident. -10- the road, and had only 1.28 seconds to react before impact); Battle
v. Chavis, 266 N.C. 778, 147 S.E.2d 387 (1966) (holding
insufficient evidence of last clear chance where defendant was
traveling at thirty to thirty-five miles per hour and was unable to
see plaintiff until within 130 feet of him, at which time he had
less than three seconds to stop in order to prevent the injury);
Culler, 148 N.C. App. at 380, 559 S.E.2d at 201 (holding that the
motorist-defendant may have had the last possible chance, but not
the last clear chance, to avoid injuring the pedestrian-plaintiff
where the weather was “foggy and dark,” the defendant had rounded a
curve in the road just prior to the scene of the accident, and
headlights facing the defendant obstructed the defendant’s view).
We accordingly hold on the facts presented that the trial court did
not err in declining to instruct the jury on the doctrine of last
clear chance and, further, did not err in denying Plaintiff’s
motion for a new trial.
III. Conclusion
In light of the foregoing, we affirm the trial court’s 4
December 2012 order.
NO ERROR IN PART; AFFIRMED IN PART.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e). -11-