An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-919 NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
GLORIA POOLE JERNIGAN, Plaintiff,
v. Johnston County No. 11-CVS-0987 CARMEN BRYANT TART, Defendant.
Appeal by plaintiff from Judgment entered 28 December 2012
by Judge Shannon Joseph in Superior Court, Johnston County.
Heard in the Court of Appeals 9 January 2014.
Ryan McKaig Attorney at Law PLLC, by Ryan McKaig, for plaintiff-appellant.
Cranfill Sumner & Hartzog LLP, by George L. Simpson, IV, for defendant-appellee.
STROUD, Judge.
Gloria Jernigan (“plaintiff”) appeals from the judgment
entered 28 December 2012 after a jury found that she was barred
from recovery on her negligence claim due to her own
contributory negligence. For the following reasons, we order a
new trial.
I. Background -2- On 24 March 2011, plaintiff filed a complaint in Johnston
County alleging that Carmen Tart (“defendant”) had negligently
caused her to collide with defendant’s vehicle by driving into
plaintiff’s path. Defendant answered, admitting that the
collision occurred, but denying her negligence, and asserting
that plaintiff was contributorily negligent. Plaintiff filed a
reply to defendant’s answer alleging that, even assuming
plaintiff were contributorily negligent, defendant had the last
clear chance to avoid the collision. The case was tried by jury
in superior court on 12 and 13 December 2012.
The evidence at trial tended to show that on the afternoon
of 28 June 2008, plaintiff was traveling west along Woods
Crossroads Road, near Benson. Plaintiff, driving a red 1997
Pontiac, testified that she was traveling at 45 miles per hour.
Clifford Coffey, who was driving the opposite direction down
Woods Crossroads, estimated her speed at 55-65 miles per hour.
The speed limit on that section of Woods Crossroads was 55 miles
per hour. Defendant, driving a 1997 Chevrolet pickup truck,
pulled up to the stop sign at the intersection of Woods
Crossroads and Beasley Road, heading south.
Plaintiff testified that she saw defendant stopped at the
Beasley Road stop sign, but that defendant did not appear to -3- move into the intersection until plaintiff was already in the
intersection herself. She said that defendant “darted out” in
front of her so quickly that she did not have time to apply the
brakes. Plaintiff collided with defendant in the intersection,
hitting defendant’s truck on the back half of the vehicle.
Defendant testified by deposition, which was introduced at
trial, that she looked left, right, then left again before
pulling into the intersection. She said that she did not see
plaintiff’s car until after she had pulled into the intersection
and that when she first saw plaintiff’s car it just appeared as
a red dot in the distance. Wendy Macauley testified that she
had pulled up behind defendant while defendant was still stopped
at the stop sign. Ms. Macauley said that when she looked to the
left she saw plaintiff’s car before defendant pulled her truck
into the intersection. Defendant testified that she initially
proceeded through the intersection slowly, but that once she saw
plaintiff coming toward the intersection, she decided to
accelerate to avoid a collision.
After the close of all the evidence, the parties had a
charge conference with the trial court. Plaintiff did not
request an instruction on the doctrine of last clear chance
during the conference. The following morning, before the trial -4- court instructed the jury, plaintiff did request an instruction
on last clear chance. The trial court denied that request and
instructed the jury on negligence and contributory negligence,
but omitted an instruction on last clear chance. The jury found
that defendant had negligently caused the collision, but that
plaintiff was also negligent, and that her negligence
contributed to her injury. It therefore awarded plaintiff no
recovery. The trial court entered final judgment consistent
with the jury’s verdict on 28 December 2012. Plaintiff filed
written notice of appeal to this Court on 22 January 2013.
II. Jury Instructions
Plaintiff argues that the trial court erred in refusing to
instruct the jury on the last clear chance doctrine because
there was evidence from which the jury could have reasonably
concluded that even if defendant successfully showed
contributory negligence, defendant had the last clear chance to
avoid the collision. We agree.
A. Standard of Review
When reviewing the refusal of a trial court to give certain instructions requested by a party to the jury, this Court must decide whether the evidence presented at trial was sufficient to support a reasonable inference by the jury of the elements of the claim. If the instruction is supported by such -5- evidence, the trial court’s failure to give the instruction is reversible error.
King v. Brooks, ___ N.C. App. ___, ___, 736 S.E.2d 788, 792
(2012) (citation and quotation marks omitted), disc. rev.
denied, ___ N.C. ___, 743 S.E.2d 195 (2013).
B. Analysis
The last clear chance doctrine is a rule of proximate cause that allows a contributorily negligent plaintiff to recover where the defendant’s negligence in failing to avoid the accident introduces a new element into the case, which intervenes between the plaintiff’s negligence and the injury and becomes the direct and proximate cause of the accident.
Outlaw v. Johnson, 190 N.C. App. 233, 238, 660 S.E.2d 550, 556
(2008) (citation, quotation marks, and brackets omitted).
The elements of the last clear chance doctrine are:
(1) that the plaintiff negligently placed himself in a position of helpless peril; (2) that the defendant knew or, by the exercise of reasonable care, should have discovered the plaintiff’s perilous position and his incapacity to escape from it; (3) that the defendant had the time and ability to avoid the injury by the exercise of reasonable care; (4) that the defendant negligently failed to use available time and means to avoid injury to the plaintiff and (5) as a result, the plaintiff was injured.
Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184, 186
(2004), disc. rev. denied, 359 N.C. 411, 612 S.E.2d 322 (2005). -6- “The question of last clear chance must 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.” Outlaw, 190 N.C. App. at 238, 660
S.E.2d at 556 (citation and quotation marks omitted).
Therefore, we must decide whether there was sufficient
evidence, taken in the light most favorable to plaintiff, of
each element of the last clear chance doctrine. Defendant
primarily asserts that plaintiff was not entitled to an
instruction on last clear chance doctrine because she failed to
present sufficient evidence of the first element.
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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. COA13-919 NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
GLORIA POOLE JERNIGAN, Plaintiff,
v. Johnston County No. 11-CVS-0987 CARMEN BRYANT TART, Defendant.
Appeal by plaintiff from Judgment entered 28 December 2012
by Judge Shannon Joseph in Superior Court, Johnston County.
Heard in the Court of Appeals 9 January 2014.
Ryan McKaig Attorney at Law PLLC, by Ryan McKaig, for plaintiff-appellant.
Cranfill Sumner & Hartzog LLP, by George L. Simpson, IV, for defendant-appellee.
STROUD, Judge.
Gloria Jernigan (“plaintiff”) appeals from the judgment
entered 28 December 2012 after a jury found that she was barred
from recovery on her negligence claim due to her own
contributory negligence. For the following reasons, we order a
new trial.
I. Background -2- On 24 March 2011, plaintiff filed a complaint in Johnston
County alleging that Carmen Tart (“defendant”) had negligently
caused her to collide with defendant’s vehicle by driving into
plaintiff’s path. Defendant answered, admitting that the
collision occurred, but denying her negligence, and asserting
that plaintiff was contributorily negligent. Plaintiff filed a
reply to defendant’s answer alleging that, even assuming
plaintiff were contributorily negligent, defendant had the last
clear chance to avoid the collision. The case was tried by jury
in superior court on 12 and 13 December 2012.
The evidence at trial tended to show that on the afternoon
of 28 June 2008, plaintiff was traveling west along Woods
Crossroads Road, near Benson. Plaintiff, driving a red 1997
Pontiac, testified that she was traveling at 45 miles per hour.
Clifford Coffey, who was driving the opposite direction down
Woods Crossroads, estimated her speed at 55-65 miles per hour.
The speed limit on that section of Woods Crossroads was 55 miles
per hour. Defendant, driving a 1997 Chevrolet pickup truck,
pulled up to the stop sign at the intersection of Woods
Crossroads and Beasley Road, heading south.
Plaintiff testified that she saw defendant stopped at the
Beasley Road stop sign, but that defendant did not appear to -3- move into the intersection until plaintiff was already in the
intersection herself. She said that defendant “darted out” in
front of her so quickly that she did not have time to apply the
brakes. Plaintiff collided with defendant in the intersection,
hitting defendant’s truck on the back half of the vehicle.
Defendant testified by deposition, which was introduced at
trial, that she looked left, right, then left again before
pulling into the intersection. She said that she did not see
plaintiff’s car until after she had pulled into the intersection
and that when she first saw plaintiff’s car it just appeared as
a red dot in the distance. Wendy Macauley testified that she
had pulled up behind defendant while defendant was still stopped
at the stop sign. Ms. Macauley said that when she looked to the
left she saw plaintiff’s car before defendant pulled her truck
into the intersection. Defendant testified that she initially
proceeded through the intersection slowly, but that once she saw
plaintiff coming toward the intersection, she decided to
accelerate to avoid a collision.
After the close of all the evidence, the parties had a
charge conference with the trial court. Plaintiff did not
request an instruction on the doctrine of last clear chance
during the conference. The following morning, before the trial -4- court instructed the jury, plaintiff did request an instruction
on last clear chance. The trial court denied that request and
instructed the jury on negligence and contributory negligence,
but omitted an instruction on last clear chance. The jury found
that defendant had negligently caused the collision, but that
plaintiff was also negligent, and that her negligence
contributed to her injury. It therefore awarded plaintiff no
recovery. The trial court entered final judgment consistent
with the jury’s verdict on 28 December 2012. Plaintiff filed
written notice of appeal to this Court on 22 January 2013.
II. Jury Instructions
Plaintiff argues that the trial court erred in refusing to
instruct the jury on the last clear chance doctrine because
there was evidence from which the jury could have reasonably
concluded that even if defendant successfully showed
contributory negligence, defendant had the last clear chance to
avoid the collision. We agree.
A. Standard of Review
When reviewing the refusal of a trial court to give certain instructions requested by a party to the jury, this Court must decide whether the evidence presented at trial was sufficient to support a reasonable inference by the jury of the elements of the claim. If the instruction is supported by such -5- evidence, the trial court’s failure to give the instruction is reversible error.
King v. Brooks, ___ N.C. App. ___, ___, 736 S.E.2d 788, 792
(2012) (citation and quotation marks omitted), disc. rev.
denied, ___ N.C. ___, 743 S.E.2d 195 (2013).
B. Analysis
The last clear chance doctrine is a rule of proximate cause that allows a contributorily negligent plaintiff to recover where the defendant’s negligence in failing to avoid the accident introduces a new element into the case, which intervenes between the plaintiff’s negligence and the injury and becomes the direct and proximate cause of the accident.
Outlaw v. Johnson, 190 N.C. App. 233, 238, 660 S.E.2d 550, 556
(2008) (citation, quotation marks, and brackets omitted).
The elements of the last clear chance doctrine are:
(1) that the plaintiff negligently placed himself in a position of helpless peril; (2) that the defendant knew or, by the exercise of reasonable care, should have discovered the plaintiff’s perilous position and his incapacity to escape from it; (3) that the defendant had the time and ability to avoid the injury by the exercise of reasonable care; (4) that the defendant negligently failed to use available time and means to avoid injury to the plaintiff and (5) as a result, the plaintiff was injured.
Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184, 186
(2004), disc. rev. denied, 359 N.C. 411, 612 S.E.2d 322 (2005). -6- “The question of last clear chance must 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.” Outlaw, 190 N.C. App. at 238, 660
S.E.2d at 556 (citation and quotation marks omitted).
Therefore, we must decide whether there was sufficient
evidence, taken in the light most favorable to plaintiff, of
each element of the last clear chance doctrine. Defendant
primarily asserts that plaintiff was not entitled to an
instruction on last clear chance doctrine because she failed to
present sufficient evidence of the first element.
The first element of last clear chance is satisfied upon a showing that a plaintiff has placed himself in a position of either helpless or inadvertent peril. A plaintiff is in a position of helpless peril when that plaintiff’s prior contributory negligence has placed her in a position from which she is powerless to extricate herself. . . . However, if a plaintiff observes an approaching vehicle but fails to extricate himself from the dangerous position despite having the time and ability to do so, he has not placed himself in a position of helpless or inadvertent peril.
Id. at 238-39, 660 S.E.2d at 556 (citation and quotation marks
omitted).
This case is controlled by Knote v. Nifong, 97 N.C. App.
105, 387 S.E.2d 185, disc. rev. denied, 326 N.C. 597, 393 S.E.2d -7- 879 (1990). In that case, there was evidence that the plaintiff
was riding his motorcycle north along the highway at a speed in
excess of the posted limit. Knote, 97 N.C. App. at 106, 387
S.E.2d at 186. The defendant approached the highway from a
cross-street and pulled across the highway, but stopped in the
middle, blocking plaintiff’s travel lane. Id. Plaintiff
applied his brakes to try to avoid the collision, but was unable
to stop in time. Id. at 107, 387 S.E.2d at 186. We held that the
evidence satisfied the first element of last clear chance
because it showed that plaintiff was “driving too fast and that
he was unable to take action to avoid a collision.” Id. at 108,
387 S.E.2d at 187.
Here, two witnesses testified that plaintiff was speeding,
though plaintiff denied it. Plaintiff testified that defendant
“darted out” in front of her when she reached the intersection
and that she “didn’t have time to put [her] foot on the brake.”
The highway on which plaintiff was traveling had one lane in
each direction. Like in Knote, there was evidence, taken in the
light most favorable to plaintiff, from which a reasonable juror
could conclude that plaintiff was driving too fast, and that she
was unable to brake and avoid the collision once defendant -8- “darted out in front of [her].” Therefore, there was sufficient
evidence on the first element of last clear chance.
Further, there was evidence, taken in the light most
favorable to plaintiff, from which a reasonable juror could
conclude that defendant saw, or should have seen, plaintiff and
recognized that she was speeding toward the intersection. Ms.
Macauley testified that she was stopped behind defendant on
Beasley Road and that from where she was sitting she saw
plaintiff’s red car coming down Woods Crossing before defendant
pulled into the intersection. It is immaterial that defendant
testified that she did not see plaintiff until after she was in
the intersection because there was “evidence that the defendant
could have seen plaintiff.” Id. Therefore, there was sufficient
evidence to satisfy the second element.
There was also sufficient evidence to support a reasonable
inference of each additional element. As to the third element,
there was evidence from which a reasonable juror could conclude
that defendant had the time and means to avoid the accident.
Defendant could have avoided the accident by remaining stopped
at the stop sign rather than proceeding into the intersection.
There was nothing forcing defendant to cross the intersection
when she did. The fourth element is satisfied by evidence that -9- despite her ability to see that plaintiff was speeding down the
highway, defendant negligently decided to risk injury by
nonetheless proceeding into the intersection. Finally, there is
no dispute that plaintiff was injured as a result of this
collision. Therefore, there was evidence sufficient to satisfy
the fifth element of the last clear chance doctrine as well.
We conclude that plaintiff presented sufficient evidence to
warrant an instruction on the last clear chance doctrine. The
question is not whether plaintiff’s position is supported by the
weight of the evidence, but whether “the evidence, when viewed
in the light most favorable to the plaintiff, will support a
reasonable inference of each essential element of the doctrine.”
Outlaw, 190 N.C. App. at 238, 660 S.E.2d at 556 (citation and
quotation marks omitted). Plaintiff’s testimony that defendant
“darted out in front of her” with little time or warning such
that plaintiff was unable to brake in time to avoid the accident
is sufficient to support a reasonable inference of each
essential element of the last clear chance doctrine. Therefore,
we hold that the trial court erred in refusing to instruct the
jury on last clear chance and order a new trial.
III. Motion to Dismiss Contributory Negligence Affirmative Defense -10- Plaintiff argues that the trial court erred in denying her
motion under Rule 12(b)(6) to dismiss defendant’s affirmative
defense of contributory negligence on the basis that the answer
failed to set forth the affirmative defense with sufficient
specificity under N.C. Gen. Stat. § 1A-1, Rule 8(c). The denial
of a Rule 12(b)(6) motion is generally not appealable. An order
denying a motion to dismiss under Rule 12(b)(6) is an
interlocutory order which may not be immediately appealed. Block
v. County of Person, 141 N.C. App. 273, 276, 540 S.E.2d 415, 418
(2000). Further, the “denial of a party’s motion to dismiss made
pursuant to Rule 12(b)(6) is not reviewable on appeal following
a final judgment on the merits of the case.” In re Will of
McFayden, 179 N.C. App. 595, 599, 635 S.E.2d 65, 68 (2006),
disc. rev. denied, 361 N.C. 694, 653 S.E.2d 880 (2007).
Therefore, we dismiss this portion of plaintiff’s appeal.
IV. Conclusion
For the foregoing reasons, we hold that the trial court
erred in refusing to instruct the jury on the last clear chance
doctrine. We dismiss plaintiff’s appeal from the trial court’s
denial of her 12(b)(6) motion.
NEW TRIAL; DISMISSED in part.
Judges HUNTER, JR., Robert N. and DILLON concur. -11- Report per Rule 30(e).