An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA09-231
NORTH CAROLINA COURT OF APPEALS
Filed:
6 October 2009
HEATHER LYNN HILL,
Plaintiff-Appellant
v.
Wake County
No. 07 CVS 12105
ANTHONY LEWIS THOMPSON and
ALICIA LYNN DICKINSON,
Defendants-Appellees
Appeal by plaintiff from order entered 16 September 2008 by
Judge Carl Fox in Wake County Superior Court.
Heard in the Court
of Appeals 15 September 2009.
J.W. Bryant, Law Firm, P.L.L.C., by John Walter Bryant, for
plaintiff-appellant.
Smith Law Offices, P.C., by Robert E. Smith, for defendantsappellees.
CALABRIA, Judge.
Heather Lynn Hill (“plaintiff”) appeals an order granting
summary judgment to Anthony Lewis Thompson (“Thompson”) and Alicia
Lynn
Dickinson
(“Dickinson”)
(collectively
“defendants”).
We
affirm in part and reverse in part.
On 25 October 2004, plaintiff was struck by a vehicle owned by
Dickinson and operated by Thompson when she crossed a highway near
her home.
The point where plaintiff crossed the road was neither
a marked nor unmarked crosswalk, on a portion of highway that is
-2located in a valley between two hills. Plaintiff suffered multiple
injuries that required surgery and a hospital stay.
At the time of
the collision, plaintiff was fifteen years old.
Plaintiff filed an action against defendants in Wake County
Superior Court alleging negligence and seeking damages for personal
injury and pain and suffering. Defendants filed an answer in which
they alleged contributory negligence. Plaintiff then filed a reply
alleging that Thompson had the last clear chance to avoid the
collision.
Defendants moved for summary judgment on the basis of
plaintiff’s contributory negligence.
On 16 September 2008, the
trial court granted summary judgment to defendants.
Plaintiff
appeals.
“In ruling on a motion for summary judgment, the court does
not resolve issues of fact and must deny the motion if there is a
genuine issue as to any material fact.”
Ragland v. Moore, 299 N.C.
360, 363, 261 S.E.2d 666, 668 (1980) (citation omitted).
The
movant must demonstrate “that there is no triable issue of fact and
that he is entitled to judgment as a matter of law.”
Id.
“In
considering the motion, the trial judge holds the movant to a
strict standard, and ‘all inferences of fact from the proofs
proffered at the hearing must be drawn against the movant and in
favor of the party opposing the motion.’” Id. (quoting Caldwell v.
Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975)).
Summary
judgment is rarely appropriate in a negligence case, “since the
standard of reasonable care should ordinarily be applied by the
jury under appropriate instructions from the court.”
Ragland, 299
-3N.C. at 363, 261 S.E.2d at 668.
Plaintiff argues that the trial
court erred in granting summary judgment to defendants because
plaintiff was a child and therefore is entitled to have her actions
considered
under
a
lower
standard
of
care
than
an
adult.
Additionally, plaintiff argues that plaintiff’s status as a child
required a higher standard of care from Thompson.
“After
reaching
the
age
of
14
there
We disagree.
is
a
rebuttable
presumption that [a] youth possesse[s] the capacity of an adult to
protect himself, and he is therefore presumptively chargeable with
the same standard of care for his own safety as if he were an
adult.” Golden v. Register, 50 N.C. App. 650, 653, 274 S.E.2d 892,
894 (1981)(citations omitted).
In the instant case, there is no
evidence that plaintiff, who was fifteen years old at the time of
the
accident,
intelligence.
was
lacking
in
her
ability,
capacity,
or
Therefore, plaintiff is charged, when crossing the
highway, with the same standard of care as an adult.
“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.”
N.C. Gen. Stat. § 20-174(a) (2007).
The failure of a pedestrian crossing a roadway
at a point other than a crosswalk to yield the
right of way to a motor vehicle is not
contributory negligence per se; it is only
evidence of negligence.
However, the court
will nonsuit a plaintiff-pedestrian on the
ground of contributory negligence when all the
evidence so clearly establishes his failure to
yield the right of way as one of the proximate
causes
of
his
injuries
that
no
other
reasonable conclusion is possible.
-4Blake
v.
Mallard,
262
N.C.
(1964)(citations omitted).
62,
65,
136
S.E.2d
214,
216
“If the road is straight, visibility
unobstructed, the weather clear. . . a plaintiff's failure to see
and
avoid
defendant's
vehicle
will
consistently
contributory negligence as a matter of law.”
be
deemed
Meadows v. Lawrence,
75 N.C. App. 86, 89-90, 330 S.E.2d 47, 50 (1985).
In the instant case, plaintiff was not crossing at a marked
crosswalk
or
at
an
intersection
with
an
unmarked
crosswalk.
Plaintiff’s deposition testimony established that the weather was
clear, visibility was unobstructed, and that she could see in
either direction for approximately one-half of one mile.
There is
no evidence to indicate that plaintiff would not have been able,
had she been keeping a timely lookout, to see and avoid defendants’
vehicle. Thus, the trial court properly concluded that plaintiff’s
failure to yield the right-of-way while crossing the highway
constituted contributory negligence as a matter of law.
Plaintiff maintains that a finding of contributory negligence
does not preclude her recovery because Thompson still had the last
clear chance to avoid the collision.
Plaintiff argues that the
trial court erred by granting summary judgment to defendants on
this issue.
We agree.
“[E]very 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.” N.C. Gen. Stat. § 20-174(e)
-5(2007).
Summary judgment on the issue of last clear chance is
properly granted for the defendant if the plaintiff fails to
forecast evidence to show:
(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 use
the available time and means to avoid injury
to the endangered pedestrian, and for that
reason struck and injured him.
VanCamp v. Burgner, 328 N.C. 495, 498, 402 S.E.2d 375, 376-77
(1991)(citations omitted).
“The doctrine contemplates a last
‘clear’ chance, not a last ‘possible’ chance, to avoid the injury;
it must have been such as would have enabled a reasonably prudent
man in like position to have acted effectively.”
Culler v.
Hamlett,
195,
148
N.C.
App.
372,
379,
559
S.E.2d
200
(2002)(citation omitted).
[T]he application of the doctrine has been
liberalized by our courts over the years, and
. . . the contributory negligence of the
plaintiff does not nullify or cancel the
original negligence of the defendant. That is,
the original negligence of the defendant can
be relied on to bring into play the doctrine
of last clear chance.
Bowden v. Bell, 116 N.C. App. 64, 68, 446 S.E.2d 816, 819 (1994)
(internal citations omitted).
-6In the instant case, Thompson’s deposition testimony indicated
that he saw plaintiff as he descended a hill on Highway 50.
He
applied his brakes to slow down to approximately forty-five miles
per hour and then continued coasting down the hill.
When the
plaintiff entered the road in front of him, Thompson slammed on his
brakes, blew his horn, and swerved to miss her. Thompson’s vehicle
left
approximately
eighty-four
feet
of
tire
impressions.
Thompson’s testimony indicated that he likely would have been able
to stop if he had applied his brakes fully at the time he first saw
plaintiff.
This evidence is sufficient to create a genuine issue
of material fact as to whether when Thompson “discovered, or should
have discovered the peril of plaintiff, he had the time and means
to avoid injury to the plaintiff.”
Bowden, 116 N.C. App. at 68,
446 S.E.2d at 819. See also Earle v. Wyrick, 286 N.C. 175, 178, 209
S.E.2d 469, 470 (1974). The trial court improperly granted summary
judgment to defendants on the issue of last clear chance and that
portion of the trial court’s order is reversed.
Plaintiff argues that the trial court erred by considering and
accepting
into
evidence
incompetent
evidence
presented
defendants as part of their summary judgment motion.
by
Plaintiff
cites no legal authority in support of this argument. “Assignments
of error not set out in the appellant's brief, or in support of
which no reason or argument is stated or authority cited, will be
taken as abandoned.” N.C.R. App. P. 28(b)(6) (2008). Accordingly,
we conclude this issue is abandoned.
-7That portion of the trial court’s order granting summary
judgment to defendants on the issue of plaintiff’s contributory
negligence is affirmed.
The portion of the trial court’s order
granting summary judgment on the issue of whether Thompson had the
last clear chance to avoid the collision is reversed and remanded
for a trial on the merits.
Affirmed in part, reversed in part, and remanded.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
