Bass v. Alvarado

Decision Date17 May 2011
Docket NumberNO. COA10-421,COA10-421
CourtNorth Carolina Court of Appeals
PartiesJODY SMITH BASS, Plaintiff, v. TEODORA BENITEZ ALVARADO and LUCIO ALVARADO, Defendants.

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Union County No. 06 CVS 2109

Appeal by plaintiff from judgment entered 16 June 2009 by Judge W. Erwin Spainhour in Union County Superior Court. Heard in the Court of Appeals 26 October 2010.

Perry, Bundy, Plyler & Long, L.L.P., by Melanie Cox and H. Ligon Bundy, for plaintiff-appellant.

Robinson Elliott & Smith, by William C. Robinson and Katherine A. Tenfelde, for defendant-appellant.

BRYANT, Judge.

Because plaintiff presented sufficient evidence to make a prima facie showing of negligence and because plaintiff was not contributorily negligent as a matter of law, we reverse the trial court's order granting defendant a directed verdict on plaintiff's claim of negligence.

The facts taken in the light most favorable to plaintiff Jody Bass, tend to show that, at approximately 6:00 a.m. on 9 March 2006, Bass was driving west on Highway 74, a multi-lane thoroughfare that runs through Monroe in Union County. At the time of the collision, it was still dark. After approaching the intersection of Highway 74 and Stafford Street, traveling behind four other vehicles, Bass entered the intersection traveling at approximately forty miles per hour; the traffic signal controlling her movements was emitting a green light. Although she did not "stop at the green light and look directly to [her] left and look directly to [her] right," Bass testified that she was alert and attentive to her surroundings as she proceeded; with her "peripheral vision and everything else, [she] could see everything that was going around." She acknowledged that her ability to see the other vehicle would have been somewhat obstructed due to lighting conditions, the fact that other vehicles were traveling through the intersection, and the presence of an auto parts store that blocked her view down Stafford Street. Bass's evidence tends to show that she had the right of way when she entered the intersection; that her visibility was, to some extent, obstructed by other vehicles and buildings; and that she was primarily looking forward at the time that she entered the intersection. Bass testified that as she entered the intersection she was immediately struck by another vehicle.

A... [T]he next thing I know, I was turned around facing where I had just came from, facing a red truck.
Q How did you end up being turned around?
A I was hit.
Q And who hit you?
A The red truck.
Q Okay. What side of the vehicle were you hit from?
A In the driver's side.

On 14 September 2006, Bass filed a complaint against defendant Teodora Benitez Alvarado, seeking damages in excess of $10,000.00. Bass alleged that Teodora Alvarado was negligent and Lucio Alvarado was liable for damages under the family purpose doctrine 1. Defendants denied negligence but alleged that if Alvarado was negligent, Bass was contributorily negligent. The matter came on for trial on 27 May 2009. At the close of Bass's presentation of evidence, Alvarado made a motion for a directed verdict. The trial court granted the motion and dismissed the case based on Bass's asserted failure to establish negligence and for being contributorily negligent. On 16 June 2009, the trial court entereda written order in which it concluded that having reviewed the evidence submitted by Bass, Bass "has failed to make a prima facie showing of negligence against the Defendants and that [Bass] is contributorily negligent as a matter of law." The same day, Bass made a motion for a new trial pursuant to Rule 59; however, the motion was denied. Bass appeals.

On appeal, Bass raises two arguments: did the trial court err in granting Alvarado's motion for a directed verdict on the ground that (I) Bass failed to make a prima facie showing of negligence and (II) Bass was contributorily negligent as a matter of law.

Standard of Review

"[Our Supreme] Court has stated many times that '[a] motion for directed verdict under Rule 50 of the North Carolina Rules of Civil Procedure tests the legal sufficiency of the evidence, considered in the light most favorable to the nonmovant, to take the case to the jury.'" Stanfield v. Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294, 297 (1995) (citing Northern Nat'l Life Ins. v. Miller Machine Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984)).

In reviewing the grant of directed verdict for defendants, we must consider the evidence in the light most favorable to plaintiffs, as the nonmoving party. West v. Slick, 313 N.C. 33, 40-41, 326 S.E.2d 601, 606 (1985). We may affirm the directed verdict for defendants only if, as a matter of law, a recovery cannot be had byplaintiffs upon any view of the facts which the evidence reasonably tends to establish. Id. at 40, 326 S.E.2d at 606.

Haas v. Warren, 341 N.C. 148, 152, 459 S.E.2d 254, 256 (1995). "It is seldom appropriate to direct a verdict in a negligence action." Stanfield, 342 N.C. at 394, 464 S.E.2d at 297 (citing Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987); 2 G. Gray Wilson, North Carolina Civil Procedure § 50-7, at 161 (1989)).

I

Bass first argues that the trial court erred in granting Alvarado's motion for a directed verdict on the ground that Bass failed to make a prima facie showing of negligence. We agree.

In order to set out a prima facie claim of negligence, a plaintiff is required to present evidence tending to show that (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) such breach constituted an actual and proximate cause of the plaintiff's injury; and, (4) the plaintiff suffered damages in consequence of the breach. Cucina v. City of Jacksonville, 138 N.C. App. 99, 102, 530 S.E.2d 353, 355 (2000). Here, the question is whether Alvarado breached a duty to Bass.

As a general rule, "[i]t is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and [the driver] is held to the duty to see what she ought to have seen." Kummer v. Lowry, 165 N.C. App. 261, 265, 598 S.E.2d223, 226 (2004) (quoting Seaman v. McQueen, 51 N.C. App. 500, 503-04, 277 S.E.2d 118, 120 (1981)). "[A] motorist is negligent as a matter of law if he fails to stop in obedience to a red traffic light..." Troxler v. Central Motors Lines, Inc., 240 N.C. 420, 425, 82 S.E.2d 342, 346 (1954) (quoting Cox v. Freight Lines, 236 N.C. 72, 72 S.E.2d 25).

In Troxler, our Supreme Court considered whether a trial court was correct in overruling a defendant's demurrer to the plaintiff's claims of negligence which arose from a collision in an intersection. Id. at 424, 82 S.E.2d at 345. The plaintiff alleged that the defendant entered the intersection without a green light and that had he looked he would have seen the plaintiff's vehicle already in the intersection. Id. at 426, 82 S.E.2d at 346.

On the other hand, [the plaintiff], having the green light as she approached the intersection, it seems clear that she had the right to proceed. It is alleged she did proceed into the intersection. But if it be inferred from the allegation that she entered the intersection as the light was in process of changing, she was not under any duty of anticipating negligence on the part of [the defendant], but in the absence of anything which gave or should give notice to the contrary, she was entitled to assume, and to act on the assumption, that he, [the defendant], in the exercise of ordinary care, would not proceed into the intersection until after he had the green light, and she had cleared the intersection.

Id.

Bass testified that she was driving on U.S. Highway 74, fifth in a line of vehicles.

Q Okay. Well, anyway, you're traveling, there's five vehicles approaching the intersection with Stafford all in your right lane. Is that correct?
A Correct.
Q You're the last of those five vehicles?
A Yes.
Q Okay. And the light is green before the first vehicle gets there. Is that correct?
A Correct.
Q So that vehicle crosses the intersection. Is that right?
A That's right.
Q And then you enter the intersection and the accident happens?
A Yes, sir.
Q... So these four vehicles crossed the intersection without incident.
A Correct.
Q And then just as you enter, you're hit. Is that right?
A Yes.

Officer Carl Haywood, a patrol officer with the Monroe City Police Department, who reported to the scene of the accident testified that the light signals at the intersection of Highway 74 and Stafford Street appeared to be working normally. Officer Christa Haywood, also with the Monroe City Police Department, spoke with Alvarado after the accident.

A I asked her if she was okay. She said yes. I asked her what happened and she said that she thought she could make it.
Q She thought she could make what?
A I was assuming the light. That was just her statement; I thought I could make it.

Bass's evidence make clear that she had a green light when she entered the intersection. Viewed in the light most favorable to Bass, the evidence supports the allegation that Alvarado entered the intersection on a red light after the traffic signal facing Bass on Highway 74 heading west turned green and that Alvarado failed to keep a lookout in her direction of travel and failed "to see what she ought to have seen." Kummer, 165 N.C. App. at 265, 598 S.E.2d at 226; see also Troxler, 240 N.C. 420, 82 S.E.2d 342. Therefore, we hold that the trial court erred in granting defendant's motion for a directed verdict on the claim of negligence.

II

Bass argues that the trial court erred in granting Alvarado's motion for a directed verdict on the grounds that Bass is contributorily negligent as a matter of law. We disagree.

"Under North Carolina law, contributory negligence generally will act as...

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