Blue v. Canela

• Decision Date: 18 July 2000
• Docket Number: No. COA99-1073.,COA99-1073.
• Citation: 139 NC App. 191,532 S.E.2d 830
• Court: North Carolina Court of Appeals
• Parties: Virginia BLUE, Plaintiff, v. Miguel CANELA, Horace Vernon Pendergrass, Jr., and Camper Products, Inc.

532 S.E.2d 830

139 NC App. 191

Virginia BLUE, Plaintiff, v. Miguel CANELA, Horace Vernon Pendergrass, Jr., and Camper Products, Inc.

No. COA99-1073.

Court of Appeals of North Carolina.

July 18, 2000.

Harvey D. Jackson, Henderson, for plaintiff-appellant.

Baker, Jenkins, Jones & Daly, P.A., by Ernie K. Murray, Rocky Mount, for defendant-appellee Miguel Canela.

Yates, McLamb & Weyher, L.L.P., by John W. Minier, Raleigh, for defendant-appellees Horace Vernon Pendergrass, Jr. and Camper Products, Inc.

HUNTER, Judge.

The superior court granted summary judgment to defendants Miguel Canela, Horace Vernon Pendergrass, Jr., and Camper Products, Inc. (collectively "defendants"), finding as a matter of law that: (1) plaintiff's contributory negligence was a proximate cause of the injuries alleged in her complaint; and (2) the doctrine of "last clear chance" does not apply. Virginia Blue ("plaintiff") appeals. Upon review of the record before us, we reverse the trial court's order, and remand the case for trial by jury. The facts pertinent to this case are as follows. At about 2:00 p.m. on 29 July 1994, plaintiff was driving her employer's van on Lynnbank Road in Henderson, North Carolina. Lynnbank Road is a curvy, hilly, two-lane road, and it was raining on the day in question. Soon after the vehicle (a Volkswagon) immediately in front of her turned left onto a dirt road, plaintiff noticed another car in front of her—a station wagon operated by defendant Canela.

In her complaint, dated 28 July 1997, plaintiff alleged that "it was raining, the weather conditions were very cloudy, and visibility was poor[,]" when she first observed the station wagon. Plaintiff believed the station wagon to be moving when, in fact, it had stopped and parked in the middle of the road. The station wagon had no brake, rear, or any other type of lights operating to warn approaching traffic, and by the time plaintiff realized it was not moving, she could not bring her van to a stop, nor could she pass the vehicle because of oncoming traffic to her left. In her effort to avoid hitting defendant Canela's occupied vehicle, plaintiff attempted to swerve to the right shoulder. However, a truck, owned by defendant Camper but operated by defendant Pendergrass (Camper's employee) who lived directly across the street, was parked on the right shoulder. Seeing the truck there, plaintiff attempted to fit her van between defendant Canela's vehicle and the truck, but could not. Consequently, plaintiff hit the truck causing serious injury to herself.

Plaintiff brought her complaint against defendant Canela on the grounds that he was negligent in: carelessly and recklessly parking his car in the middle of road, willfully and wantonly disregarding the rights and safety of others, operating his vehicle with defective equipment, and creating a danger to other vehicular traffic on the highway due to the inclement weather conditions at the time. Against defendant Pendergrass, plaintiff alleged negligence in his parking the truck on the side of the road. Against defendant Camper, plaintiff imputed Pendergrass' negligence as Camper was his employer and owner of the truck.

In considering defendants' motion for summary judgment, the trial court reviewed all pleadings on file, plaintiff's deposition and attached exhibits, plaintiff's affidavit, and the affidavit of F. Darryl Barile, a photographer who later took pictures at the scene of the accident. Stating it

ha[d] determined as a matter of law that plaintiff's contributory negligence was a proximate cause of the injuries alleged ...; and

ha[d] considered plaintiff's argument that defendant Miguel Canela had the "last clear chance" to avoid the alleged accident and ha[d] determined as a matter of law that the doctrine of "last clear chance" does not apply;

the trial court granted defendants' summary judgment motion.

Plaintiff brings forward only one assignment of error, that the trial court erred in granting defendants' summary judgment motion because there were genuine issues of material fact before the court. Plaintiff argues that the trial court erred in finding as a matter of law that she was contributorily negligent and that the doctrine of last clear chance did not apply to Canela. We agree.

The North Carolina Rules of Civil Procedure provide that summary judgment will be granted "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.R. Civ. P. 56(c). The burden of establishing a lack of any triable issue resides with the movant....

"The movant may meet this burden by proving that ... the opposing party cannot... surmount an affirmative defense which would bar the claim."

Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). However, "all conflicts are resolved against the moving party[ ] ... [and this Court must] therefore view allegations in the light most favorable to plaintiff[.]" Dobson v. Harris, 134 N.C.App. 573, 580, 521 S.E.2d 710, 716, (1999). Furthermore:

As a general rule, one who has capacity to understand and avoid a known danger and fails to take advantage of that opportunity, and injury results, he is chargeable with contributory negligence, which will bar recovery. Burgess v. Mattox, 260 N.C. 305, 132 S.E.2d 577; Huffman v. Huffman, 271 N.C. 465, 156 S.E.2d 684; Tallent v. Talbert, 249 N.C. 149, 105 S.E.2d 426. In such event, [summary judgment] is proper on the theory that defendant's negligence and plaintiff's contributory negligence are proximate causes of the injury....

Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967) (emphasis added). Therefore, if no genuine issue of material fact exists as to plaintiff's having been contributorily negligent, she is precluded from any recovery based on the negligence of another party in the same accident. Id.

Applying then the doctrine of contributory negligence to the case at bar, we disagree with the trial court and defendants that plaintiff "was contributorily negligent as a matter of law." (Emphasis added.) On this issue, we find Meeks v. Atkeson, 7 N.C.App. 631, 173 S.E.2d 509 (1970) dispositive. In that case, defendant argued that plaintiff was contributorily negligent in hitting his unlighted vehicle which was "parked across both lanes of a two-lane highway, while defendant searched for his lost cat[.]" Id. at 636, 173 S.E.2d at 511. Holding that these facts were "clearly sufficient to require submission [to the jury] of an issue as to defendant's actionable negligence[,]" id., this Court reversed the trial court's granting of defendant's nonsuit, stating that: "`Judgment of involuntary nonsuit on the ground of contributory negligence should be granted...