Bradley v. Gay, COA09-1723

• Decision Date: 03 August 2010
• Docket Number: NO. COA09-1723,No. 08 CVS 68,COA09-1723,08 CVS 68
• Parties: DANIEL ERNEST BRADLEY,Plaintiff, v. WYATT LEON GAY,Defendant.
• Court: North Carolina Court of Appeals

DANIEL ERNEST BRADLEY, Plaintiff,
v.
WYATT LEON GAY, Defendant.

NO. COA09-1723
No. 08 CVS 68

North Carolina Court Of Appeals

Filed: 3 August 2010

Thomas & Farris, P.A., by Albert S. Thomas, Jr.; and Lawyers East, by R. Alfred Patrick, for plaintiff-appellant.

Valentine, Adams, Lamar, Murray, Lewis & Daughtry, L.L.P., by Bruce L. Daughtry and Kevin N. Lewis, for defendant-appellee.

Poyner Spruill LLP, by Timothy W. Wilson, for unnamed defendant-appellee.

Appeal by plaintiff from order entered 1 October 2009 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 27 May 2010.

JACKSON, Judge.

Daniel Bradley ("plaintiff") appeals the 30 September 2009 order granting summary judgment in favor of Leon Gay ("Gay") and unnamed defendant North Carolina Farm Bureau Mutual Insurance Company, Inc. ("Farm Bureau"). For the reasons set forth below, we affirm.

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On 8 January 2 0 07, at approximately 6:00 p.m., defendant struck plaintiff with his vehicle while plaintiff stood in the middle of North Carolina Highway 30 trying to pull a wounded deer from the roadway. Plaintiff had stopped his car a few minutes earlier to assist the motorist, Edward Price ("Price"), who had hit the deer. Plaintiff parked his vehicle on the side of the road, facing east, with his headlights on. Price stood on the side of the road, watching plaintiff pick up the deer's head and attempt to drag it off the road. As plaintiff attempted to remove the deer from the middle of the road, defendant approached from the east with his headlights on, from approximately "a quarter of a mile away." Traveling down the highway, defendant saw plaintiff's headlights, but the lights obstructed his vision, and he was unable to see plaintiff in the middle of the road. Observing the headlights, defendant slowed down from the posted speed limit of fifty-five miles per hour to approximately twenty-five miles per hour, constantly applying his brakes as he came closer. The undisputed facts are that this was a straight stretch of highway and that the collision occurred on a clear evening.

While watching plaintiff in the middle of the road and upon seeing defendant's vehicle at a distance of approximately one quarter of a mile away, Price verbally warned plaintiff that defendant's car was coming towards them. Price testified in a sworn deposition that plaintiff looked up in the direction of defendant's oncoming car. Specifically, Price testified as follows:

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Q: Could you see his reaction when you told him a car was coming?

A: He looked up.

Q: Do you know which direction he looked?

A: Towards where the car was coming.

Plaintiff testified during his deposition that he saw headlights up ahead, but he assumed they belonged to other motorists keeping a lookout and that they were going to stop. Plaintiff continued to try to pull the deer from the roadway after he saw the lights. Approximately twenty to forty seconds after Price gave warning to plaintiff, defendant struck plaintiff with his vehicle. Price testified that, if plaintiff had let go of the deer and moved out of the road when he had been warned and looked up at defendant's car, plaintiff would have had time to avoid the collision. Defendant testified that he saw plaintiff only when he was four feet in front of his vehicle, and that "all at once" plaintiff went from a crouching position to a standing position. Seconds later, defendant's vehicle struck plaintiff.

On 14 January 2008, plaintiff filed a complaint against defendant for motor vehicle negligence seeking compensatory damages for the injuries he sustained in the accident. On 11 March 2008, defendant Gay filed an answer denying the allegations against him and raising the affirmative defense of contributory negligence. On 12 March 2008, defendant Farm Bureau filed an answer denying plaintiff's claims and raised the affirmative defense of contributory negligence. On 14 March 2008, plaintiff filed a reply denying the allegation of contributory negligence and claiming that

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defendant had the last clear chance to avoid the collision. On 19 June 2009, defendant Gay filed a motion for summary judgment. On 25 June 2009, defendant Farm Bureau also filed a motion for summary judgment. On 1 October 2009, the trial court entered an order granting summary judgment in favor of both Gay and Farm Bureau. Plaintiff appeals.

On appeal, plaintiff argues that trial court erred by granting summary judgment in favor of both defendants on the grounds that plaintiff did not demonstrate an adequate forecast of evidence for a prima facie case of negligence. We disagree.

The Supreme Court of North Carolina has held that "[s]ummary judgment is appropriate '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.'" Craig v. Hanover, 363 N.C. 334, 337, 678 S.E.2d 351, 353 (2009) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007)). The trial court's granting of summary judgment is reviewed de novo. Id. at 337, 678 S.E.2d at 354. "'The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim... would be barred by an affirmative defense.'" Id. (quoting Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)). A defendant in a negligence claim may be entitled to summary judgment if he or she can show "that the plaintiff cannot surmount an...