Carrington v. Emory

• Decision Date: 17 October 2006
• Docket Number: No. COA05-1574.,COA05-1574.
• Citation: 635 S.E.2d 532
• Parties: Frances CARRINGTON, Plaintiff, v. Rebecca Bowen EMORY, Defendant.
• Court: North Carolina Court of Appeals

635 S.E.2d 532

Frances CARRINGTON, Plaintiff, v. Rebecca Bowen EMORY, Defendant.

No. COA05-1574.

Court of Appeals of North Carolina.

October 17, 2006.

Appeal by plaintiff from judgment entered 1 July 2005 by Judge W. Osmond Smith, III in Durham County Superior Court. Heard in the Court of Appeals 21 August 2006.

The Law Office of James Scott Farrin, by Kenneth M. Gondek, Durham, for plaintiff-appellant.

Bryant, Patterson, Covington, Idol & Lewis, P.A., by David O. Lewis, Durham, for defendant-appellee.

MARTIN, Chief Judge.

Plaintiff, Frances Carrington, brought this action seeking money damages for personal injury and property damage allegedly sustained when her motor vehicle collided with one operated by defendant, Rebecca Emory, on 4 June 2003. Plaintiff alleged the collision occurred as a result of negligence on defendant's part; defendant denied plaintiff's allegations and asserted plaintiff's contributory negligence as an affirmative defense.

Briefly summarized only to the extent necessary to discuss plaintiff's contentions on appeal, the evidence at trial tended to show that on 4 June 2003, at around 8:00 a.m., plaintiff and defendant were both traveling on Roxboro Road in Durham. It had rained earlier in the morning. Roxboro Road has two lanes of traffic in both directions and a left turn lane at the intersection of Roxboro and Olympic in both directions. Plaintiff was traveling in the left northbound lane. Defendant was traveling south and, immediately before the collision, moved into the left turn lane at the intersection of Roxboro and Olympic. Though the parties offered conflicting evidence as to some of the facts related to the accident, their evidence is consistent that defendant began her left turn as plaintiff approached. Seeing plaintiff approach, defendant ultimately stopped her car partially within plaintiff's lane. Plaintiff swerved her vehicle to the left. The right rear panel of plaintiff's car struck the right front corner of defendant's car.

At the charge conference, plaintiff requested a jury instruction on the doctrine of sudden emergency. The trial judge denied plaintiff's request, saying "I think both of you can argue that the applicable law, even without that charge, is what is reasonable under the circumstances." The jury found defendant negligent and plaintiff contributorily negligent. Pursuant to N.C.G.S. 1A-1, Rule 59, plaintiff moved for a new trial on the grounds that the trial court had erred in denying her request for an instruction on the doctrine of sudden emergency. The motion was denied. Plaintiff appeals. We reverse and order a new trial.

A trial court must instruct the jury on the law with regard to every substantial feature of a particular case. Mosley & Mosley Builders, Inc. v. Landin Ltd., 87 N.C.App. 438, 445, 361 S.E.2d 608, 612 (1987). To prevail on the issue of error in refusing a request to instruct the jury on a particular instruction, plaintiff must demonstrate:

(1) the requested instruction was a correct statement of law and (2) was supported by the evidence, and that (3) the instruction given, considered in its entirety, failed to encompass the substance of the law requested and (4) such failure likely misled the jury.

Liborio v. King, 150 N.C.App. 531, 534, 564 S.E.2d 272, 274 (2002).

Under the first element, the jury instruction requested was a correct statement of the law. Plaintiff requested North Carolina Pattern Jury Instruction 104.40 on the doctrine of sudden emergency. See N.C.P.I. Civ. 104.40 (Motor Vehicle Volume). Jury instructions in accord with a previously approved pattern jury instruction provide the jury with an understandable explanation of the law. State v. Anthony, 354 N.C. 372, 395, 555 S.E.2d 557, 575 (2001).

Essential to the analysis of the second element, whether the charge requested was supported by the evidence, the evidence must be considered in the light most favorable to the party requesting the jury instruction. Long v. Harris, 137 N.C.App. 461, 467, 528 S.E.2d 633, 637 (2000); see also Bolick v. Sunbird Airlines, Inc., 96 N.C.App. 443, 448-49, 386 S.E.2d 76, 79 (1989), aff'd, 327 N.C. 464, 396 S.E.2d 323 (1990).

To receive a jury instruction on sudden emergency, plaintiff must present substantial evidence showing, first, she perceived an emergency situation and reacted to it, and second, the emergency was not created by plaintiff's negligence. Long, 137 N.C.App. at 467, 528 S.E.2d at 637. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Banks v. McGee, 124 N.C.App. 32, 34, 475 S.E.2d 733, 734 (1996) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). An emergency situation has been defined as that which compels a party to "act instantly to avoid a collision or injury." Holbrook v. Henley, 118 N.C.App. 151, 154, 454 S.E.2d 676, 678 (1995) (quoting Keith v. Polier, 109 N.C.App. 94, 98-99, 425 S.E.2d 723, 726 (1993)). "[A] sudden emergency arises in most, if not all, motor vehicle collisions, but the doctrine of sudden emergency is applicable only when there arises from the evidence in the case an issue of negligence by an operator after being confronted by the emergency." White v. Greer, 55 N.C.App. 450, 453-54, 285 S.E.2d 848, 851 (1982).

As to the perception and reaction to an emergency situation, plaintiff presented evidence that on initially seeing defendant's car she did not believe defendant was going to stop before turning. Plaintiff applied her brakes and reduced her speed. Plaintiff saw defendant's car stop within the turn lane, outside of plaintiff's lane of travel. Plaintiff proceeded forward, accelerating to regain speed. After this first stop, defendant then advanced to start turning across the road before coming to a second stop. At this point, the front third of defendant's car was stopped in plaintiff's lane of travel. Plaintiff testified that this second stop occurred when plaintiff was almost at the intersection. In addition, plaintiff indicated that she could not stop her car in time to avoid hitting defendant's car. Plaintiff swerved as a reaction to defendant's car impeding her lane of travel. She testified that the maneuver was taken in an attempt to avoid a head-on collision. Plaintiff provided substantial evidence that she perceived an emergency situation and reacted to it.

As to whether plaintiff negligently created the emergency, the defendant contends that plaintiff failed to maintain both a proper lookout and control of her vehicle. For the sudden emergency doctrine to be improper on this point, the evidence suggesting plaintiff brought about or contributed to the emergency through her negligence must be strong enough to preclude the potential for substantial evidence to the contrary. See Day v. Davis, 268 N.C. 643, 647, 151 S.E.2d 556, 559 (1966) (applying the sudden emergency doctrine under similar facts and leaving defendant's allegations of...