Cucina v. City of Jacksonville

• Decision Date: 16 May 2000
• Docket Number: No. COA99-364.,COA99-364.
• Citation: 138 NC App. 99,530 S.E.2d 353
• Court: North Carolina Court of Appeals
• Parties: Lisa Baker CUCINA, Plaintiff, v. CITY OF JACKSONVILLE and Dixie Faye Pickett, Defendants.

530 S.E.2d 353

138 NC App. 99

Lisa Baker CUCINA, Plaintiff, v. CITY OF JACKSONVILLE and Dixie Faye Pickett, Defendants.

No. COA99-364.

Court of Appeals of North Carolina.

May 16, 2000.

John W. Ceruzzi, Jeffrey S. Miller and Anne K. O'Connell, Jacksonville, for plaintiff-appellant.

Crossley, McIntosh, Prior & Collier, by Samuel H. MacRae, Wilmington, for defendant-appellee City of Jacksonville.

Wallace, Morris & Barwick, P.A., by P.C. Barwick, Jr. and Elizabeth A. Heath, Kinston, for defendant-appellee Dixie Faye Pickett.

JOHN, Judge.

Plaintiff Lisa Baker Cucina appeals the trial court's grant of summary judgment in favor of defendants City of Jacksonville (the City) and Dixie Faye Pickett (Pickett). We reverse the trial court.

Pertinent facts and procedural history include the following: At approximately 6:00 p.m. on 27 January 1996, plaintiff and Pickett were involved in an automobile collision. Plaintiff was traveling north on Pine Valley Road (Pine Valley) in Jacksonville while Pickett was proceeding west on Brynn Marr Road (Brynn Marr). Traffic at the intersection of the two streets was normally governed by stop signs on Brynn Marr. However, an accident at 3:00 a.m. on 27 January 1996 had resulted in the stop sign controlling west-bound traffic on Brynn Marr being knocked down. None of the parties disputes Pickett's failure to stop at the intersection and the subsequent collision between plaintiff's vehicle and that of Pickett. It is further undisputed that plaintiff, who resides on Pine Valley, was cognizant of the 3:00 a.m. incident and had observed the downed stop sign when traveling to work on the morning of 27 January 1996.

Plaintiff filed suit 3 September 1997, asserting Pickett had been negligent, inter alia, in failing to yield the right of way and by failing to keep a proper lookout. As to the City, plaintiff alleged it had been aware of the downed Brynn Marr stop sign for fifteen hours prior to the collision at issue and that it had negligently failed to conduct repairs thereto during that period of time.

Pickett filed answer 30 October 1997 asserting plaintiff's contributory negligence; plaintiff's subsequent reply alleged Pickett was accorded the last clear chance to avoid colliding with plaintiff's vehicle. The City's 3 November 1997 answer denied it had notice of the downed stop sign and further set forth immunity from suit and contributory negligence as defenses.

The City and Pickett subsequently moved for summary judgment, which motions were allowed by the trial court on 21 September and 23 September 1998 respectively. Plaintiff timely appealed.

A motion for summary judgment is properly granted when

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.G.S. § 1A-1, Rule 56(c) (1999). A defendant moving for summary judgment bears the burden of showing either that (1) an essential element of the plaintiff's claim is nonexistent; (2) the plaintiff is unable to produce evidence which supports an essential element of its claim; or, (3) the plaintiff cannot overcome affirmative defenses raised in contravention of its claims. Lyles v. City of Charlotte, 120 N.C.App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, accepting the latter's asserted facts as true, and drawing all reasonable inferences in its favor. Kennedy v. Guilford Tech. Community College, 115 N.C.App. 581, 583, 448 S.E.2d 280, 281 (1994). We first review the trial court's grant of Pickett's summary judgment motion.

The purpose of a summary judgment motion is to foreclose the need for a trial when ... the trial court determines that only questions of law, not fact, are to be decided. Summary judgment may not be used, however, to resolve factual disputes which are material to the disposition of the action.

Robertson v. Hartman, 90 N.C.App. 250, 252, 368 S.E.2d 199, 200 (1988) (citation omitted). Further, summary judgment is rarely appropriate in a negligence action. Nicholson v. American Safety Utility Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997).

In order to set out a prima facie claim of negligence against Pickett, plaintiff was required to present evidence tending to show that (1) Pickett owed a duty to plaintiff; (2) Pickett breached that duty; (3) such breach constituted an actual and proximate cause of plaintiff's injury; and, (4) plaintiff suffered damages in consequence of the breach. Davis v. Messer, 119 N.C.App. 44, 54-55, 457 S.E.2d 902, 908-09, disc. review denied, 341 N.C. 647, 462 S.E.2d 508 (1995).

Thorough review of the record reflects a genuine issue of material fact as to the negligence of Pickett. The uncontradicted evidence was that the stop sign normally controlling the street on which Pickett was traveling had been knocked down. Pickett's conduct thus "must be judged in the light of conditions confronting" her. Dawson v. Jennette, 278 N.C. 438, 446, 180 S.E.2d 121, 126-27 (1971).

N.C.G.S. § 20-155(a) (1999) provides:

When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.

As Pickett's vehicle was located on the right, she was entitled to rely upon plaintiff's statutory obligation to yield the right-of-way if the "two vehicles approach[ed] or enter[ed][the] intersection ... at approximately the same time." Id.; see Douglas v. Booth, 6 N.C.App. 156, 159-60, 169 S.E.2d 492, 495 (1969)

(where plaintiff and defendant approached intersection at approximately the same time and plaintiff "was approaching from [defendant's] left and [the latter] was approaching from plaintiff's right ..., [defendant] was entitled to rely on G.S. 20-155(a) granting the vehicle on the right the right of way when [two vehicles] approach an intersection at approximately the same time"). However, if plaintiff's vehicle

reached the intersection first and had already entered the intersection, [Pickett] was under [a duty] to permit the plaintiff's automobile to pass in safety.

Bennett v. Stephenson, 237 N.C. 377, 380, 75 S.E.2d 147, 150 (1953). In addition, Pickett's conduct was governed by the general duty required of all motorists "to keep a reasonable and proper lookout in the direction of travel and see what [they] ought to see." Keith v. Polier, 109 N.C.App. 94, 99, 425 S.E.2d 723, 726 (1993).

Viewed in the light most favorable to plaintiff, see Kennedy, 115 N.C.App. at 583,

448 S.E.2d at 281, evidence in the record indicates plaintiff's vehicle entered the intersection first and that Pickett thereby was required to yield the right-of-way, see Bennett, 237 N.C. at 380,

75 S.E.2d at 150. Plaintiff testified in her deposition that she was "almost through the intersection" when the collision occurred. In addition, plaintiff's vehicle was damaged on the passenger side while the front driver's portion of Pickett's vehicle was damaged, circumstantial evidence tending to show plaintiff's vehicle entered the intersection first and was struck by Pickett's vehicle as plaintiff was attempting to traverse the intersection. Compare Douglas, 6 N.C.App. at 160,

169 S.E.2d at 495 (damage to front of plaintiff's automobile and left front door of defendant's vehicle tended to show plaintiff had not entered intersection first).

While we acknowledge that "the right of way ... is not determined by a fraction of a second," Dawson, 278 N.C. at 445, 180 S.E.2d at 126, and that the instant case is close, the evidence viewed most favorably to plaintiff, see Kennedy, 115 N.C.App. at 583,

448 S.E.2d at 281, raises a genuine issue as to which vehicle first entered the intersection and obtained the right-of-way.

The record also reflects a genuine issue of material fact as to whether Pickett was maintaining a proper lookout. The latter testified in her deposition that

[i]t didn't look like no intersection to me.... I don't recall seeing [an intersecting street].

To conclude, therefore, a reasonable jury could find that plaintiff entered the intersection first and obtained the right-of-way, that Pickett breached the duty to yield to plaintiff or to keep a proper lookout by proceeding through the intersection, and that such breach was a proximate cause of injury to plaintiff. Plaintiff's evidence thus set out a prima facie case of negligence against Pickett, see Davis, 119 N.C.App. at 54-55,

457 S.E.2d at 908-09, and summary judgment in favor of the latter was inappropriate, see Lyles, 120 N.C.App. at 99,

461 S.E.2d at 350.

Notwithstanding, Pickett interjects a final argument, also raised by the City, claiming plaintiff was contributorily negligent as a matter of law because

she knew the stop sign controlling [Pickett's] direction of travel had been knocked down in an accident occurring earlier that morning ... [but] did not take a single precautionary measure in going through the intersection....

However, assuming arguendo the foregoing contentions sustain a factual issue as to plaintiff's contributory negligence, such negligence is not thereby established as a matter of law.

Issues of contributory negligence, like those of ordinary negligence, are ordinarily questions for the jury and are rarely appropriate for summary judgment. Only where the evidence establishes the plaintiff's own negligence so clearly that no other reasonable conclusion may be reached is summary judgment to be granted.

Nicholson, 346 N.C. at 774, 488 S.E.2d at 244 (citation omitted). It therefore remains an issue for the jury whether "a reasonably prudent person exercising ordinary care," Smith v. Wal-Mart Stores, 128 N.C.App. 282, 288, 495 S.E.2d 149, 153 (1998),...