Green v. Dixon

• Decision Date: 04 April 2000
• Docket Number: No. COA99-131.,COA99-131.
• Citation: 528 S.E.2d 51,137 NC App. 305
• Court: North Carolina Court of Appeals
• Parties: Phylencia GREEN and husband, Roy Green, Plaintiffs, v. Esau Roosevelt DIXON and J.M.X., Incorporated, Defendants and Third-Party Plaintiffs, v. Antoinette Padilla Toler, State of North Carolina, ex rel. NCDOT, Rea Construction Company, and Protection Services, Inc., Third-Party Defendants.

528 S.E.2d 51

137 NC App. 305

Phylencia GREEN and husband, Roy Green, Plaintiffs, v. Esau Roosevelt DIXON and J.M.X., Incorporated, Defendants and Third-Party Plaintiffs, v. Antoinette Padilla Toler, State of North Carolina, ex rel. NCDOT, Rea Construction Company, and Protection Services, Inc., Third-Party Defendants.

No. COA99-131.

Court of Appeals of North Carolina.

April 4, 2000.

McDaniel, Anderson & Stephenson, L.L.P., by John M. Kirby and William E. Anderson, Raleigh, for Defendant-Appellants.

North Carolina Department of Justice, by E. Harry Bunting, for Third-Party Defendant Appellees, North Carolina Department of Transportation.

Yates, McLamb & Weyer, L.L.P., by Rodney E. Pettey, Raleigh, for Third-Party Defendant Appellees, Rea Construction Company.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by James D. Blount, Jr. and Deanna L. Davis, Raleigh, for Third-Party Defendant Appellees, Protection Services, Inc.

EAGLES, Chief Judge.

These two civil actions, Green v. Dixon and its companion case, Davis v. J.M.X., ___ N.C.App. ____, 528 S.E.2d 56 (2000), relate to a multi-vehicle accident which occurred in Durham County on Friday, 23 August 1996. Plaintiff Phylencia Green was a passenger in a John Umstead Hospital van which was transporting nine patients and four hospital staff persons to Butner, North Carolina. Around 5:30 p.m., the van was involved in a five-vehicle accident on northbound I-85 in a construction zone close to the Glenn School Road overpass. The parties dispute whether the van was stopped or whether the van in traffic cut in front of a tractor trailer owned by Defendant J.M.X., Incorporated ("J.M.X.") and operated by Defendant Esau Roosevelt Dixon ("Dixon"). The van was struck from behind by the tractor trailer. Seven patients in the van died as a result of the accident. Two other patients were injured. Phylencia Green and three other staff members sustained personal injuries. Mr. and Mrs. Green brought this suit alleging personal injuries on the part of Mrs. Green, and loss of consortium on the part of Mr. Green.

J.M.X. and Dixon brought third-party complaints against the driver of the van, Antoinette Toler, and against Rea Construction Company ("Rea"), Protection Services, Inc. ("P.S.I."), and the State of North Carolina, ex rel NCDOT ("NCDOT"). Rea was NCDOT's contractor for this construction project, and P.S.I. was Rea's subcontractor. The third-party plaintiffs alleged that Ms. Toler was negligent in operating the hospital van, and that improper roadway traffic control and signage on the part of NCDOT, Rea, and P.S.I. contributed to the accident by failing to give proper warning of the lane merge. The traffic signs posted for the northbound motorists included a sign reading "Left Lane Closed Ahead" without an attached sign posting a 45 m.p.h. speed limit, as required by NCDOT standards. Additionally, third-party plaintiffs contended that the warning signs should have been located a greater distance from the lane taper.

In 1998, the third-party defendants NCDOT, Rea, and P.S.I. moved for summary judgment in this case. The third-party defendants had previously moved for and obtained summary judgment in four other cases arising out of the same accident. These four cases are the subject of the appeal in the companion case, COA99-332. Here, Judge Robert H. Hobgood allowed the third-party defendants' motions for summary judgment based on res judicata. The trial court certified the case for immediate appeal pursuant to Rule 54(b).

We first consider whether the trial court erred in concluding that the summary judgments involved in COA99-332 constitute res judicata requiring summary judgment here. Summary judgment is properly 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.G.S. § 1A-1, Rule 56(c). The evidence is viewed in the light most favorable to the non-moving party. See Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C.App. 505, 507, 317 S.E.2d 41, 42 (1984), aff'd, 313 N.C. 488, 329 S.E.2d 350 (1985). The movant bears the burden of proving the absence of any genuine issue of material fact. See Holley v. Burroughs Wellcome Co., 318 N.C. 352, 355, 348 S.E.2d 772, 774 (1986).

The essential elements of res judicata are: (1) a final judgment on the merits in an earlier lawsuit; (2) an identity of the cause of action in the prior suit and the later suit; and (3) an identity of parties or their privies in both suits. See Hogan v. Cone Mills Corp., 315 N.C. 127, 135, 337 S.E.2d 477, 482 (1985). "Under the doctrine of res judicata, a final judgment on the merits in a prior action in a court of competent jurisdiction precludes a second suit involving the same claim between the same parties or those in privity with them." Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993) (citing Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986)). The doctrine of res judicata is based on two policy considerations: "(1) that each person have his day in court to completely adjudicate the merits of his claim for relief, and (2) that the courts must demand an end to litigation when a claimant has exercised his right and a court of competent jurisdiction has ruled on the merits of his right." Blake v. Norman, 37 N.C.App. 617, 624, 247 S.E.2d 256, 261, disc. review denied, 296 N.C. 106, 250 S.E.2d 35 (1978). When a court of competent jurisdiction has reached a decision on facts in issue, neither of the parties are allowed to call that decision into question and have it tried again. See Baum v. Golden, 83 N.C.App. 218, 222, 349 S.E.2d 625, 627 (1986), disc. review denied, 319 N.C. 102, 353 S.E.2d 104 (1987).

We first analyze the granting of summary judgment in favor of Rea and P.S.I. Here, the third-party plaintiff appellants argue that the none of the three elements of res judicata are established. First, the appellants contend that the causes of action in the instant case and in COA99-332 are not identical because COA99-332 involves contribution claims for different plaintiffs than the contribution claims here.

We conclude that this element of res judicata is satisfied. The causes of action between the third-party plaintiffs and the third-party defendants in this case are identical to those in COA99-332. In Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269 (1949), the North Carolina Supreme Court held that third-party plaintiffs bringing contribution claims were bound by an earlier judgment under res judicata, regardless of the difference in the identity of original plaintiffs in the two suits. See id. at 357, 53 S.E.2d at 272. See also Streater v. Marks, 267 N.C. 32, 38, 147 S.E.2d 529, 534 (1966); Herring v. Queen City Coach Co., 234 N.C. 51, 53, 65 S.E.2d 505, 507 (1951).

The North Carolina Supreme Court reached a similar conclusion in Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345 (1953). In Stansel, a truck and automobile were involved in a collision which resulted in the death of a passenger in the automobile. The driver of the automobile, Mrs. Austin, was denied recovery from the driver of the truck because of her negligence. Later, when the truck driver was sued for wrongful death, he filed a claim for contribution against Mrs. Austin. The Court held that the earlier judgment was res judicata on the question of Mrs. Austin's negligence. The Court stated:

There is no doubt that a final judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court.

Stansel, 237 at 154, 74 S.E.2d at 350 (quoting Current v. Webb, 220 N.C. 425, 428, 17 S.E.2d 614, 616 (1941)).

Here, although the original plaintiffs are different, the accident at issue is the same, and the allegations of negligence as between the third-party plaintiffs and third-party defendants are the same. The negligence claims in all of the cases against the third-party defendants are based on the allegedly improper placement of the road construction signs. In each case, J.M.X. and Dixon alleged that the third-party defendants were negligent because the road construction signs were deficient and that this deficiency was the proximate cause of the multi-vehicle accident.

"It is elementary and fundamental that every person is entitled to his day in court to assert his own rights or to defend against their infringement." See Queen City Coach Co. v. Burrell, 241 N.C. 432, 436, 85 S.E.2d 688, 692 (1955). Here, J.M.X. and Dixon have already had their day in court against the third-party defendants. These third-party plaintiffs have had an opportunity to participate fully in the determination of their claims against the third-party defendants.

We note that the appellants argue that the two cases have different causes of action because the multi-vehicle collision involved different issues of causation of personal injury from the multiple vehicular impacts. See Johnson v. Petree, 4 N.C.App. 20, 165 S.E.2d 757 (1969). However, the facts indicate that the plaintiff in this case, Mrs. Green, was a passenger in the Umstead hospital van and that Thelma Bittings was also a passenger in the van. The administratrix of the Bittings estate is a plaintiff in COA99-332. Because both women were passengers in the same vehicle, the proximate cause issue would be the same. For the foregoing reasons, we conclude that the causes of action between the third-party plaintiffs and the...