Hester v. Miller

• Decision Date: 05 June 1979
• Docket Number: No. 7810SC745,7810SC745
• Citation: 255 S.E.2d 318,41 N.C.App. 509
• Court: North Carolina Court of Appeals
• Parties: Virgie M. HESTER v. James Albin MILLER, Christopher Edward Miller, an infant, Joy Mayo Ipock and David Gentry Ipock.

Page 318

255 S.E.2d 318

41 N.C.App. 509

Virgie M. HESTER v. James Albin MILLER, Christopher Edward Miller, an infant, Joy Mayo Ipock and David Gentry Ipock.

No. 7810SC745.

Court of Appeals of North Carolina.

June 5, 1979.

Johnson, Gamble & Shearon by Samuel H. Johnson, Raleigh, for plaintiff-appellant.

Ragsdale, Liggett & Cheshire by Peter M. Foley, Raleigh, for defendants-appellees.

CLARK, Judge.

Plaintiff contends that the court erred in granting defendants' motion for summary judgment, since there are material issues of fact as to whether Joy Mayo Ipock negligently failed to provide a turn signal, and whether such negligence was a proximate cause of the automobile accident. Defendants contend that, even assuming that Joy Mayo Ipock was negligent, that her negligence was not the proximate cause of the accident since her negligence was completely insulated by the negligence of Christopher Edward Miller in following the Hester vehicle too closely and in failing to maintain a proper lookout.

Summary judgment is appropriate only when the moving party establishes that there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law. Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101 (1970). It is only in the exceptional negligence case, however, that summary judgment is appropriate. " . . . This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury . . . to apply the standard of the reasonably prudent man to the facts of the case in order to determine where the negligence, if any, lay and what was the proximate cause of the aggrieved party's injuries. . . ." Robinson v. McMahan, 11 N.C.App. 275, 280, 181 S.E.2d 147, 150, Cert. denied, 279 N.C. 395, 183 S.E.2d 243 (1971).

Proximate cause has been defined as a "cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable . . .." 9 Strong's N.C.Index 3d Negligence § 8, at 363 (1977); Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968).

There may be more than one proximate cause of an injury. It is not required that the defendants' negligence be the sole proximate cause of injury, or the last act of negligence. See Batts v. Faggart, 260 N.C. 641, 133 S.E.2d 504 (1963); Richardson v. Grayson, 252 N.C. 476, 113 S.E.2d 922 (1960). In order to hold the defendant liable, it is sufficient if his negligence is one of the proximate causes. McEachern v. Miller,268 N.C. 591, 151 S.E.2d 209 (1966); Bechtler v. Bracken, 218 N.C. 515, 11 S.E.2d 721 (1940).

In order to insulate the negligence of one party, the intervening negligence of another must be such as to break the sequence or causal connection between the negligence of the first party and the injury. The intervening negligence must be the Sole proximate cause of the injury. Rattley v. Powell, 223 N.C. 134, 25 S.E.2d 448 (1943). In cases involving rear-end collisions between a vehicle slowing or stopping on the road without proper warning signals, and following vehicles, the test most often employed by North Carolina courts is foreseeability. The first defendant is not relieved of liability unless the second independent act of negligence could not reasonably have been foreseen. See McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972); Byrd and Dobbs, Survey of North Carolina Case Law, Torts, 43 N.C.L.Rev. 906, 927-30 (1965). See Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L.Rev. 951 (1973). The foreseeability standard should not be strictly applied. It is not necessary that the whole sequence of events be foreseen, only that some injury would occur.

Since "(p)roximate cause is an inference of fact . . . (i)t is only when the facts are all admitted and Only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not." Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 214, 29 S.E.2d 740, 742 (1944); Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360 (1960). The question of intervening and...