Johnson v. Skinner

• Decision Date: 19 June 1990
• Docket Number: No. 8911SC684,8911SC684
• Citation: 99 N.C.App. 1,392 S.E.2d 634
• Court: North Carolina Court of Appeals
• Parties: John E. JOHNSON v. Joann M. SKINNER, Administratrix of the Estate of Thomas E. Cumberworth Skinner, John Raphael Green, and P.M. Concepts, Inc. d/b/a Toyota Sanford.

Page 634

392 S.E.2d 634

99 N.C.App. 1

John E. JOHNSON v. Joann M. SKINNER, Administratrix of the Estate of Thomas E Cumberworth Skinner, John Raphael Green, and P.M Concepts, Inc. d/b/a Toyota Sanford.

No. 8911SC684.

Court of Appeals of North Carolina.

June 19, 1990.

Love & Wicker by Dennis A. Wicker, Sanford, for plaintiff-appellee.

Robert C. Bryan, Dunn, for defendant-appellant, P.M. Concepts, Inc. d/b/a Toyota Sanford.

Van Camp, West, Webb & Hayes by Stanley W. West and W. Carole Holloway, Pinehurst, for defendants-appellants Joann M. Skinner and John Raphael Green.

ARNOLD, Judge.

Defendants' first two assignments of error concern the liability of Green and Toyota based on their violation of a statute. The parties stipulated that defendant Skinner had been negligent in his operation of the automobile. Concerning the liability of Green and Toyota, the case went to the jury based on an alleged violation of N.C.Gen.Stat. § 20-79(d) (1987), which at the time of the accident provided:

No manufacturer or dealer in motor vehicles, trailers or semitrailers shall cause or permit any such vehicle owned by such person or by any person in his employ, which is in the personal use of such person or employee, to be operated or moved upon a public highway with a "dealer" plate attached to such vehicle.

Id. (A 1989 amendment, effective 1 October 1989, rewrote subsection (d). The amendment is not applicable to this litigation. See N.C.Gen.Stat. § 20-79 (1989)). Violation of this statute could result in a misdemeanor conviction and the imposition of a fine of not less than $100 or more than $1,000. N.C.Gen.Stat. § 20-79(a). The trial judge determined that the statute was a safety statute and violation of it, negligence per se.

First, Green argues that N.C.Gen.Stat. § 20-79(d) does not apply to him because he is not a "manufacturer" or "dealer" in motor vehicles. His argument is unconvincing. Toyota is a corporation, an artificial entity, which cannot itself actually "cause or permit" the attachment of dealer tags in violation of the statute. For a corporate dealer like Toyota to violate N.C.Gen.Stat. § 20-79(d), some agent or employee must cause or permit the attachment of the tags. Green, as an individual and an agent of Toyota and with the knowledge and permission of the corporation, attached the tags to his personal automobile. In this context, the statute applies.

All defendants next argue that N.C.Gen.Stat. § 20-79(d) is not a safety statute. The trial court instructed that a violation of the statute would constitute "negligence within itself." Defendants contend the statute is only a revenue measure, and a violation of the statute therefore is not negligence per se. Defendants note that courts in other jurisdictions have found dealer tag statutes to be revenue, rather than safety statutes. Cambron v. Cogburn, 116 Ga.App. 373, 157 S.E.2d 534 (1967); Burke v. Auto Mart, 37 N.J.Super. 451, 117 A.2d 624 (1955). Nevertheless, North Carolina courts have expressly stated that N.C.Gen.Stat. § 20-79(d) is a safety statute. In Kraemer v. Moore, 67 N.C.App. 505, 313 S.E.2d 610, review denied, 311 N.C. 758, 321 S.E.2d 137 (1984), Judge Braswell wrote:

Many jurisdictions, including North Carolina and now Massachusetts, have safety statutes which make it unlawful for a dealer to permit any person or employee to operate a vehicle for personal use with a "dealer" tag plate attached.

Kraemer, 67 N.C.App. at 508, 313 S.E.2d at 612-613. This language is clear and unambiguous and not an inadvertent use of the term "safety" as defendants suggest.

Defendants' next assignment of error presents the main and very difficult issue in this case--the proximate cause of the accident. They contend that illegally lending a dealer tag to an employee which facilitates the use of an automobile cannot be the proximate cause of a subsequent accident. They urge, as a matter of law, that the violation of the dealer tag statute cannot be the proximate cause of plaintiff's injuries. In determining whether there was sufficient evidence for the trial court to find defendants negligent, the question is whether the evidence when taken in the light most favorable to the plaintiff either failed to establish a prima facie case of negligence on the part of Green and Toyota, or whether the evidence established beyond question that the negligence of Green or Toyota was insulated as a matter of law by the intervening negligence of Skinner.

It is the jury's domain, under appropriate instructions from the court, to apply the standard of the reasonable person to the facts in order to determine what was the proximate cause of the aggrieved party's injuries. Williams v. Smith, 68 N.C.App. 71, 314 S.E.2d 279, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984). "It 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. But that is rarely the case." Conley v. Pearce-Young-Angel Co.; Rutherford v. Pearce-Young-Angel Co., 224 N.C. 211, 214, 29 S.E.2d 740, 742 (1944). "Proximate cause is a cause which in natural and continuous sequence, unbroken by any new or 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 consequences of a generally injurious nature, was probable under all the facts as they existed." Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984). Thus it is axiomatic that proximate cause requires foreseeability. Wiggins v. Paramount Motor Sales, 89 N.C.App. 119, 365 S.E.2d 192 (1988).

The test of foreseeability does not require that defendant must foresee the injury in the precise form in which it occurred. All that the plaintiff is required to prove in establishing proximate cause is that in "the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected." Hairston, 310 N.C. at 234, 311 S.E.2d at 565 (citations omitted); see generally, Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L.Rev. 951 (1973).

In Hairston, a deceased motorist's wife brought a wrongful death action against an automobile dealership and the driver of a flatbed truck. The truck driver had negligently struck a van that was parked on the edge of the interstate behind the decedent's vehicle. The decedent was standing between the van and his own automobile when the collision occurred, and he was crushed to death between the two vehicles. Hairston at 231, 311 S.E.2d at 564. Just prior to the accident, the decedent had purchased his automobile from the dealership. Before leaving the sales lot, the dealer had changed the wheels on decedent's new vehicle, but the dealer's mechanic had failed to tighten the lug nuts on one wheel. Id. at 230, 311 S.E.2d at 563. The decedent traveled several miles from the dealership when the left rear wheel came off. He pulled over to the edge of the interstate and moments later the accident occurred. Id. at 231, 311 S.E.2d at 564.

The jury in Hairston found the driver who operated the flatbed truck and the automobile dealership liable, but the trial judge allowed the dealer's motion for judgment notwithstanding the verdict. We upheld the ruling, finding that although the dealership was negligent in failing to tighten the lug bolts on the wheel, the acts of negligence were not the proximate cause of the death of the plaintiff's intestate, and that such negligent acts of the dealership were insulated by the subsequent negligent acts of the truck driver. See id. at 232, 311 S.E.2d at 564. The Supreme Court reversed. Writing in Hairston, Justice Martin stated:

The law requires only reasonable prevision. A defendant is not required to foresee events which are merely possible but only those which are reasonably foreseeable.

We note, however, that the law of proximate cause does not always support the generalization that the misconduct of others is unforeseeable. The intervention of wrongful conduct of others may be the very risk that defendant's conduct creates. In the absence of anything which should alert him to the danger, the law does not require a defendant to anticipate specific acts of negligence of another. It does, however, fix him with notice of the exigencies of traffic, and he must take into account the prevalence of that "occasional negligence which is one of the incidents of human life."

Hairston at 234, 311 S.E.2d at 565 (citations omitted and emphasis added). In the case sub judice, the jury was asked to decide whether plaintiff was injured or damaged as a proximate result of defendants' negligence. The court instructed that to hold that the violation of the dealer tag statute was a proximate cause of plaintiff's injury, the jury must find that plaintiff's injury, or at least some similar injurious result, was foreseeable, and that by facilitating the use of the Pontiac by placing dealer tags on it, defendants created a safety risk to the public, greater than would exist otherwise, from the fact that the vehicle had dealer plates on it.

Defendants argue that Kraemer v. Moore, 67 N.C.App. 505, 313 S.E.2d 610 (1984), controls here. In Kraemer, an automobile dealership's employee placed a dealer tag on his personal vehicle. Plaintiff was injured when a ladder the employee had attached to his vehicle came unfastened, flew off and struck plaintiff as he walked along the road. Id. at 506, 313 S.E.2d at 611. Plaintiff obtained a judgment against the employee and then brought an action against the dealer, but this Court refused to hold the company liable. Nevertheless, proximate cause was not the question before us in Kraemer; instead, the issue was one of insurance. Id. We did not rule...