Jordan v. Jones, 391PA84

• Decision Date: 03 July 1985
• Docket Number: No. 391PA84,391PA84
• Court: North Carolina Supreme Court
• Parties: Joseph Chester JORDAN, Administrator of the Estate of Jodie Page Jordan, Plaintiff, v. Wesley Irven JONES, Jr.; Trailways Southeastern Lines, Inc.; and Carolina Coach Company, Inc., Defendants/Third-Party Plaintiffs, v. DEPARTMENT OF TRANSPORTATION of the State of North Carolina, Third-Party Defendant.

Page 662

331 S.E.2d 662

314 N.C. 106

Joseph Chester JORDAN, Administrator of the Estate of Jodie

Page Jordan, Plaintiff, v. Wesley Irven JONES, Jr.; Trailways Southeastern Lines, Inc.; and Carolina Coach Company, Inc., Defendants/Third-Party Plaintiffs, v. DEPARTMENT OF TRANSPORTATION of the State of North Carolina,

Third-Party Defendant.

No. 391PA84.

Supreme Court of North Carolina.

July 3, 1985.

Lacy H. Thornburg, Atty. Gen., by Ralf F. Haskell, Sp. Deputy Atty. Gen., and Sandra M. King, Asst. Atty. Gen., Raleigh, for Dept. of Transp.

Myers, Ray, Myers, Hulse & Brown by John F. Ray, Charlotte, for defendants-appellants.

MEYER, Justice.

The sole question before the Court in this case is whether there exists any genuine issue of material fact concerning the DOT's alleged negligence to be submitted to a jury. We hold that defendants' forecast of the evidence raised genuine issues of material fact and that it was improper for the trial court to grant the DOT's motion for summary judgment.

To make out a case of actionable negligence the plaintiff must introduce evidence tending to show that (1) defendant failed to exercise proper care in the performance of a duty owed to plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff's injury; and (3) a person of ordinary prudence should have foreseen that plaintiff's injury was probable under the circumstances as they existed. See Pittman v. Frost, 261 N.C. 349, 134 S.E.2d 687 (1964); 9 Strong's North Carolina Index 3rd § 29 (1977). Summary judgment is proper when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Baumann v. Smith, 298 N.C. 778 260 S.E.2d 626 (1979). Although summary judgment is a useful tool in expediting the trial of cases and disposing of unfounded claims it is a drastic measure and should be used with caution, especially in a negligence case. Williams v. Carolina Power and Light Co., 296 N.C. 400, 250 S.E.2d 225 (1979).

Our examination of the record reveals that there are genuine and material issues of fact as to whether the DOT was negligent and whether its negligence was a proximate cause of the accident.

Defendant Jones, driver of the bus, testified that the "stop" sign was considerably further to the right of the intersection than is normal. John Davis, regional safety director for defendant Trailways, testified by deposition that the "stop" sign facing traffic traveling north on Bethel Road, the direction defendant's bus was traveling, was not clearly visible and was located further from the road than is normal. Defendant Jones was traveling the road for the first time on the day of the accident and testified that he did not see the "stop" sign. All of this testimony was uncontradicted.

The Manual of Uniform Traffic Control Devices, U.S. Department of Transportation, Federal Highway Administration (1978), cited by the Court of Appeals in its decision, requires full signalization of an intersection when five or more accidents involving personal injury or property damage of one hundred dollars or more have...