Lavelle v. Schultz, COA94-1316
| Docket Nº | No. COA94-1316 |
| Citation | 120 N.C.App. 857, 463 S.E.2d 567 |
| Case Date | November 21, 1995 |
| Court | Court of Appeal of North Carolina (US) |
Page 567
v.
David B. SCHULTZ and wife Karen C. Schultz; Town of Hope
Mills, a Municipal Corporation; and United Realty
of Fayetteville, Inc., a Corporation,
Defendant-Appellees.
Mast, Morris, Schulz & Mast by Charles D. Mast and George B. Mast, Smithfield, for plaintiff-appellants.
Walker, Barwick, Clark & Allen, L.L.P. by Jerry A. Allen, Jr., Goldsboro, for defendant-appellees David B. Schultz and Karen C. Schultz.
Bailey & Dixon L.L.P. by Gary S. Parsons and Kenyann G. Brown, Raleigh, for defendant-appellee Town of Hope Mills.
Page 569
Anderson, Broadfoot, Johnson, Pittman, Lawrence & Butler by T. Alan Pittman, Fayetteville, for defendant-appellee United Realty of Fayetteville, Inc.
WALKER, Judge.
This action arises out of an accident that occurred on 23 April 1990 in the Town of Hope Mills, North Carolina (the Town) at the intersection of Spinner Road and Metric Drive. The accident involved two vehicles, one operated by the plaintiff, Stacey Lavelle, and the other operated by Judy Wagner. At the time of the accident, the defendants, David and Karen Schultz (the Schultzes), owned a house [120 N.C.App. 859] at 5937 Spinner Road which was on the corner of the intersection where the accident occurred. The Schultzes rented the house to Jerry White through their rental agent, United Realty of Fayetteville, Inc. (United Realty).
At this time, Spinner Road and Metric Drive were public streets maintained by the Town. Located on the Schultzes' property at this intersection was a tree, a few feet outside of the right-of-way of the Town.
On the morning of the accident, the weather was clear and sunny. While taking her children to school, plaintiff stopped at the stop sign on Metric Drive, preparing to turn onto Spinner Road. Plaintiff testified that her view to the right on Spinner Road was obstructed by the Schultzes' tree. Plaintiff stated that as she pulled her vehicle forward past the stop sign in an effort to check for traffic, she was struck by Ms. Wagner's vehicle. In her deposition, plaintiff stated that Ms. Wagner was in plaintiff's lane of travel at the time of impact.
Ms. Wagner testified that as she was turning left onto Metric Drive the sun blinded her, causing her to make too sharp a turn, cross the center line, and strike plaintiff's car in plaintiff's lane of travel. Ms. Wagner also testified that the Schultzes' tree was not a factor in her inability to see the plaintiff's car at the time of the accident.
Plaintiff filed this action seeking to recover damages from defendants for injuries suffered as a result of the accident. All three defendants filed motions for summary judgment which were granted. Plaintiff argues that the trial court erred in granting summary judgment for all three defendants.
Pursuant to Rule 56, of the North Carolina Rules of Civil Procedure, a moving party is entitled to summary judgment if there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56 (1990). Even though summary judgment is seldom appropriate in a negligence case, summary judgment may be granted in a negligence action where there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence. Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983). See Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985).
In order to survive a motion for summary judgment, plaintiff must establish a prima facie case of negligence by showing: (1) that defendant failed to exercise proper care in the performance of a duty owed [120 N.C.App. 860] 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. Talian v. City of Charlotte, 98 N.C.App. 281, 283, 390 S.E.2d 737, 739 (1990), aff'd per curiam, 327 N.C. 629, 398 S.E.2d 330 (1990). See Westbrook v....
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