Lavelle v. Schultz
| Decision Date | 21 November 1995 |
| Docket Number | No. COA94-1316,COA94-1316 |
| Parties | Stacey LAVELLE, and husband, Allen Lavelle, Plaintiff-Appellants, 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. |
| Court | North Carolina Court of Appeals |
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.
Anderson, Broadfoot, Johnson, Pittman, Lawrence & Butler by T. Alan Pittman, Fayetteville, for defendant-appellee United Realty of Fayetteville, Inc.
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 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. Cobb, 105 N.C.App. 64, 411 S.E.2d 651 (1992). Plaintiff alleges that the Town was negligent in failing to keep its streets in proper repair, failing to keep its streets free from unnecessary obstructions, maintaining an alleged dangerous condition on its streets, and failing to reasonably inspect its streets.
At the time of plaintiff's accident, the Town was subject to N.C.Gen Stat. § 160A-296 which establishes a municipality's duty concerning streets:
A city shall have general authority and control over all public streets, sidewalks, alleys, bridges, and other ways of public passage within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation. General authority and control includes but is not limited to:
(2) The duty to keep the public streets, sidewalks, alleys, and bridges open for travel and free from unnecessary obstructions.
N.C.Gen Stat. § 160A-296 (1994).
Plaintiff contends that this statute created an affirmative duty on the Town to keep the intersection of Spinner Road and Metric Drive free from unnecessary obstructions. In support of this argument plaintiff relies on Cooper v. Town of Southern Pines, 58 N.C.App. 170, 293 S.E.2d 235 (1982). In Cooper, the Town planted and maintained shrubbery in an area bordering both sides of the railroad tracks. Plaintiff testified that her view of the tracks was obstructed by the shrubbery. Id. at 174, 293 S.E.2d at 237. Under those facts, this Court held that the trial court erred in directing a verdict in favor of the defendants. Id. The Court noted that N.C.Gen.Stat. § 160A-296 specifically creates a duty to keep public streets free from obstructions. However, the facts in our case can clearly be distinguished from Cooper. Unlike Cooper where the Town planted and maintained the shrubbery which obstructed plaintiff's view of the tracks, in the present case, the tree was planted and maintained on private property.
The facts in our case more closely resemble those in Bowman v. Town of Granite Falls, 21 N.C.App. 333, 204 S.E.2d 239 (1974). In Bowman, the plaintiff sued the town for damages sustained to plaintiff's vehicle when a tree fell on it. The court held that the tree which fell on pla...
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