Lonon v. Talbert

• Decision Date: 20 August 1991
• Docket Number: No. 9026SC343,9026SC343
• Citation: 103 N.C.App. 686,407 S.E.2d 276
• Parties: Robert C. LONON and Linda C. Lonon, Plaintiffs, v. Thomas Lee TALBERT, III, and the City of Charlotte, a North Carolina Municipal Corporation, Defendants.
• Court: North Carolina Court of Appeals

Page 276

407 S.E.2d 276

103 N.C.App. 686

Robert C. LONON and Linda C. Lonon, Plaintiffs, v. Thomas Lee TALBERT, III, and the City of Charlotte, a North Carolina Municipal Corporation, Defendants.

No. 9026SC343.

Court of Appeals of North Carolina.

Aug. 20, 1991.

Bailey, Patterson, Caddell & Bailey, P.A. by Jerry N. Ragan and Michael A. Bailey, Charlotte, for plaintiffs-appellees.

Frank B. Aycock, III, and Parker, Poe, Adams & Bernstein by Max E. Justice and

David N. Allen, Charlotte, for defendant-appellant City of Charlotte.

PARKER, Judge.

Plaintiffs instituted this personal injury action against defendant Talbert to recover damages arising out of a motorcycle-automobile accident at the intersection of Fairview Road with a driveway giving access to the Sears Automotive Center at Southpark Mall in Charlotte ("Sears intersection"). Later plaintiffs amended their complaint to join as a party defendant the City of Charlotte ("City"). Plaintiffs alleged that various acts by City in connection with a temporary traffic control system at the Sears intersection constituted negligence which proximately caused plaintiff Robert Lonon's injury. Upon finding both defendants negligent, a jury awarded plaintiffs the sum of $8,702,312.42. Defendant City appealed, assigning as error the denial of its motions for directed verdict, judgment notwithstanding the verdict, and new trial. We hold defendant City's motion for directed verdict and judgment notwithstanding the verdict were properly denied but award a new trial on account of error in the jury instructions.

At least as early as 1985, City's Transportation Department was aware of traffic problems and congestion on Fairview Road in the Southpark Mall area. At the Sears intersection, Fairview Road consisted of seven lanes, namely three eastbound through lanes, three westbound through lanes, and a center storage lane for left turns. Eastbound traffic was separated from westbound traffic by a narrow concrete median; an opening in the median accommodated turning traffic. The Sears intersection was not protected by a traffic control signal; but the intersections immediately to the east and west were so protected. To the west of the Sears intersection was the Barclay Downs-Telstar intersection. West of this intersection Fairview Road narrowed to four lanes. To the east of the Sears intersection was a Southpark Mall entrance intersection.

To ease congestion, City's Transportation Department planned to widen Fairview Road west of Barclay Downs-Telstar and later install a median on it from the Barclay Downs-Telstar intersection all the way east to Sharon Road. Traffic planners were also aware that during peak morning hours, left turns at the Sears intersection were dangerous: Westbound through traffic on Fairview Road, slowed by the signal at the Barclay Downs-Telstar intersection, backed up in the two inner lanes, blocking the Sears intersection; but traffic in the outer or northernmost westbound lane continued without slowing. Drivers in the two inner lanes tended to create an opening for eastbound left turning traffic to cross their path; but drivers making the turn through this opening could not see traffic approaching at speed in the northernmost westbound lane of Fairview Road, and thus a pattern of accidents developed. The speed limit on Fairview Road was thirty-five miles per hour.

Knowing Fairview Road west of Barclay Downs-Telstar would be widened and the median closed all the way to Sharon Road, City planners decided to install temporary controls which would prohibit left turns by eastbound traffic at the Sears intersection. A plan was created which included (i) using barrels to block access to the eastbound left turn lane; (ii) installing overhead signs prohibiting left turns and U-turns; and (iii) placing, in the barrels closest to the median opening, signs prohibiting both left turns and U-turns. Prohibiting U-turns was necessary because between the Sears intersection and the Barclay Downs-Telstar intersection, another driveway gave access from the northernmost westbound lane of Fairview Road into the Sears Automotive Center parking area.

The barrels, overhead signs, and barrel signs were installed in July of 1985. Although the original plan called for the two barrel signs to be mounted on separate barrels, they were in fact mounted on one barrel with the no left turn sign atop the no U-turn sign. The overhead signs were mounted on a span between two utility poles slightly to the east of the Sears intersection. These signs were approximately eighty-eight and one-half feet away from where the median opening began on the west side of the Sears intersection. The white left turn arrow on the pavement in the blocked off lane was not removed.

In November of 1985, a large truck made an illegal left turn through the Sears intersection and dragged the barrel with the two signs all the way across the westbound lanes of Fairview Road and into the parking area near the Sears Automotive Center. The accident sheared off the upper no left turn sign but left in place the lower no U-turn sign. At the time of plaintiff's accident, the no left turn sign had not been replaced. No City records showed any maintenance work at the Sears intersection between August of 1985 and November of 1986. Nevertheless, except for the accident in which the left turn sign was demolished, there was no evidence of other accidents arising from illegal left turns during the same period.

On 9 November 1986, a clear and dry Sunday, around 1:00 p.m., defendant Talbert drove to the Sears store at Southpark Mall. Inadvertently missing the left turn access to the mall at Barclay Downs-Telstar, he proceeded east on Fairview, intending to turn at the Sears intersection. The barrels described above prevented access to the left turn lane, so defendant Talbert, in the innermost eastbound through lane, drove to the end of the row of barrels, slowing and signalling for a left turn; turned left past them; and stopped at the median opening. The rear part of his 1984 Buick station wagon partially blocked the through lane from which he began his turn. He remained stopped for four to five seconds. He had seen the no U-turn sign on the barrel, but having no intention of making a U-turn, he looked for a no left turn sign. He never saw the two overhead signs to the east of the Sears intersection.

While stopped, defendant Talbert looked to the left, towards Barclay Downs-Telstar, then to the right, towards the Southpark Mall intersection, and then again to the left. He began to cross westbound Fairview Road but in the center or middle lane collided with a 1984 Honda motorcycle driven by plaintiff Robert Lonon on which plaintiff Linda Lonon was a passenger. Plaintiffs, travelling west on Fairview Road, had previously stopped for the traffic signal at the Southpark Mall intersection, approximately 220 feet west of the Sears intersection. When the traffic light was green, Robert Lonon started forward. He had reached a speed of between thirty and thirty-five miles per hour at the time of the collision, and his motorcycle headlight was burning.

All these events were witnessed by a driver whose car was immediately behind that of defendant Talbert. She testified that when she first saw the motorcycle, it was just coming through the traffic signal at the Southpark Mall entrance, moving in the middle lane of westbound Fairview Road with its headlight burning. As soon as she saw the motorcycle, she looked back at defendant Talbert's car. As he began to turn, she could see the motorcycle. Although plaintiff Robert Lonon swerved to the right, the vehicles collided in the middle lane, the front of the motorcycle striking the right front of defendant Talbert's Buick. Plaintiff Linda Lonon was thrown into the air, fell on her head, and then began crawling to where plaintiff Robert Lonon was lying beside the right front tire of defendant Talbert's car. Plaintiff Robert Lonon suffered severe injury to his back, which resulted in permanent loss of body movement from his shoulders to his feet.

City first contends it was entitled to a directed verdict, and is, therefore, entitled to a reversal of the judgment against it; because (i) City's conduct was not the proximate cause of plaintiff's injury and (ii) plaintiff failed to prove City abused its discretion in the design, installation, and maintenance of the traffic control system at the Sears intersection. In a negligence case, defendant's motions for directed verdict and judgment notwithstanding the verdict raise the same evidentiary question, namely whether the evidence, construed in the light most favorable to plaintiff and giving plaintiff the benefit of every reasonable inference, permits a finding that defendant was negligent and that his negligence proximately caused plaintiff's injury. Summey v. Cauthen, 283 N.C. 640, 648, 197 S.E.2d 549, 554 (1973).

We first address City's argument concerning abuse of discretion as the applicable standard of care and review the law pertinent to City's alleged negligence. In general, to make out a case of actionable negligence, 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.

Jordan v. Jones, 314 N.C. 106, 108, 331 S.E.2d 662, 663 (1985).

Absent a statute imposing liability, cities "acting in the exercise of police power, or judicial, discretionary, or legislative authority, conferred by their charters or by statute, and when discharging a duty imposed solely for the public benefit ... are not liable for the tortious acts of their officers or agents." Hamilton v. Hamlet, 238 N.C. 741, 742, 78 S.E.2d 770, 771 (1953)....