McCauley v. Thomas

• Decision Date: 07 July 2015
• Docket Number: No. COA14–1366.,COA14–1366.
• Citation: 774 S.E.2d 421
• Parties: Kelly Nicole McCAULEY, Plaintiff, v. Steven Eugene THOMAS, by and through PROGRESSIVE UNIVERSAL INSURANCE COMPANY, Intervenor, Defendant.
• Court: North Carolina Court of Appeals

774 S.E.2d 421

Kelly Nicole McCAULEY, Plaintiff

v.Steven Eugene THOMAS, by and through PROGRESSIVE UNIVERSAL INSURANCE COMPANY, Intervenor, Defendant.

No. COA14–1366.

Court of Appeals of North Carolina.

July 7, 2015.

Brent Adams & Associates, Raleigh, by Brenton D. Adams, for plaintiff-appellant.

Teague, Rotenstreich, Stanaland, Fox & Holt, P.L.L.C., Greensboro, by Kenneth B. Rotenstreich, for defendant-appellee.

Opinion

McCULLOUGH, Judge.

Kelly Nicole McCauley (“plaintiff”) appeals from the trial court's order granting a directed verdict in favor of Steven Eugene Thomas (“defendant”) and intervenor Progressive Universal Insurance Company (“Progressive”) upon finding that plaintiff was grossly contributorily negligent as a matter of law. We reverse.

I. Background

Plaintiff initiated this action against defendant on 4 October 2013 in Lee County Superior Court to recover for injuries she sustained in a single vehicle automobile accident allegedly caused by defendant's negligence. Specifically, plaintiff alleged the following:

3. That on January 18, 2012 at approximately 11:44 p.m., the plaintiff was a passenger in a 2006 Ford vehicle owned and operated by the defendant.

4. That on the date and at the time referred to above, the defendant was operating his vehicle east on SR 1469, when he encountered a dead end, struck a tree and a fence, before coming to rest off of the roadway.

5. That the impact of the collision referred to above caused the plaintiff personal injuries.

6. That at the time of the collision described above and immediately prior thereto, the defendant was negligent in that he:

(a) Failed to keep a proper lookout;(b) Failed to reduce speed to the extent necessary to avoid a collision;

(c) Failed to keep his vehicle under proper control;

(d) Drove in a careless and reckless manner.

7. That as a proximate result of defendant's negligence and of the collision referred to above, the plaintiff was injured and underwent medical care and treatment and, upon information and belief, will continue to need medical treatment into the future.

8. That as a proximate result of defendant's negligence and of the personal injuries suffered by the plaintiff, she has incurred medical expenses and, upon information and belief, it is alleged that she will continue to incur medical expenses into the future.

9. That as a proximate result of the collision referred to above, the plaintiff has experienced pain, suffering and discomfort and, upon information and belief, it is alleged she will continue to experience pain, suffering and discomfort into the future as a result of the injuries she sustained in the motor vehicle collision.

In response to plaintiff's complaint, defendant filed an answer on 15 January 2014, in which defendant denied all allegations of negligence and, among other defenses, pleaded contributory negligence and gross contributory negligence as bars to plaintiff's recovery. Plaintiff responded to defendant's allegations of contributory negligence and gross contributory negligence by asserting defendant had the last clear chance to avoid the accident.

Following the denial of motions to dismiss by defendant, an unsuccessful attempt at mediation, and the intervention of Progressive on behalf of defendant¹ , this case came on for jury trial in Lee County Superior Court on 14 July 2014, the Honorable Thomas H. Lock, Judge presiding. Each side called only one witness at trial.

Plaintiff first took the stand and testified that she and defendant were in a relationship at the time of the automobile accident. Plaintiff testified that on the night of the accident, 18 January 2012, she and defendant went on a date to San Felipe, a restaurant in Sanford which was offering a margarita special. Over the course of two hours at the restaurant, plaintiff and defendant ate dinner and drank margaritas. Plaintiff could not recall the exact number of drinks she and defendant consumed, but testified she had no more than three and defendant probably drank one or two more than she did.

Plaintiff testified she and defendant had a good time at dinner and she was feeling the effects of the alcohol by the time they were ready to leave. As a result, plaintiff allowed defendant to drive. When questioned whether she “voluntarily rode with [defendant] after knowing he consumed four or five margaritas in [her] presence,” plaintiff responded affirmatively. Yet, plaintiff indicated defendant drank several times a week and was a “far more experienced drinker than [she] was.” Plaintiff further testified defendant did not have any problems walking or exiting the restaurant and averred “[defendant] definitely wasn't intoxicated.”

From the restaurant, plaintiff and defendant went to defendant's mother's house. Plaintiff indicated she did not complain about defendant's driving between the restaurant and defendant's mother's house. Plaintiff and defendant were at defendant's mother's house for approximately an hour and a half. Plaintiff testified that, to her knowledge, defendant did not consume any alcohol after leaving the restaurant. Yet, plaintiff acknowledged defendant was not in her presence for the entire time they were at defendant's mother's house.

From defendant's mother's house, plaintiff and defendant traveled to plaintiff's house on the other side of Sanford, a thirty-five to forty minute drive. Defendant drove as plaintiff was still feeling the effects of the alcohol. Again, plaintiff indicated she voluntarily rode with defendant.

Plaintiff testified that on the way to her house, she and defendant got into an argument. Plaintiff could not remember what the argument was about, but recalled that it was a silly argument. Plaintiff indicated defendant was driving poorly at the time. As a result of defendant's poor driving and because he was yelling at her, plaintiff told defendant to pull over and let her out. Plaintiff testified defendant did pull over, but the downtown area of Sanford where he pulled over was not an area a single female would want to be late at night. Thus when defendant apologized and said he would not say another word and would just take plaintiff home and drop her off, plaintiff agreed.

Plaintiff testified they were silent the rest of the way until they made the turn onto West Forest Oaks near plaintiff's house. After making a normal turn onto West Forest Oaks, plaintiff said defendant “just blew up.” Plaintiff testified defendant “gassed it immediately[ ]” and accelerated the vehicle to 35 to 45 miles per hour. Plaintiff explained,

it's like a bomb went off inside of him or something. He turns on the road, and he gases [sic] the car. And it's not a very long road. It's a dead end. There's like a little guard rail and little reflector signs at the bottom. He sees, and he's yelling, and he's screaming, and I'm just—I'm apologizing, trying to get him to stop.

Upon further questioning, plaintiff testified “[i]t wasn't like a gradual like, you know, like a normal you gradually get up to 35 miles an hour.” When defendant pointed out that plaintiff testified about different speeds, plaintiff admitted she did not know the exact speed, but explained the last time she looked over she saw they were going 35 miles per hour and defendant was still accelerating. Plaintiff recalled “apologizing, begging [defendant] to just please stop, please slow down.” Then they crashed.

Although plaintiff's recollection of the actual collision was poor, plaintiff remembered going forward and to the left and hitting her head on the gear shifter and the console that it sits in. The next things plaintiff remembered were police officers and being in the hospital. Plaintiff suffered injuries to her face, jaw, and mouth as a result of the accident.

At the conclusion of the plaintiff's attorney's questioning of her, plaintiff reiterated that she did not observe anything prior to the accident or argument that would have led her to believe defendant was driving in an impaired condition. Plaintiff did not observe anything about defendant's speech that caused alarm, did not observe defendant's eyes being glassy, and did not think defendant was unsteady on his feet.

Plaintiff rested following plaintiff's testimony, at which time defendant moved for a directed verdict on the ground that plaintiff was grossly contributorily negligent as a matter of law. In support of his motion, defendant reiterated portions of plaintiff's testimony, cited several cases standing for the proposition that a passenger who knows or should know that a driver is intoxicated cannot recover for injuries sustained from riding with the driver, and argued the following:

[Plaintiff], by her own testimony, has admitted she should have known, and because of that, I ask that the Court grant directed verdict in favor of the [d]efendant finding that, even if the other issues are resolved in favor of the [p]laintiff, that, under the facts of this case, given their presence together from before dinner to the time of the wreck, given the amount of alcohol consumed in each other's presence with no evidence of alcohol being consumed outside of each other's presence, given his erratic driving before he pulled over on McIver Street, and her decision to stay in the car with him, given their argument that occurs when they're intoxicated and her decision to stay in the car with him, that she knew or should have known of his intoxication.

After considering the cases submitted by defendant and the arguments by both sides, the trial court denied defendant's motion for a directed verdict at the conclusion of plaintiff's evidence. The trial court explained that,

[w]hile the evidence certainly is that the [p]laintiff herself had consumed such a quantity of alcohol that, by her own admission, she should not drive as they left the restaurant, and as they left [d]efendant's mother's home and though the evidence is that [d]efendant Thomas had consumed more alcohol than she, the evidence at this point is that she saw nothing in his conduct

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