McNair v. Boyette

• Decision Date: 28 June 1972
• Docket Number: No. 7210SC298,7210SC298
• Court: North Carolina Court of Appeals
• Parties: Thomas B. McNAIR v. Edward Lee BOYETTE and Oscar Lee Hall.

Page 590

189 S.E.2d 590

15 N.C.App. 69

Thomas B. McNAIR v. Edward Lee BOYETTE and Oscar Lee Hall.

No. 7210SC298.

Court of Appeals of North Carolina.

June 28, 1972.

Twiggs & McCain, by Howard F. Twiggs and Grover C. McCain, Jr., Yarborough, Blanchard, Tucker & Denson, by Charles F. Blanchard and James E. Cline, Raleigh, for plaintiff-appellant.

Maupin, Taylor & Ellis, by Armistead J. Maupin, Raleigh, for defendant-appellee, Edward Lee Boyette.

CAMPBELL, Judge.

Plaintiff assigns as error the trial court's entry of summary judgment in favor of defendant Boyette.

While it is conceded that summary judgment will not be as feasible in negligence cases, where the standard of the prudent man must be applied, as it would in other cases, summary judgment in proper where it appears that there can be no recovery even if the facts as claimed by plaintiff are true. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). When the facts are admitted or established, negligence is a question of law and the court must say whether it does or does not exist and this rule extends to the question of proximate cause. Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900 (1959).

Was plaintiff barred as a matter of law from recovery against defendant Boyette?

In order for there to be a recovery against a defendant, the defendant must be shown to be negligent and his negligence must be the proximate cause of plaintiff's injury. Clarke v. Holman, 274 N.C. 425, 163 S.E.2d 783 (1968). Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the injury and without which the injury would not have occurred, and from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result was probable under the facts as they existed. Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854 (1958); Grimes v. Gilbert, 6 N.C.App. 304, than one proximate cause, that which is 170 S.E.2d 65 (1969). If there is more new and entirely independent breaks the sequence of events and insulates the original or primary negligence and the test by which negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury. Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808 (1940).

'The decisions are all to the effect that liability exists for the natural and probable consequences of negligent acts or omissions, proximately flowing therefrom. The intervening negligence of a third person will not excuse the first wrongdoer, if such intervention ought to have been foreseen. In such case, the original negligence still remains active and a contributing cause of the injury. The test is to be found in the probable consequences reasonably to be anticipated, and not in the number or exact character of events subsequently arising. Lane v. Atlantic Works, 111 Mass. 136.' Butner v. Spease, supra.

In Butner, Chief Justice Stacy quoted the following from Milwaukee & St. P.R.R. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256:

"We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the immediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault and self-operating, which produced the injury."

Plaintiff alleges that defendant Hall was...