Outlaw v. Johnson

• Decision Date: 06 May 2008
• Docket Number: No. COA07-466.,COA07-466.
• Citation: 660 S.E.2d 550
• Court: North Carolina Court of Appeals
• Parties: Willie OUTLAW, Plaintiff, and APAC-Atlantic, Inc., Appellant, v. Edward Leonard JOHNSON, Jr. and Mail Contractors of America, Inc., Defendants.

660 S.E.2d 550

Willie OUTLAW, Plaintiff, and APAC-Atlantic, Inc., Appellant, v. Edward Leonard JOHNSON, Jr. and Mail Contractors of America, Inc., Defendants.

No. COA07-466.

Court of Appeals of North Carolina.

May 6, 2008.

Appeal by Defendants and Appellant from order and judgment entered 27 June 2006 and order entered 22 September 2006 by Judge Kenneth F. Crow in Superior Court, Lenoir County. Heard in the Court of Appeals 26 November 2007.

Robert D. Rouse, III, Greenville, for Plaintiff Willie Outlaw.

Womble Carlyle Sandridge & Rice, PLLC, by Clayton M. Custer, Greenville, for Appellant APAC-Atlantic, Inc.

Cranfill Sumner & Hartzog, LLP, by Robert W. Sumner, Jaye E. Bingham, and Gloria T. Becker, Raleigh, for Defendants.

McGEE, Judge.

The evidence introduced at trial tended to show that on 29 March 2004, construction company APAC-Atlantic, Inc. (APAC) was involved in a road maintenance project on a bridge on Highway 70 in Lenoir County. Highway 70 in Lenoir County is a four-lane highway with two lanes of travel in both eastbound and westbound directions. Willie Outlaw (Plaintiff Outlaw) was employed by APAC as a steamroller operator. Plaintiff Outlaw testified that after completing work at the bridge construction site, he was instructed by his supervisor to move his steamroller from the construction site to a "staging area" located at a nearby overpass. Plaintiff Outlaw then drove his steamroller in the right-hand eastbound lane of Highway 70 towards the staging area. Plaintiff Outlaw testified that during this time he was looking forward, or eastbound, down Highway 70, and was traveling approximately five or six miles per hour. Plaintiff Outlaw's next memory following this series of events was waking up in a hospital.

Ronald Brewington (Mr. Brewington) testified that on 29 March 2004, he was driving a van eastbound on Highway 70 in Lenoir County. As Mr. Brewington approached the bridge where APAC was undertaking its construction project, he passed a tractor-trailer truck. Mr. Brewington then merged into the left lane because the right lane of the bridge was closed off by orange cones. The orange cones tapered off approximately 200 feet after the bridge, and Mr. Brewington moved back into the right lane. Five seconds later, Mr. Brewington observed the tractor-trailer move back into the right lane. At that time, the tractor-trailer was approximately 100 to 200 feet behind Mr. Brewington's van. Mr. Brewington testified that after moving into the right lane, he looked down the highway and saw a steamroller in the road. The steamroller was "a good ways" down the highway, and Mr. Brewington "thought it was just another ordinary vehicle going down the road." Mr. Brewington took his eyes off the steamroller to check his mirrors, but when he looked ahead ten or fifteen seconds later, he was immediately behind the steamroller. Mr. Brewington swerved to the left to avoid hitting the steamroller but realized that the tractor-trailer behind him was going to hit the steamroller. Mr. Brewington observed the collision in his rearview mirror.

Edward Leonard Johnson, Jr. (Defendant Johnson) was employed as a truck driver for Mail Contractors of America (Defendant MCA) (together, Defendants). Defendant Johnson testified that on 29 March 2004, he was driving an MCA truck eastbound on Highway 70 in Lenoir County. As Defendant Johnson approached the bridge where APAC was undertaking its construction project, a van passed him and then pulled in front of his truck. When Defendant Johnson reached the bridge, he found that the right lane was closed off by orange cones, so he drove across the bridge in the left lane. The orange cones tapered off roughly 200 feet past the bridge, and both the van and Defendant Johnson moved into the right lane. Defendant Johnson testified that after moving back into the right lane, he resumed a speed of fifty or fifty-five miles per hour. Defendant Johnson never saw any more orange cones, construction workers, construction equipment, or road work. After driving a quarter of a mile, the van in front of Defendant Johnson swerved suddenly into the left lane, and Defendant Johnson observed the steamroller driven by Plaintiff Outlaw in the right lane, directly in front of him. Defendant Johnson attempted to avoid the steamroller by swerving to the right, but he clipped the end of the steamroller and his truck went into a ditch. Both Plaintiff Outlaw and Defendant Johnson were seriously injured in the collision. As a result of his injuries, Plaintiff Outlaw received workers' compensation from APAC in the amount of $117,217.94.

Plaintiff Outlaw filed a complaint against Defendants on 22 April 2005 alleging that he was injured due to the negligence of both Defendant Johnson and Defendant MCA. Defendants filed an answer on 22 June 2005 alleging, inter alia, that Plaintiff Outlaw was contributorily negligent in causing the accident. In addition, Defendants claimed that APAC was negligent in allowing Plaintiff Outlaw to drive the steamroller on the highway. Defendants contended that because APAC's negligence joined and concurred with any negligence on Defendants' part, Defendants would be entitled to subtract from any judgment obtained against them the amount of any subrogation lien held by APAC pursuant to the Workers' Compensation Act. See N.C. Gen.Stat. § 97-10.2(e) (2007). Plaintiff Outlaw filed a reply on 8 August 2005 asserting that even had he been contributorily negligent in causing the accident, Defendant Johnson had the last clear chance to avoid the collision. Plaintiff Outlaw's reply also contained a cross-claim by APAC against Defendants for property damage to the steamroller in the amount of $53,500.00. The parties later stipulated that APAC sustained damage to its steamroller in the amount of $55,000.00.

The case was tried from 15 May to 24 May 2006 and the jury returned a verdict finding that: (1) Plaintiff Outlaw was injured by the negligence of Defendant Johnson; (2) Plaintiff Outlaw contributed to his injuries by his own negligence; (3) Defendant Johnson had the last clear chance to avoid the accident; (4) Plaintiff Outlaw was entitled to recover damages in the amount of $450,000.00; and (5) APAC was guilty of negligence that joined and concurred with Defendant Johnson's negligence.

The trial court issued an order and judgment on 27 June 2006 concluding that, based upon the jury's answer to question five finding APAC negligent, Defendants were entitled to deduct the amount of APAC's workers' compensation lien of $117,217.94 from the jury's damage award of $450,000.00. Therefore, the trial court entered judgment in favor of Plaintiff Outlaw against Defendants in the amount of $332,782.06. The trial court also concluded that based upon the jury's answer to question five, APAC was not entitled to recover on its property damage claim from Defendants. Defendants filed a motion on 7 July 2006 for judgment notwithstanding the verdict, or in the alternative, for a new trial. APAC filed a motion on 13 July 2006 asking the trial court to reconsider its rulings concerning APAC's lien and property damage claim. The trial court denied all parties' motions on 22 September 2006. Defendants and APAC appeal.

I.

Defendants raise five questions on appeal, which we consider in turn.

A.

Defendants first argue that the trial court erred in submitting the issue of last clear chance to the jury. The last clear chance doctrine is a rule of proximate cause that allows a contributorily negligent plaintiff to recover where "[the] defendant's negligence in failing to avoid the accident introduces a new element into the case, which intervenes between [the] plaintiff's negligence and the injury and becomes the direct and proximate cause" of the accident. Scott v. Darden, 259 N.C. 167, 171, 130 S.E.2d 42, 45 (1963). To succeed on a claim of last clear chance, the contributorily negligent plaintiff must prove:

(1) that the plaintiff negligently placed himself in a position of helpless peril; (2) that the defendant knew or, by the exercise of reasonable care, should have discovered the plaintiff's perilous position and his incapacity to escape from it; (3) that the defendant had the time and ability to avoid the injury by the exercise of reasonable care; (4) that the defendant negligently failed to use available time and means to avoid injury to the plaintiff and (5) as a result, the plaintiff was injured.

Parker v. Willis, 167 N.C.App. 625, 627, 606 S.E.2d 184, 186 (2004), disc. review denied, 359 N.C. 411, 612 S.E.2d 322 (2005). The question of last clear chance "must be submitted to the jury if the evidence, when viewed in the light most favorable to the plaintiff, will support a reasonable inference of each essential element of the doctrine." Bowden v. Bell, 116 N.C.App. 64, 68, 446 S.E.2d 816, 819 (1994).

The first element of last clear chance is satisfied upon a showing that a plaintiff has placed himself in a position of either helpless or inadvertent peril. A plaintiff is in a position of helpless peril when that plaintiff's "prior contributory negligence has placed her in a position from which she is powerless to extricate herself." Williams v. Odell, 90 N.C.App. 699, 704, 370 S.E.2d 62, 66, disc. review denied, 323 N.C. 370, 373 S.E.2d 557 (1988). A plaintiff is in a position of inadvertent peril where his "negligence consists of failure to pay attention to [his] surroundings and discover his own peril." Id. Prior automobile accident cases draw a distinction between situations in which a plaintiff negligently fails to observe an approaching vehicle, and situations in which a plaintiff observes an approaching vehicle but negligently fails to move out of the way. Where a plaintiff either turns his back to, or does not see, an approaching vehicle, he has placed himself in a position of helpless or inadvertent peril. See, e.g., Nealy v. Green, 139 N.C.App. 500, 534 S.E.2d 240 (2000) (holding that...