Pinckney v. Baker
| Decision Date | 01 September 1998 |
| Docket Number | No. COA97-87.,COA97-87. |
| Citation | 130 NC App. 670,504 S.E.2d 99 |
| Court | North Carolina Court of Appeals |
| Parties | Robin Walden PINCKNEY, Plaintiff, v. Joseph C. BAKER, Defendant/Third-Party Plaintiff, v. Kimi Ann LUCES, Third-Party Defendant/Counter-Plaintiff. |
Donaldson & Black, P.A. by Arthur J. Donaldson and Angela Bullard-Gram, Greensboro, for plaintiff-appellant.
Gregory A. Wendling, Greensboro, for third-party defendant/counter plaintiff-appellant.
Teague, Rotenstreich & Stanaland, L.L.P., by Kenneth B. Rotenstreich and Ian J. Drake, Greensboro, for defendant/third-party plaintiff-appellee.
Plaintiff Robin Walden Pinckney (Pinckney) and third-party defendant/counter plaintiff Kimi Ann Luces (Luces) appeal the trial court's judgment dismissing the claims of each against defendant/third party plaintiff Joseph Cline Baker (Baker). Pinckney and Luces maintain the court committed reversible error, inter alia, by instructing the jury on the doctrine of sudden emergency. We find merit in this contention and award a new trial.
Relevant factual and procedural information includes the following: On 21 February 1995, Pinckney was a passenger in an automobile operated by Luces on West Market Street in Greensboro. At relevant points herein, West Market Street is a four-lane thoroughfare, with an additional left-turn lane in each direction. Luces was traveling east on West Market Street in the outer right-hand lane towards the intersection of Guilford College Road. As she approached the intersection, Luces noticed all vehicles were merging left in obedience to traffic warning cones blocking both easterly through lanes of West Market Street and directing all east-bound traffic into the center left-turn lane. Baker, operating a van, likewise was traveling in an easterly direction on West Market Street, approaching the intersection with Guilford College Road, and negotiated entry into the left-turn lane prior to the intersection. Luces and Pinckney received medical treatment following the subsequent collision which is the subject of the instant appeal.
The remaining testimony was in dispute. Pinckney testified that as Luces' vehicle approached the intersection, Baker had come to a stop in the left-turn lane in compliance with a red signal on the traffic light. Luces also stopped, rolled down her window, looked back at Baker and waved to him, thereby requesting permission to continue merging into the space between his van and the automobile preceding him. When the traffic light signaled green, Luces lifted her foot from the brake and began moving forward. Baker's van then collided with the rear left side of Luces' vehicle and continued to move forward, sideswiping the entire left side. The impact pushed Luces' automobile back into the left through lane, violently shaking the occupants.
The testimony of Luces was similar. She stated she came to a complete stop when she heard an engine revving behind her. Confused as to what the driver, later identified as Baker, intended to do, she rolled down her window and motioned at him to wait and allow her to merge into the left-turn lane. According to Luces, Baker nodded his head, "as an okay to tell [me] it's all right to continue." When the traffic signal turned green, Luces removed her foot from the brake and her vehicle rolled forward slightly. Baker's van then "rammed" her automobile.
On the other hand, Baker testified he never ceased moving towards the intersection, although at a speed of no more than five to ten miles per hour and while watching the traffic cones and vehicles in front of him. Baker denied seeing Luces stop or motion to him prior to impact, stated he did not see her automobile until after impact, and maintained he braked as soon as the two vehicles made contact.
Other than the parties, Jerry Motley (Motley), a long-time employee of defendant, was the only direct witness called to testify. Motley was proceeding east on Market Street two vehicles behind defendant's van. Motley stated he and defendant moved into the left turn lane, and that Luces unsuccessfully sought to do likewise in front of the automobile traveling between Baker and Motley. Thereafter, Luces increased her speed and attempted to merge in front of Baker. However, due to his location, Motley was unable to see either Luces or the collision as it occurred.
Pinckney instituted suit against Baker 24 May 1995, alleging in pertinent part that he had negligently caused the 21 February 1995 collision by driving into the side of the automobile in which she was a passenger, failing to reduce his speed in order to avoid a collision, failing to keep a proper lookout and failing to keep his vehicle under proper control.
Baker filed answer 28 June 1995, denying he had been negligent and averring that Luces had negligently caused the collision. In addition, Baker pleaded as affirmative defenses the doctrines of sudden emergency, insulating negligence, the peculiar susceptibility of Pinckney, and failure to mitigate damages. Baker thereafter filed a third-party complaint against Luces alleging negligence and seeking contribution, indemnity, and property damage of $1,000.00. In her 20 November 1995 response to Baker's claims, Luces denied negligence and alleged sudden emergency, unavoidable accident and contributory negligence as affirmative defenses. Luces also counterclaimed for personal injuries and property damage. In the reply thereto, Baker reiterated his earlier denial of negligence.
Trial commenced 8 July 1996 and continued for two and one-half days. Over the objection of Pinckney and Luces, the trial court included an instruction on the doctrine of sudden emergency within its charge on the issues of Baker's negligence. On 16 July 1996 and 24 July 1996, judgment was entered upon the jury verdict, denying the claims of each party.
Luces and Pinckney first contend the trial court committed reversible error by instructing the jury on the doctrine of sudden emergency. The doctrine applies when "one is confronted with an emergency situation which compels him or her to act instantly to avoid a collision or injury." Colvin v. Badgett, 120 N.C.App. 810, 812, 463 S.E.2d 778, 780 (1995), aff'd, 343 N.C. 300, 469 S.E.2d 553 (1996).
Regarding the doctrine of sudden emergency, "substantial evidence," Banks v. McGee, 124...
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