Pintacuda v. Zuckeberg

• Decision Date: 05 August 2003
• Docket Number: No. COA02-905.,COA02-905.
• Citation: Pintacuda v. Zuckeberg, 159 N.C. App. 617, 583 S.E.2d 348 (N.C. App. 2003)
• Court: North Carolina Court of Appeals
• Parties: Jay T. PINTACUDA and wife Lucretia Pintacuda, Plaintiffs, v. Jack ZUCKEBERG, Defendant.

583 S.E.2d 348

159 NC App. 617

Jay T. PINTACUDA and wife Lucretia Pintacuda, Plaintiffs, v.Jack ZUCKEBERG, Defendant.

No. COA02-905.

Court of Appeals of North Carolina.

August 5, 2003.

Roberts & Stevens, P.A., by Anthony Alan Coxie and Jacqueline D. Grant, Asheville, for plaintiffs-appellants.

Van Winkle Buck Wall Starnes & Davis, P.A., by W. Kevin McLaughlin, Asheville, for defendant-appellee.

GEER, Judge.

PlaintiffsJay T. Pintacuda and his wife Lucretia Pintacuda appeal from the superior court's order granting defendant's motion for summary judgment.Mr. Pintacuda was severely injured when defendant abruptly stopped his car on an interstate highway and Mr. Pintacuda's motorcycle skidded as he attempted to avoid colliding with defendant's car.Defendant contends that no genuine issue of material fact exists as to the issues of proximate cause and contributory negligence and that the trial court therefore properly granted summary judgment.After reviewing the record, we conclude that the evidence raises issues of fact as to whether Mr. Pintacuda's skid constituted an independent intervening cause superseding defendant's negligence and as to whether Mr. Pintacuda was contributorily negligent.We, therefore, reverse.

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law."N.C. Gen.Stat. § 1A 1,Rule 56(c)(2001).The party moving for summary judgment must "clearly demonstrate the lack of any triable issue of fact and entitlement to judgment as a matter of law."Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP,350 N.C. 214, 220, 513 S.E.2d 320, 324(1999).In reviewing a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing the motion.Id.Where the pleadings and proof disclose that no cause of action exists, summary judgment is properly granted.SeeKessing v. National Mortgage Corp.,278 N.C. 523, 534-35, 180 S.E.2d 823, 830(1971).

Plaintiff—a 55-year old SBI forensic scientist with more than 35 years of experience on motorcycles—was riding his motorcycle under the speed limit and at least three car lengths behind defendant's car in the left-hand lane of I-240 in Asheville.According to plaintiff's evidence, as he came over a rise in the road, he saw defendant stop his car "instantaneously," heard a noise, and saw the hood of defendant's car fly up.He immediately applied both his front and rear brakes, but feared he would crash into defendant's car and either be thrown over that car or be impaled on the back of the car.

Plaintiff made a split-second decision to avoid the impact by moving over into the right-hand lane, which he knew was clear.Unfortunately, as he swerved to avoid the car in front of him, his motorcycle began to skid for unknown reasons and came down in the right-hand lane.Plaintiff testified in his deposition that he"skidded on something or hit the reflector marker" and his motorcycle "came down."Although plaintiff was wearing protective clothing, he was seriously injured.

On 20 September 2000, plaintiffs filed a complaint alleging that defendant was negligent in failing to keep his vehicle under control, failing to bring his vehicle to a stop, and driving in a careless and heedless manner in wanton disregard of the rights and safety of others.Defendant filed a motion for summary judgment, which was heard by the trial court on 22 April 2002.Finding no genuine issue as to any material fact, the trial court concluded that defendant was entitled to judgment as a matter of law and therefore granted summary judgment in favor of defendant.From this order, plaintiffs appeal.

The primary issue on appeal is whether plaintiff offered sufficient evidence to raise an issue of fact regarding whether defendant's negligence proximately caused plaintiff's injuries.As our Supreme Court has noted, "it is only in exceptional cases, in which reasonable minds cannot differ as to foreseeability of injury, that a court should decide proximate cause as a matter of law."Williams v. Carolina Power & Light Co.,296 N.C. 400, 403, 250 S.E.2d 255, 258(1979).We do not believe that this case falls into the exceptional category.

Although the critical issue with respect to proximate cause is the foreseeability of the plaintiff's injury, the law does not require that the precise injury be foreseeable to the defendant.Hairston v. Alexander Tank & Equipment Co.,310 N.C. 227, 233-34, 311 S.E.2d 559, 565(1984).Instead, "[t]he test of proximate cause is whether the risk of injury, not necessarily in the precise form in which it actually occurs, is within the reasonable foresight of the defendant."Williams,296 N.C. at 403, 250 S.E.2d at 258.Phrased differently, a plaintiff is only required to prove that the defendant, in the exercise of reasonable care, "might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected."Hairston,310 N.C. at 234, 311 S.E.2d at 565(internal quotation marks omitted; emphasis added).

In considering whether the harm to a plaintiff was reasonably foreseeable to a defendant, the law "fix[es][defendant] with notice of the exigencies of traffic...."Id.Based on common driving experience, if a driver comes to an abrupt and unexpected halt on a highway, he should reasonably foresee (1) that a vehicle behind him will have the choice of either swerving to avoid his car or attempting to stop before rear-ending him; and (2) that his action creates a risk of injury to the driver of the following vehicle.Thus, in this case, a jury could reasonably conclude that Mr. Pintacuda's swerve to avoid crashing into Mr. Zuckeberg was foreseeable and that Mr. Zuckeberg could have foreseen that his coming to an abrupt standstill on I-240 would likely result in some injury to Mr. Pintacuda.We cannot conclude as a matter of law that the possibility of Mr. Pintacuda's motorcycle skidding was an unforeseeable result of Mr. Zuckeberg's stopping his car unexpectedly on I-240.

Our Supreme Court has reached the same conclusion when considering analogous circumstances.In Hall v. Coble Dairies, Inc.,234 N.C. 206, 67 S.E.2d 63(1951), the defendant had parked a tractor-trailer on a paved portion of the highway.The plaintiff, after coming over a rise in the highway, saw the truck and was forced to swerve sharply in an unsuccessful attempt to avoid crashing into the truck.After colliding with the truck, the plaintiff, dazed but uninjured, got out of the car to assist his injured wife and was struck by another car.The Supreme Court reversed the trial court's dismissal of the case, holding that these facts were sufficient to support a finding that the truck company's negligence was the proximate cause of plaintiff's injuries:

[I]t is manifest that the defendants are chargeable with having foreseen that consequences of a generally injurious nature would likely result from their conduct in leaving the tractor-trailer on the paved portion of the highway, without lights, flares, and signals as alleged.Upon this record, we cannot say it was beyond the pale of natural consequences that the plaintiff in the ensuing collision was severely shocked, to the extent that he was "dazed and addled" and in that condition walked out on the highway and was hit by a passing motorist.

Id. at 211, 67 S.E.2d at 66.If it is sufficiently foreseeable that a person could be struck by a second vehicle while walking in a daze after an accident, then it is sufficiently foreseeable that a motorcycle would skid while attempting to avoid a collision with a stopped car ahead.See alsoHairston,310 N.C. at 235, 311 S.E.2d at 566("Under the circumstances here disclosed, we believe a jury could find that a reasonably prudent person should have foreseen that [the dealership's] negligence in failing to tighten the lugs on the wheel of the new automobile could cause the car to be disabled on the highway and struck by another vehicle, causing harm to the driver.Absent [the dealership's] original negligence, the tragic series of events on I-85 would not have occurred; the danger was foreseeable.").

Defendant points to Mr. Pintacuda's deposition testimony in which he acknowledged that he did not know what precisely caused his motorcycle to skid as he changed lanes and argues that the existence of another, unknown cause of the skid precludes a jury from finding that Mr. Zuckeberg's unexpected stop was the proximate cause of Mr. Pintacuda's injuries.It is, however, well-established that "[t]here may be more than one proximate cause of an injury."Hairston,310 N.C. at 234, 311 S.E.2d at 565.When two or more proximate causes join together to produce an injury, the first cause is insulated from liability only if it constitutes an independent, intervening cause that supersedes the original negligence.Hall,234 N.C. at 211, 67 S.E.2d at 66-67.

It is not enough merely to show, as defendant has here, that some other factor came into play to cause a plaintiff's injuries.That second cause, in order to be a superseding intervening cause, must:

interven[e] between the original negligent act or omission and the injury ultimately suffered, which turns aside the natural sequence of events and produces a result which would not otherwise have followed, and which could not have been reasonably anticipated....The causal connection must be actually broken and the sequence interrupted in order to relieve the defendant from responsibility.The mere fact that another person or agency concurs or co-operates in producing the injury or contributes thereto in some degree, whether large or small, is not of controlling importance.

Id. at 211-12, 67 S.E.2d at 67.

In applying this test, the...