Pippens v. May

Decision Date05 March 2013
Docket NumberNo. COA12–821.,COA12–821.
Citation738 S.E.2d 830
PartiesWilliam PIPPENS, Plaintiff v. Motorro Danyell MAY and Shuneen Monique Dixon, Defendants.
CourtNorth Carolina Court of Appeals


Appeal by defendants from judgment entered 3 January 2012 by Judge Clifton W. Everett, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 13 November 2012.

Kellum Law Firm, by J. Heath Finley, for Plaintiff.

Walker, Allen, Grice, Ammons & Foy, L.L.P., by O. Drew Grice, Jr., for Defendants.

ERVIN, Judge.

Defendants Motorro Danyell May and Shuneen Monique Dixon 1 appeal from the trial court's decision to enter a judgment notwithstanding the verdict awarding Mr. Pippens $1,214.49 in compensatory damages. On appeal, Defendants argue that the trial court erred by entering judgment notwithstanding the verdict in Plaintiff's favor with respect to this property damage claim on the grounds that “there was sufficient evidence, when viewed in the light most favorable to [Defendant], that [he] was not the proximate cause of the accident and did not breach any duty owed to [Plaintiff].” After careful consideration of Defendants' challenge to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should be reversed.

I. Factual Background
A. Substantive Facts
1. Plaintiff's Evidence

Plaintiff, who was born with spina bifida, is partially paralyzed and suffers from impaired mobility. At about 2:00 p.m. on 8 December 2009, Plaintiff was operating a motorized wheelchair in the “gutter” area on the far left part of the southbound lane of Memorial Drive in Greenville, North Carolina, and moving in the opposite direction from motor vehicles travelling in that lane. Plaintiff's destination was a shopping center known as Buyer's Market, which is located at 2400 South Memorial Drive. Although there was no paved sidewalk beside the portion of Memorial Drive along which Plaintiff was moving, there was a path along the roadside which Plaintiff elected not to use because it was uneven and would “put[ ] more strain on [his] batteries.”

At the time that Plaintiff reached the Buyer's Market parking lot, he saw Defendant, who was driving an automobile, stopped at an exit leading to and from the parking lot at a point at which there was no crosswalk. Plaintiff came to a “complete stop” at a point “maybe two to three feet from [a] fire hydrant” which was “right” in front of “a bush[.] After stopping, Plaintiff waited to determine in which direction Defendant intended to travel. Although Plaintiff “sat there about three to four minutes” without ever moving his wheelchair, he never saw Defendant turn his head in Plaintiff's direction during that entire interval.2 However, Plaintiff did see “a lot of traffic” driving towards him on Memorial Drive.

After “three to four minutes” had elapsed, Defendant began to pull out of the parking lot and moved to his right in such a manner that the front bumper of his car struck Plaintiff's wheelchair.3 The collision did not cause Plaintiff's wheelchair to tip over, make Plaintiff fall to the ground, or result in bleeding. After the collision, Defendant “jumped out” of his car and told Plaintiff that he had not seen him. With assistance from Defendant and another driver, who stopped upon observing the collision, Plaintiff drove his wheelchair off the roadway and into the parking lot.

Although Plaintiff admitted that he was carrying a .44 Magnum handgun that was openly displayed in a holster at the time of the accident, he denied “flashing” his firearm at Defendant. Even though Defendant asked Plaintiff if he needed medical attention, Plaintiff declined to accept assistance from emergency medical service personnel because he knew that he would not be allowed to take his firearm on an ambulance. As a result, after Plaintiff and Defendant exchanged phone numbers, Plaintiff drove home on his wheelchair.

As Plaintiff returned home, he noticed that the wheelchair did not operate as smoothly as usual. Before reaching home, Plaintiff decided to go to the emergency room and called Defendant to let Defendant know that he had made that decision.4 After attempting to reach Defendant several times, Plaintiff called the police. As a result, an officer came to his house and spoke with both parties. Plaintiff's legs were bruised and his wheelchair needed approximately $1,200.00 in repairs.

2. Defendant's Evidence

On the afternoon of 8 December 2009, Defendant was working at a store located in the Buyer's Market shopping center. At around 2:00 p.m., Defendant planned to drive in a 1994 Honda sedan to a nearby restaurant for lunch. At the time that Defendant reached the parking lot exit, at which a stop sign was located in the vicinity of some bushes, he came to a complete stop and checked the traffic before turning right onto Memorial Drive. Although Defendant initially glanced to the right, he saw no pedestrian traffic in that area. Defendant next looked left in order to check for oncoming traffic. At the time that he looked to the right, Defendant did not see Plaintiff, possibly because there were bushes in the way.

After waiting until there was no oncoming traffic, Defendant started to drive out of the parking lot to the right. As he released the brake and began to enter Memorial Drive, he heard a “thump” and saw Plaintiff's wheelchair rolling in the road. Defendant did not “gun” the Honda's engine and was not moving more than three to five miles per hour at the time that he struck Plaintiff's wheelchair. The collision between Defendant's car and Plaintiff's wheelchair occurred just as Defendant started forward, before the rear of his car had completely left the parking lot, and before his vehicle entered any of the lanes of travel in Memorial Drive. Having failed to see Plaintiff prior to striking his wheelchair, Defendant did not apply his brakes in time to prevent the collision.

Following the collision, Defendant stopped his car, approached Plaintiff, and asked if he had been injured. When Defendant offered to call an ambulance, Plaintiff pulled his shirt aside, “flashed a gun” at Defendant, said they “could handle it” themselves, and asked Defendant if he “had any money on [him.] Although Defendant asked several times if Plaintiff wanted to call the police or an ambulance, Plaintiff expressed no interest in obtaining that sort of assistance. As a result, Defendant gave Plaintiff his cell phone number and left.

Upon returning to work, Defendant called the police out of concern that the accident had been part of “a scam.” After speaking with the police, who informed him that Plaintiff had already contacted them and directed him to go to Plaintiff's home, Defendant went to Plaintiff's house, at which point both Plaintiff and Defendant talked to a law enforcement officer.

B. Procedural History

On 17 May 2010, Plaintiff filed a complaint seeking to recover damages for personal injury and property damage allegedly sustained as a proximate result of the 8 December 2009 accident. On 10 August 2010, Defendants filed an answer denying the material allegations of the complaint and asserting contributory negligence as an affirmative defense to Plaintiff's claims. On 1 April 2011, Defendants filed an amended answer that provided additional factual support for their contributory negligence defense.

The case came on trial before the trial court and a jury at the 26 October 2011 civil session of Pitt County Superior Court. At the conclusion of all of the evidence, Plaintiff sought the entry of a directed verdict in his favor on the theory that Defendant had negligently failed “to yield the right-of-way” and that the record contained no evidence of contributory negligence. Although the trial court denied Plaintiff's directed verdict motion, it declined to instruct the jury with respect to the issue of contributory negligence. 5 At the conclusion of its deliberations, the jury returned a verdict finding that Plaintiff had not been injured by the negligence of Defendant, at which point Plaintiff orally sought the entry of judgments notwithstanding the verdict. On 3 January 2012, the trial court entered a judgment granting Plaintiff's motion with respect to his property damage claim, denying Plaintiff's motion with respect to his personal injury claim, and ordering Defendants to pay $1,214.49 relating to damage to Plaintiff's wheelchair. Defendants noted an appeal to this Court from the trial court's judgment. 6

II. Legal Analysis
A. Standard of Review

“Pursuant to Rule 50 of the North Carolina Rules of Civil Procedure, when a party's motion for directed verdict at the close of the evidence is denied, that party ‘may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict[.] N.C. Gen.Stat. § 1A–1, Rule 50(b)(1) [ (2012) ]. A motion for [judgment notwithstanding the verdict] provides the trial court with an opportunity to reconsider the question of the sufficiency of the evidence after the jury has returned a verdict and permits the court to enter judgment ‘in accordance with the movant's earlier motion for a directed verdict and notwithstanding the contrary verdict actually returned by the jury.’ Primerica Life v. James Massengill & Sons, ––– N.C.App. ––––, ––––, 712 S.E.2d 670, 675 (2011) (quoting Ace, Inc. v. Maynard, 108 N.C.App. 241, 245, 423 S.E.2d 504, 507 (1992) (internal quotation marks and citation omitted), disc. review denied,333 N.C. 574, 429 S.E.2d 567 (1993)).

The propriety of granting [judgment notwithstanding the verdict] is determined by the same considerations as that of the movant's prior motion for directed verdict—whether the evidence, taken in the light most favorable to the non-movant, is insufficient, as a matter of law, to support a verdict for the non-moving party. Thus, both a motion for directed verdict and a motion for [judgment notwithstanding the...

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