Proffitt v. Gosnell, COA17-233

CourtCourt of Appeal of North Carolina (US)
Citation809 S.E.2d 200
Decision Date19 December 2017
Docket NumberNo. COA17-233,COA17-233
Parties Zackery Ray PROFFITT, Plaintiff, v. James Kelly GOSNELL, Defendant.

809 S.E.2d 200

Zackery Ray PROFFITT, Plaintiff,
James Kelly GOSNELL, Defendant.

No. COA17-233

Court of Appeals of North Carolina.

Filed: December 19, 2017

Lakota R. Denton, P.A., Asheville, by Lakota R. Denton, for Plaintiff-Appellant.

Ball Barden & Cury, P.A., Ball Barden & Cury, by Alexandra Cury, for Defendant-Appellee.

McGEE, Chief Judge.

Zackery Ray Proffitt ("Plaintiff") appeals from the trial court's order granting summary judgment in favor of James Kelly Gosnell ("Defendant"). For the reasons discussed below, we affirm.

I. Background

Plaintiff was driving a truck east on Bear Creek Road, near Asheville, shortly before 6:00 p.m. on 16 October 2015. Plaintiff's father, Manon Proffitt ("Plaintiff's father"), was a passenger in the truck. About a quarter mile from their home, Plaintiff and Plaintiff's father observed a fallen tree obstructing both lanes of traffic in the road ahead. The tree's vertical branches held its trunk approximately five feet above the surface of the road. Plaintiff's father told Plaintiff to slow down, and Plaintiff pulled off the road and stopped the truck thirty or forty feet from the tree. Plaintiff's father turned on the truck's hazard lights and called Plaintiff's mother to ask that she bring down a chainsaw so he could cut up the tree and remove it from the road. Plaintiff's father instructed Plaintiff "to get across the tree and try to wave traffic down, slow [cars] down, [while] waiting on his mom to get there [with the chainsaw]." Plaintiff climbed on the tree. After noticing he was getting pine sap on his hands, Plaintiff asked his father for a pair of gloves.

809 S.E.2d 203

While Plaintiff's father searched for gloves for Plaintiff, Plaintiff stood on top of the tree. According to Plaintiff's father, shortly after Plaintiff climbed onto the tree, they heard an oncoming vehicle approaching an uphill curve in the road ahead. Plaintiff began waving his arms at the approaching vehicle and yelling in an attempt to get the driver's attention. Plaintiff's father testified that Plaintiff "never got down" from the tree; had been "goofing off" while standing on the tree; and was "just being a teenager [,] ... [b]ecause [he] thought [the other driver] was going to stop." Plaintiff's father said he told Plaintiff to jump down from the tree, and Plaintiff turned to jump, but Plaintiff's pants snagged on a tree limb.

Defendant was driving a truck on Bear Creek Road coming from the opposite direction around 6:00 p.m. on 16 October 2015. Defendant testified that as he approached the curve in the road, the sunlight hit his windshield, creating a glare. Defendant stated he "took [his] foot off the gas, moved it towards the brake[,]" and reached up for his sun visor. Defendant was driving forty-five miles per hour, five miles per hour over the posted speed limit. Defendant testified that, as he moved his foot toward the brake to slow down, he noticed something in the corner of his windshield. Defendant alleged he did not realize there was a tree in the road, or see Plaintiff, before colliding with the fallen tree.

On impact, one of the tree's branches struck Plaintiff in the back of the head, propelling Plaintiff through the air and into the roadway, where he landed on his back. Plaintiff was unconscious, barely breathing, and bleeding from his ears. He was airlifted to Mission Hospital, where he was treated for injuries that included skull fractures and swelling of the brain. At a deposition in June 2016, Plaintiff indicated he had no recollection of the several days preceding the 16 October 2015 collision, the collision itself, or the days he spent in the hospital thereafter.

Plaintiff filed a complaint on 22 December 2015 alleging he was seriously injured as a result of Defendant's negligence.1 In response, Defendant asserted numerous affirmative defenses, including contributory negligence. Defendant filed a motion for summary judgment on 5 October 2016. Following a hearing on 24 October 2016, the trial court entered an order on 10 November 2016 finding that Defendant was entitled to summary judgment as a matter of law. Plaintiff appeals.

II. Standard of Review

This Court "review[s] a trial court's order granting or denying summary judgment de novo . Under a de novo review, the [reviewing] court considers the matter anew and freely substitutes its own judgment for that of the lower [court]." Blackmon v. Tri-Arc Food Systems, Inc. , ––– N.C. App. ––––, ––––, 782 S.E.2d 741, 743 (2016) (citation and quotation marks omitted).

Summary judgment is appropriately entered "if 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." See N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015). The party moving for summary judgment bears the burden of showing that no triable issue of fact exists, and may satisfy its burden "by proving: (1) that an essential element of the non-moving party's claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim; or (3) that an affirmative defense would bar the [non-moving party's] claim." CIM Ins. Corp. v. Cascade Auto Glass, Inc. , 190 N.C. App. 808, 811, 660 S.E.2d 907, 909 (2008) (citation omitted). "[I]n ruling on a motion for summary judgment[,] the [trial] court does not resolve issues of fact and must deny the motion if there is any issue of genuine material fact." Singleton v. Stewart , 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972) (citation omitted).

This Court reviews the record "in a light most favorable to the party against

809 S.E.2d 204

whom the order has been entered to determine whether there exists a genuine issue as to any material fact." Smith v. Harris , 181 N.C. App. 585, 587, 640 S.E.2d 436, 438 (2007) (citation and quotation marks omitted). "If the trial court grants summary judgment, the decision should be affirmed on appeal if there is any ground to support the decision." Nifong v. C.C. Mangum, Inc. , 121 N.C. App. 767, 768, 468 S.E.2d 463, 465 (1996) (citation omitted).

While this Court has cautioned that summary judgment "is rarely an appropriate remedy in cases of negligence or contributory negligence[,]" we have clarified that "summary judgment is appropriate in a cause of action for negligence where the [plaintiff's] forecast of evidence fails to show negligence on [the] defendant's part, or establishes [the] plaintiff's contributory negligence as a matter of law." Blackmon , ––– N.C. App. at ––––, 782 S.E.2d at 744 (citation, quotation marks, and internal quotation marks omitted).

III. Defendant's Motion for Summary Judgment

Plaintiff argues summary judgment was improper in the present case because he was not contributorily negligent as a matter of law. He further contends that, even assuming Plaintiff was negligent, Defendant had the last clear chance to avoid the collision that resulted in Plaintiff's injuries. We address each argument in turn.

A. Contributory Negligence

"Contributory negligence is negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant alleged in the complaint to produce the injury of which the plaintiff complains." Meinck v. City of Gastonia , ––– N.C. App. ––––, ––––, 798 S.E.2d 417, 423 (2017) (citation and internal quotation marks omitted). "In order to prove contributory negligence on the part of a plaintiff, the defendant must demonstrate: (1) [a] want of due care on the part of the plaintiff; and (2) a proximate connection between the plaintiff's negligence and the injury." Daisy v. Yost , ––– N.C. App. ––––, ––––, 794 S.E.2d 364, 366 (2016) (citation and internal quotation marks omitted) (alteration in original). However, a plaintiff "may relieve the defendant of the burden of showing contributory negligence when it appears from [the plaintiff's] own evidence that he was contributorily negligent." Price v. Miller , 271 N.C. 690, 694, 157 S.E.2d 347, 350 (1967) (citation and quotation marks omitted).

This Court has held that

[a p]laintiff cannot recover if she, too, was negligent where that negligence was a proximate cause of her injuries. [C]ontributory negligence consists of conduct which fails to conform to an objective standard of behavior—the care an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury. The existence of contributory negligence is ordinarily a question for the jury; such an issue is rarely appropriate for summary judgment, and only where the evidence establishes a plaintiff's negligence so clearly that no other reasonable conclusion may be reached. Contradictions or discrepancies in the evidence even when arising from [the] plaintiff's evidence must be resolved by the jury rather than the trial judge.

Cone v. Watson , 224 N.C. App. 241, 245, 736 S.E.2d 210, 213 (2012) (citations and internal quotation marks omitted) (emphasis in original) (first alteration added). In general, a person who possesses the

capacity to understand and avoid a known danger and fails to take advantage of that opportunity, and [is injured as a] result[ ], ... is chargeable with contributory

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