Sharpe by Sharpe v. Quality Educ., Inc.

Decision Date02 November 1982
Docket NumberNo. 814SC1239,814SC1239
CourtNorth Carolina Court of Appeals
Parties, 7 Ed. Law Rep. 459 Jamie Michelene SHARPE, a minor, by her father and guardian, James F. SHARPE, and James F. Sharpe, Individually v. QUALITY EDUCATION, INC., t/a Onslow Academy, and Bonnie Hood.

Gene B. Gurganus, Jacksonville, for plaintiff-appellant.

Warlick, Milsted, Dotson & McGlaughon by Carl S. Milsted, Jacksonville, for defendants-appellees.

BECTON, Judge.

I

The summary of defendant Hood's deposition reveals the following: On 21 October 1975, Jamie was a student at Onslow Academy and a passenger on Quality Education's bus being driven by defendant Hood. Defendant Hood had experienced mechanical trouble with the bus prior to starting it that morning. She had called the headmaster of Onslow Academy and had indicated that she was afraid to drive the bus. The headmaster told her to have the bus "jumped," reassuring her that once it was "jumped" it would work fine. (Plaintiff alleged in the Complaint that Quality Education knew that the bus had experienced mechanical difficulty prior to 21 October 1975 and that rather than effecting the repairs necessary for the bus's safe and efficient operation, Quality Education's solution was to furnish the bus with a set of jumper cables.)

On 21 October 1975, the bus stalled three times. After "jumping" the bus the second time, defendant Hood decided to go to school without picking up any more children. The bus, however, stalled again. Hood then sent David Hull, the oldest boy on the bus (he was either ten or eleven), across Highway # 24 to telephone for help. Jamie asked a few times if she could go with David, and Hood told her she could not. Jamie got off the bus and started to go anyway, so defendant Hood "told David to stay with her, and to hold her hand and to make sure she got across okay." The children crossed the highway with no difficulty. As they were returning, they crossed the first two lanes and then stopped in the median. Defendant Hood specifically stated: "They stopped in the median together and I was watching traffic, and I believe I sort of waved them on--to come across, so that is when David came on and Jamie stood there. I don't know why but she didn't come on then." Hood further stated: "I am not sure whether David was across the road or not when Jamie started to leave the median" and that "as soon as she jumped off the median it seemed like the car was just there and hit her."

II

The stated grounds for defendants' motion for summary judgment were (a) Jamie's contributory negligence and (b) lack of proximate cause based on the intervening negligence of the driver of the vehicle which struck Jamie.

A. Plaintiff first argues that a nine-year-old child is presumed incapable of contributory negligence and that, to the extent the trial court based its summary judgment on contributory negligence, the trial court erred. We agree.

Summary judgment is proper only when 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 the moving party is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56. The burden is on the moving party to establish the lack of triable issues of fact. In considering a motion for summary judgment, the court must look at the record in the light most favorable to the party opposing the motion. Henson v. Jefferson, 20 N.C.App. 204, 200 S.E.2d 812 (1973).

Jamie clearly was not contributorily negligent as a matter of law. Defendants concede as much in their brief, but cite cases in which minor plaintiffs have been struck by oncoming automobiles and in which our appellate court affirmed the grants of nonsuit. Those cases are inapposite. They involved nonsuits, not summary judgments, and they were decided on the issue of negligence, not contributory negligence.

The presumption that a nine-year-old child is incapable of contributory negligence is rebuttable. See Ennis v. Dupree, 258 N.C. 141, 145, 128 S.E.2d 231, 235 (1962). Here defendants presented nothing in support of their motion for summary judgment to rebut this presumption, and therefore there was an issue of fact to be resolved.

B. With regard to defendants' argument that the negligence of defendants, if any, was not a proximate cause of plaintiff's injury, plaintiff contends that defendants breached their duty properly to transport and supervise minor plaintiff while she was under defendants' care by continuing to use a faulty bus that had a known history of stalling without repairing it, by letting small children off the bus at an unsafe place other than the school or their homes and at dangerous places, and by improperly supervising minor plaintiff's crossing the highway. Plaintiff finds support for its argument in Colson v. Shaw, 301 N.C. 677, 273 S.E.2d 243 (1981). In Colson, the defendant allowed a five-year-old minor plaintiff to exit his car unattended, on a busy residential street after dark, knowing that it was necessary for the child to cross the street to reach his destination. The child was struck by another car as he...

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7 cases
  • Schaffner v. Cumberland County Hosp. System, Inc.
    • United States
    • North Carolina Court of Appeals
    • 19 Noviembre 1985
    ...278 S.E.2d 253, 255 (1981), quoting Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980); Sharpe v. Quality Education, Inc., 59 N.C.App. 304, 306-07, 296 S.E.2d 661, 662 (1982). Issues of negligence should ordinarily be resolved by a jury and are rarely appropriate for summary judgm......
  • Lee v. Keck, 8315SC281
    • United States
    • North Carolina Court of Appeals
    • 15 Mayo 1984
    ...motion for summary judgment, the movant has the burden of showing that there is no issue of triable fact. Sharpe v. Quality Education, Inc., 59 N.C.App. 304, 296 S.E.2d 661 (1982). The facts asserted by the answering party must be accepted as true. Norfolk and Western Ry. Co. v. Werner Indu......
  • Chrisalis Properties, Inc. v. Separate Quarters, Inc.
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    • 18 Diciembre 1990
    ...judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Sharpe v. Quality Education, Inc., 59 N.C.App. 304, 307, 296 S.E.2d 661, 662 (1982). In the present case defendant's motion for summary judgment was based solely on its contention that, as ......
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    ...must be viewed in the light most favorable to the non-movant, with all reasonable inferences therefrom. Sharpe v. Quality Education, Inc., 59 N.C.App. 304, 296 S.E.2d 661 (1982). The movant's papers are scrutinized with care, while the non-movant's are treated indulgently. Vassey v. Burch, ......
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