Sobczak v. Vorholt

• Decision Date: 20 February 2007
• Docket Number: No. COA05-1298.,COA05-1298.
• Citation: 640 S.E.2d 805
• Court: North Carolina Court of Appeals
• Parties: Scott P. SOBCZAK, Plaintiff, v. Matthew G. VORHOLT, Defendant.

640 S.E.2d 805

Scott P. SOBCZAK, Plaintiff, v. Matthew G. VORHOLT, Defendant.

No. COA05-1298.

Court of Appeals of North Carolina.

February 20, 2007.

Appeal by Plaintiff from judgment entered 7 February 2005 by Judge W. Osmond Smith, III, in Durham County Superior Court. Heard in the Court of Appeals 12 April 2006.

Thomas, Ferguson & Mullins, L.L.P., by Jay H. Ferguson, Durham, for Plaintiff-Appellant.

Law Offices of Douglas F. DeBank, by Douglas F. DeBank, Durham, for Defendant-Appellee.

STEPHENS, Judge.

Plaintiff appeals from a judgment of the trial court which dismissed his lawsuit with prejudice after a jury found in favor of Defendant. In support of his appeal, Plaintiff brings forward two assignments of error relating to the trial judge's instructions to the jury. For the reasons stated herein, we reverse and remand for a new trial.

At trial during the 31 January 2005 session of Civil Superior Court of Durham County, the evidence tended to show that on 9 January 2001, Plaintiff left his home in Pittsboro about 7:00 a.m. en route to his job as an automotive mechanic in Chapel Hill. He traveled the same direction as usual which took him northbound on Jones Ferry Road. The sun was not quite up yet, but Plaintiff could see without lights. It had snowed the previous evening, and there was a light dusting of snow on the ground and the roadway. As Plaintiff proceeded north, he saw Defendant approaching in the southbound lane of travel. Jones Ferry Road in that area is a two-lane, narrow "country road[.]" Looking north, the road is "a straight shot." The speed limit is fifty-five miles per hour, but due to the snowy conditions, Plaintiff was driving thirty to thirty-five miles per hour. He testified that he felt his speed was a "safe, manageable speed . . . given the conditions[,]" and was a speed that would enable him to keep control of his vehicle, a 1994 Toyota truck.

When Plaintiff was about twenty to twenty-five feet away from Defendant, he saw Defendant's front passenger wheel going off the surface of the road. Plaintiff slowed down and eased his vehicle further toward the right shoulder. He then observed Defendant's wheels turning to get back on the road. Within fifteen to twenty feet of Plaintiff, Defendant's car, a 1996 Ford Escort, "shot" across the road and struck Plaintiff's truck, causing it to turn over on its side. The point of impact was primarily the front quarter panel of Plaintiff's truck and "head on, . . . right up the center" of Defendant's car. The collision occurred in Plaintiff's lane of travel.

Plaintiff's wife, Norma Sobczak, also drove on Jones Ferry Road that morning on her way to work. She testified that there was a light dusting of snow on the ground, but she "felt comfortable enough" driving. She said the sun had not yet come up, but it was nevertheless light enough to see and she "could still see a little bit of the snow[]" on the road. Mrs. Sobczak traveled to the scene of her husband's accident, where she observed Defendant's car in the middle of the road and Plaintiff's truck on the side of the road.

Timothy Horne, an investigator with the Orange County Sheriff's Department, arrived on the scene just after the accident occurred. He came onto Jones Ferry Road headed southbound, traveling in the same direction as Defendant. Deputy Horne testified that the sun was not "totally up[,]" but it was "light enough" that he could see. Even though there was a light dusting of snow on the roadway, he could make out the center line and shoulder. He also observed tracks in the snow where cars had been traveling through it and noted that the snow was deeper in some areas than others. He said he could distinguish between the car tracks and the surrounding area, and that he had no trouble seeing the areas that were snowy and icy as he drove to the accident scene.

At the scene, Deputy Horne, who is related to Plaintiff by marriage, saw Plaintiff's truck flipped onto the passenger side in the northbound lane of travel and Defendant's car in the southbound lane, close to the center line. Plaintiff told Deputy Horne that a car had crossed into his lane and struck his truck.

Deputy Horne then identified the other driver as Defendant. According to Deputy Horne, Defendant told him that he was on his way to work and as he was going around a corner, "he must have been going a little too fast and he slid over and hit [Plaintiff][.]"

Bobby Price of the North Carolina Highway Patrol received a call at 7:18 a.m. for emergency assistance at the accident scene. He testified it was still dawn at that time, but the sun was "breaking over the horizon real good[]" and he could see without lights. Officer Price traveled to the scene in the same direction as Defendant had driven. He testified that there was "a lot of ice and black ice on Jones Ferry Road[,]" explaining that there would be clear stretches and then shaded areas that were "pretty consistent with ice." The road conditions required him to drive slowly. When he arrived on the scene, Plaintiff had already been taken to the emergency room. He interviewed Defendant about what had happened and had Defendant prepare a written statement, which said: "I was heading southbound coming out of a turn. My car got on the ice patches and was caused to start fishtailing. . . . I could not gain control and crossed the line and hit an oncoming vehicle."

Officer Price prepared a diagram of the accident scene and, during his investigation, determined that the collision occurred in the northbound lane. Defendant told Officer Price that he was traveling approximately thirty to thirty-five miles per hour before the accident. Officer Price issued a citation to Defendant for exceeding a safe speed while driving on ice.

Greg Tilley, a first responder on the scene, testified that "we were in a bad weather, severe weather, response. . . . And upon dispatch, they let us know that the roads were bad and we need[ed] to proceed with caution." He described the roadway as an "icy, snowy condition." Even though it was early morning, the light conditions were "[g]ood[,]" and he had no problem seeing as he drove to the scene. He stated that "you could definitely see patches of different things on the road the whole way over," and the conditions were "very obvious." Mr. Tilley said that Defendant made "a comment . . . to the effect that, . . . maybe speed had something to do with the accident, because of the road conditions."

Mary Stoffregen, an elementary school teacher, testified that she was following Plaintiff's truck when Defendant struck it. She described the road conditions as "slippery" and testified that, as she drove, she was wondering why school had not been delayed. She stated further that she "was not feeling safe driving to school on the roads."

Defendant testified that he left home at 6:40 a.m. to get to his job site early to turn on the heaters, which was one of his responsibilities. Defendant was not due at work until 8:00 a.m., but he ordinarily arrived between 7:20 and 7:30 a.m. His commute usually took him thirty-five to forty minutes. He had been working at this particular job site for about seven months and always took the same route to work. On this morning, Defendant observed a dusting of snow on his car and left early due to the weather conditions. He was driving in third gear with his headlights on and his windshield wipers operating, and was going approximately thirty to thirty-five miles per hour with both hands on the steering wheel. Defendant described the road on which he was traveling as "twist[ing] and turn[ing]." He noticed the dusting of snow on Jones Ferry Road and testified that "it was hard to somewhat make out[.]" He described Jones Ferry Road as a "very narrow road, [with] very little room for error, even on a good day."

Defendant estimated that he traveled approximately four miles on Jones Ferry Road before the accident occurred and said that, during those four miles, he did not encounter any slipping, sliding, or spinning of his wheels and did not "com[e] anywhere close to losing control" of his vehicle. When asked whether there was any black or hidden ice, or ice he could not see, Defendant responded, "[N]othing that I could really make out, other than you could see, . . . where the snow was, and, of course, with the tire tracks through there, knowing . . . it had possibly been compacted down into ice."

As Defendant came out of a bend into the straightaway, he saw a car "quit[e] a distance" in front of him slide "just a little bit" and apply its brakes. He estimated that the car was thirty to forty yards ahead of him. Defendant then "immediately thought, okay, there's ice coming." Defendant testified that he put his clutch in and approached the ice. He said that putting the clutch in "pulled power away from the vehicle[,]" but he did not know if the car slowed down. When he hit the ice, his car slid and he did not feel like he had any control over his vehicle. Defendant tried to regain control of his wheels by steering off the road onto the right shoulder. However, when his car hit the shoulder, it "bounced," came back onto the road, and crashed into Plaintiff's vehicle. Defendant testified that it was his intent to get off the road and stop his vehicle. He testified further that he did not see the ice before he hit it, and he had not seen any ice patches on Jones Ferry Road during his entire drive that morning before the accident.

Defendant denied telling Deputy Horne that he must have been going too fast. He told Officer Price that he did not want to miss work to attend his court date for the citation he received. Officer Price explained that Defendant could pay his ticket off or attend his court date. Defendant testified that he elected to pay the ticket off because he "couldn't afford to miss work." He did not intend to admit fault or responsibility by doing so. He believed that if he paid the ticket off, "it was...