Talian v. City of Charlotte

• Decision Date: 01 May 1990
• Docket Number: No. 8926SC145,8926SC145
• Citation: 98 N.C.App. 281,390 S.E.2d 737
• Court: North Carolina Court of Appeals
• Parties: Minna Susan Goldberg TALIAN, Administratrix of the Estate of Sherri Lynn Goldberg, and Dana King, Plaintiffs, v. The CITY OF CHARLOTTE, a Municipal Corporation, Defendant.

Page 737

390 S.E.2d 737

98 N.C.App. 281

Minna Susan Goldberg TALIAN, Administratrix of the Estate of Sherri Lynn Goldberg, and Dana King, Plaintiffs, v. The CITY OF CHARLOTTE, a Municipal Corporation, Defendant.

No. 8926SC145.

Court of Appeals of North Carolina.

May 1, 1990.

Ronald Williams, Charlotte, for plaintiff-appellant Dana Scott King.

Golding, Meekins, Holden, Cosper & Stiles by Emily S. Reeve and Fred C. Meekins, Charlotte, for defendant-appellee.

SARA ELIZABETH PARKER, Judge.

Plaintiffs Minna Susan Goldberg Talian, Administratrix of the Estate of Sherri Lynn Goldberg, and Dana King instituted this wrongful death and personal injury action against the City of Charlotte to recover damages arising out of a motorcycle-truck accident which occurred at the intersection of North Sharon Amity Road and Central Avenue within the city of Charlotte, North Carolina (herein "the City"). Plaintiffs contend that the City was negligent in failing to install a protected left turn signal at the intersection and that this omission on the part of the City proximately caused the death of Talian's intestate and personal injuries to King. Plaintiffs appeal from the trial court's entry of a directed verdict in favor of defendant.

On a motion for a directed verdict under Rule 50(a) of the N.C. Rules of Civil Procedure, the Court must determine "[w]hether the evidence, taken in the light most favorable to plaintiff, was sufficient for submission to the jury." Helvy v. Sweat, 58 N.C.App 197, 199, 292 S.E.2d 733, 734 (1982), disc. rev. denied, 306 N.C. 741, 295 S.E.2d 477 (1982) (citing Hunt v. Montgomery Ward and Co., 49 N.C.App. 642, 644, 272 S.E.2d 357, 359 (1980)).

In order to prove that defendant was negligent, plaintiff must show:

(1) defendant failed to exercise proper care in the performance of a duty owed to plaintiff;

(2) the negligent breach of that duty was a proximate cause of plaintiff's injury; and

(3) a person of ordinary prudence should have foreseen that plaintiff's injury was probable under the circumstances as they existed.

Jordan v. Jones, 314 N.C. 106, 108, 331 S.E.2d 662, 663 (1985). If plaintiff fails to present evidence as to any one of these elements, directed verdict is proper. Cooper v. Town of Southern Pines, 58 N.C.App. 170, 173, 293 S.E.2d 235, 236 (1982).

On 26 June 1984 plaintiff King and Goldberg, riding King's motorcycle, were traveling north on North Sharon Amity Road about 9:40 p.m. At the same time, Jacqueline Rogers was traveling south on North Sharon Amity Road and was in the left turn lane preparing to turn east onto Central Avenue at its intersection with North Sharon Amity. As King's motorcycle approached the intersection at forty miles per hour, in a forty-five mile per hour zone, King saw Rogers' pickup truck with the left turn signal blinking but assumed that Rogers was going to yield the right-of-way to him. Rogers, however, turned just as plaintiff King crossed through the intersection, and the motorcycle hit the right front fender of the truck. Goldberg was killed instantly and King received serious injuries.

At the time of the collision, the southbound traffic at the intersection of North Sharon Amity Road and Central Avenue was controlled by a standard three-light traffic control signal which was properly operating. The other three approaches to the intersection were protected by traffic control devices having protected left turn signals. On 31 July 1984 defendant installed a protected left turn signal at the southbound intersection.

The determinative legal question in this appeal is whether the city had a duty to install a traffic control device having a protected left turn signal. Plaintiffs contend that such a duty exists because various statutes, codes and manuals pertaining to traffic control and highway safety create national uniform standards. Plaintiffs cite 23 U.S.C. § 402(a) under the Highway Safety Act, which provides that "[e]ach State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and property damage resulting therefrom. Such programs shall be in accordance with uniform standards promulgated by the Secretary." 23 U.S.C. § 402(a) (1982).

Additionally, 23 C.F.R. § 1204.4 provides that:

Each State, in cooperation with its political subdivisions, and each Federal department or agency which controls highways open to public travel or supervises traffic operations, shall have a program for applying traffic engineering measures and techniques, including the use of traffic control devices, to reduce the number and severity of traffic accidents.

23 C.F.R. § 1204.4 (1984). 23 U.S.C. § 402(e) further states that the "[u]niform standards promulgated by the Secretary to carry out this section shall be developed in cooperation with the States, their political subdivisions, appropriate Federal departments and agencies, and such other public and private organizations as the Secretary deems appropriate." 23 U.S.C. § 402(e) (1982).

Plaintiffs contend that the City was under an obligation to install a protected left turn signal at the intersection by virtue of these statutes and two manuals published by the Federal Highway Administration, namely, the Manual on Uniform Traffic Control Devices (herein "MUTCD") and the Traffic Control Devices Handbook (herein "TCDH"). To form the connective State link, plaintiff cites Title 19A of the North Carolina Administrative Code, which reads as follows:

Uniform Traffic Control Devices

(a) The United States Department of Transportation publishes a volume entitled "Manual on Uniform Traffic Control Devices." This publication has been adopted by the Federal Highway Administrator as a national standard that is applicable to all classes of highways. This volume contains standards for the design and deployment of traffic control devices. The 1978 edition is hereby adopted and incorporated by reference. Revision 1 dated 1979, Revision 2 dated 1983 and Revision 3 dated 1984 of the 1978 edition of the Manual on Uniform Traffic [Control] Devices for Streets and Highways (MUTCD) published by the Federal Highway Administrator are hereby adopted and incorporated by reference.

N.C.Admin.Code title 19A, r. 02.0208 (Jan.1986). The federal statutes cited by plaintiffs do not, however, direct the City to follow any uniform guidelines for left turn signalization. For example, 23 U.S.C. § 402(a) only directs states to have a state highway safety program which is in accordance with uniform guidelines promulgated by the Secretary. These regulations in no way create or impose a national standard which cities must follow with respect to installation of protected left turn signals.

The MUTCD does require full signalization of an intersection when five or more accidents involving personal injury or property damage of one hundred dollars or more have occurred within a twelve month period. The undisputed evidence offered at trial showed, however, that the traffic signal devices in place and properly operating at the time of the accident complied in every way with all requirements of the MUTCD. Although plaintiffs' expert witness testified that in his opinion defendant failed to exercise good engineering judgment, principles and practices when it failed to install a protected left turn signal, the record shows, and plaintiffs' expert admitted, that there are no mandates or warrants contained in the MUTCD regarding left turn signalization.

The TCDH does contain guidelines for the installation of left turn signals. The first full paragraph of the introduction to the TCDH expressly states:

This Traffic Control Devices Handbook is primarily intended to augment [the MUTCD] by serving an interpretative function and by linking the MUTCD standards and warrants with the activities related to complying with these national uniform standards. As such, the Handbook does not establish Federal Highway Administration (FHWA) policies or standards. Nor does it attempt to detail basic engineering and design techniques.... The Handbook offers guidelines for implementing the standards and applications contained in the Manual.

Traffic Control Devices Handbook 1-1 (1983). All information regarding left turn signalization is located in the 1983 Edition of the TCDH under a section labeled "Left-Turn Phase Criteria." In this section, the TCDH expressly states: "These warrants are not mandated by the MUTCD and are provided here for informational purposes only." TCDH 4-18 (1983). Thereafter, under a section expressly labeled "Suggested Guidelines," the TCDH states, "The following guidelines may be used when considering the addition of separate left-turn phasing." Following this preface, the TCDH recommends installing left turn phasing if the critical number of accidents has occurred at an intersection. The critical numbers for one approach are four left turn accidents in one year, or six in two years. TCDH 4-19 (1983).

Plaintiffs' attempt to establish a duty based on these statutes and manuals fails for two reasons. First, the plain language of the 1983 TCDH, the only manual mentioning left turn signalization, is in permissive, not mandatory terms. Secondly, under the North Carolina General Statutes, municipalities are required to conform to the traffic control device standards promulgated in the...