Treadway v. Diez
| Decision Date | 03 May 2011 |
| Docket Number | No. 08-CVS-06294,No. 08-CVS-06291,NO. COA10-887,COA10-887,08-CVS-06294,08-CVS-06291 |
| Court | North Carolina Court of Appeals |
| Parties | LATRECIA TREADWAY, Plaintiff, v. SUSANNA KRAMMER DIEZ; GENE LUMMUS; GENE LUMMUS HARLEY DAVIDSON, INC.; MIKE CALLOWAY, individually and officially; JOHN DOE, individually and officially; COUNTY OF BUNCOMBE; BUNCOMBE COUNTY SHERIFF'S DEPARTMENT Defendants. HULIN K. TREADWAY, Plaintiff, v. SUSANNA KRAMMER DIEZ; GENE LUMMUS; GENE LUMMUS HARLEY DAVIDSON, INC.; MIKE CALLOWAY, individually and officially; JOHN DOE, individually and officially; COUNTY OF BUNCOMBE; BUNCOMBE COUNTY SHERIFF'S DEPARTMENT Defendants. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Buncombe County
Appeal by Plaintiffs from an order entered 4 March 2010 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 14 December 2010.
Buncombe County
Hyler & Lopez, P.A., by Robert J. Lopez, for Plaintiff Appellants.
Baucom, Claytor, Benton, Morgan & Wood, P.A., by Rex C. Morgan, for Defendant Appellees.
Plaintiffs appeal from a trial court order granting summary judgment in favor of two Defendants in a negligence cause of action. Because no genuine issues of material fact remain in dispute, we affirm the trial court's order.
On 3 December 2005, Plaintiffs, Hulin K. Treadway and his wife, Latrecia Treadway, were participating in the 25th Annual Smoky Mountain Toy Run in Buncombe County, North Carolina. The Smoky Mountain Toy Run was a motorcycle parade in the City of Asheville designed to raise donations for the Salvation Army. The parade "traveled along Highway US 7 0 from the Kerfott manufacturing plant parking lot in Black Mountain to the center of downtown Asheville." The motorcyclists participating in the parade traveled in a " continuous flow," disregarding traffic signals and maintaining a reasonable distance from other parade participants. Local law enforcement officials were positioned to block intersections along the parade route to ensure the safety of local drivers and parade participants. Plaintiff, Hulin Treadway participated in the parade as a driver and his wife, Plaintiff Latrecia Treadway, rode alongas his passenger. As Plaintiffs traveled along the parade route, a vehicle driven by Defendant, Susanna Krammer Diez, pulled out from an intersection into the parade path. Unable to avoid Defendant Diez's vehicle, Plaintiffs' motorcycle collided with the automobile. Plaintiffs allege that they suffered a number of serious injuries as a result of the collision.
Shortly before the collision, Defendant Diez had been at the intersection waiting for the parade to pass in order to return home. A law enforcement official was positioned at the intersection to prevent vehicles from entering into the parade route. After a number of motorcycles passed, the officer got into his vehicle and left. Apparently operating under the belief that the parade had reached its conclusion, Defendant Diez waited for the traffic light to turn green and pulled out into the road. A few seconds later, Plaintiffs collided with Defendant Diez.
The Smoky Mountain Toy Run was organized by Defendants, Gene Lummus and Gene Lummus Harley Davidson, Inc. (Lummus Defendants). Gene Lummus had been organizing the Toy Run in association with his Harley Davidson dealership for several years. Typically, Gene Lummus would secure the date and location for the annual Toy Run by filing the necessary permit applications with the City of Asheville. Prior to the 25th annual Toy Run event Defendant filed a "Special Events Permit Application" with the City of Asheville. Theapplication filed with the City contained an indemnification clause requiring the Lummus Defendants to "indemnify, defend and save the City harmless from any... and all claims or suits for damages... for personal injury" arising from the parade.
On 2 January 2009, Plaintiffs each filed separate negligence actions against Defendants. On 9 November 2009, the Lummus Defendants filed a motion for summary judgment as to Plaintiffs' negligence claims against them. The trial court granted the Lummus Defendants' motion by order filed on 4 March 2010. Plaintiffs appeal from the trial court's order arguing that the trial court erroneously granted the Lummus Defendants' motion for summary judgment. Because Plaintiffs only appeal from the trial court order dismissing their complaint as to the Lummus Defendants, the sole issue on appeal is whether the trial court erred in determining that no genuine issues of material fact remained with respect to Plaintiffs' negligence claims against the Lummus Defendants.
The trial court's order only disposes of Plaintiffs' negligence action with respect to the Lummus Defendants; therefore, we must first determine whether the trial court's order is appropriately before our Court for review.
"In general, only final orders and judgments may be appealed." J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 8 8 N.C. App. 1, 4, 362 S.E.2d 812, 814 (1987). "'A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.'" Id. (quoting Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)). In contrast, "[a]n interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Id. at 4, 362 S.E.2d at 814-15. Typically, an interlocutory order is not appropriate for immediate appellate review by this Court. N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995).
Our Courts recognize an exception to the general rule and will review an appeal from an interlocutory order:
(1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C. R. Civ. P. 54(b) or (2) "if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted); Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 518 S.E.2d 786 (1999); N.C. Gen. Stat. § 1-277 (1999); N.C. Gen. Stat. § 7A-27 (1999).
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000).
"A substantial right is generally something that does—or at least could-affect the on-going proceedings; it is something that goes to the very heart of the matter." Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 278, 679 S.E.2d 512, 516, disc, review denied, 363 N.C. 653, 686 S.E.2d 515 (2009). "Essentially a two-part test has developed the right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment." Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). The determination as to whether the trial court's order prejudices a substantial right held by a party is made upon a case-by-case basis. Walden v. Morgan, 179 N.C. App. 673, 677, 635 S.E.2d 616, 620 (2006). Our Courts have recognized that while the avoidance of a single trial is not a substantial right, "the possibility of undergoing a second trial affects a substantial right when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue." Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982).
Here, the trial court's summary judgment order is interlocutory because while the trial court's order dismisses Plaintiffs' claims as to the Lummus Defendants, Plaintiffs' claims with respect to theother Defendants remain for trial. However, despite appealing from an interlocutory order, the trial court's order affects a substantial right and is therefore appropriate for immediate appellate review. Plaintiff filed negligence actions against all the Defendants arising from the same set of factual circumstances. In their numerous complaints, Plaintiffs generally alleged that Defendants' negligent actions all contributed to the Plaintiffs' injuries. Notably, Plaintiffs allege that both the Lummus Defendants and the Buncombe County Sheriff's Department failed to secure the intersection at which the accident occurred. To what degree, if any, Defendants were responsible for Plaintiffs' injuries will be a common issue in the actions that remain for trial. Because jurors could reach differing results as to who was responsible for securing the intersection, the trial court's order affects a substantial right and is ripe for immediate appellate review.
It is well established that a trial court order granting a defendant's motion for summary judgment is appropriate 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." N.C. Gen. Stat. § 1A-1, Rule 56 (c) (2009). The party moving for summary judgment bears the burden ofestablishing the lack of any triable issue of fact. Goynias v. Spa Health Clubs, Inc., 148 N.C. App. 554, 555, 558 S.E.2d 880, 881, aff'd per curiam, _ N.C. App. _, 569 S.E.2d 648 (2002).
The moving party may meet its burden by establishing: "(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...
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