Yancey v. Lea

• Decision Date: 18 July 2000
• Docket Number: No. COA99-533.,COA99-533.
• Citation: 532 S.E.2d 560,139 NC App. 76
• Court: North Carolina Court of Appeals
• Parties: George C. YANCEY, Administrator for the Estate of Lucy W. Yancey, Plaintiff, v. Artie Sylvester LEA and Huss, Incorporated, Defendants.

532 S.E.2d 560

139 NC App. 76

George C. YANCEY, Administrator for the Estate of Lucy W. Yancey, Plaintiff, v. Artie Sylvester LEA and Huss, Incorporated, Defendants.

No. COA99-533.

Court of Appeals of North Carolina.

July 18, 2000.

Glenn, Mills & Fisher, P.A., by William S. Mills, Durham, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Steven M. Sartorio, Raleigh, for defendant-appellees. JOHN, Judge.

Plaintiff George C. Yancey, administrator of the estate of Lucy W. Yancey (decedent), appeals judgment entered upon a jury verdict finding defendant Artie Sylvester Lea (Lea) negligent and decedent contributorily negligent in the automobile collision which caused decedent's death. Plaintiff asserts the trial court erred by failing to instruct the jury as to the alleged gross negligence of Lea and on the doctrine of comparative negligence. We conclude the trial court did not err.

Relevant background information includes the following: Decedent was killed in a collision between her automobile and a tractor-trailer truck operated by Lea and owned by defendant Huss, Incorporated. At approximately 9:00 p.m. on 6 September 1996, decedent and Lea were proceeding in a northerly direction on Highway 15 in Granville County, decedent's vehicle preceding that of Lea. As decedent turned left from the northbound lane into her sister's driveway, Lea was attempting to pass on decedent's left and collided with her automobile in the southbound lane.

Evidence at trial further indicated Highway 15 at the point of the accident is a two-lane, straight highway with unobstructed visibility for a substantial distance in either direction, and that Lea attempted to pass decedent in a valid passing zone. Decedent's grandson, Bobby Elliott (Elliott), a passenger in her automobile, testified that the turn signals on his grandmother's vehicle made a loud noise when activated and that he specifically remembered decedent had activated her left turn signal just prior to the collision. Elliott also stated to the investigating officer that Lea failed to sound his horn prior to passing decedent's automobile. Two other non-passenger witnesses reported decedent's left turn signal was flashing following the collision.

In his testimony, Lea stated he never saw a turn signal activated on decedent's vehicle. Lea observed decedent slow down and acknowledged he could have stopped behind her vehicle without striking it. However, he attempted to pass and flashed his high beam headlights to signal he was doing so. Lea related he had chosen Highway 15 because it had less traffic and would likely require less travel time in consequence of the recent passage of Hurricane Fran than an alternative route on Interstate Highway 85. Another truck driver testified that as he was traveling in his 1965 Chevrolet pickup at 50 to 53 miles per hour in a 55 mile per hour zone on Highway 15 approximately one mile before the collision site, Lea passed him traveling at a speed of 55 to 65 miles per hour.

Plaintiff subsequently filed the instant wrongful death action, alleging Lea's negligence proximately caused decedent's death. Defendants answered denying negligence on the part of Lea and asserting decedent's contributory negligence in bar of plaintiff's claim. At trial, the jury found Lea negligent and decedent contributorily negligent and judgment was entered in favor of defendants. Plaintiff timely appeals.

Plaintiff first asserts the trial court erred by refusing to instruct the jury on the issue of Lea's gross negligence as a proximate cause of decedent's death. At the outset, we note plaintiff's complaint failed to include an allegation of gross negligence. Ordinarily, when a claim of negligence can be drawn from the evidence but has not been pled, it may not be considered by the jury, as there must be both allegation and proof. Poultry Co. v. Equipment Co., 247 N.C. 570, 572, 101 S.E.2d 458, 460 (1958). However, the trial transcript reveals that plaintiff moved at the charge conference to amend the pleadings to conform to the evidence of Lea's gross negligence. See N.C.G.S. § 1A-1, Rule 15(b) (1999) (Rule 15(b)).

The effect of Rule 15(b) "is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case."

Shore v. Farmer, 133 N.C.App. 350, 354, 515 S.E.2d 495, 498 (quoting Roberts v. Memorial Park, 281 N.C. 48, 59, 187 S.E.2d 721, 727 (1972)),rev'd on other grounds, 351 N.C. 166, 522 S.E.2d 73 (1999). While the trial court granted plaintiff's motion, it nonetheless denied his request to submit to the jury the issue of Lea's gross negligence.

"The issue of gross negligence should be submitted to the jury if there is substantial evidence of the defendant's wanton and/or wilful conduct." Cissell v. Glover Landscape Supply, Inc., 126 N.C.App. 667, 670, 486 S.E.2d 472, 474 (1997), rev'd on other grounds, 348 N.C. 67, 497 S.E.2d 283 (1998).

Wilful or wanton conduct in the context of the contributory negligence issue has sometimes been referred to as gross negligence, but the use of that term cannot be read to describe conduct less negligent than that suggested by the phrase "wilful or wanton conduct." Indeed it is only where the term "gross negligence" is defined to "refer to misconduct which is ... described as wilful, wanton or reckless ... [that] the contributory negligence of the plaintiff is not a bar to recovery for an injury caused by such conduct on the part of the defendant."

Id. at 669-70, 486 S.E.2d at 473 (citations omitted) (footnote omitted).

The requisite wilful conduct "`involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another.'" Bailey v. R.R., 149 N.C. 169, 174, 62 S.E. 912, 914 (1908) (quoting Thompson on Negligence § 20 (2d ed.)). Such conduct is distinguishable from a wilful and deliberate purpose to inflict injury, which is an intentional tort. Siders v. Gibbs, 39 N.C.App. 183, 187, 249 S.E.2d 858, 860 (1978). Wilful and/or wanton conduct "encompasses conduct which lies somewhere between ordinary negligence and intentional conduct." Id. at 186, 249 S.E.2d at 860. "An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others." Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929).

The evidence viewed in the light most favorable to plaintiff, see Cockrell v. Transport Co., 295 N.C. 444, 449, 245 S.E.2d 497, 500 (1978), tends to show decedent had slowed her vehicle and activated the left turn signal thereon prior to the collision. Lea conceded having been aware decedent was slowing down, but testified he did not see decedent's turn signal in flashing mode. According to Lea, he observed decedent's vehicle while attempting to pass it until the two vehicles were "nose-to-nose," and although decedent's vehicle was reducing its speed, at no time did he see either brake lights or a turn signal.

Under previous decisions of our courts, we conclude the foregoing fails to comprise "substantial evidence," Cissell, 126 N.C.App. at 670, 486 S.E.2d at 474, that Lea's conduct, while constituting negligence, was either "deliberate," Bailey, 149 N.C. at 175-76, 62 S.E. at 914, or "reckless[ly] indifferen[t]," Foster, 197 N.C. at 191, 148 S.E. at 37-38; accord Enyeart v. Borgeson, 60 Wash.2d 494, 374 P.2d 543, 545 (1962) (if defendant did not observe plaintiff's left turn signal, attempting to pass turning vehicle "admits to negligence only and not wilful misconduct"); 57A Am.Jur.2d Negligence § 272 (1989) (to constitute wilful and wanton conduct, "the defendant must have been aware of th[e] situation and ignored it").

Indeed, the appellate courts of this State have determined an instruction on wilful and wanton conduct to be proper only in situations where the defendant's underlying negligence was coupled with a clear indication of reckless indifference to the rights of others. For example, in Boyd v. L.G. DeWitt Trucking Co., 103 N.C.App. 396, 405 S.E.2d 914, disc. review denied, 330 N.C. 193, 412 S.E.2d 53 (1991), submission of the issue was approved where the negligence of a truck driver whose vehicle struck the rear of a stalled automobile in his lane of travel was compounded by evidence tending to show he

was intoxicated at the time of the accident,... was traveling in excess of the posted speed limit, ... and ... no attempt was made to avoid the accident prior to its occurrence.

Id. at 402, 405 S.E.2d at 918; see also Berrier v. Thrift, 107 N.C.App. 356, 360, 420 S.E.2d 206, 208 (1992),disc. review denied, 333 N.C. 254, 424 S.E.2d 918 (1993) (instruction warranted where defendant, who lost control of vehicle in curve, had blood alcohol content of 0.184 two hours following the accident and had made "deliberate decision" to drive despite being aware of consequences of driving while impaired). Similarly, evidence tending to show the defendant was driving at an excessive rate of speed, see Baker v. Mauldin, 82 N.C.App. 404, 408, 346 S.E.2d 240, 242 (1986) (100 miles per hour), or was engaged in a "speed competition" with another vehicle, see Lewis v. Brunston, 78 N.C.App. 678, 685, 338 S.E.2d 595, 600 (1986) (75 miles per hour in 45 mile-per-hour zone), may suffice to take the issue of wilful and wanton conduct to a jury.

By contrast, our courts have determined facts tending to show a defendant's failure to drive in the right lane of an interstate highway while cognizant of the potential of running out of fuel, combined with failing to remove her stopped automobile out of the left travel lane after running out of gas and her failure to warn other motorists of the stopped automobile, did not justify an instruction on wilful and wanton conduct. Dixon v. Weaver, 41 N.C.App. 524, 527, 255 S.E.2d 322, 324 (1979...