Yancey v. Lea

• Decision Date: 17 August 2001
• Docket Number: No. 366A00.,366A00.
• Citation: 354 N.C. 48,139 NC App 76,550 S.E.2d 155
• Court: North Carolina Supreme Court
• Parties: George C. YANCEY, Administrator for the Estate of Lucy W. Yancey, v. Artie Sylvester LEA and Huss, Incorporated.

550 S.E.2d 155

354 N.C. 48

139 NC App 76

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

No. 366A00.

Supreme Court of North Carolina.

August 17, 2001.

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.

LAKE, Chief Justice.

This is a wrongful death action, arising from a motor vehicle accident, wherein plaintiff, George C. Yancey, administrator of the estate of Lucy W. Yancey, driver of one of the vehicles, filed suit for damages for her death against the driver and owner of the other vehicle, defendants Artie Sylvester Lea and Huss, Incorporated, respectively. This case presents the issue of whether the trial court erred in granting defendants' motion for directed verdict as to plaintiff's claim of gross negligence and refusing to instruct the jury on the issue of defendants' gross negligence. We conclude that the trial court did not err and affirm the decision of the Court of Appeals.

On 5 September 1996, the day before the subject accident, Hurricane Fran swept through North Carolina, and during the evening of 6 September, the weather was poor and the skies were still overcast. Defendant Lea was operating a tractor-trailer truck for his employer, defendant Huss, and was transporting a load, weighing approximately eighty thousand pounds, northbound on Interstate Highway 85 to his employer's terminal in Chase City, Virginia. Because of hurricane-related delays on I 85 north of Durham, defendant Lea decided to return to his depot via Highway 15 North, a two-lane highway. As Lea traveled through Granville County after dark, there was no street lighting or electricity to houses along the highway, and as a result, Lea could not see residential houses or driveways on either side of the highway.

As defendant Lea proceeded north on Highway 15 and approached the town of Bullock in Granville County, he observed and passed, without incident in a passing zone, a pickup truck pulling a trailer. The driver of the pickup truck testified that as he was passed by the tractor-trailer, defendant Lea may have been driving anywhere between fifty-five and sixty-five miles per hour in a fifty-five-mile-per-hour zone.

Defendant Lea testified that he was in the town limits of Bullock when he first saw the taillights of decedent's automobile as it passed over a knoll on the north side of town. When defendant Lea cleared this knoll, decedent's vehicle came back in sight, and he observed that it was traveling straight on Highway 15 but appeared to be slowing down. At this point, the vehicles entered into a passing zone for northbound traffic, and as the distance between the two closed, defendant Lea decided he should pass decedent's automobile. He testified that he could have stopped his truck behind this vehicle but consciously chose to pass instead. The speed limit was forty-five miles per hour in the location of the collision, and the roadway was straight and with unobstructed visibility.

In proceeding to pass decedent's vehicle, defendant Lea testified that he confirmed the passing zone, turned on his left-turn signal and blinked his headlights to warn the driver of the automobile of his intention to pass in the left-hand lane. Defendant Lea further testified that he did not see any turn signal or brake lights from the automobile at any time before he started to pass, and that when he was even with the automobile, he observed the automobile begin to turn and its left front fender cross in front of the truck's right fender. Defendant testified that he was in sixth gear at the time of the collision, so he could not have been driving faster than forty miles per hour. Upon colliding, the tractor-trailer and the automobile moved forward 170 feet before coming to a stop on the highway.

A passenger in decedent's car at the time of the accident, Bobbie Lee Elliott, testified at trial that decedent's car was slowing down in order to turn left off Highway 15 into a residential driveway. Elliott further testified that decedent's left-turn signal was flashing when defendant Lea's tractor-trailer approached, and that the turn signal was on at the time of the collision. The investigating officer testified that when he spoke to defendant Lea after the accident, Lea showed no signs of a physical or a mental impairment or fatigue, and additionally, the officer testified that the blinkers on decedent's car were not on or operating when he arrived at the scene of the accident or when he had an opportunity to examine the automobile. An expert in the field of accident reconstruction, Dr. Roland F. Barrett, testified as to the physical facts discovered at the scene of the accident. Dr. Barrett confirmed that the truck was entirely in the left-hand passing lane at the time of impact, that it was straight in the passing lane and that the right front area of the truck first made contact with the left side of decedent's vehicle as that vehicle tried to turn. At the close of all the evidence, plaintiff moved to amend his complaint and to have gross negligence included as a basis for his claim against defendants Lea and Huss. Concurrent with his motion to amend, plaintiff also requested that the jury be given an instruction on the issue of gross negligence with respect to defendant Lea's conduct. Specifically, plaintiff requested that the trial judge give the pattern instruction for reckless driving, N.C.P.I.—Civ. 207.10 (motor veh. vol.1989), entailing willful or wanton conduct on the part of defendant Lea. The trial court granted plaintiff's motion to amend but denied plaintiff's request for a gross negligence instruction on the grounds that the evidence did not support submission of that issue to the jury.

The jury found both negligence by defendant Lea and contributory negligence on the part of the decedent, and on 7 December 1998, the trial court entered the jury's verdict and dismissed the action against defendants with prejudice. Plaintiff appealed to the Court of Appeals, where a divided court affirmed the decision of the trial court.

The question raised in this case is whether there was evidence of gross negligence on the part of defendant Lea sufficient to override decedent's contributory negligence and allow recovery by plaintiff. Contributory negligence is not a bar to a plaintiff's recovery when the defendant's gross negligence, or willful or wanton conduct, is a proximate cause of the plaintiff's injuries. Brewer v. Harris, 279 N.C. 288, 297, 182 S.E.2d 345, 350 (1971). In the sole issue before us, plaintiff contends that defendant Lea's conduct, as reflected in the evidence of record, constituted gross negligence sufficient to overcome the affirmative defense of contributory negligence, and thus the trial court was required to instruct the jury on gross negligence. We disagree.

This Court has long held that "[w]hen charging the jury in a civil case it is the duty of the trial court to explain the law and to apply it to the evidence on the substantial issues of the action." Cockrell v. Cromartie Transp. Co., 295 N.C. 444, 449, 245 S.E.2d 497, 500 (1978); see also Superior Foods, Inc. v. Harris-Teeter Super Mkts., Inc., 288 N.C. 213, 217 S.E.2d 566 (1975)

; Investment Properties of Asheville, Inc. v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (1972). As this Court stated in Cockrell:

If a party contends that certain acts or omissions constitute a claim for relief or a defense against another, the trial court must submit the issue with appropriate instructions if there is evidence which, when viewed in the light most favorable to the proponent, will support a reasonable inference of each essential element of the claim or defense asserted. See, Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977)

; Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970).

Cockrell, 295 N.C. at 449, 245 S.E.2d at 500. In this regard, see also Adams v. Mills, 312 N.C. 181, 186-87, 322 S.E.2d 164, 168 (1984).

In determining or defining gross negligence, this Court has often used the terms "willful and wanton conduct" and "gross negligence" interchangeably to describe conduct that falls somewhere between ordinary negligence and intentional conduct. We have defined "gross negligence" as "wanton conduct done with conscious or reckless disregard for the rights and safety of others." Bullins v. Schmidt, 322 N.C. 580, 583, 369 S.E.2d 601, 603 (1988); see also Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956)

; Wagoner v. North Carolina R.R. Co., 238 N.C. 162, 77 S.E.2d 701 (1953). "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), quoted in Parish v. Hill, 350 N.C. 231, 239, 513 S.E.2d 547, 551 (1999). Our Court has defined willful negligence in the following language:

An act is done wilfully when it is done purposely and deliberately in violation of law or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. "The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law." Thompson on Negligence (2d Ed.) § 20.

Foster v. Hyman, 197 N.C. at 191, 148 S.E. at 37 (citations omitted); see also Brewer v. Harris, 279 N.C. at 296-97, 182 S.E.2d at 350

.

It is clear from the foregoing language of this Court that the difference between ordinary negligence and gross negligence is substantial. As this Court has stated:

An analysis of our decisions impels the conclusion that this Court, in references to gross negligence, has used that term in the sense

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