Hester v. Miller , 41 N.C. App. 509 ( 1979 )

255 S.E.2d 318 (1979) 41 N.C. App. 509

Virgie M. HESTER
v.
James Albin MILLER, Christopher Edward Miller, an infant, Joy Mayo Ipock and David Gentry Ipock.

No. 7810SC745.

Court of Appeals of North Carolina.

June 5, 1979.

Johnson, Gamble & Shearon by Samuel H. Johnson, Raleigh, for plaintiff-appellant.

Ragsdale, Liggett & Cheshire by Peter M. Foley, Raleigh, for defendants-appellees.

CLARK, Judge.

Plaintiff contends that the court erred in granting defendants' motion for summary judgment, since there are material issues of fact as to whether Joy Mayo Ipock negligently failed to provide a turn signal, and whether such negligence was a proximate cause of the automobile accident. Defendants contend that, even assuming that Joy Mayo Ipock was negligent, that her negligence was not the proximate cause of the accident since her negligence was completely insulated by the negligence of Christopher Edward Miller in following the Hester vehicle too closely and in failing to maintain a proper lookout.

Summary judgment is appropriate only when the moving party establishes that there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law. Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101 (1970). It is only in the exceptional negligence case, however, that summary judgment is appropriate. ". . . This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury . . . to apply the standard of the reasonably prudent man to the facts of the case in order to determine where the negligence, if any, lay and what was the proximate cause of the aggrieved party's injuries. . . ." Robinson v. McMahan, 11 N.C.App. 275, 280, 181 S.E.2d 147, 150, cert. denied, 279 N.C. 395, 183 S.E.2d 243 (1971).

Proximate cause has been defined as a "cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable . . .." 9 Strong's N.C.Index 3d Negligence § 8, at 363 (1977); Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968).

There may be more than one proximate cause of an injury. It is not required that the defendants' negligence be the sole proximate cause of injury, or the last act of negligence. See Batts v. Faggart, 260 N.C. 641, 133 S.E.2d 504 (1963); Richardson v. Grayson, 252 N.C. 476, 113 S.E.2d 922 (1960). In order to hold the defendant liable, it is sufficient if his negligence is one of the proximate causes. McEachern v. Miller, 268 N.C. 591, 151 S.E.2d 209 (1966); Bechtler v. Bracken, 218 N.C. 515, 11 S.E.2d 721 (1940).

In order to insulate the negligence of one party, the intervening negligence of another must be such as to break the sequence or causal connection between the negligence of the first party and the injury. The intervening negligence must be the sole proximate cause of the injury. Rattley v. Powell, 223 N.C. 134, 25 S.E.2d 448 (1943). In cases involving rear-end collisions between a vehicle slowing or stopping on the road without proper warning signals, and following vehicles, the test most often employed by North Carolina courts is foreseeability. The first defendant is not relieved of liability unless the second independent act of negligence could not reasonably have been foreseen. See McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972); Byrd and Dobbs, Survey of North Carolina Case Law, Torts, 43 N.C.L.Rev. 906, 927-30 (1965). See Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L.Rev. 951 (1973). The foreseeability standard should not be strictly applied. It is not necessary that the whole sequence of events be foreseen, only that some injury would occur.

Since "[p]roximate cause is an inference of fact . . . [i]t is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not." Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 214, 29 S.E.2d 740, 742 (1944); Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360 (1960). The question of intervening and concurring negligence is also ordinarily for the jury. Moore v. Beard-Laney, Inc., 263 N.C. 601, 139 S.E.2d 879 (1965); Davis v. Jessup, 257 N.C. 215, 125 S.E.2d 440 (1962). Only if the court is able to determine from the undisputed facts that the defendants' negligence was remote, and not a proximate cause of the injury, does the question become one of law for the court. 57 Am. Jur.2d Negligence § 198 (1971).

The testimony set forth in the depositions of the plaintiff and Mrs. Berry Morris tends to show that Joy Mayo Ipock slowed down and turned off the road without giving a turn signal, that Mrs. Morris and plaintiff had to brake hard, that their vehicles came to a stop and that within moments the defendant Miller's truck struck the rear of plaintiff's camper. There is no testimony as to how fast the Miller vehicle was traveling or how closely the Miller vehicle was following the Hester camper. The testimony is also unclear as to how much time elapsed between the stopping of the Morris and Hester vehicles and the impact. The testimony of the time lapse varied from "a few seconds" to "a couple of minutes."

In the case before us we apply the law to the proof in light of the fact that the proof supporting the motion for summary judgment is but a forecast of the evidence and that the danger of leaving the plaintiff with no avenue of relief should be avoided in a case alleging concurring negligence of multiple defendants which may best be determined simultaneously. We conclude that the proof supporting the motion for summary judgment does not establish intervening negligence as a matter of law and that the negligence of the defendants Ipock might have set in motion a chain of circumstances leading up to plaintiff's injuries.

There remains, therefore, a question of fact as to whether the defendant Joy Mayo Ipock's alleged negligence was a proximate cause of the plaintiff's injuries. The order entering summary judgment in favor of the defendants Joy Mayo Ipock and David Gentry Ipock was erroneously granted.

Reversed and Remanded.

PARKER and CARLTON, JJ., concur.