Oraefo v. Pounds ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-101
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
EBELE ANN ORAEFO,
Plaintiff
v. Wake County
No. 11-CVS-12463
CHRISTINA CLAREASA POUNDS,
Defendant.
Appeal by plaintiff from judgment entered 18 May 2012 by
Judge Michael R. Morgan in Wake County Superior Court. Heard in
the Court of Appeals 26 September 2013.
E. Gregory Stott for plaintiff-appellant.
Haywood, Denny and Miller, L.L.P., by George W. Miller,
III, for defendant-appellee.
DAVIS, Judge.
Plaintiff Ebele Ann Oraefo (“Plaintiff”) appeals from a
judgment entered by the trial court based on the jury’s verdict
in favor of Defendant Christina Clareasa Pounds (“Defendant”) in
a negligence action. Plaintiff’s primary contention on appeal
is that the trial court committed reversible error by submitting
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the issue of contributory negligence to the jury. After careful
review, we affirm.
Factual Background
This case arises out of a motor vehicle collision that
occurred on 26 August 2008 on N.C. Highway 55 (also known as
Alston Avenue) in Durham, North Carolina. Defendant, a student
at Durham Technical Community College, was leaving campus in her
car and planned to take N.C. Highway 55 to Interstate 40 in
order to return home to Chapel Hill. Defendant entered N.C.
Highway 55 – a four lane highway running north and south.
Defendant was driving southbound when she came upon Plaintiff -
also traveling southbound - who was driving a Honda Accord
directly in front of Defendant’s vehicle in the far right-hand
lane.
Plaintiff, a student at North Carolina Central University
(“NCCU”), was traveling on N.C. Highway 55 after leaving
Vocational Rehab, where she worked as an intern. Plaintiff was
en route to her professor’s office on NCCU’s campus to drop off
some documents. The weather at this time was misty, and it had
been raining all morning.
Because Plaintiff appeared to be traveling slower than the
posted 45 mile per hour speed limit, Defendant decided to switch
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into the left southbound lane for the purpose of passing
Plaintiff’s vehicle. From her rear view mirror, Plaintiff saw
Defendant’s vehicle approaching and noticed that it was “weaving
in and out of traffic.” As Defendant passed Plaintiff,
Plaintiff honked her horn. Defendant moved alongside
Plaintiff’s car, activated her right turn signal and attempted
to re-enter the far right-hand lane in front of Plaintiff’s
vehicle. Before Defendant actually moved over into the far
right-hand lane, she saw Plaintiff’s vehicle both in her side
view mirror and by looking directly over her shoulder. Because
she perceived that Plaintiff’s car was a “great amount of
distance behind” her own vehicle, she attempted to merge into
the far right-hand lane. She then felt a “bump” as the two
automobiles collided. The collision occurred when the driver’s
side of Plaintiff’s vehicle made contact with the passenger-side
back bumper of Defendant’s vehicle.
After the collision, both Plaintiff and Defendant pulled
over to the side of the road, and Plaintiff called the police.
Corporal Michael Mole, an officer with the Durham Police
Department, arrived on the scene and completed an accident
report.
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On 11 August 2011, Plaintiff filed a complaint against
Defendant in Wake County Superior Court, alleging that
Defendant’s negligence was the proximate cause of injuries she
sustained as a result of the collision. In her answer,
Defendant denied Plaintiff’s allegations and asserted
contributory negligence as an affirmative defense, alleging that
Plaintiff “failed to keep a proper lookout, failed to keep her
vehicle under proper control, and failed to use reasonable care
to avoid impact with Defendant’s vehicle.”
A jury trial was held on 30 April 2012 before the Honorable
Michael R. Morgan. At the close of Plaintiff's evidence,
Plaintiff moved for a directed verdict with respect to the
issues of negligence and contributory negligence. Plaintiff’s
motion was denied. At the close of all the evidence, Plaintiff
renewed her motion for a directed verdict with respect to these
issues. This motion was also denied. The jury returned a
verdict finding Defendant negligent but also finding Plaintiff
contributorily negligent. The trial court entered judgment
based on the jury’s verdict on 18 May 2012.
On 30 May 2012, Plaintiff filed a written motion for entry
of judgment notwithstanding the verdict (“JNOV”) concerning the
contributory negligence issue and for a new trial on the issue
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of damages. The trial court denied Plaintiff's motions.
Plaintiff filed a timely notice of appeal to this Court.
Analysis
Plaintiff argues on appeal that the trial court erred by
(1) denying her motion for a directed verdict on the issue of
contributory negligence; and (2) denying her motions for JNOV
and for a new trial.
The standard of review applicable to a motion for a
directed verdict is “whether the evidence, taken in the light
most favorable to the non-moving party, is sufficient as a
matter of law to be submitted to the jury.” Davis v. Dennis
Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991).
“[A]ll of the evidence which supports the non-movant's claim
must be taken as true . . . giving the non-movant the benefit of
every reasonable inference which may legitimately be drawn
therefrom and resolving contradictions, conflicts, and
inconsistencies in the non-movant's favor.” Turner v. Duke
Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989).
If there is more than a scintilla of
evidence supporting each element of the
nonmovant's case, the motion for directed
verdict should be denied. Thus, where a
defendant pleads an affirmative defense such
as contributory negligence, a motion for
directed verdict is properly granted against
the defendant where the defendant fails to
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present more than a scintilla of evidence in
support of each element of his defense.
Whisnant v. Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850
(2004) (quotation marks and citations omitted). A directed
verdict in a negligence case is rarely proper because it is the
duty of the jury to apply the test of a person using ordinary
care. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 138, 539
S.E.2d 331, 333 (2000).
The standard of review for a JNOV motion is the same as
that regarding the denial of a directed verdict motion — that
is, “whether the evidence was sufficient to go to the jury.”
Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness
Church of God, Inc., 136 N.C. App. 493, 498–99, 524 S.E.2d 591,
595 (2000). With regard to a motion for a new trial, such
motions are addressed to the discretion of the trial court, and
our review is strictly limited to whether the record
affirmatively shows a manifest abuse of discretion. Streeter v.
Cotton, 133 N.C. App. 80, 82, 514 S.E.2d 539, 542 (1999).
Here, the issues Plaintiff raises on appeal all hinge on
whether the evidence presented at trial by Defendant – along
with all reasonable inferences that may be drawn therefrom – was
sufficient to allow the issue of contributory negligence to be
submitted to the jury. Because we conclude that sufficient
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evidence existed to support a finding of contributory negligence
by the jury, we affirm.
Contributory negligence is “negligence on the part of the
plaintiff which joins, simultaneously or successively, with the
negligence of the defendant . . . to produce the injury of which
the plaintiff complains.” Bosley v. Alexander, 114 N.C. App.
470, 472, 442 S.E.2d 82, 83 (1994) (citation omitted). In
determining whether a plaintiff is guilty of contributory
negligence, a jury must determine “whether a person using
ordinary care for his or her safety under similar circumstances
would have recognized the danger.” Stallings, 141 N.C. App. at
137, 539 S.E.2d at 333 (citation omitted).
“The plaintiff's negligence, in order to bar a recovery . .
., need not be the sole proximate cause of the injury . . . .
It is sufficient if [the plaintiff's] negligence is a cause, or
one of the causes, without which the injury would not have
occurred.” Whaley v. Adams, 25 N.C. App. 611, 613–14, 214 S.E.2d
301, 303 (1975) (citation omitted). “[S]ince negligence usually
involves issues of due care and reasonableness of actions under
the circumstances, it is especially appropriate for
determination by the jury. In borderline cases, fairness and
judicial economy suggest that courts should decide in favor of
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submitting issues to the jury.” Whisnant, 166 N.C. App. at 722-
23, 603 S.E.2d at 850 (citations and quotation marks omitted).
In the context of evaluating a contributory negligence
issue arising from a motor vehicle accident, we have held that
“a driver must keep such an outlook in the direction of travel
as a reasonably prudent person would keep under the same or
similar circumstances.” Sink v. Sumrell, 41 N.C. App. 242, 246,
254 S.E.2d 665, 668-69 (1979) (citation omitted). We have also
recognized that “N.C. Gen. Stat. § 20–141(a)1 and N.C. Gen. Stat.
§ 20–141(m)2, construed together, establish a duty to drive with
caution and circumspection and to reduce speed if necessary to
avoid a collision, irrespective of the lawful speed limit or the
speed actually driven.” State v. Stroud, 78 N.C. App. 599, 603,
337 S.E.2d 873, 876 (1985).
Our Supreme Court has held that
[o]rdinarily a person has no duty to
1
N.C. Gen. Stat. § 20–141(a) states: “No person shall drive a
vehicle on a highway or in a public vehicular area at a speed
greater than is reasonable and prudent under the conditions then
existing.”
2
N.C. Gen. Stat. § 20–141(m) provides: “The fact that the speed
of a vehicle is lower than the . . . limits shall not relieve
the operator of a vehicle from the duty to decrease speed as may
be necessary to avoid colliding with any person, vehicle or
other conveyance on or entering the highway, and to avoid injury
to any person or property.”
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anticipate negligence on the part of others.
In the absence of anything which gives or
should give notice to the contrary, he has
the right to assume and to act on the
assumption that others will observe the
rules of the road and obey the law. However,
the right to rely on this assumption is not
absolute, and if the circumstances existing
at the time are such as reasonably to put a
person on notice that he cannot rely on the
assumption, he is under a duty to exercise
that care which a reasonably careful and
prudent person would exercise under all the
circumstances then existing.
Penland v. Green, 289 N.C. 281, 283, 221 S.E.2d 365, 368 (1976)
(citations omitted); see McNair v. Goodwin, 264 N.C. 146, 148,
141 S.E.2d 22, 23 (1965) (per curiam) (reasonable prudence
requires motorist who sees another vehicle being operated in
negligent manner to take all the more care to avoid collision).
We believe that, taken together, Plaintiff’s and
Defendant’s testimony at trial constituted sufficient evidence
for the trial court to submit the issue of contributory
negligence to the jury. Plaintiff testified that she “saw
[Defendant] from the rear view [mirror] weaving in and out of
traffic,” honked her horn when Defendant was in the process of
passing her vehicle, and observed Defendant’s turn signal
flashing before Defendant merged back into Plaintiff’s lane,
thereby putting her on notice of Defendant’s intent to re-enter
her lane of travel.
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Defendant testified that when she looked over her shoulder
prior to re-entering the far right-hand lane, “[Plaintiff] was a
great amount of distance behind” and when Defendant started to
“move over, [Plaintiff] just came out of nowhere.”
The jury could have reasonably inferred from this evidence
that Plaintiff — being fully aware of Defendant’s intent to re-
enter her lane of travel — breached her duty of care by failing
to reduce her speed or otherwise attempt to avoid a collision.
Accordingly, we conclude that sufficient evidence existed to
raise a jury question as to whether Plaintiff was contributorily
negligent. Therefore, Plaintiff’s motions for a directed
verdict, JNOV, and new trial were properly denied.
Conclusion
For the reasons stated above, we affirm.
AFFIRMED.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).