Snow v. Nixon , 52 N.C. App. 131 ( 1981 )

277 S.E.2d 850 (1981)

Robert SNOW, Guardian Ad Litem for Steffanie Annette Snow, Plaintiff,
v.
Virginia May NIXON, Defendant and Third Party Plaintiff,
v.
Janet SNOW, Third Party Defendant.

No. 8017SC444.

Court of Appeals of North Carolina.

May 19, 1981.

Faw, Folger, Sharpe & White by Thomas M. Faw, T. Richard Pardue, Jr. and Fredrick G. Johnson, Mount Airy, for the third party plaintiff.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and James M. Stanley, Jr., Winston-Salem, for the third party defendant.

ROBERT M. MARTIN, Judge.

The sole issue presented by this appeal is whether the allegations in the third-party complaint are sufficient to show that the injury sustained by Steffanie Annette Snow arose out of her mother's operation of a motor vehicle so as to fall within the scope of N.C.Gen.Stat. § 1-539.21. Taking the allegations in the third-party complaint as true, if the child's injury arose out of the operation of the motor vehicle, the doctrine of parent-child immunity would not bar the defendant and third-party plaintiff's claim against the child's mother for contribution. If G.S. § 1-539.21 is inapplicable, however, the rule that an unemancipated minor child is barred by the doctrine of parent-child immunity from suing her parents for negligent protection, control and supervision would also bar the claim asserted indirectly against the parent in the third-party action for contribution. Watson v. Nichols, 270 N.C. 733, 155 S.E.2d 154 (1967).

G.S. § 1-539.21 reads as follows:

Abolition of parent-child immunity in motor vehicle cases.—The relationship of parent and child shall not bar the right of action by a minor child against a parent for personal injury or property damage arising out of the operation of a motor vehicle owned or operated by such parent.

This Court upheld the constitutionality of G.S. § 1-539.21 in Ledwell v. Berry, 39 N.C.App. 224, 249 S.E.2d 862 (1978), disc. rev. denied, 296 N.C. 585, 254 S.E.2d 35 (1979). No North Carolina cases, however, define the scope of the exception to the parent-child immunity doctrine found in G.S. § 1-539.21. Therefore in construing the statute in the case sub judice, we must rely upon well-established North Carolina case law regarding statutory construction. In Jones v. Georgia-Pacific Corp., 15 N.C. App. 515, 190 S.E.2d 422 (1972), Judge Britt, now Justice Britt, writing for this Court stated:

It is settled law that statutes in derogation of the common law ... must be strictly construed. (Citations omitted.) Strict construction of [a statute] requires that everything be excluded from the operation of the statute which does not come within the scope of the language used, taking the words in their natural and ordinary meaning. (Citation omitted.)

Id. at 518, 190 S.E.2d at 424.

In order to determine the sufficiency of the third-party complaint, we must consider the language used by the General Assembly in G.S. § 1-539.21 in light of the foregoing rules of construction. The key phrase in G.S. § 1-539.21 which must be construed on this appeal is "arising out of the operation of a motor vehicle."

The term "arising out of" has acquired a generally accepted meaning in cases pertaining to coverage under standard automobile liability insurance policies. This Court has held that the phrase "arising out of" in a standard liability insurance policy connotes a concept of causation. Insurance Co. v. Knight, 34 N.C.App. 96, 237 S.E.2d 341, disc. rev. denied, 293 N.C. 589, 239 S.E.2d 263 (1977); Insurance Co. v. Walker, 33 N.C.App. 15, 234 S.E.2d 206 disc. rev. denied, 293 N.C. 159, 236 S.E.2d 704 (1977).

Defendant cites Insurance Co. v. Walker, id., in support of her argument that plaintiff's injury in the case sub judice arose out of the operation of a motor vehicle. In Walker, however, this Court construed a provision in a standard automobile liability insurance policy which provided that the policy's coverage included bodily injury "arising out of the ownership, maintenance or use of the owned automobile...." Id. at 16, 234 S.E.2d at 208. We held in Walker that an injury to a person standing outside the insured's truck caused by the discharge of a rifle on a permanently mounted gun rack inside the truck cab arose out of the use of the truck within the meaning of the policy. Our reasoning was that the transportation of guns was one of the regular uses to which the truck had been put and therefore the shooting had a causal connection with the use of the truck. G.S. § 1-539.21 does not contain the language "arising out of the use of," but rather, it contains the language "arising out of the operation of." Thus, while Walker aids us in construing the term "arising out of" it is of no help in construing the remainder of the phrase used in G.S. § 1-539.21, "the operation of a motor vehicle."

The recent case of Colson v. Shaw, 301 N.C. 677, 273 S.E.2d 243 (1981), however, does aid us in construing the term "the operation of a motor vehicle." In Colson v. Shaw, id., the Supreme Court held that the operator of a motor vehicle has a duty to allow his passengers to unload in a safe place. The following language from that opinion, written by Justice Copeland, is relevant to the case at bar:

It is well settled in North Carolina that the operator of an automobile has a duty to exercise that degree of care which a person of ordinary prudence would exercise under similar circumstances to prevent injury to the invited occupants of his vehicle. [Citations omitted.] Our research has revealed no North Carolina cases which involve the particular duty that an operator owes to passengers alighting from his vehicle.

It is generally established that the operator must at least allow his passengers to unload in a safe place and may not stop his car in a manner likely to create a hazard to those alighting. [Citations omitted.] ...

Our determination in the case is also influenced by the rule that where the actions of children are at issue, the duty to exercise due care should be proportioned to the child's incapacity to adequately protect himself. [Citation omitted.] As stated by Justice Parker, (later Chief Justice) speaking for our Court in Pavone v. Merion, 242 N.C. 594, 594, 89 S.E.2d 108, 108 (1955):

"A motorist must recognize that children, and particularly very young children, have less judgment and capacity to avoid danger than adults, that their excursions into a street may reasonably be anticipated, that very young children are innocent and helpless, and that children are entitled to a care in proportion to their incapacity to foresee and avoid peril."

Id. at 681, 273 S.E.2d at 246.

In our opinion, based on the Supreme Court's decision in Colson v. Shaw, supra, the third-party complaint in the case sub judice states a cause of action for contribution due to the alleged negligence of Snow "arising out of the operation of a motor vehicle." We hold, therefore, that the trial court erred in dismissing the third-party complaint. The judgment appealed from is reversed.

Reversed.

VAUGHN and WELLS, JJ., concur.