Goins v. Time Warner Cable Se. , 258 N.C. App. 234 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-531
Filed: 6 March 2108
Wake County, No. 14 CVS 15229
DONNIE L. GOINS and JACKIE KNAPP, Plaintiffs,
v.
TIME WARNER CABLE SOUTHEAST, LLC, and WAKE ELECTRIC
MEMBERSHIP CORPORATION d/b/a WAKE ELECTRIC, Defendants.
Appeal by Defendant from judgment entered 8 August 2016 and order entered
30 September 2016 by Judge Elaine M. O’Neal in Wake County Superior Court.
Heard in the Court of Appeals 16 October 2017.
Martin & Jones, P.L.L.C., by H. Forest Horne and Huntington M. Willis, for
the Plaintiffs-Appellees.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Thomas M. Buckley and
Joshua D. Neighbors, for the Defendant-Appellant.
DILLON, Judge.
Donnie L. Goins and Jackie Knapp (together, “Plaintiffs”) brought this action
seeking damages sustained when they each (at different times) collided with a utility
line owned by Time Warner Cable Southeast, LLC, (“Defendant”) that was lying at
ground level in a public roadway. The jury found that Defendant was negligent and
that neither Plaintiff was contributorily negligent. Defendant appeals from the trial
court’s judgment entered based on the jury’s verdict and from the trial court’s
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Opinion of the Court
subsequent denial of its Motion for Judgment Notwithstanding the Verdict (“JNOV”).
We agree with Defendant that, based on our jurisprudence, the trial court committed
reversible error by instructing the jury on the sudden emergency doctrine, an
instruction which provided a theory by which the jury could determine that neither
Plaintiff was contributorily negligent. Specifically, there was no evidence to support
the instruction. Accordingly, we vacate the judgment entered by the trial court and
remand the matter for a new trial.
I. Background
The evidence presented at trial tended to show the following:
On 11 January 2014, severe weather caused a utility line belonging to
Defendant to fall from its poles. That same day, Defendant was notified of the fallen
line.
The following morning, Donnie Goins (“Plaintiff Goins”) was cycling and was
severely injured when his front tire made impact with the line, which was still lying
in the roadway. A short time later, Jackie Knapp (“Plaintiff Knapp”) was cycling
when a cyclist directly in front of her struck the wire and wrecked. Plaintiff Knapp
was unable to stop before colliding with him, resulting in a pile-up and causing
Plaintiff Knapp to sustain severe injuries.
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A jury ultimately found Defendant responsible for both Plaintiffs’ injuries, and
the trial court entered judgment on the verdict and denied Defendant’s subsequent
motion for JNOV. Defendant now appeals.
II. Analysis
Defendant contends that the trial court erred in two respects. First, Defendant
argues that the trial court should never have allowed the issue of Plaintiff Knapp’s
contributory negligence to reach the jury, contending that Plaintiff Knapp was
contributorily negligent as a matter of law. Second, Defendant argues that a jury
instruction regarding the doctrine of sudden emergency was not warranted in this
case. We address each argument in turn.
A. Plaintiff Knapp’s Contributory Negligence
In its first argument, Defendant challenges the trial court’s denial of its JNOV
as to Plaintiff Knapp, contending that Plaintiff Knapp was contributorily negligent
as a matter of law for cycling too closely to the cyclist in front of her before she was
injured. Therefore, Defendant argues, the issue of Plaintiff Knapp’s contributory
negligence should never have gone to the jury.1 We disagree.
“[A] directed verdict [or a JNOV] for [the moving party] on the ground of
contributory negligence may only be granted when the evidence taken in the light
1 We note here that Defendant’s contentions on appeal regarding the contributory negligence
of Plaintiffs focuses solely on Plaintiff Knapp. Whether it was proper for the jury to review any
negligence on the part of Plaintiff Goins is not before us on appeal.
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most favorable to [the non-moving party] establishes the [non-moving party's]
negligence so clearly that no other reasonable inference or conclusion may be drawn
therefrom.” Clark v. Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976).
Decisions regarding motions for directed verdict and JNOV are questions of law, to
be reviewed de novo. Green v. Freeman, 367 N.C. 136, 141, 749 S.E.2d 262, 267
(2013).
Defendant contends that the only reasonable conclusion to be drawn from the
evidence in this case is that Plaintiff Knapp was negligent per se, and that the trial
court should have granted its summary motions on the issue. Specifically, Defendant
claims Plaintiff Knapp’s actions fall within the purview of Section 20-152(a) of our
General Statutes, in that “[t]he driver of a motor vehicle shall not follow another
vehicle more closely than is reasonable and prudent, having due regard for the speed
of such vehicles and the traffic upon and the condition of the highway.” N.C. Gen.
Stat. § 20-152 (2015). It is true that a violation of the statute amounts to negligence
per se. See Ratliff v. Duke Power Co., 268 N.C. 605, 612, 151 S.E.2d 641, 646 (1966).
However, our Supreme Court has repeatedly held that a rear-end collision by
a following vehicle is mere evidence that the driver may have been following too
closely, and such is a question of fact for the jury. See Beanblossom v. Thomas, 266
N.C. 181, 188-89, 146 S.E.2d 36, 42 (1966); Fox v. Hollar, 257 N.C. 65, 71, 125 S.E.2d
334, 338 (1962).
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We hold that the issue of Plaintiff Knapp’s contributory negligence was one for
the jury. There is a question as to whether Plaintiff Knapp was following the cyclist
in front of her too closely. Furthermore, assuming she was following too closely, there
is a question as to whether this negligence proximately caused her injuries. That is,
the jury could have determined from the evidence that Plaintiff Knapp would have
hit the wire and been injured anyway even if no one was in front of her.
The evidence presented to the jury was not such that the only reasonable
conclusion to be drawn was in favor of Defendant on the question of Plaintiff Knapp’s
contributory negligence, and we therefore find no error.
B. Sudden Emergency
Defendant’s second argument concerns the trial court’s jury instruction
regarding the doctrine of sudden emergency, to which it objected at trial. Specifically,
Defendant contends that there was no evidence to support this instruction.
We review challenges regarding the appropriateness of jury instructions to
determine, first, whether the trial court abused its discretion, see Murrow v. Daniels,
321 N.C. 494, 499-500, 364 S.E.2d 393, 396 (1988), and, second, whether such error
was likely to have misled the jury. Union Cty. Bd. of Educ. V. Union Cty. Bd. of
Comm’rs 240 N.C. App. 274, 290-91, 771 S.E.2d 590, 601 (2015). “[W]e consider
whether the instruction [challenged] is correct as a statement of law and, if so,
whether the requested instruction is supported by the evidence.” Minor v. Minor, 366
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N.C. 526, 531, 742 S.E.2d 790, 793 (2013). For the reasons stated below, we agree
with Defendant that the evidence did not warrant the instruction and that the error
was prejudicial.
Our Supreme Court has explained that the doctrine of sudden emergency
excuses the actions of a party which may normally constitute negligence where the
party so acted in response to a sudden emergency which the party did not cause:
The doctrine of sudden emergency is simply that one
confronted with an emergency is not liable for an injury
resulting from his acting as a reasonable man might act in
such an emergency. If he does so, he is not liable for failure
to follow a course which calm, detached reflection at a later
date would recognize to have been a wiser choice.
Rodgers v. Carter, 266 N.C. 564, 568, 146 S.E.2d 806, 810 (1966) (emphasis added).
The doctrine of sudden emergency applies only to conduct, alleged to be
negligent, that occurs after the emergency arises. See Carrington v. Emory, 179 N.C.
App. 827, 830, 528 S.E.2d 532, 534 (2006) (“[A] sudden emergency arises in most, if
not all, motor vehicle collisions, but the doctrine of sudden emergency is applicable
only when there arises from the evidence . . . an issue of negligence by an operator
after being confronted by the emergency.” (alteration in original) (emphasis added)).
In applying the doctrine,
the jury is permitted to consider, in its determination of
whether specific conduct was reasonable under the
circumstances, that the actor faced an emergency. It
logically follows that in order for perception of an
emergency to have affected the reasonableness of the
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actor’s conduct, the [actor] must have perceived the
emergency circumstance and reacted to it.
Pinckney v. Baker, 130 N.C. App. 670, 673, 504 S.E.2d 99, 102 (1998) (emphasis
added).
In the present case, the trial court properly instructed the jury on Defendant’s
negligence, as there was evidence, taken in the light most favorable to Plaintiffs, that
Defendant did not act reasonably in attending to its fallen utility line. Further, the
trial court properly instructed the jury on Plaintiffs’ contributory negligence, as there
was evidence, taken in the light most favorable to Defendant, that Plaintiffs were
traveling too fast and that they failed to keep a proper lookout, and that Plaintiff
Knapp followed too closely to the cyclist in front of her.
However, over Defendant’s objection, the trial court also instructed the jury on
the doctrine of sudden emergency as a theory by which the jury could excuse
Plaintiffs’ behavior of traveling too fast or failing to keep a proper lookout, which
normally might constitute contributory negligence. Defendant argues the trial court
improperly instructed the jury on sudden emergency because the instruction was not
supported by the evidence. We agree. As our Supreme Court has held, a motorist is
not entitled to a sudden emergency instruction to excuse otherwise negligent behavior
(e.g., failing to keep a proper lookout) where it is this otherwise negligent behavior
that contributed to the emergency:
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A motorist is required in the exercise of due care to keep a
reasonable and proper lookout in the direction of travel and
is held to the duty of seeing what he ought to have seen.
Where a motorist discovers, or in the exercise of due care
should discover, obstruction within the extreme range of
his vision and can stop if he acts immediately, but his
estimates of his speed, distance, and ability to stop are
inaccurate and he finds stopping impossible, he cannot
then claim the benefit of the sudden emergency doctrine.
The crucial question in determining the applicability of the
sudden emergency doctrine is thus whether [the motorist],
when approaching the [obstruction in the roadway], saw or
by the exercise of due care should have seen that he was
approaching a zone of danger. Did his failure to decrease
his speed and bring his [vehicle] under control without first
ascertaining the nature of the highway conditions ahead of
him constitute negligence on his part which contributed to
the creation of the emergency thereafter confronting him?
The sudden emergency must have been brought about by
some agency over which he had no control and not by his
own negligence or wrongful conduct.
Hairston v. Alexander Tank, 310 N.C. 227, 239, 311 S.E.2d 559, 568 (1984) (citations
omitted).
Plaintiffs contend the instruction was proper because “the emergency situation
was created by the very negligence of [] [D]efendant giving rise to the cause of action,
namely a dangerous hazard left in the roadway.” (emphasis in original). Plaintiffs’
argument misconstrues the sudden emergency doctrine. That is, assuming the jury
determined that Plaintiffs failed to keep a proper lookout, Defendant’s failure to
remove the wire did not cause Plaintiffs’ failure to keep a proper lookout or failure to
travel at a safe speed. The doctrine of sudden emergency would apply if, for instance,
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the Plaintiffs were keeping a proper lookout and then, suddenly, an outside agency,
such as a car turning into their lane of traffic, caused them to swerve into the wire.
In such a case, their action of swerving in a direction without first determining if
there was an obstacle in that direction might be excused since their action of swerving
was in response to a sudden emergency, i.e., the car turning into their lane of traffic.
In the present case there is no evidence that an outside agency caused them to
fail to keep a proper lookout. For example, Plaintiff Knapp admitted she was
unaware that a hazardous road condition existed and had no opportunity to “react”
or attempt to avoid injury before colliding with the cyclist in front of her. Her
testimony necessarily precludes application of the sudden emergency doctrine.
Likewise, Plaintiff Goins testified he was simply traveling down a hill and then
suddenly saw the wire in the road and did not have time to react. There was no
evidence that any outside agency distracted them.
Accordingly, based on the evidence, the questions were (1) whether Defendant
was negligent in failing to attend to its wire and (2) whether Plaintiffs were
contributorily negligent in failing to perceive the wire. There was no evidence from
which the jury should have been asked to determine whether Plaintiffs’ failure to
perceive the wire was caused by some sudden emergency.
Further, we are persuaded, if not compelled, by our Supreme Court’s holding
in Rodgers v. Carter, 266 N.C. 564, 146 S.E.2d 806 (1966) to conclude that the
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instruction constituted prejudicial error likely to mislead a jury. In Rodgers, our
Supreme Court held that it was prejudicial error for the trial court to instruct on
sudden emergency where the evidence showed that a motorist seeking the instruction
hit a child who ran into the road in his path, where there was otherwise no evidence
of any prior emergency which caused the motorist to be distracted:
The learned judge who presided at the trial of this action
so instructed the jury [on the motorists’ duty to keep a
proper lookout], but he added to these instructions [his]
remarks concerning the doctrine of sudden emergency,
which were not applicable in view of the evidence presented
and could have confused the jury as to the principle by
which they were to be guided in reaching their verdict.
Rogers, 266 N.C. at 571, 146 S.E.2d at 812.
In the present case, it may be that the jury determined Plaintiffs were not
contributorily negligent because they kept a proper lookout. Alternatively, it may be
that the jury determined that either or both of the Plaintiffs were not keeping a
proper lookout and/or were following too closely, but improperly determined that
Plaintiffs were otherwise not contributorily negligent because they were confronted
with the “sudden emergency” of a wire in their path which they could not avoid.
Because there is a reasonable possibility that the latter occurred, we must conclude
that the instruction on sudden emergency was prejudicial error.
III. Conclusion
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We conclude that the trial court did not err in denying Defendant’s JNOV
motion. We conclude, however, that the trial court did commit prejudicial error by
instructing the jury on the doctrine of sudden emergency. We vacate the judgment
and remand the matter for a new trial consistent with these conclusions.
NEW TRIAL.
Chief Judge McGEE and Judge CALABRIA concur.
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