Jernigan v. Tart

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-919
NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

GLORIA POOLE JERNIGAN,
Plaintiff,

v. Johnston County
No. 11-CVS-0987
CARMEN BRYANT TART,
Defendant.

Appeal by plaintiff from Judgment entered 28 December 2012

by Judge Shannon Joseph in Superior Court, Johnston County.

Heard in the Court of Appeals 9 January 2014.

Ryan McKaig Attorney at Law PLLC, by Ryan McKaig, for
plaintiff-appellant.

Cranfill Sumner & Hartzog LLP, by George L. Simpson, IV,
for defendant-appellee.

STROUD, Judge.

Gloria Jernigan (“plaintiff”) appeals from the judgment

entered 28 December 2012 after a jury found that she was barred

from recovery on her negligence claim due to her own

contributory negligence. For the following reasons, we order a

new trial.

I. Background
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On 24 March 2011, plaintiff filed a complaint in Johnston

County alleging that Carmen Tart (“defendant”) had negligently

caused her to collide with defendant’s vehicle by driving into

plaintiff’s path. Defendant answered, admitting that the

collision occurred, but denying her negligence, and asserting

that plaintiff was contributorily negligent. Plaintiff filed a

reply to defendant’s answer alleging that, even assuming

plaintiff were contributorily negligent, defendant had the last

clear chance to avoid the collision. The case was tried by jury

in superior court on 12 and 13 December 2012.

The evidence at trial tended to show that on the afternoon

of 28 June 2008, plaintiff was traveling west along Woods

Crossroads Road, near Benson. Plaintiff, driving a red 1997

Pontiac, testified that she was traveling at 45 miles per hour.

Clifford Coffey, who was driving the opposite direction down

Woods Crossroads, estimated her speed at 55-65 miles per hour.

The speed limit on that section of Woods Crossroads was 55 miles

per hour. Defendant, driving a 1997 Chevrolet pickup truck,

pulled up to the stop sign at the intersection of Woods

Crossroads and Beasley Road, heading south.

Plaintiff testified that she saw defendant stopped at the

Beasley Road stop sign, but that defendant did not appear to
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move into the intersection until plaintiff was already in the

intersection herself. She said that defendant “darted out” in

front of her so quickly that she did not have time to apply the

brakes. Plaintiff collided with defendant in the intersection,

hitting defendant’s truck on the back half of the vehicle.

Defendant testified by deposition, which was introduced at

trial, that she looked left, right, then left again before

pulling into the intersection. She said that she did not see

plaintiff’s car until after she had pulled into the intersection

and that when she first saw plaintiff’s car it just appeared as

a red dot in the distance. Wendy Macauley testified that she

had pulled up behind defendant while defendant was still stopped

at the stop sign. Ms. Macauley said that when she looked to the

left she saw plaintiff’s car before defendant pulled her truck

into the intersection. Defendant testified that she initially

proceeded through the intersection slowly, but that once she saw

plaintiff coming toward the intersection, she decided to

accelerate to avoid a collision.

After the close of all the evidence, the parties had a

charge conference with the trial court. Plaintiff did not

request an instruction on the doctrine of last clear chance

during the conference. The following morning, before the trial
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court instructed the jury, plaintiff did request an instruction

on last clear chance. The trial court denied that request and

instructed the jury on negligence and contributory negligence,

but omitted an instruction on last clear chance. The jury found

that defendant had negligently caused the collision, but that

plaintiff was also negligent, and that her negligence

contributed to her injury. It therefore awarded plaintiff no

recovery. The trial court entered final judgment consistent

with the jury’s verdict on 28 December 2012. Plaintiff filed

written notice of appeal to this Court on 22 January 2013.

II. Jury Instructions

Plaintiff argues that the trial court erred in refusing to

instruct the jury on the last clear chance doctrine because

there was evidence from which the jury could have reasonably

concluded that even if defendant successfully showed

contributory negligence, defendant had the last clear chance to

avoid the collision. We agree.

A. Standard of Review

When reviewing the refusal of a trial court
to give certain instructions requested by a
party to the jury, this Court must decide
whether the evidence presented at trial was
sufficient to support a reasonable inference
by the jury of the elements of the claim. If
the instruction is supported by such
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evidence, the trial court’s failure to give
the instruction is reversible error.

King v. Brooks, ___ N.C. App. ___, ___, 736 S.E.2d 788, 792

(2012) (citation and quotation marks omitted), disc. rev.

denied, ___ N.C. ___, 743 S.E.2d 195 (2013).

B. Analysis

The last clear chance doctrine is a rule of
proximate cause that allows a contributorily
negligent plaintiff to recover where the
defendant’s negligence in failing to avoid
the accident introduces a new element into
the case, which intervenes between the
plaintiff’s negligence and the injury and
becomes the direct and proximate cause of
the accident.

Outlaw v. Johnson, 190 N.C. App. 233, 238, 660 S.E.2d 550, 556

(2008) (citation, quotation marks, and brackets omitted).

The elements of the last clear chance doctrine are:

(1) that the plaintiff negligently placed
himself in a position of helpless peril; (2)
that the defendant knew or, by the exercise
of reasonable care, should have discovered
the plaintiff’s perilous position and his
incapacity to escape from it; (3) that the
defendant had the time and ability to avoid
the injury by the exercise of reasonable
care; (4) that the defendant negligently
failed to use available time and means to
avoid injury to the plaintiff and (5) as a
result, the plaintiff was injured.

Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184, 186

(2004), disc. rev. denied, 359 N.C. 411, 612 S.E.2d 322 (2005).
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“The question of last clear chance must be submitted to the jury

if the evidence, when viewed in the light most favorable to the

plaintiff, will support a reasonable inference of each essential

element of the doctrine.” Outlaw, 190 N.C. App. at 238, 660

S.E.2d at 556 (citation and quotation marks omitted).

Therefore, we must decide whether there was sufficient

evidence, taken in the light most favorable to plaintiff, of

each element of the last clear chance doctrine. Defendant

primarily asserts that plaintiff was not entitled to an

instruction on last clear chance doctrine because she failed to

present sufficient evidence of the first element.

The first element of last clear chance is
satisfied upon a showing that a plaintiff
has placed himself in a position of either
helpless or inadvertent peril. A plaintiff
is in a position of helpless peril when that
plaintiff’s prior contributory negligence
has placed her in a position from which she
is powerless to extricate herself. . . .
However, if a plaintiff observes an
approaching vehicle but fails to extricate
himself from the dangerous position despite
having the time and ability to do so, he has
not placed himself in a position of helpless
or inadvertent peril.

Id. at 238-39, 660 S.E.2d at 556 (citation and quotation marks

omitted).

This case is controlled by Knote v. Nifong, 97 N.C. App.

105, 387 S.E.2d 185, disc. rev. denied, 326 N.C. 597, 393 S.E.2d
 -7-
879 (1990). In that case, there was evidence that the plaintiff

was riding his motorcycle north along the highway at a speed in

excess of the posted limit. Knote, 97 N.C. App. at 106, 387

S.E.2d at 186. The defendant approached the highway from a

cross-street and pulled across the highway, but stopped in the

middle, blocking plaintiff’s travel lane. Id. Plaintiff

applied his brakes to try to avoid the collision, but was unable

to stop in time. Id. at 107, 387 S.E.2d at 186. We held that the

evidence satisfied the first element of last clear chance

because it showed that plaintiff was “driving too fast and that

he was unable to take action to avoid a collision.” Id. at 108,

387 S.E.2d at 187.

Here, two witnesses testified that plaintiff was speeding,

though plaintiff denied it. Plaintiff testified that defendant

“darted out” in front of her when she reached the intersection

and that she “didn’t have time to put [her] foot on the brake.”

The highway on which plaintiff was traveling had one lane in

each direction. Like in Knote, there was evidence, taken in the

light most favorable to plaintiff, from which a reasonable juror

could conclude that plaintiff was driving too fast, and that she

was unable to brake and avoid the collision once defendant
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“darted out in front of [her].” Therefore, there was sufficient

evidence on the first element of last clear chance.

Further, there was evidence, taken in the light most

favorable to plaintiff, from which a reasonable juror could

conclude that defendant saw, or should have seen, plaintiff and

recognized that she was speeding toward the intersection. Ms.

Macauley testified that she was stopped behind defendant on

Beasley Road and that from where she was sitting she saw

plaintiff’s red car coming down Woods Crossing before defendant

pulled into the intersection. It is immaterial that defendant

testified that she did not see plaintiff until after she was in

the intersection because there was “evidence that the defendant

could have seen plaintiff.” Id. Therefore, there was sufficient

evidence to satisfy the second element.

There was also sufficient evidence to support a reasonable

inference of each additional element. As to the third element,

there was evidence from which a reasonable juror could conclude

that defendant had the time and means to avoid the accident.

Defendant could have avoided the accident by remaining stopped

at the stop sign rather than proceeding into the intersection.

There was nothing forcing defendant to cross the intersection

when she did. The fourth element is satisfied by evidence that
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despite her ability to see that plaintiff was speeding down the

highway, defendant negligently decided to risk injury by

nonetheless proceeding into the intersection. Finally, there is

no dispute that plaintiff was injured as a result of this

collision. Therefore, there was evidence sufficient to satisfy

the fifth element of the last clear chance doctrine as well.

We conclude that plaintiff presented sufficient evidence to

warrant an instruction on the last clear chance doctrine. The

question is not whether plaintiff’s position is supported by the

weight of the evidence, but whether “the evidence, when viewed

in the light most favorable to the plaintiff, will support a

reasonable inference of each essential element of the doctrine.”

Outlaw, 190 N.C. App. at 238, 660 S.E.2d at 556 (citation and

quotation marks omitted). Plaintiff’s testimony that defendant

“darted out in front of her” with little time or warning such

that plaintiff was unable to brake in time to avoid the accident

is sufficient to support a reasonable inference of each

essential element of the last clear chance doctrine. Therefore,

we hold that the trial court erred in refusing to instruct the

jury on last clear chance and order a new trial.

III. Motion to Dismiss Contributory Negligence Affirmative
Defense
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Plaintiff argues that the trial court erred in denying her

motion under Rule 12(b)(6) to dismiss defendant’s affirmative

defense of contributory negligence on the basis that the answer

failed to set forth the affirmative defense with sufficient

specificity under N.C. Gen. Stat. § 1A-1, Rule 8(c). The denial

of a Rule 12(b)(6) motion is generally not appealable. An order

denying a motion to dismiss under Rule 12(b)(6) is an

interlocutory order which may not be immediately appealed. Block

v. County of Person, 141 N.C. App. 273, 276, 540 S.E.2d 415, 418

(2000). Further, the “denial of a party’s motion to dismiss made

pursuant to Rule 12(b)(6) is not reviewable on appeal following

a final judgment on the merits of the case.” In re Will of

McFayden, 179 N.C. App. 595, 599, 635 S.E.2d 65, 68 (2006),

disc. rev. denied, 361 N.C. 694, 653 S.E.2d 880 (2007).

Therefore, we dismiss this portion of plaintiff’s appeal.

IV. Conclusion

For the foregoing reasons, we hold that the trial court

erred in refusing to instruct the jury on the last clear chance

doctrine. We dismiss plaintiff’s appeal from the trial court’s

denial of her 12(b)(6) motion.

NEW TRIAL; DISMISSED in part.

Judges HUNTER, JR., Robert N. and DILLON concur.
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Report per Rule 30(e).