IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-977
Filed: 4 June 2019
Wayne County, No. 17 CVS 1263
GERALDINE PATTERSON, Plaintiff,
v.
TAYLOR NICOLE WORLEY, Defendant.
Appeal by plaintiff from judgment entered 5 June 2018 by Judge Phyllis M.
Gorham in Wayne County Superior Court. Heard in the Court of Appeals 28
February 2019.
Everett, Womble & Lawrence, L.L.P., by Ronald T. Lawrence II and Kristy J.
Jackson, for plaintiff-appellant.
Simpson Law, PLLC, by Caroline P. Stutts, for defendant-appellee.
BERGER, Judge.
Geraldine Patterson (“Plaintiff”) appeals from the trial court’s order granting
summary judgment in favor of Taylor Nicole Worley (“Defendant”). Because Plaintiff
was unable to show through pleadings, depositions, or other evidence that Defendant
owed her a duty recognized by North Carolina law, that her contributory negligence
would not defeat her claim, or that the doctrine of last clear chance would apply,
Defendant was entitled to judgment as a matter of law. We therefore affirm the order
of the trial court granting summary judgment to Defendant.
Factual and Procedural Background
PATTERSON V. WORLEY
Opinion of the Court
On March 28, 2017 at approximately 6:11 p.m., Plaintiff, a pedestrian, left her
apartment and began walking eastbound on Spence Avenue towards the Wal-Mart
shopping center located in Goldsboro, North Carolina. Defendant was returning
home from work, driving northbound in her Lexus sedan. It was a bright, clear,
sunny day, and Defendant was traveling approximately thirty-five miles per hour on
Spence Avenue in Goldsboro. Spence Avenue is a five-lane road, with two lanes on
each side, a turn lane in the middle, and a paved median.
As Plaintiff made her way towards Wal-Mart, she crossed the two southbound
lanes of Spence Avenue, and then stopped at the paved median. A vehicle had entered
the turning lane, but had come to a stop to allow Plaintiff to cross. In a northbound
lane adjacent to the turning lane, a Ford Explorer had also come to a stop because of
traffic backed up in its lane. Plaintiff stepped into the road in front of the Explorer
and looked around the vehicle to see if the last lane of travel was clear. The Explorer
driver blew its horn, and Plaintiff began running across the road. Plaintiff was then
immediately hit by Defendant’s car and injured.
Plaintiff filed her complaint on August 3, 2017, alleging Defendant had been
negligent in the operation of her vehicle when she hit Plaintiff on Spence Avenue.
Defendant responded September 21, 2017, alleging, inter alia, the affirmative defense
of contributory negligence. On January 31, 2018, Defendant moved for summary
judgment. After a May 29, 2018 hearing, Defendant’s motion for summary judgment
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Opinion of the Court
was granted by the trial court in a June 5 order. It is from this order that Plaintiff
timely appeals.
Standard of Review
On a motion for summary judgment, our standard of review of the trial court’s
ruling is well-established:
Under [the North Carolina Rules of Civil Procedure], Rule
56(a), summary judgment is properly entered if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that any party is entitled to a judgment as a matter of law.
In a motion for summary judgment, the evidence presented
to the trial court must be admissible at trial, and must be
viewed in a light most favorable to the non-moving party.
We review a trial court’s order granting or denying
summary judgment de novo. Under a de novo review, the
court considers the matter anew and freely substitutes its
own judgment for that of the lower tribunal. The party
moving for summary judgment bears the burden of
establishing that there is no triable issue of material fact.
This burden may be met by proving that an essential
element of the opposing party’s claim is nonexistent, or by
showing through discovery that the opposing party cannot
produce evidence to support an essential element of his
claim or cannot surmount an affirmative defense which
would bar the claim.
Once the party seeking summary judgment makes
the required showing, the burden shifts to the nonmoving
party to produce a forecast of evidence demonstrating
specific facts, as opposed to allegations, showing that he
can at least establish a prima facie case at trial.
Blackmon v. Tri-Arc Food Sys., Inc., 246 N.C. App. 38, 41-42, 782 S.E.2d 741, 743-44
(2016) (purgandum).
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PATTERSON V. WORLEY
Opinion of the Court
Analysis
On appeal, Plaintiff argues that summary judgment was improperly granted
because there remain genuine issues of material fact concerning Defendant’s
negligence, Plaintiff’s contributory negligence, and the application of the last clear
chance doctrine. We disagree.
As our appellate courts have long recognized,
negligence claims and allegations of contributory
negligence should rarely be disposed of by summary
judgment. This is because ordinarily it is the duty of the
jury to apply the standard of care of a reasonably prudent
person. Yet, summary judgment for defendant is proper
where the evidence fails to establish negligence on the part
of defendant, establishes contributory negligence on the
part of plaintiff, or establishes that the alleged negligent
conduct was not the proximate cause of the injury.
Sims v. Graystone Ophthalmology Assocs., P.A., 234 N.C. App. 65, 68, 757 S.E.2d 925,
927 (2014) (purgandum). Initially, a plaintiff bears the burden of proving the
essential elements of negligence: “that the defendant owed the plaintiff a legal duty,
that the defendant breached that duty, and that the plaintiff’s injury was proximately
caused by the breach.” Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562
S.E.2d 887, 892 (2002) (citation omitted). “Even if evidence of negligence is presented,
plaintiff cannot prevail if the evidence reveals plaintiff was contributorily negligent.”
Sims, 234 N.C. App. at 68, 757 S.E.2d at 927.
Our General Statutes provide that “[e]very pedestrian crossing a roadway at
any point other than within a marked crosswalk or within an unmarked crosswalk at
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PATTERSON V. WORLEY
Opinion of the Court
an intersection shall yield the right-of-way to all vehicles upon the roadway.” N.C.
Gen. Stat. § 20-174(a) (2017). “[P]edestrians have a duty to maintain a lookout when
crossing an area where vehicles travel and a duty to exercise reasonable care for their
own safety.” Corns v. Hall, 112 N.C. App. 232, 237, 435 S.E.2d 88, 90 (1993).
The mere fact that the pedestrian is oblivious to danger
does not impose a duty on the motorist to yield the right of
way. That duty arises when, and only when, the motorist
sees, or in the exercise of reasonable care should see, that
the pedestrian is not aware of the approaching danger and
for that reason will continue to expose himself to peril.
Jenkins v. Thomas, 260 N.C. 768, 769, 133 S.E.2d 694, 696 (1963) (citations omitted).
“Although a violation of [Section] 20-174(a) is not contributory negligence per se, a
failure to yield the right-of-way to a motor vehicle may constitute contributory
negligence as a matter of law.” Meadows v. Lawrence, 75 N.C. App. 86, 89, 330 S.E.2d
47, 49 (1985) (citation omitted). It is for this reason that
the court will nonsuit a plaintiff-pedestrian on the ground
of contributory negligence when all the evidence so clearly
establishes his failure to yield the right of way as one of the
proximate causes of his injuries that no other reasonable
conclusion is possible.
The law imposes upon a person sui juris the duty to
use ordinary care to protect himself from injury. It [is]
plaintiff’s duty to look for approaching traffic before she
attempt[s] to cross the highway. Having started, it [is] her
duty to keep a lookout for it as she crosse[s]. Having chosen
to walk diagonally across a [multi-]lane highway, vigilance
commensurate with the danger to which plaintiff [has]
exposed herself [is] required of her.
Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216-17 (1964) (citations omitted).
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Opinion of the Court
Contributory negligence will not bar an award of damages for Plaintiff if she
can prove that Defendant had the last clear chance to avoid the collision, but failed
to take action. “The doctrine of last clear chance presupposes antecedent negligence
on the part of the defendant and antecedent contributory negligence on the part of
the plaintiff, such as would, but for the application of this doctrine, defeat recovery.”
Clodfelter v. Carroll, 261 N.C. 630, 634, 135 S.E.2d 636, 638 (1964).
Where an injured pedestrian who has been guilty of
contributory negligence invokes the last clear chance . . .
doctrine against the driver of a motor vehicle which struck
and injured him, he must establish these four elements: (1)
That the pedestrian negligently placed himself in a
position of peril from which he could not escape by the
exercise of reasonable care; (2) that the motorist knew, or
by the exercise of reasonable care could have discovered,
the pedestrian’s perilous position and his incapacity to
escape from it before the endangered pedestrian suffered
injury at his hands; (3) that the motorist had the time and
means to avoid injury to the endangered pedestrian by the
exercise of reasonable care after he discovered, or should
have discovered, the pedestrian’s perilous position and his
incapacity to escape from it; and (4) that the motorist
negligently failed to use the available time and means to
avoid injury to the endangered pedestrian, and for that
reason struck and injured him.
Id. at 634-35, 135 S.E.2d at 639. “The doctrine contemplates a last ‘clear’ chance, not
a last ‘possible’ chance, to avoid the accident; it must have been such a chance as
would have enabled a reasonably prudent man in like position to have acted
effectively.” Mathis v. Marlow, 261 N.C. 636, 639, 135 S.E.2d 633, 635 (1964) (citation
omitted). Last clear chance is “inapplicable where the injured party is at all times in
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Opinion of the Court
control of the danger and simply chooses to take the risk.” Williams v. Odell, 90 N.C.
App. 699, 704, 370 S.E.2d 62, 66 (1988).
Here, no duty was imposed on Defendant requiring her to yield her right-of-
way merely because Plaintiff was oblivious to her danger. Even if Defendant had
been able to see Plaintiff coming across Spence Avenue, Defendant owed her no duty
unless and until it became apparent that Plaintiff was “not aware of the approaching
danger and for that reason [was going to] continue to expose [her]self to peril.”
Jenkins, 260 N.C. at 769, 133 S.E.2d at 696. Defendant was driving thirty-five miles
per hour and only saw Plaintiff “immediately” before the collision, and without
“enough time to slow down or anything.” The depositions of two witnesses, Dr. Diane
Sutton and Ms. Samantha Lauderdale, support Defendant’s memory of the collision.
Dr. Sutton testified that Plaintiff had “simply darted out into the road” immediately
in front of Defendant’s sedan. Ms. Lauderdale confirmed this by testifying that
Plaintiff had unexpectedly run out into the middle of the road as Defendant
approached.
Plaintiff is not only unable to establish a duty owed her by Defendant, but the
evidence also establishes a duty she owed Defendant. The evidence tends to show
that Plaintiff was contributorily negligent when she “darted out into the road” and
failed to yield the right-of-way, a duty she owed Defendant. When Plaintiff has an
affirmative duty “to yield the right-of-way and all the evidence so clearly establishes
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PATTERSON V. WORLEY
Opinion of the Court
the plaintiff-pedestrian’s failure to yield the right-of-way as one of the proximate
causes of [her] injuries that no other reasonable conclusion is possible, summary
judgment should [be] entered in favor of the defendant.” Gaymon v. Barbee, 52 N.C.
App. 627, 628, 279 S.E.2d 91, 92 (1981).
Finally, the last clear chance doctrine is inapplicable here. Defendant did not
have “such a chance as would have enabled a reasonably prudent man in like position
to have acted effectively.” Mathis, 261 N.C. at 639, 135 S.E.2d at 635 (citation
omitted). Plaintiff was “at all times in control of the danger and simply [chose] to
take the risk.” Williams, 90 N.C. App. at 704, 370 S.E.2d at 66. On facts similar to
those sub judice, our Supreme Court ruled in favor of a defendant-driver who had
collided with a pedestrian. McCullough v. Amoco Oil Co., 310 N.C. 452, 312 S.E.2d
417 (1984). In McCullough v. Amoco Oil Co., the Court found that the defendant was
entitled to summary judgment because the plaintiff could not contradict the
testimony of the three eyewitnesses and the driver, who “could not have reasonably
been expected to anticipate plaintiff’s movement, thereby avoiding the accident.” Id.
at 459, 312 S.E.2d at 421.
Such is the case here. Defendant could not see Plaintiff, or therefore predict
Plaintiff’s movement, because, just before she darted into the street, she was standing
out of view in front of the Ford Explorer. “Assuming [Defendant]’s negligence
arguendo and [P]laintiff's contributory negligence as shown by the affidavits and
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PATTERSON V. WORLEY
Opinion of the Court
deposition[s], there has been no forecast of evidence of a last clear chance on the part
of the [Defendant] to avoid the collision.” Id.
Conclusion
Because there is no genuine issue of material fact as to Defendant’s negligence,
Plaintiff’s contributory negligence, or whether the last clear chance doctrine would
apply, the trial court did not err in granting summary judgment in favor of Defendant.
AFFIRMED.
Judges ZACHARY and HAMPSON concur.
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