dissenting.
I respectfully dissent on the first issue in the majority opinion, as I believe there was substantial evidence warranting a jury instruction on gross negligence.
Beyond the facts recounted in the majority opinion, the evidence in the case sub judice shows that Lea was driving an 80,000 pound truck when he struck the decedent’s 1989 Buick. The highway patrolman who investigated at the scene reported that when he arrived, he observed no skid marks from Lea’s vehicle before the point of collision. Decedent’s vehicle was pushed 170 feet before it came to a stop. The patrolman also stated that there were no driveways to the right at the collision point that decedent could have been turning into as she slowed down prior to the accident. Lea testified that he had been driving since 9:00 p.m. the night before the accident for a total of fifteen and a half hours driving time within a twenty-four hour period. At the time of the collision, he had been driving continuously for five and a half hours, covering a distance of 467 miles. Lea admitted he had taken Highway 15 because it had less traffic and he thought it would be quicker than an alternative route on Interstate Highway 85. He also admitted he observed decedent’s vehicle slow down and could have stopped without striking it.
Willful and/or wanton conduct “encompasses conduct which lies somewhere between ordinary negligence and intentional conduct.” Siders v. Gibbs, 39 N.C. App. 183, 186, 249 S.E.2d 858, 860 (1978). “ ‘An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others_’” Brewer v. Harris, 279 N.C. 288, 297, 182 S.E.2d 345, 350 (1971) (quoting Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929)). Therefore, willful and wanton conduct is neither always intentional, nor always done with wicked purpose, but always is indicative of careless and reckless disregard for the rights of others.
I have reviewed several cases where the courts of this state have addressed what actions constitute gross negligence, and none of them are similar to the factual circumstances in the present case. In *83Boyd v. L. G. DeWitt Trucking Co., 103 N.C. App. 396, 405 S.E.2d 914, disc. review denied, 330 N.C. 193, 412 S.E.2d 53 (1991), this Court held that there was sufficient evidence to support the jury’s findings that a truck driver had been recklessly indifferent to the rights of others when plaintiffs evidence tended to show that the driver at issue was intoxicated, was speeding while carrying a fully-loaded rig and an unauthorized female passenger, and made no attempt to avoid the accident prior to its occurrence. In another case, this Court held that the issue of gross negligence should have been submitted to the jury when the defendant (1) had been driving a vehicle and his blood alcohol content was 0.184, (2) had approximately ten beers within several hours before the accident but did not tell his passengers, and (3) defendant was aware that his driving after drinking alcohol was a risk because it impaired his reaction time. Berrier v. Thrift, 107 N.C. App. 356, 420 S.E.2d 206 (1992), disc. review denied, 333 N.C. 254, 424 S.E.2d 918 (1993). Also, when there is some evidence that defendant was not driving as though intoxicated, but there is also evidence that immediately prior to the accident he was driving 100 miles per hour, the issue of defendant’s gross negligence should be left to the jury. Baker v. Mauldin, 82 N.C. App. 404, 346 S.E.2d 240 (1986). The facts in the foregoing cases are not identical to the facts in the present case; however, the cases where our courts have held that a gross negligence instruction was not proper are also dissimilar to the present case.
This Court held that the jury should not be charged on gross negligence of a defendant when he failed to drive in the right lane of an interstate highway while knowing of the possibility of running out of gas,' failed to push a stopped automobile out of the left lane after running out of gas, and failed to warn other motorists of the stopped automobile. Dixon v. Weaver, 41 N.C. App. 524, 255 S.E.2d 322 (1979). In Cissell v. Glover Landscape Supply, Inc., 348 N.C. 67, 497 S.E.2d 283 (1998), our Supreme Court agreed with Judge John’s dissent in Cissell v. Glover Landscape Supply, Inc., 126 N.C. App. 667, 486 S.E.2d 472 (1997), that willful and wanton conduct is not constituted by a driver who did not warn oncoming traffic, on a sunny morning, that he left his eight-foot wide truck and trailer on the right-hand paved portion of a thirty-six foot wide, straight and level highway, which had no obstructions to hinder approaching motorists’ view. Contrary to the cases where gross negligence was evident, the drivers in these cases did not drive at high speeds, nor while their faculties were impaired — they simply failed to push their stopped vehicles off the roadway and then warn oncoming drivers.
*84If a party argues that an opponent’s acts or omissions constitute a particular claim for relief,
the trial court must submit the issue with appropriate instructions if there is evidence which, when viewed in the light most favorable to the proponent, will support a reasonable inference of each essential element of the claim ....
Cockrell v. Transport Co., 295 N.C. 444, 449, 245 S.E.2d 497, 500 (1978). “If the facts are such that reasonable men could differ upon whether the negligence amounted to willful and wanton conduct, the question is generally preserved for the jury to resolve.” Siders, 39 N.C. App. at 186, 249 S.E.2d at 860 (emphasis added). Viewing the evidence in the present case in the light most favorable to plaintiff, it indicates that Lea was speeding in a forty-five mile per hour speed limit zone while driving a loaded eighteen-wheel truck and trailer rig weighing 80,000 pounds, on a dark night, on a two-lane rural highway which was not familiar to him. He did not notice the lead car’s left turn signal, and attempted to pass it without blowing his horn, as required by statute. Driving an 80,000 pound load, Lea would have been aware that any collision between his vehicle and a much smaller vehicle would be very dangerous. Lea admitted he was in a hurry to get home, and the evidence supports an inference that Lea’s hurried attitude and demanding driving schedule had detrimental impact on his driving ability. Logic would demand that a driver in a hurry take an interstate highway, which is meant for higher speeds of travel and has more traffic access lanes. Defendant, either consciously or unconsciously, failed to see decedent’s signal, disregarded the speed limit, and failed to keep a proper lookout as to decedent’s turning vehicle. Our Supreme Court has stated that it is the duty of a driver to
keep a proper lookout ahead in the direction he [is] travelling, to watch out for signals from the driver of any vehicle ahead to turn, stop or start, to give due regard to them, and in the exercise of ordinary care be prepared to avoid danger in case of any movement of the vehicle ahead which is properly signaled. The driver of the automobile behind in failing to observe plain turning or stopping signals given by the motorist ahead may be guilty of contributory negligence in the event of a collision and injury to himself.
Weavil v. Trading Post, 245 N.C. 106, 113, 95 S.E.2d 533, 539 (1956) (citations omitted). In that case, the Court also stated:
*85[W]here the driver of the stopped [vehicle] has given no clear signal of his intention to make a left turn, but the [vehicle] standing on the right of the highway merely has on the left rear and left fender a red light flashing on and off, it would seem that the driver of an automobile approaching at night from the rear, in the exercise of ordinary care, is bound to approach with his automobile under control, so as to reduce his speed or stop, if necessary, to avoid injury.
Id. at 114, 95 S.E.2d at 540. The evidence indicates that Lea disregarded his duty, in the exercise of ordinary care, to approach the decedent’s vehicle under control by reducing his speed or stopping in order to avoid injury. All of the these factors, in toto, support an inference that Lea’s conduct was at least as careless, reckless, and dangerous as a driver who travels at an extremely high rate of speed. See Baker v. Mauldin, 82 N.C. App. 404, 346 S.E.2d 240.
It is not our duty to review whether or not the evidence is sufficient to prove that Lea was grossly negligent. We must only review it to determine if there is sufficient evidence such that reasonable men could differ as to whether or not Lea was grossly negligent on the night in question. I believe reasonable men could differ on this issue. Accordingly, I believe that the alleged gross negligence of Lea should have been submitted to the jury, and thus would remand to the trial court for a new trial.