Arbona v. Williams

STEPHENS

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Appeal by Plaintiff from Judgment entered 10 February 2012 and Order filed 29 February 2012 by Judge Jane P. Gray in Wake County District Court. Heard in the Court of Appeals 9 January 2013.

E. Gregory Stott for Plaintiff-Appellant.

Yates, McLamb & Weyher, L.L.P., by Michael C. Gruman, for Defendants-Appellees.

STEPHENS, Judge.

On 7 June 2011, Diana Victoria Arbona ("Arbona") was involved in an automobile accident with Hank Larry Williams ("Williams") at the intersection of Hillsborough Street and Dan Allen Drive in Raleigh, North Carolina. Williams was driving a truck with an attached trailer owned by Alexander Joseph Perakis ("Perakis"). The accident occurred as Arbona was preparing to go through the intersection and Williams was making a right-hand turn. Arbona's car was damaged as a result, and she filed suit against Williams and Perakis ("Defendants"), alleging that Williams negligently swerved the trailer into her car.

Just before the accident, Arbona was driving eastbound on Hillsborough Street toward Dan Allen Drive. At that location the street is three lanes across. Two of the lanes go through the intersection and the right-hand lane is a turn-only lane. After passing through the intersection, the original middle (now right-hand) lane becomes a turn-only lane as well.

In the moments leading up to the accident, Arbona was preparing to merge into the left lane to get to a coffee shop. At some point, she glanced to her left and in her side-view mirror. At the same time, Williams was driving the truck with the attached low-boy trailer in the right-hand turn lane. Arbona could see the trailer as she approached the intersection. There were no cars between the trailer and Arbona's car. At trial, Arbona gave conflicting testimony that she (1) was looking straight when she saw the trailer come into her lane, (2) was looking left, or (3) had not seen the trailer come into her lane at all.

Arbona also offered expert testimony by Dr. Rolin Barrett, Jr. ("Dr. Barrett"). Dr. Barrett testified to his opinion that Arbona was in the center lane at the time of the collision and that the rear part of the trailer could have traveled outside its lane during the turn. He also stated that it was possible for Williams's trailer to have navigated the turn without entering the center lane.

The jury trial was held on 6 February 2012. At the end of Arbona's evidence and at the end of all the evidence, both parties made motions for directed verdict. Both motions were denied. The jury returned a verdict that: (1) Williams and Perakis negligently damaged Arbona's property, (2) Arbona was guilty of contributory negligence, and (3) Arbona was not entitled to damages because of her contributory negligence. Arbona then filed a motion for judgment notwithstanding the verdict ("JNOV") and that motion was denied. Arbona appeals.

Arbona argues that the trial court erred when it denied her motion for directed verdict on the issue of contributory negligence and additionally erred when it denied her motion for JNOV.

"The standard of review for the granting of [a] directed verdict motion is whether when viewing the evidence in the light most favorable to [the non-movant] no reasonable juror could find for [the non-movant]." McDonnell v. Tradewind Airlines, Inc., 194 N.C. App. 674, 677, 670 S.E.2d 302, 305 (2009) (quotation marks omitted). "[A]ll of the evidence which supports the non-movant's claim must be taken as true . . . giving the non-movant the benefit of every reasonable inference which may legitimately be drawn therefrom and resolving contradictions, conflicts, and inconsistencies in the non-movant's favor." Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989). A motion for directed verdict should be denied "if there is more than a scintilla of evidence to support each element of the nonmovant's [prima facie] case." Ligon v. Strickland, 176 N.C. App. 132, 136, 625 S.E.2d 824, 828 (2006) (citation omitted).

"On appeal the standard of review for a JNOV is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury." Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000). "[A] motion for [JNOV] is simply a motion that judgment be entered in accordance with the movant's earlier motion for a directed verdict and notwithstanding the contrary verdict actually returned by the jury." Dickinson v. Pake, 284 N.C. 576, 584-85, 201 S.E.2d 897, 903 (1974). "[A] motion for [JNOV] is cautiously and sparingly granted." Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 338 (1985) (citation omitted). "When a judge decides that a directed verdict or JNOV is appropriate, actually he is deciding that the question has become one exclusively of law and that the jury has no function to serve." Primerica Life Ins. Co. v. James Massengill & Sons Const. Co., _ N.C. App. _, _, 712 S.E.2d 670, 675 (2011) (brackets and citation omitted).

When determining whether the plaintiff is guilty of contributory negligence, we ask "whether a person using ordinary care for his or her safety under similar circumstances would have recognized the danger." Stallings v. Food Lion, Inc., 141 N.C. App. 135, 137, 539 S.E.2d 331, 333 (2000) (citation omitted). "The plaintiff's negligence, in order to bar a recovery in an action like the present, need not be the sole proximate cause of the injury, . . . . It is sufficient if [the plaintiff's] negligence is a cause, or one of the causes, without which the injury would not have occurred." Whaley v. Adams, 25 N.C. App. 611, 613-14, 214 S.E.2d 301, 303 (1975) (citation omitted).

When considering whether the plaintiff was contributorily negligent in a car accident, we note that "[i]t is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen." Sugg v. Baker, 261 N.C. 579, 581, 135 S.E.2d 565, 567 (1964) (citation omitted). A driver "must keep such an outlook in the direction of travel as a reasonably prudent person would keep under the same or similar circumstances." Sink v. Sumrell, 41 N.C. App. 242, 246, 254 S.E.2d 665, 668-69 (1979) (citations omitted).

On appeal, Arbona contends that Williams did not offer or elicit any testimony or evidence that shows that she was guilty of contributory negligence, asserting that Williams never saw her car or the way in which she was operating her vehicle. We are not persuaded.

The evidence presented at trial was conflicting. Arbona's argument is supported both by her own statement that she was looking forward and could not see the trailer just before impact as well as the testimony of Dr. Barrett, who offered his opinion that Arbona was in the middle lane when her car and the trailer collided. If this evidence were taken as true — that she was looking straight, was entirely in her lane of travel, and could not see the trailer at the time of the accident — a jury could reasonably find that Arbona was exercising ordinary care.

However, Defendants' argument that the evidence supports the jury's contributory negligence verdict is also within the realm of reasonable believability. While Arbona originally testified that she was looking straight ahead as she approached the intersection, on cross-examination she stated that she had seen the truck and its trailer in the turning lane, but was glancing left when she was at the intersection and did not see the trailer come into her lane. The discrepancies in her testimony show that she may not have been aware of her surroundings and not watching the road using ordinary care. Further, we note that Plaintiff's own expert witness — Dr. Barrett — provided inconsistent testimony on whether the truck could have navigated the turn without leaving its lane of travel. As a result, Dr. Barrett's testimony provided the jury with little insight, its conclusion varying depending on unknown factors like the angle of the turn and the speed of the truck. These disparities could have supported the jury's conclusion that Arbona had not kept a proper outlook when driving.

Accordingly, we find that "more than a scintilla of evidence" exists in the record which could support a finding of contributory negligence by the jury. Therefore, we hold that Arbona's motions for directed verdict and JNOV were properly denied. Having concluded that the trial court committed no error in denying Arbona's motion for directed verdict, and because that holding is based on the sufficiency of the evidence, we also conclude that the issue of contributory negligence was properly submitted to the jury.

Arbona also contends that the trial court erred when it instructed the jury on the issue of contributory negligence and subsequently entered judgment on the jury's verdict. These arguments are largely restatements of Arbona's previous contentions and hinge on whether there was sufficient evidence of contributory negligence. Accordingly, we find there was sufficient evidence of contributory negligence for the reasons discussed above. Thus, the trial court did not err in instructing the jury on contributory negligence or in entering judgment on the jury's verdict.

NO ERROR.

Judges STEELMAN and MCCULLOUGH concur.

Report per Rule 30(e).