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Conference of NC Superior Court Judges Recent Decisions

Conference of NC Superior Court Judges Recent Decisions. Don Cowan Smith Moore LLP 16 June 2006. 1. LIABILITY. 2. Motor Vehicles. 3. Osetek v. Jeremiah (NC 2006) (1). Issue:

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Conference of NC Superior Court Judges Recent Decisions

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  1. Conference of NCSuperior Court JudgesRecent Decisions Don Cowan Smith Moore LLP 16 June 2006 1

  2. LIABILITY 2

  3. Motor Vehicles 3

  4. Osetek v. Jeremiah(NC 2006) (1) Issue: When the plaintiff introduced medical bills totaling $15,554.30, whether the trial court should have instructed the jury as to the mandatory presumption on the issue of medical damages in N.C.G.S. § 8-58.1? 4

  5. FACTS • The plaintiff was stopped at a stop sign when she was struck in the rear by the defendant’s vehicle. • The plaintiff introduced evidence of medical bills totaling $15,554.30. The plaintiff’s treating chiropractor testified about the plaintiff’s injuries. • The trial court granted the plaintiff’s motion for a directed verdict on the issue of contributory negligence. • The jury found the defendant negligent and awarded the plaintiff $600. 5

  6. HELD: Affirmed • G.S. § 8-58.1 does create a rebuttable mandatory presumption as to the reasonableness of medical expenses. • The parties did not stipulate to the plaintiff’s medical expenses, therefore, this was “an issue” for the jury to decide. • The defendant’s rebuttal evidence questioned the relationship between the medical expenses and the accident. • The trial judge properly refused to give the mandatory presumption on the issue of medical damages. 6

  7. Hofecker v. Casperson (NC 2005) (2) Issues: • When the defendant’s vehicle struck the plaintiff as the plaintiff was walking along the highway at night and the defendant testified that the plaintiff was wearing dark clothing and “came out of nowhere and walked directly into the path of my car,” whether the trial court properly granted the defendant’s motion for summary judgment on the issue of contributory negligence? 2. When the evidence indicated that the plaintiff was struck while located in the roadway, whether this fact without additional evidence that the defendant was negligent in the operation of his vehicle or could have avoided the accident is sufficient to defeat the defendant’s motion for summary judgment on the issue of last clear chance? 7

  8. FACTS • The plaintiff was walking home from work on 1 November 2001 at about 6:55 p.m. and was wearing dark clothes.There were no street lights in the area. • The defendant testified that he “caught a glimpse” of the plaintiff and that the plaintiff “came out of nowhere, walked directly into the path of my car.” • The trial court granted the defendant’s motion for summary judgment on contributory negligence and last clear chance. 8

  9. HELD: Affirmed • The evidence was clear that the plaintiff was walking on the highway with his back to traffic. The accident happened on an unlighted road and the plaintiff was wearing dark clothing. At the plaintiff’s deposition, he admitted that he would not have seen the headlights on the defendant’s vehicle because “they were coming behind you.” Since the defendant first saw the plaintiff when the plaintiff was in front of the defendant’s car and the defendant had no opportunity to avoid hitting the plaintiff, the plaintiff was contributorily negligent as a matter of law. 9

  10. HELD: Affirmed (Cont’d.) • The plaintiff’s evidence opposing summary judgment did not forecast any facts showing that the defendant was negligent in the operation of his vehicle, such as speeding, not keeping a proper lookout or should have seen the plaintiff. Even if the plaintiff was struck while in the road, this is not sufficient to deny the defendant’s motion for summary judgment on last clear chance. 10

  11. Ligon v. Matthew Allen Strickland(NC App 2006) (4) Issues: • When the plaintiff testified that he was walking along the side of the road when he was struck by the defendant’s vehicle, but the plaintiff’s evidence also included testimony by the investigating highway patrolman that the plaintiff was in the road at the time he was struck, whether the trial court should have submitted the issue of contributory negligence to the jury? • When the defendant testified that he swerved in the road to avoid hitting an animal, whether an instruction of sudden emergency should have been given, and, if so, whether the sudden emergency instruction should state that the doctrine applies when the driver is confronted with imminent danger to himself or others? 11

  12. FACTS • The plaintiff alleged that he was walking along the side of the road at night when he was struck by the defendant’s vehicle. • The plaintiff was wearing dark clothing. He testified that he heard a “whoosh,” then recalled nothing until he woke up in the hospital. • Before the accident, the plaintiff had been to a ball game and drank a bottle of beer. His blood alcohol level at the hospital was .08. 12

  13. FACTS(Cont’d.) • The defendant testified that he saw an animal in the road. When he swerved to avoid the animal, he went off the road and struck a fence. The defendant continued driving. When he arrived at home and told his father what had happened, the defendant and his father returned to the scene of the accident and saw the plaintiff in the fence. • The plaintiff told the investigating highway patrolman that he was “in the roadway” at the time he was hit. • The trial court refused the defendant’s request to instruct on contributory negligence. 13

  14. HELD: Reversed and new trial ordered • The trial court should have instructed on contributory negligence. Although the plaintiff denied that he was in the road at the time he was hit, the plaintiff called the highway patrolman as a witness and relied on his testimony to establish the defendant’s negligence. The jury should have had the opportunity to determine whether the plaintiff was in the road at the time he was hit. When combined with the plaintiff’s intoxication and the fact that he was wearing dark clothes while walking along the road at night, contributory negligence was for the jury. • The trial judge modified the sudden emergency instruction, N.C.P.I. – Div. 101.15 to state that it did not apply “if only a non-human animal is in danger.” At the time of the new trial, the instruction should focus on whether the driver was “suddenly and unexpectedly confronted with imminent danger to himself or others.” 14

  15. Croom v. Humphrey(NC App 2006) (6) Held: When N.C.G.S. § 20-150(d) prohibits crossing the centerline of a highway at a curve and the defendant’s lane was marked with a broken yellow line, the defendant was permitted to pass if he could do so safely. “Centerline” as used in the statutes means a “solid yellow line,” which indicates that passing from the adjacent lane is forbidden. 15

  16. Oakes v. Wooten(NC App 2005) (7) Issues: • Even though the plaintiff had the green light when entering the intersection, whether the trial court should have instructed on contributory negligence based on failure to keep a proper lookout and failure to exercise reasonable care? • Whether the trial court properly sanctioned the defendant for failing to admit the defendant’s motor vehicle violations, agency and that the defendant’s negligence was the sole proximate cause of the plaintiff’s injuries? 16

  17. FACTS • The plaintiff testified that he exited I-85 onto south Main Street in Graham and entered the intersection on a green light. • The defendant testified that she failed to stop for the red light and collided with the plaintiff’s car. • Based on the plaintiff’s testimony that he “surveyed the intersection” before entering it and did not see the defendant, the trial court refused to instruct on contributory negligence. • The jury awarded the plaintiff $119,000. 17

  18. HELD: • The trial judge properly refused to instruct on contributory negligence. Taking the evidence in the light most favorable to the defendant, the evidence fails to show that the plaintiff could have done anything to avoid the accident or that there was anything to put the plaintiff on notice that the defendant would fail to stop at the red light.   The defendant testified that she was not traveling at a high rate of speed and did not enter the intersection until the plaintiff had turned in front of her. 18

  19. HELD: (Cont’d.) • The trial court abused its discretion in sanctioning the defendant. At the time the plaintiff submitted the requests to admit, discovery had not begun. The defendant had no facts upon which to consider the requests to admit relating to the plaintiff’s injuries and contributory negligence. At the time of the defendant’s response, “reasonable grounds existed to believe that they might prevail on some matters denied.” 19

  20. Premises 20

  21. Herring v. Food Lion, L.L.C.(NC 2006) (10) Issue: When plaintiff injured his knee on a stock cart at defendant’s store, but presented no evidence as to who placed the cart in its position, how long it had been in that position and if the defendant knew or should have known of its position, whether the trial court properly granted the defendant’s motion for a directed verdict? 21

  22. FACTS • The plaintiff was pushing a shopping cart at the defendant’s store. The plaintiff stopped at the meat counter and walked to a soft drink display. • After picking up a bottle, the plaintiff turned to walk back to his shopping cart. • The plaintiff’s knee struck a stock cart. The plaintiff testified that he did not see the cart and that it was “hidden.” • The stock cart was lower than the plaintiff’s knee. • The plaintiff left the store without reporting the injury. • The trial court granted the defendant’s motion for a directed verdict. 22

  23. HELD: Affirmed • On the issue of negligence, the plaintiff produced no evidence concerning who placed the cart in its position, when it was placed there or how long it remained in that position. • Vendors at the store had access to the stock cart. • There was also no evidence as to how long the stock cart had been in the position and whether the defendant knew or should have known of its position. 23

  24. Grayson v. High Point Development(NC App 2006) (11) Issue: When it had snowed for two days at plaintiff’s place of employment and plaintiff knew that the parking lot where her car was parked was covered with ice, whether the owner of the parking lot had a duty to warn the plaintiff of the hazardous conditions at the parking lot? 24

  25. FACTS • The plaintiff was employed at Belk’s at the Oak Hollow Mall in High Point. • A heavy snow had fallen on 25 and 26 January 2004. • As the plaintiff left work and was walking to her car in the parking lot, she slipped on ice and fell. • At her deposition, the plaintiff testified that she knew the condition of the parking lot and had told another employee that “somebody’s going to get killed out there.” • The trial court granted the defendant’s motion for summary judgment. 25

  26. HELD: Affirmed There is no duty to warn the plaintiff of conditions of which she was aware and of which she had superior knowledge to the defendant. “A landowner is under no duty to protect a visitor against dangers either known or so obvious and apparent that they reasonably may be expected to be discovered.” 26

  27. Bailey v. Handee Hugo’s Inc.(NC App 2005) (12) Issue: When the adjuster for the defendant’s liability insurance company misrepresented the identity of the owner of the premises where the plaintiff fell, but the identity of the owner could have been found in the records of the Register of Deeds, whether the trial court properly dismissed the action for failure to name the correct defendant? 27

  28. FACTS • The plaintiff fell and was injured at Handee Hugo’s on 18 April 2001. • The plaintiff was contacted by an adjuster for Federated Mutual Insurance Company and told that the Federated insureds were Handee Hugo’s and Sampson-Bladen, the operator of the store. • Suit was filed on 29 March 2004 against Handee Hugo’s and Sampson-Bladen. 28

  29. FACTS (Cont’d.) • The defendant filed a motion to dismiss on the grounds that the store was leased and operated by United Energy. • On 19 July 2004, the plaintiff filed a motion to amend to add United Energy as an additional defendant. • The trial court denied the plaintiff’s motion to amend and allowed the defendant’s motion to dismiss. 29

  30. HELD: Affirmed • Hatcher v. Flockhart Foods (NC App 2003) and equitable estoppel did not apply. • In Hatcher, there was “active misrepresentation” as to the insured and there was no public record as to the responsible party. • In the present case, a search of the Register of Deeds would have identified the owner of the store. • Although the Court of Appeals found “the misrepresentation reprehensible,” dismissal was affirmed. 30

  31. Wallen v. Riverside Sports Center(NC App 2005) (13) Issue: Whether defendants/landowners had a duty to exercise reasonable care concerning trees on their property that was next to a navigable river? 31

  32. FACTS • Defendants owned boat ramp on the Cape Fear River. • Plaintiff was in a boat and using the boat ramp to get off the river as a storm approached. • While the plaintiff was waiting at the boat ramp, a tree fell on the plaintiff causing injuries that rendered the plaintiff a paraplegic. • The plaintiff’s expert testified that the tree that fell was extensively decayed and showed evidence of the decay through many dead branches. • The trial court granted the defendants’ motion for summary judgment. 32

  33. HELD: Summary judgment reversed. • The defendants had a duty to exercise reasonable care concerning natural conditions such as trees on their land. • The defendants were liable “only if they had actual or constructive notice of a dangerous natural condition existing upon their land.” • The tree that fell on the plaintiff had “broken off” once before the date of the plaintiff’s injury and showed signs of decay. • There was a genuine issue of material fact on the issue of the defendants’ negligence. 33

  34. Freeman v. Food Lion(NC App 2005) (15) Issues: • Whether Food Lion/owner of store had duty to warn the plaintiff of hidden dangers? • Whether the plaintiff’s failure to plead that the individual defendant was the agent or employee of the corporate defendants barred the plaintiff from making this argument on appeal? 34

  35. FACTS • The plaintiff was shopping at the Food Lion store when she was struck by a buffing machine operated by Robinson who was wearing ear phones. • Robinson had previously knocked down orange cones at the front of the store. • The plaintiff sued Food Lion, Budget Services (the company contracting with Food Lion to maintain the floors), Frank’s Floor Care (the company contracting with Budget Services to maintain the floors) and Amron Janitorial (the employer of Robinson). • The trial court granted the motions for summary judgment of all defendants. 35

  36. HELD: Summary judgment reversed as to Food Lion; affirmed as to all other defendants. • As to the plaintiff’s argument on appeal that Robinson was the agent or employee of the defendants, this relationship had not been pleaded in the complaint. The plaintiff may not make a different legal argument on appeal that was not made in the pleadings or before the trial court. • Since neither Budget Services nor Frank’s Floor Care owned or operated the store, they had no duty to the plaintiff and may not be held liable under a theory of premises liability. 36

  37. HELD: Summary judgment reversed as to Food Lion; affirmed as to all other defendants. (Cont’d.) • As owner of the store, Food Lion had a duty to keep the premises safe and warn the plaintiff of hidden dangers. There were genuine issues of material fact as to whether: (a) Food Lion warned the plaintiff of the buffing; (b) Food Lion used ordinary care in providing safe premises; (c) the buffing machine presented an obvious danger; and (d) a reasonably prudent person should have noticed the buffing machine and avoided the collision. 37

  38. Employment 38

  39. Little v. Omega Meats I, Inc.(NC 2005) (17) Issue: Whether defendant is liable for assault committed by independent contractor of defendant? 39

  40. FACTS • Omega Meats sold meat products through independent contractor salesmen. • The salesmen rented refrigerator trucks and attempted to sell the meat door to door. • Omega did not supervise the salesmen and did not identify areas for meat to be sold. • Smith, an independent contractor salesman, had been convicted of robbery and kidnapping. He served a prison sentence for these crimes. Omega did not conduct a background check on Smith before he was employed. 40

  41. FACTS(Cont’d.) • Smith parked his refrigeration truck in the driveway next to the plaintiffs’ house. He broke into the plaintiffs’ house and assaulted the plaintiffs. • The trial court granted Omega’s motion for a directed verdict at the close of the plaintiffs’ evidence. 41

  42. HELD: Affirmed. • Omega owned no duty to the plaintiffs. • Smith was not in the plaintiffs’ home as a result of any activities on behalf of Omega. • Employers do not owe a legal duty to “victims of their independent contractors’ intentional torts that bear no relationship to the employment.” • Even if Omega were negligent in hiring Smith, Smith’s employment “did not advance his criminal endeavor in any manner.” The result would have been the same if Smith had not been driving an Omega truck. 42

  43. INSURANCE 43

  44. Motor Vehicle 44

  45. Hernandez v. Nationwide Mutual Ins. Co., (NC App 2005), review denied(20) Issue: When Nationwide’s insured was driving a car she was purchasing, but title to the car had not been transferred to the insured, whether the car was a “non-owned” vehicle that was not furnished for the regular use of the insured, and, therefore, the vehicle was insured? 45

  46. FACTS • Ms. Norris, the Nationwide insured, was in the process of purchasing a 1997 Blazer, when she was involved in an automobile accident with the plaintiff. • All paperwork for the purchase of the Blazer had been completed, but title to the Blazer had not been transferred to the insured. • The trial court granted the plaintiff’s motion for summary judgmentfinding that Nationwide had coverage. 46

  47. HELD: Affirmed. • Under G.S. §20-72(b), all cars which are not owned are insured except those furnished for the regular use of the insured or his relative. • Because at the time of the accident, the Blazer was not furnished for the insured’s regular use and title had not been transferred, the Nationwide exclusion did not apply. There was coverage for the accident. 47

  48. McGuire v. Draughon(NC App 2005) (22) Issue: When the defendant drove a Ford Explorer two or three times a week that was owned by her mother-in-law, whether the Explorer was furnished for the regular use of the defendant, and, therefore, there was no coverage? 48

  49. FACTS • At the time of the accident, Mollie Draughon was operating her mother-in-law’s Ford Explorer. • Mollie Draughon and her husband lived next door to Betty Draughon. The Explorer was always parked in the common driveway between the two houses. Mollie and her husband had 3 keys to the Explorer and did not have to ask for permission to use it. • Mollie Draughon testified that she drove the Explorer two or three times a week to run errands, go to work and take Betty Draughon to places she needed to go. 49

  50. FACTS(Cont’d.) • Mollie Draughon and her husband were insured by Farm Bureau. The Farm Bureau policy excluded coverage for vehicles furnished for the insured’s regular use. • The trial court granted Farm Bureau’s motion for summary judgment finding no coverage. 50

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