An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-101
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:    4 February 2014


EBELE ANN ORAEFO,
     Plaintiff

      v.                                      Wake County
                                              No. 11-CVS-12463
CHRISTINA CLAREASA POUNDS,
     Defendant.


      Appeal by plaintiff from judgment entered 18 May 2012 by

Judge Michael R. Morgan in Wake County Superior Court.                    Heard in

the Court of Appeals 26 September 2013.


      E. Gregory Stott for plaintiff-appellant.

      Haywood, Denny and Miller, L.L.P., by George W. Miller,
      III, for defendant-appellee.


      DAVIS, Judge.


      Plaintiff     Ebele    Ann   Oraefo    (“Plaintiff”)      appeals    from    a

judgment entered by the trial court based on the jury’s verdict

in favor of Defendant Christina Clareasa Pounds (“Defendant”) in

a negligence action.          Plaintiff’s primary contention on appeal

is that the trial court committed reversible error by submitting
                                              -2-
the issue of contributory negligence to the jury.                          After careful

review, we affirm.

                                  Factual Background

       This case arises out of a motor vehicle collision that

occurred on 26 August 2008 on N.C. Highway 55 (also known as

Alston Avenue) in Durham, North Carolina.                     Defendant, a student

at Durham Technical Community College, was leaving campus in her

car and planned to take N.C. Highway 55 to Interstate 40 in

order to return home to Chapel Hill.                        Defendant entered N.C.

Highway    55    –    a    four   lane       highway   running   north       and    south.

Defendant was driving southbound when she came upon Plaintiff -

also    traveling         southbound     -    who    was   driving    a    Honda    Accord

directly in front of Defendant’s vehicle in the far right-hand

lane.

       Plaintiff, a student at North Carolina Central University

(“NCCU”),       was   traveling        on     N.C.     Highway   55       after    leaving

Vocational Rehab, where she worked as an intern.                          Plaintiff was

en route to       her professor’s office on NCCU’s campus to drop off

some documents.           The weather at this time was misty, and it had

been raining all morning.

       Because Plaintiff appeared to be traveling slower than the

posted 45 mile per hour speed limit, Defendant decided to switch
                                             -3-
into    the    left       southbound       lane    for   the    purpose       of    passing

Plaintiff’s vehicle.            From her rear view mirror, Plaintiff saw

Defendant’s vehicle approaching and noticed that it was “weaving

in     and    out    of    traffic.”          As    Defendant        passed    Plaintiff,

Plaintiff       honked        her     horn.          Defendant        moved        alongside

Plaintiff’s car, activated her right turn signal and attempted

to re-enter the           far right-hand           lane in front of Plaintiff’s

vehicle.        Before Defendant            actually     moved over into            the far

right-hand lane, she saw Plaintiff’s vehicle both in her side

view mirror and by looking directly over her shoulder.                              Because

she    perceived      that     Plaintiff’s         car   was    a    “great    amount    of

distance behind” her own vehicle, she attempted to merge into

the far right-hand lane.                   She then felt a “bump” as the two

automobiles collided.               The collision occurred when the driver’s

side of Plaintiff’s vehicle made contact with the passenger-side

back bumper of Defendant’s vehicle.

       After the collision, both Plaintiff and Defendant pulled

over to the side of the road, and Plaintiff called the police.

Corporal      Michael       Mole,     an    officer      with       the   Durham     Police

Department,         arrived    on    the    scene    and   completed          an   accident

report.
                                                 -4-
    On    11    August         2011,      Plaintiff       filed    a    complaint    against

Defendant      in       Wake     County          Superior       Court,     alleging       that

Defendant’s negligence was the proximate cause of injuries she

sustained      as   a    result           of   the     collision.        In   her    answer,

Defendant       denied          Plaintiff’s             allegations        and      asserted

contributory negligence as an affirmative defense, alleging that

Plaintiff “failed to keep a proper lookout, failed to keep her

vehicle under proper control, and failed to use reasonable care

to avoid impact with Defendant’s vehicle.”

    A jury trial was held on 30 April 2012 before the Honorable

Michael   R.    Morgan.              At    the    close    of     Plaintiff's      evidence,

Plaintiff      moved     for     a    directed         verdict    with    respect    to    the

issues of negligence and contributory negligence.                                Plaintiff’s

motion was denied.             At the close of all the evidence, Plaintiff

renewed her motion for a directed verdict with respect to these

issues.     This motion was also denied.                           The jury returned a

verdict finding Defendant negligent but also finding Plaintiff

contributorily         negligent.              The     trial    court    entered    judgment

based on the jury’s verdict on 18 May 2012.

    On 30 May 2012, Plaintiff filed a written motion for entry

of judgment notwithstanding the verdict (“JNOV”) concerning the

contributory negligence issue and for a new trial on the issue
                                              -5-
of     damages.         The     trial     court      denied    Plaintiff's        motions.

Plaintiff filed a timely notice of appeal to this Court.

                                          Analysis

       Plaintiff argues on appeal that the trial court erred by

(1) denying her motion for a directed verdict on the issue of

contributory negligence; and (2) denying her motions for JNOV

and for a new trial.

       The   standard         of    review    applicable       to    a    motion       for    a

directed verdict is “whether the evidence, taken in the light

most    favorable       to    the    non-moving       party,    is    sufficient        as     a

matter of law to be submitted to the jury.”                              Davis v. Dennis

Lilly    Co.,     330    N.C.      314,   322,      411   S.E.2d     133,   138    (1991).

“[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).

             If there is more than a scintilla of
             evidence supporting each element of the
             nonmovant's case, the motion for directed
             verdict should be denied. Thus, where a
             defendant pleads an affirmative defense such
             as contributory negligence, a motion for
             directed verdict is properly granted against
             the defendant where the defendant fails to
                                      -6-
            present more than a scintilla of evidence in
            support of each element of his defense.

Whisnant v. Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850

(2004)    (quotation   marks   and    citations     omitted).   A     directed

verdict in a negligence case is rarely proper because it is the

duty of the jury to apply the test of a person using ordinary

care.    Stallings v. Food Lion, Inc., 141 N.C. App. 135, 138, 539

S.E.2d 331, 333 (2000).

      The standard of review for a JNOV motion is the same as

that regarding the denial of a directed verdict motion — 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).      With regard to a motion for a new trial, such

motions are addressed to the discretion of the trial court, and

our     review   is    strictly      limited   to    whether    the    record

affirmatively shows a manifest abuse of discretion.             Streeter v.

Cotton, 133 N.C. App. 80, 82, 514 S.E.2d 539, 542 (1999).

      Here, the issues Plaintiff raises on appeal all hinge on

whether the evidence presented at trial by Defendant – along

with all reasonable inferences that may be drawn therefrom – was

sufficient to allow the issue of contributory negligence to be

submitted to the jury.            Because we conclude that sufficient
                                               -7-
evidence existed to support a finding of contributory negligence

by the jury, we affirm.

       Contributory negligence is “negligence on the part of the

plaintiff which joins, simultaneously or successively, with the

negligence of the defendant . . . to produce the injury of which

the plaintiff complains.”                Bosley v. Alexander, 114 N.C. App.

470,    472,   442    S.E.2d       82,   83     (1994)      (citation       omitted).      In

determining       whether      a    plaintiff          is    guilty     of    contributory

negligence,       a   jury   must        determine          “whether    a    person     using

ordinary care for his or her safety under similar circumstances

would have recognized the danger.”                     Stallings, 141 N.C. App. at

137, 539 S.E.2d at 333 (citation omitted).

       “The plaintiff's negligence, in order to bar a recovery . .

., 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).                     “[S]ince negligence usually

involves issues of due care and reasonableness of actions under

the     circumstances,             it     is         especially        appropriate       for

determination by the jury.                 In borderline cases, fairness and

judicial economy suggest that courts should decide in favor of
                                   -8-
submitting issues to the jury.”       Whisnant, 166 N.C. App. at 722-

23, 603 S.E.2d at 850 (citations and quotation marks omitted).

    In   the   context   of    evaluating    a    contributory     negligence

issue arising from a motor vehicle accident, we have held that

“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) (citation omitted).             We have also

recognized that “N.C. Gen. Stat. § 20–141(a)1 and N.C. Gen. Stat.

§ 20–141(m)2, construed together, establish a duty to drive with

caution and circumspection and to reduce speed if necessary to

avoid a collision, irrespective of the lawful speed limit or the

speed actually driven.”       State v. Stroud, 78 N.C. App. 599, 603,

337 S.E.2d 873, 876 (1985).

    Our Supreme Court has held that

          [o]rdinarily    a     person      has   no   duty   to

1
  N.C. Gen. Stat. § 20–141(a) states: “No person shall drive a
vehicle on a highway or in a public vehicular area at a speed
greater than is reasonable and prudent under the conditions then
existing.”
2
  N.C. Gen. Stat. § 20–141(m) provides: “The fact that the speed
of a vehicle is lower than the . . . limits shall not relieve
the operator of a vehicle from the duty to decrease speed as may
be necessary to avoid colliding with any person, vehicle or
other conveyance on or entering the highway, and to avoid injury
to any person or property.”
                                          -9-
            anticipate negligence on the part of others.
            In the absence of anything which gives or
            should give notice to the contrary, he has
            the right to assume and to act on the
            assumption that others will observe the
            rules of the road and obey the law. However,
            the right to rely on this assumption is not
            absolute, and if the circumstances existing
            at the time are such as reasonably to put a
            person on notice that he cannot rely on the
            assumption, he is under a duty to exercise
            that care which a reasonably careful and
            prudent person would exercise under all the
            circumstances then existing.

Penland v. Green, 289 N.C. 281, 283, 221 S.E.2d 365, 368 (1976)

(citations omitted); see McNair v. Goodwin, 264 N.C. 146, 148,

141   S.E.2d      22,   23    (1965)    (per    curiam)    (reasonable         prudence

requires motorist who sees another vehicle being operated in

negligent manner to take all the more care to avoid collision).

      We    believe          that,     taken    together,        Plaintiff’s       and

Defendant’s testimony at trial constituted sufficient evidence

for   the    trial      court    to    submit    the     issue     of   contributory

negligence     to    the     jury.     Plaintiff       testified    that   she     “saw

[Defendant] from the rear view [mirror] weaving in and out of

traffic,” honked her horn when Defendant was in the process of

passing     her     vehicle,     and    observed       Defendant’s      turn     signal

flashing    before      Defendant      merged   back    into     Plaintiff’s      lane,

thereby putting her on notice of Defendant’s intent to re-enter

her lane of travel.
                                   -10-
    Defendant testified that when she looked over her shoulder

prior to re-entering the far right-hand lane, “[Plaintiff] was a

great amount of distance behind” and when Defendant started to

“move over, [Plaintiff] just came out of nowhere.”

    The jury could have reasonably inferred from this evidence

that Plaintiff — being fully aware of Defendant’s intent to re-

enter her lane of travel — breached her duty of care by failing

to reduce her speed or otherwise attempt to avoid a collision.

Accordingly,   we   conclude   that   sufficient   evidence   existed   to

raise a jury question as to whether Plaintiff was contributorily

negligent.      Therefore,     Plaintiff’s   motions   for    a   directed

verdict, JNOV, and new trial were properly denied.

                                Conclusion

    For the reasons stated above, we affirm.

    AFFIRMED.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).
