An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-919
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 March 2014


GLORIA POOLE JERNIGAN,
     Plaintiff,

       v.                                          Johnston County
                                                   No. 11-CVS-0987
CARMEN BRYANT TART,
     Defendant.


       Appeal by plaintiff from Judgment entered 28 December 2012

by   Judge   Shannon      Joseph   in       Superior    Court,    Johnston      County.

Heard in the Court of Appeals 9 January 2014.


       Ryan McKaig Attorney            at    Law    PLLC,   by    Ryan    McKaig,    for
       plaintiff-appellant.

       Cranfill Sumner & Hartzog LLP, by George L. Simpson, IV,
       for defendant-appellee.


       STROUD, Judge.


       Gloria   Jernigan     (“plaintiff”)          appeals      from    the   judgment

entered 28 December 2012 after a jury found that she was barred

from    recovery     on     her    negligence          claim     due     to    her   own

contributory negligence. For the following reasons, we order a

new trial.

                                  I.    Background
                                           -2-
       On 24 March 2011, plaintiff filed a complaint in Johnston

County alleging that Carmen Tart (“defendant”) had negligently

caused her to collide with defendant’s vehicle by driving into

plaintiff’s        path.      Defendant        answered,     admitting      that     the

collision occurred, but denying her negligence, and asserting

that plaintiff was contributorily negligent.                    Plaintiff filed a

reply      to   defendant’s      answer        alleging    that,     even    assuming

plaintiff were contributorily negligent, defendant had the last

clear chance to avoid the collision.                The case was tried by jury

in superior court on 12 and 13 December 2012.

       The evidence at trial tended to show that on the afternoon

of    28   June    2008,     plaintiff     was    traveling    west    along       Woods

Crossroads Road, near Benson.                  Plaintiff, driving a red 1997

Pontiac, testified that she was traveling at 45 miles per hour.

Clifford Coffey, who was driving the opposite                        direction down

Woods Crossroads, estimated her speed at 55-65 miles per hour.

The speed limit on that section of Woods Crossroads was 55 miles

per   hour.     Defendant,     driving     a     1997    Chevrolet    pickup     truck,

pulled     up     to   the   stop   sign    at     the    intersection      of     Woods

Crossroads and Beasley Road, heading south.

       Plaintiff testified that she saw defendant stopped at the

Beasley Road stop sign, but that defendant did not appear to
                                        -3-
move into the intersection until plaintiff was already in the

intersection herself. She said that defendant “darted out” in

front of her so quickly that she did not have time to apply the

brakes.     Plaintiff collided with defendant in the intersection,

hitting defendant’s truck on the back half of the vehicle.

    Defendant testified by deposition, which was introduced at

trial,    that   she   looked    left,   right,   then    left   again   before

pulling into the intersection. She said that she did not see

plaintiff’s car until after she had pulled into the intersection

and that when she first saw plaintiff’s car it just appeared as

a red dot in the distance.             Wendy Macauley testified that she

had pulled up behind defendant while defendant was still stopped

at the stop sign. Ms. Macauley said that when she looked to the

left she saw plaintiff’s car before defendant pulled her truck

into the intersection.          Defendant testified that she initially

proceeded through the intersection slowly, but that once she saw

plaintiff    coming     toward    the     intersection,    she    decided   to

accelerate to avoid a collision.

    After the close of all the evidence, the parties had a

charge    conference    with     the    trial   court.   Plaintiff   did    not

request an instruction on the doctrine of last clear chance

during the conference. The following morning, before the trial
                                       -4-
court instructed the jury, plaintiff did request an instruction

on last clear chance.         The trial court denied that request and

instructed the jury on negligence and contributory negligence,

but omitted an instruction on last clear chance. The jury found

that defendant had negligently caused the collision, but that

plaintiff    was     also     negligent,     and   that    her   negligence

contributed to her injury. It therefore awarded plaintiff no

recovery.     The trial court entered final judgment consistent

with the jury’s verdict on 28 December 2012.               Plaintiff filed

written notice of appeal to this Court on 22 January 2013.

                            II.   Jury Instructions

     Plaintiff argues that the trial court erred in refusing to

instruct the jury on the last clear chance doctrine because

there was evidence from which the jury could have reasonably

concluded     that    even        if   defendant      successfully   showed

contributory negligence, defendant had the last clear chance to

avoid the collision. We agree.

A.   Standard of Review

            When reviewing the refusal of a trial court
            to give certain instructions requested by a
            party to the jury, this Court must decide
            whether the evidence presented at trial was
            sufficient to support a reasonable inference
            by the jury of the elements of the claim. If
            the   instruction  is   supported  by   such
                               -5-
         evidence, the trial court’s failure to give
         the instruction is reversible error.

King v. Brooks, ___ N.C. App. ___, ___, 736 S.E.2d 788, 792

(2012) (citation and     quotation   marks   omitted),   disc.   rev.

denied, ___ N.C. ___, 743 S.E.2d 195 (2013).

B.   Analysis

         The last clear chance doctrine is a rule of
         proximate cause that allows a contributorily
         negligent plaintiff to recover where the
         defendant’s negligence in failing to avoid
         the accident introduces a new element into
         the case, which intervenes between the
         plaintiff’s negligence and the injury and
         becomes the direct and proximate cause of
         the accident.

Outlaw v. Johnson, 190 N.C. App. 233, 238, 660 S.E.2d 550, 556

(2008) (citation, quotation marks, and brackets omitted).

     The elements of the last clear chance doctrine are:

         (1) that the plaintiff negligently placed
         himself in a position of helpless peril; (2)
         that the defendant knew or, by the exercise
         of reasonable care, should have discovered
         the plaintiff’s perilous position and his
         incapacity to escape from it; (3) that the
         defendant had the time and ability to avoid
         the injury by the exercise of reasonable
         care; (4) that the defendant negligently
         failed to use available time and means to
         avoid injury to the plaintiff and (5) as a
         result, the plaintiff was injured.

Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184, 186

(2004), disc. rev. denied, 359 N.C. 411, 612 S.E.2d 322 (2005).
                                       -6-
“The question of last clear chance must be submitted to the jury

if the evidence, when viewed in the light most favorable to the

plaintiff, will support a reasonable inference of each essential

element of the doctrine.” Outlaw, 190 N.C. App. at 238, 660

S.E.2d at 556 (citation and quotation marks omitted).

       Therefore,   we    must   decide      whether    there    was   sufficient

evidence, taken in the light most favorable to plaintiff, of

each   element   of      the   last   clear    chance    doctrine.     Defendant

primarily    asserts      that   plaintiff      was     not     entitled   to   an

instruction on last clear chance doctrine because she failed to

present sufficient evidence of the first element.

            The first element of last clear chance is
            satisfied upon a showing that a plaintiff
            has placed himself in a position of either
            helpless or inadvertent peril. A plaintiff
            is in a position of helpless peril when that
            plaintiff’s prior contributory negligence
            has placed her in a position from which she
            is powerless to extricate herself. . . .
            However,   if   a   plaintiff  observes   an
            approaching vehicle but fails to extricate
            himself from the dangerous position despite
            having the time and ability to do so, he has
            not placed himself in a position of helpless
            or inadvertent peril.

Id. at 238-39, 660 S.E.2d at 556 (citation and quotation marks

omitted).

       This case is controlled by Knote v. Nifong, 97 N.C. App.

105, 387 S.E.2d 185, disc. rev. denied, 326 N.C. 597, 393 S.E.2d
                                            -7-
879 (1990). In that case, there was evidence that the plaintiff

was riding his motorcycle north along the highway at a speed in

excess of the posted limit. Knote, 97 N.C. App. at 106, 387

S.E.2d    at    186.    The    defendant     approached        the   highway    from   a

cross-street and pulled across the highway, but stopped in the

middle,    blocking      plaintiff’s        travel      lane.        Id.      Plaintiff

applied his brakes to try to avoid the collision, but was unable

to stop in time. Id. at 107, 387 S.E.2d at 186. We held that the

evidence       satisfied      the   first     element     of    last    clear   chance

because it showed that plaintiff was “driving too fast and that

he was unable to take action to avoid a collision.”                        Id. at 108,

387 S.E.2d at 187.

      Here, two witnesses testified that plaintiff was speeding,

though plaintiff denied it. Plaintiff testified that defendant

“darted out” in front of her when she reached the intersection

and that she “didn’t have time to put [her] foot on the brake.”

The highway on which plaintiff was traveling had one lane in

each direction. Like in Knote, there was evidence, taken in the

light most favorable to plaintiff, from which a reasonable juror

could conclude that plaintiff was driving too fast, and that she

was   unable     to    brake    and   avoid       the   collision      once   defendant
                                        -8-
“darted out in front of [her].” Therefore, there was sufficient

evidence on the first element of last clear chance.

    Further,      there    was    evidence,      taken    in   the    light    most

favorable    to   plaintiff,     from    which   a     reasonable    juror    could

conclude that defendant saw, or should have seen, plaintiff and

recognized that she was speeding toward the intersection. Ms.

Macauley    testified     that   she    was   stopped     behind     defendant    on

Beasley    Road   and   that     from   where    she     was   sitting   she     saw

plaintiff’s red car coming down Woods Crossing before defendant

pulled into the intersection.            It is immaterial that defendant

testified that she did not see plaintiff until after she was in

the intersection because there was “evidence that the defendant

could have seen plaintiff.” Id. Therefore, there was sufficient

evidence to satisfy the second element.

    There was also sufficient evidence to support a reasonable

inference of each additional element. As to the third element,

there was evidence from which a reasonable juror could conclude

that defendant had the time and means to avoid the accident.

Defendant could have avoided the accident by remaining stopped

at the stop sign rather than proceeding into the intersection.

There was nothing forcing defendant to cross the intersection

when she did. The fourth element is satisfied by evidence that
                                       -9-
despite her ability to see that plaintiff was speeding down the

highway,    defendant     negligently        decided    to       risk   injury    by

nonetheless proceeding into the intersection. Finally, there is

no    dispute   that   plaintiff   was   injured       as    a   result   of     this

collision. Therefore, there was evidence sufficient to satisfy

the fifth element of the last clear chance doctrine as well.

       We conclude that plaintiff presented sufficient evidence to

warrant an instruction on the last clear chance doctrine. The

question is not whether plaintiff’s position is supported by the

weight of the evidence, but whether “the evidence, when viewed

in the light most favorable to the plaintiff, will support a

reasonable inference of each essential element of the doctrine.”

Outlaw, 190 N.C. App. at 238, 660 S.E.2d at 556 (citation and

quotation marks omitted). Plaintiff’s testimony that defendant

“darted out in front of her” with little time or warning such

that plaintiff was unable to brake in time to avoid the accident

is    sufficient   to    support   a     reasonable         inference     of     each

essential element of the last clear chance doctrine. Therefore,

we hold that the trial court erred in refusing to instruct the

jury on last clear chance and order a new trial.

     III. Motion to Dismiss Contributory Negligence Affirmative
          Defense
                                        -10-
    Plaintiff argues that the trial court erred in denying her

motion under Rule 12(b)(6) to dismiss defendant’s affirmative

defense of contributory negligence on the basis that the answer

failed    to     set   forth   the   affirmative       defense   with   sufficient

specificity under N.C. Gen. Stat. § 1A-1, Rule 8(c). The denial

of a Rule 12(b)(6) motion is generally not appealable. An order

denying     a     motion    to   dismiss       under     Rule    12(b)(6)   is   an

interlocutory order which may not be immediately appealed. Block

v. County of Person, 141 N.C. App. 273, 276, 540 S.E.2d 415, 418

(2000). Further, the “denial of a party’s motion to dismiss made

pursuant to Rule 12(b)(6) is not reviewable on appeal following

a final judgment on the merits of the case.” In re Will of

McFayden, 179 N.C. App. 595, 599, 635 S.E.2d 65, 68 (2006),

disc.     rev.    denied,      361   N.C.   694,       653   S.E.2d   880   (2007).

Therefore, we dismiss this portion of plaintiff’s appeal.

                                 IV.   Conclusion

    For the foregoing reasons, we hold that the trial court

erred in refusing to instruct the jury on the last clear chance

doctrine. We dismiss plaintiff’s appeal from the trial court’s

denial of her 12(b)(6) motion.

    NEW TRIAL; DISMISSED in part.

    Judges HUNTER, JR., Robert N. and DILLON concur.
                         -11-
Report per Rule 30(e).
