An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-509
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


JAMES C. BURGESS, III,
     Plaintiff,

      v.                                      Union County
                                              No. 11 CVS 2342
RANDI L. DORTON,
     Defendant.


     Appeal by Plaintiff from order entered 4 December 2012 by

Judge Anna Mills Wagoner in Union County Superior Court.                      Heard in

the Court of Appeals 8 October 2013.


     Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin
     Smith, and Archibald Law Office, by C. Murphy Archibald, for
     Plaintiff.

     Robinson Elliott & Smith, by William                      C.    Robinson,       and
     Katherine A. Tenfelde, for Defendant.


     DILLON, Judge.


     James    C.   Burgess,    III   (Plaintiff),        appeals    from     the   trial

court’s order denying his motion for a new trial.                  We affirm.

                    I. Factual & Procedural Background

     Plaintiff     commenced      this   action     in    Union     County    Superior

Court, seeking damages he sustained when the bicycle he was riding
                                            -2-
collided with an automobile driven by Randi L. Dorton (Defendant)

on the evening of 6 November 2010.                        Defendant filed an answer,

generally denying Plaintiff’s allegations of negligence and raising

contributory negligence as a defense to Plaintiff’s claim.                                The

matter came on for trial in Union County Superior Court on 13

August 2012, at which time the trial court allowed Plaintiff to

amend    his    complaint      to   plead    that     even    if   his    negligence      had

contributed       to    the   accident,      he     was    nevertheless       entitled     to

recover for his injuries based upon Defendant’s “last clear chance”

to avoid the accident.

      Plaintiff testified at trial that he “could see real well”

when he mounted his silver Colnago road bicycle on the evening in

question and embarked upon a route he had traveled “hundreds of

times” previously.            Plaintiff rode his bicycle eastbound along a

two-lane       rural,    country     road    in     Union    County      at   a   speed   of

approximately eight miles per hour.                   Plaintiff wore a blue jacket

with “a large white V on the front”; a helmet; black bicycle shoes;

and     black     “luminite”        pants,        which    Plaintiff      testified       had

reflective       qualities      that    should        have    made     him    visible     to

motorists.       Plaintiff rode without any safety lights on the front

or rear of his bicycle and without any safety reflectors on the

seat, handle bars, or spokes of the bicycle.
                                    -3-
    Defendant testified that “it was dusk” and “getting pretty

dark” when she left her shift as a prison correctional officer in

Polkton,    North    Carolina,   shortly   after   6:00   p.m.   that   evening.

Defendant    drove     approximately   forty-five     minutes     towards    her

boyfriend’s house, which was located on the aforementioned two-lane

country road.       Defendant testified that her headlights were on and

that they were set to automatically adjust as lighting conditions

changed.     Defendant presented evidence indicating that the sun set

that evening at 6:24 p.m.

    Defendant drove westbound towards Plaintiff, as Plaintiff rode

his bicycle eastbound, on the right hand side of the road, towards

Defendant.    Defendant testified that it was “very dark” by the time

she approached her boyfriend’s house.         Defendant rounded a curve in

the road and, as she came out of the curve, drove “fairly slow” as

she approached her boyfriend’s driveway.

    Defendant started to make a left-hand turn (across the road)

into the driveway.      Defendant testified that, as she made the turn,

her vehicle collided with Plaintiff, knocking the driver’s side

mirror off her vehicle and knocking Plaintiff off his bicycle.

Defendant testified that although her headlights were on, she did

not see Plaintiff until the moment of impact.              Plaintiff likewise

testified that he neither saw nor heard Defendant’s vehicle prior
                                   -4-
to the moment of impact, and, further, that he could not even

identify the direction in which Defendant had been traveling at the

time.   Plaintiff also testified that he “could see fairly well” at

the time of the accident, though he subsequently testified that he

could see “really well out there.”         Plaintiff also introduced into

evidence a video recording that he had made with his wife upon

returning to the scene of the accident, asserting that the video

was   indicative   of   the   lighting   conditions   at   the   time   of   the

accident.

      The parties dispute the time period that elapsed between the

accident and the arrival of Emergency Medical Technicians (EMTs)

and the first responding police officer, Trooper Brian Kirkpatrick

of the North Carolina Highway Patrol.        Plaintiff testified that the

EMTs arrived at the scene approximately fifteen minutes after the

accident and that Trooper Kirkpatrick arrived shortly thereafter.

Defendant, in contrast, averred that Trooper Kirkpatrick arrived at

the scene only one to two minutes after the accident occurred, at

6:48 or 6:49 p.m.       Trooper Kirkpatrick testified that Plaintiff was

“[h]ard to see” when he arrived at the scene of the accident; that

Plaintiff did not appear to be wearing any reflective clothing; and

that there was “nothing on the bike that reflected.”

      On 16 August 2012, the jury returned verdicts concluding that
                                       -5-
Plaintiff had been injured as a result of Defendant’s negligence,

but     that    Plaintiff’s   own     negligence     had   contributed   to    his

injuries.       Significantly, the trial court had declined to instruct

the jury on the last clear chance doctrine upon concluding that

there was insufficient evidence in support thereof, and thus the

jury did not make any determination on this issue.                 Accordingly,

Plaintiff was barred from recovering for any of the damages he had

incurred as a result of the accident.              The trial court entered a

judgment consistent with the jury’s verdicts on 22 August 2012.

      On 31 August 2012, Plaintiff moved for a new trial pursuant to

Rule 59 of the North Carolina Rules of Civil Procedure, contending

that he had presented sufficient evidence to submit the issue of

last clear chance to the jury.           Following a hearing on the matter,

the trial court entered an order denying Plaintiff’s motion on 4

December 2012.       From this order, Plaintiff appeals.

                                    II. Analysis

      Plaintiff contends (1) that the trial court erred in failing

to instruct the jury on the doctrine of last clear chance; and (2)

that the trial court erred in denying his motion for a new trial,

which Plaintiff had asserted based upon the trial court’s alleged

error in failing to submit the issue of last clear chance to the

jury.          Because   Plaintiff’s     arguments     both   raise   the     same
                                        -6-
substantive issue concerning whether application of the last clear

chance doctrine was supported by the evidence presented at trial,

we address them together; and, for the reasons that follow, we

uphold the trial court’s order.

       “The issue of last clear chance ‘[m]ust 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.’”                Culler v. Hamlett, 148 N.C.

App.   372,    379,   559    S.E.2d    195,   200   (2002)   (citations   omitted)

(alteration in original).             Our Supreme Court has articulated the

elements that a plaintiff must establish to invoke the doctrine of

last clear chance as follows:

              Where an injured pedestrian who has been guilty
              of contributory negligence invokes the last
              clear chance or discovered peril doctrine
              against the driver of a motor vehicle which
              struck and injured him, he must establish these
              four   elements:   (1)   That   the  pedestrian
              negligently placed himself in a position of
              peril from which he could not escape by the
              exercise of reasonable care; (2) that the
              motorist knew, or by the exercise of reasonable
              care could have discovered, the pedestrian’s
              perilous position and his incapacity to escape
              from   it  before the    endangered  pedestrian
              suffered injury at his hands; (3) that the
              motorist had the time and means to avoid injury
              to the endangered pedestrian by the exercise of
              reasonable care after he discovered, or should
              have discovered, the pedestrian’s perilous
              position and his incapacity to escape from it;
              and (4) that the motorist negligently failed to
                                         -7-
               use the available time and means to avoid
               injury to the endangered pedestrian, and for
               that reason struck and injured him.

Wade v. Jones Sausage Co., 239 N.C. 524, 525, 80 S.E.2d 150, 151

(1954) (citations omitted).            “[U]nless all the necessary elements

of the doctrine of last clear chance are present, the case is

governed   by     the   ordinary    rules      of    negligence    and    contributory

negligence.”         Culler, 148 N.C. App. at 379, 559 S.E.2d at 200.

Further, where the last clear chance doctrine does apply, “the

focus is not on the preceding negligence of the defendant or the

contributory negligence of the plaintiff which would ordinarily

defeat recovery.           Rather, the doctrine . . . contemplates that if

liability is to be imposed the defendant must have a last ‘clear’

chance    to    avoid   injury.”       Id.      at   379,   559    S.E.2d   at   200-01

(citations and quotation marks omitted).

       Defendant’s negligence and Plaintiff’s contributory negligence

have been established and are not at issue on appeal.                     The question

for this Court is whether the evidence, when viewed in the light

most   favorable      to    Plaintiff,    was    sufficient       to   establish   each

element of the last clear chance doctrine.                  We conclude that it was

not.

       Plaintiff was required to show that Defendant “had the time

and    means    to   avoid    injury   to      [Plaintiff]    by    the   exercise   of
                                          -8-
reasonable care after he discovered, or should have discovered,

[Plaintiff’s] perilous position and his incapacity to escape from

it.”     Wade, 239 N.C. at 525, 80 S.E.2d at 151.                     “The essence of

this element, and the fundamental difference between a ‘last clear

chance” and a ‘last possible chance,” is that defendant must have

‘the time and the means to avoid the injury to the plaintiff by the

exercise of reasonable care after she discovered or should have

discovered plaintiff’s perilous position.’”                   Vancamp v. Burgner,

328 N.C. 495, 499, 402 S.E.2d 375, 377 (1991) (quoting Watson v.

White, 309 N.C. 498, 505-06, 308 S.E.2d 268, 273 (1983)) (emphasis

in original).         “The reasonableness of a defendant’s opportunity to

avoid doing injury must be determined on the particular facts of

each case.           Id. (citing Exum v. Boyles, 272 N.C. 567, 575, 158

S.E.2d 845, 852 (1968)).

       Here, Defendant testified that she saw Plaintiff through her

driver’s side window just as her vehicle struck him.                          Plaintiff

similarly testified that he saw Defendant’s vehicle at or about the

moment    of    impact    and     was    thus   unable   to   avoid    the   resulting

collision.       In other words, the undisputed evidence indicated that

the accident was imminent and unavoidable by the time Defendant

actually       saw    Plaintiff    and     Plaintiff     actually     saw    Defendant.

Further, whatever opportunity Defendant had to avoid the accident,
                                       -9-
if any, was minimized by Plaintiff’s inconspicuous attire, which

Trooper Kirkpatrick described as “black clothing” with “nothing . .

.   that    reflected     .   ..   whatsoever.”1         We   conclude   that   these

circumstances distinguish the present case from cases in which a

last clear chance instruction was proper due to the defendant’s

ability to avoid the accident at the last moment, e.g., Vancamp,

328 N.C. at 500, 402 S.E.2d at 377-78 (holding that a last clear

chance instruction was warranted where the evidence indicated that

plaintiff was within defendant’s “clear line of sight for five

seconds before the collision”; that defendant “had ‘ample’ reaction

time in which to see plaintiff and come to a complete stop”; and

that “defendant negligently failed to use the available time and

means to avoid injury to plaintiff”), and align this case with

cases      in   which   the   defendant’s    lack   of    ability   to   avoid    the

accident rendered an instruction on last clear chance improper,

e.g., Watson v. White, 309 N.C. 498, 308 S.E.2d 268 (1983) (holding

that    there    was    insufficient   evidence     of   defendant’s     last   clear

chance to avoid the accident where defendant was traveling forty

miles per hour, saw plaintiff only after coming out of a curve in




1
  We note that with only a cold record before us, we lack the
perspective that the trial court had in observing first-hand the
clothing worn by Plaintiff at the time of the accident.
                                           -10-
the road, and had only 1.28 seconds to react before impact); Battle

v.   Chavis,     266    N.C.        778,     147    S.E.2d       387   (1966)   (holding

insufficient     evidence      of    last    clear      chance     where   defendant   was

traveling at thirty to thirty-five miles per hour and was unable to

see plaintiff until within 130 feet of him, at which time he had

less than three seconds to stop in order to prevent the injury);

Culler, 148 N.C. App. at 380, 559 S.E.2d at 201 (holding that the

motorist-defendant may have had the last possible chance, but not

the last clear chance, to avoid injuring the pedestrian-plaintiff

where the weather was “foggy and dark,” the defendant had rounded a

curve in the road just prior to the scene of the accident, and

headlights facing the defendant obstructed the defendant’s view).

We accordingly hold on the facts presented that the trial court did

not err in declining to instruct the jury on the doctrine of last

clear   chance   and,   further,           did    not   err   in   denying   Plaintiff’s

motion for a new trial.

                                    III. Conclusion

     In light of the foregoing, we affirm the trial court’s 4

December 2012 order.

     NO ERROR IN PART; AFFIRMED IN PART.

     Judges McGEE and McCULLOUGH concur.

     Report per Rule 30(e).
-11-
