              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-977

                                 Filed: 4 June 2019

Wayne County, No. 17 CVS 1263

GERALDINE PATTERSON, Plaintiff,

             v.

TAYLOR NICOLE WORLEY, Defendant.


      Appeal by plaintiff from judgment entered 5 June 2018 by Judge Phyllis M.

Gorham in Wayne County Superior Court.          Heard in the Court of Appeals 28

February 2019.


      Everett, Womble & Lawrence, L.L.P., by Ronald T. Lawrence II and Kristy J.
      Jackson, for plaintiff-appellant.

      Simpson Law, PLLC, by Caroline P. Stutts, for defendant-appellee.


      BERGER, Judge.


       Geraldine Patterson (“Plaintiff”) appeals from the trial court’s order granting

summary judgment in favor of Taylor Nicole Worley (“Defendant”). Because Plaintiff

was unable to show through pleadings, depositions, or other evidence that Defendant

owed her a duty recognized by North Carolina law, that her contributory negligence

would not defeat her claim, or that the doctrine of last clear chance would apply,

Defendant was entitled to judgment as a matter of law. We therefore affirm the order

of the trial court granting summary judgment to Defendant.

                        Factual and Procedural Background
                               PATTERSON V. WORLEY

                                  Opinion of the Court



      On March 28, 2017 at approximately 6:11 p.m., Plaintiff, a pedestrian, left her

apartment and began walking eastbound on Spence Avenue towards the Wal-Mart

shopping center located in Goldsboro, North Carolina. Defendant was returning

home from work, driving northbound in her Lexus sedan. It was a bright, clear,

sunny day, and Defendant was traveling approximately thirty-five miles per hour on

Spence Avenue in Goldsboro. Spence Avenue is a five-lane road, with two lanes on

each side, a turn lane in the middle, and a paved median.

      As Plaintiff made her way towards Wal-Mart, she crossed the two southbound

lanes of Spence Avenue, and then stopped at the paved median. A vehicle had entered

the turning lane, but had come to a stop to allow Plaintiff to cross. In a northbound

lane adjacent to the turning lane, a Ford Explorer had also come to a stop because of

traffic backed up in its lane. Plaintiff stepped into the road in front of the Explorer

and looked around the vehicle to see if the last lane of travel was clear. The Explorer

driver blew its horn, and Plaintiff began running across the road. Plaintiff was then

immediately hit by Defendant’s car and injured.

      Plaintiff filed her complaint on August 3, 2017, alleging Defendant had been

negligent in the operation of her vehicle when she hit Plaintiff on Spence Avenue.

Defendant responded September 21, 2017, alleging, inter alia, the affirmative defense

of contributory negligence. On January 31, 2018, Defendant moved for summary

judgment. After a May 29, 2018 hearing, Defendant’s motion for summary judgment



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                                  Opinion of the Court



was granted by the trial court in a June 5 order. It is from this order that Plaintiff

timely appeals.

                                 Standard of Review

      On a motion for summary judgment, our standard of review of the trial court’s

ruling is well-established:

             Under [the North Carolina Rules of Civil Procedure], Rule
             56(a), summary judgment is properly entered if the
             pleadings, depositions, answers to interrogatories, and
             admissions on file, together with the affidavits, if any, show
             that there is no genuine issue as to any material fact and
             that any party is entitled to a judgment as a matter of law.
             In a motion for summary judgment, the evidence presented
             to the trial court must be admissible at trial, and must be
             viewed in a light most favorable to the non-moving party.
             We review a trial court’s order granting or denying
             summary judgment de novo. Under a de novo review, the
             court considers the matter anew and freely substitutes its
             own judgment for that of the lower tribunal. The party
             moving for summary judgment bears the burden of
             establishing that there is no triable issue of material fact.
             This burden may be met by proving that an essential
             element of the opposing party’s claim is nonexistent, or by
             showing through discovery that the opposing party cannot
             produce evidence to support an essential element of his
             claim or cannot surmount an affirmative defense which
             would bar the claim.
                    Once the party seeking summary judgment makes
             the required showing, the burden shifts to the nonmoving
             party to produce a forecast of evidence demonstrating
             specific facts, as opposed to allegations, showing that he
             can at least establish a prima facie case at trial.

Blackmon v. Tri-Arc Food Sys., Inc., 246 N.C. App. 38, 41-42, 782 S.E.2d 741, 743-44

(2016) (purgandum).


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                                   Opinion of the Court



                                       Analysis

      On appeal, Plaintiff argues that summary judgment was improperly granted

because there remain genuine issues of material fact concerning Defendant’s

negligence, Plaintiff’s contributory negligence, and the application of the last clear

chance doctrine. We disagree.

                    As our appellate courts have long recognized,
             negligence claims and allegations of contributory
             negligence should rarely be disposed of by summary
             judgment. This is because ordinarily it is the duty of the
             jury to apply the standard of care of a reasonably prudent
             person. Yet, summary judgment for defendant is proper
             where the evidence fails to establish negligence on the part
             of defendant, establishes contributory negligence on the
             part of plaintiff, or establishes that the alleged negligent
             conduct was not the proximate cause of the injury.

Sims v. Graystone Ophthalmology Assocs., P.A., 234 N.C. App. 65, 68, 757 S.E.2d 925,

927 (2014) (purgandum).       Initially, a plaintiff bears the burden of proving the

essential elements of negligence: “that the defendant owed the plaintiff a legal duty,

that the defendant breached that duty, and that the plaintiff’s injury was proximately

caused by the breach.” Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562

S.E.2d 887, 892 (2002) (citation omitted). “Even if evidence of negligence is presented,

plaintiff cannot prevail if the evidence reveals plaintiff was contributorily negligent.”

Sims, 234 N.C. App. at 68, 757 S.E.2d at 927.

      Our General Statutes provide that “[e]very pedestrian crossing a roadway at

any point other than within a marked crosswalk or within an unmarked crosswalk at


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                                   Opinion of the Court



an intersection shall yield the right-of-way to all vehicles upon the roadway.” N.C.

Gen. Stat. § 20-174(a) (2017). “[P]edestrians have a duty to maintain a lookout when

crossing an area where vehicles travel and a duty to exercise reasonable care for their

own safety.” Corns v. Hall, 112 N.C. App. 232, 237, 435 S.E.2d 88, 90 (1993).

             The mere fact that the pedestrian is oblivious to danger
             does not impose a duty on the motorist to yield the right of
             way. That duty arises when, and only when, the motorist
             sees, or in the exercise of reasonable care should see, that
             the pedestrian is not aware of the approaching danger and
             for that reason will continue to expose himself to peril.

Jenkins v. Thomas, 260 N.C. 768, 769, 133 S.E.2d 694, 696 (1963) (citations omitted).

“Although a violation of [Section] 20-174(a) is not contributory negligence per se, a

failure to yield the right-of-way to a motor vehicle may constitute contributory

negligence as a matter of law.” Meadows v. Lawrence, 75 N.C. App. 86, 89, 330 S.E.2d

47, 49 (1985) (citation omitted). It is for this reason that

             the court will nonsuit a plaintiff-pedestrian on the ground
             of contributory negligence when all the evidence so clearly
             establishes his failure to yield the right of way as one of the
             proximate causes of his injuries that no other reasonable
             conclusion is possible.
                    The law imposes upon a person sui juris the duty to
             use ordinary care to protect himself from injury. It [is]
             plaintiff’s duty to look for approaching traffic before she
             attempt[s] to cross the highway. Having started, it [is] her
             duty to keep a lookout for it as she crosse[s]. Having chosen
             to walk diagonally across a [multi-]lane highway, vigilance
             commensurate with the danger to which plaintiff [has]
             exposed herself [is] required of her.

Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216-17 (1964) (citations omitted).


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                                   Opinion of the Court



      Contributory negligence will not bar an award of damages for Plaintiff if she

can prove that Defendant had the last clear chance to avoid the collision, but failed

to take action. “The doctrine of last clear chance presupposes antecedent negligence

on the part of the defendant and antecedent contributory negligence on the part of

the plaintiff, such as would, but for the application of this doctrine, defeat recovery.”

Clodfelter v. Carroll, 261 N.C. 630, 634, 135 S.E.2d 636, 638 (1964).

             Where an injured pedestrian who has been guilty of
             contributory negligence invokes the last clear chance . . .
             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 use the available time and means to
             avoid injury to the endangered pedestrian, and for that
             reason struck and injured him.

Id. at 634-35, 135 S.E.2d at 639. “The doctrine contemplates a last ‘clear’ chance, not

a last ‘possible’ chance, to avoid the accident; it must have been such a chance as

would have enabled a reasonably prudent man in like position to have acted

effectively.” Mathis v. Marlow, 261 N.C. 636, 639, 135 S.E.2d 633, 635 (1964) (citation

omitted). Last clear chance is “inapplicable where the injured party is at all times in


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                                  Opinion of the Court



control of the danger and simply chooses to take the risk.” Williams v. Odell, 90 N.C.

App. 699, 704, 370 S.E.2d 62, 66 (1988).

      Here, no duty was imposed on Defendant requiring her to yield her right-of-

way merely because Plaintiff was oblivious to her danger. Even if Defendant had

been able to see Plaintiff coming across Spence Avenue, Defendant owed her no duty

unless and until it became apparent that Plaintiff was “not aware of the approaching

danger and for that reason [was going to] continue to expose [her]self to peril.”

Jenkins, 260 N.C. at 769, 133 S.E.2d at 696. Defendant was driving thirty-five miles

per hour and only saw Plaintiff “immediately” before the collision, and without

“enough time to slow down or anything.” The depositions of two witnesses, Dr. Diane

Sutton and Ms. Samantha Lauderdale, support Defendant’s memory of the collision.

Dr. Sutton testified that Plaintiff had “simply darted out into the road” immediately

in front of Defendant’s sedan. Ms. Lauderdale confirmed this by testifying that

Plaintiff had unexpectedly run out into the middle of the road as Defendant

approached.

      Plaintiff is not only unable to establish a duty owed her by Defendant, but the

evidence also establishes a duty she owed Defendant. The evidence tends to show

that Plaintiff was contributorily negligent when she “darted out into the road” and

failed to yield the right-of-way, a duty she owed Defendant. When Plaintiff has an

affirmative duty “to yield the right-of-way and all the evidence so clearly establishes



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                                  Opinion of the Court



the plaintiff-pedestrian’s failure to yield the right-of-way as one of the proximate

causes of [her] injuries that no other reasonable conclusion is possible, summary

judgment should [be] entered in favor of the defendant.” Gaymon v. Barbee, 52 N.C.

App. 627, 628, 279 S.E.2d 91, 92 (1981).

      Finally, the last clear chance doctrine is inapplicable here. Defendant did not

have “such a chance as would have enabled a reasonably prudent man in like position

to have acted effectively.” Mathis, 261 N.C. at 639, 135 S.E.2d at 635 (citation

omitted). Plaintiff was “at all times in control of the danger and simply [chose] to

take the risk.” Williams, 90 N.C. App. at 704, 370 S.E.2d at 66. On facts similar to

those sub judice, our Supreme Court ruled in favor of a defendant-driver who had

collided with a pedestrian. McCullough v. Amoco Oil Co., 310 N.C. 452, 312 S.E.2d

417 (1984). In McCullough v. Amoco Oil Co., the Court found that the defendant was

entitled to summary judgment because the plaintiff could not contradict the

testimony of the three eyewitnesses and the driver, who “could not have reasonably

been expected to anticipate plaintiff’s movement, thereby avoiding the accident.” Id.

at 459, 312 S.E.2d at 421.

      Such is the case here. Defendant could not see Plaintiff, or therefore predict

Plaintiff’s movement, because, just before she darted into the street, she was standing

out of view in front of the Ford Explorer.        “Assuming [Defendant]’s negligence

arguendo and [P]laintiff's contributory negligence as shown by the affidavits and



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                                   Opinion of the Court



deposition[s], there has been no forecast of evidence of a last clear chance on the part

of the [Defendant] to avoid the collision.” Id.

                                      Conclusion

      Because there is no genuine issue of material fact as to Defendant’s negligence,

Plaintiff’s contributory negligence, or whether the last clear chance doctrine would

apply, the trial court did not err in granting summary judgment in favor of Defendant.

      AFFIRMED.

      Judges ZACHARY and HAMPSON concur.




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