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Posts tagged "contributory negligence"

Is inadequate lighting enough to demonstrate negligence?

Our NC Court of Appeals recently heard the case of Cone v. Watson (COA12-670)argued by two of the stars of the Eastern NC Bar where the issue was whether a fall down inadequately lit stairs was enough to demonstrate negligence. The Court found that failure to illuminate stairs where one would leave a business after dark is enough for the jury to determine if the defendant was negligent. The Court found: North Carolina landowners . . . are required to exercise reasonable care to provide for the safety of all lawful visitors on their property. Whether a landowner's care is reasonable is judged against the conduct of a reasonably prudent person under the circumstances. There is no duty to protect a lawful visitor from dangers which are either known to him or so obvious and apparent that they may reasonably be expected to be discovered. Kelly v. Regency Centers Corp., 203 N.C. App. 339, 343, 691 S.E.2d 92, 95 (2010). Our Supreme Court has said that "[i]f [a] step is properly constructed, but poorly lighted, and by reason of this fact one entering the store sustains an injury, recovery may be had." Garner v. Atlantic Greyhound Corp., 250 N.C. 151, 159, 108 S.E.2d 461, 467 (1959). (A) defendant breaches her duty to a lawful visitor if she fails to provide adequate lighting such that a reasonably prudent person would be likely to expect or see the step. See York, 264 N.C. at 455, 141 S.E.2d at 868-69. Therefore, our Court has found that failure of a business to properly light the entrance and exit of a business may be enough to show negligence on the part of the business owner. For more discussion about negligence, visit our website.

Personal Injury Trial: Evidence of Automobile Insurance

One of the most difficult things to explain to a client is that at a personal injury trial in North Carolina you cannot mention the defendant's automobile insurance.   The jury is only told the dispute between the injured party and the actual defendant who created the situation.   The actual rules of evidence only prohibit the mention of automobile insurance for issues involving ability to pay; however, practically if insurance is mentioned judges are very reluctant to allow any testimony on those issues. Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.  N.C. R. Evid. § 8C-1,8C-1411N.C. Gen. Stat. Ann. § 8C-1,§ 8C-1,8C-1 Rule 411 The above is the actual rule of evidence used by the courts in determining what witness are allowed to discuss. In Fincher v. Rhyne, 266 N.C. 64, 68-70, 145 S.E.2d 316, 318-20 (1965) the court discussed the general reason why the rule was promulgated and what the court looked at in deciding that you cannot mention automobile insurance in North Carolina. 'Ordinarily, in the absence of some special circumstance, it is not permissible under our decisions to introduce evidence of the existence of liability insurance or to make any reference thereto in the presence of the jury in the trial of * * * cases' where the relief sought is damages for injuries caused by negligence. Taylor v. Green, 242 N.C. 156, 87 S.E.2d 11; Jordan v. Maynard, 231 N.C. 101, 56 S.E.2d 26; Duke v. Crippled Children's Comm., 214 N.C. 570, 199 S.E. 918; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726; Stanley v. Whiteville Lumber Co., 184 N.C. 302, 114 S.E. 385; Lytton v. Marion Manufacturing Co., 157 N.C. 331, 72 S.E. 1055. This rule is almost universal. 21 Appleman: Insurance Law and Practice, s. 12832; Anno.-Informing Jury of Liability Insurance,  **31956 A.L.R. 1418; Anno.-Showing as to Liability Insurance, 4 A.L.R.2d 761. Since the enactment of compulsory insurance statutes, it has been held in a few jurisdictions, including California, Georgia and South Carolina, that reference to liability insurance is not error. A.L.R.2d Supplement Service (1960) p. 297. However, our decisions, since the enactment of the Vehicle Financial Responsibility Act of 1957 (G.S. §§ 20-309 to 20-319), have adhered to the general rule above stated. Whitman v. Whitman, 258 N.C. 201, 128 S.E.2d 249 (1962); Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961); Hoover v. Gregory, 253 N.C. 452, 117 S.E.2d 395, 100 A.L.R.2d 341 (1960). From the opinion in Hoover, Stansbury finds 'indications that a departure from the rule will not always be censured as severely in the future as it has in the past.' Stansbury: North Carolina Evidence, 2d Ed. s. 88. The existence of insurance covering defendant's liability in a negligence case is irrelevant to the issues involved. It has no tendency to prove negligence or the quantum of damages. It suggests to the jury that the outcome of the case is immaterial to defendant and the insurer is the real defendant and will have to pay the judgment. It withdraws the real defendant from the case and leads the jury 'to regard carelessly the legal rights' of the real defendant.  *69 'No circumstance, a court has said, is more surely calculated to cause a jury to render a verdict against a defendant, without regard to the sufficiency (weight) of the evidence, than proof that the person against whom such verdict is sought is amply protected by indemnity insurance.' 56 A.L.R. 1422. These reasons for exclusion are as valid under compulsory coverage as under voluntary insurance. But it is argued that it is unrealistic to attempt to conceal from juries a fact of common knowledge-the compulsory requirement that all vehicles be insured. Liability insurance coverage is required by law in this State, and such requirement is, of course, a matter of common knowledge, but there are many valid reasons for excluding evidence of, or reference to, such coverage in addition to those mentioned above. There are instances in which insurance exists but under the particular circumstances there is no coverage. The limits of coverage vary-the law requires $5000 coverage for injury to one person; all coverage in excess of this amount is voluntary. The jury might infer from the mention of insurance that there is coverage to the extent of the damages prayed for, or they might guess from some reference made that the coverage is only $5000 and be thereby influenced to award inadequate damages. Furthermore, the Vehicle Financial Responsibility Act of 1957 permits the possibility of time gaps in insurance coverage, that is, short periods in which vehicles are uninsured. Faizan v. Grain Dealers Mutual Insurance Co., 254 N.C. 47, 55, 118 S.E.2d 303. If it is realistic to allow testimony and references to liability insurance, it would be more realistic to permit the introduction of the terms of the policy and all questions of coverage in the particular case. Such injection of irrelevant issues would be insupportable. The courts cannot, of course, control the deliberations of the jury when they have retired to make up their verdicts, and cannot 'black out' segments of their thinking related to matters of common knowledge. But the courts can now, just as effectively as before the enactment of compulsory liability insurance laws, control the trial and exclude irrelevant facts and confine the evidence and the matters arising during the course of the trial to the issues involved. Where testimony is given, or reference is made, indicating directly and as an independent fact that defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor aptly made, withdraw a juror and order a mistrial. Luttrell v. Hardin, supra; Allen v. Garibaldi, 187 N.C. 798, 123 S.E. 66; Stanley v. Whiteville Lumber Co., supra; Lytton v. Marion Manufacturing Co., supra. But there are circumstances in which it is  **320 sufficient for the court, in its discretion, because of the incidental nature of the reference, to merely instruct the jury to disregard it.  *70 Keller v. Caldwell Furniture Co., 199 N.C. 413, 154 S.E. 674; Lane v. Paschall, 199 N.C. 364, 154 S.E. 626; Fulcher v. Pine Lumber Co., 191 N.C. 408, 132 S.E. 9; Gilland v. Carolina Crushed Stone Co., 189 N.C. 783, 128 S.E. 158; Bryant v. Welch Furniture Co., 186 N.C. 441, 119 S.E. 823; Norris v. Holt-Morgan Mills, 154 N.C. 474, 70 S.E. 912. Fincher v. Rhyne, 266 N.C. 64, 68-70, 145 S.E.2d 316, 318-20 (1965). In 2004 the court still considered the Fincher case as controlling as to automobile insurance.Campbell v. McIlwain, 163 N.C. App. 553, 556-57, 593 S.E.2d 799, 802 (2004) Generally, "[w]here testimony is given, or reference is made, indicating directly and as an independent fact that defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor *557  aptly made, withdraw a juror and order a mistrial." Fincher v. Rhyne, 266 N.C. 64, 69, 145 S.E.2d 316, 319 (1965). However, " there are circumstances in which it is sufficient for the court, in its discretion, because of the incidental nature of the reference, to merely instruct the jury to disregard it." Id. at 69, 145 S.E.2d at 319-20. " The decision of whether a mistrial is required to prevent undue prejudice to a party or to further the ends of justice is a decision vested in the sound discretion of the trial judge." Medlin v. FYCO, Inc., 139 N.C.App. 534, 540, 534 S.E.2d 622, 626 (2000), disc. rev. denied, 353 N.C. 377, 547 S.E.2d 12 (2001) (holding that the trial court did not abuse its discretion in denying defendant's motion for a mistrial based on a witness' mention at trial of defendant's relationship with defendant's insurer).  Campbell v. McIlwain, 163 N.C. App. 553, 556-57, 593 S.E.2d 799, 802 (2004)

Contributory Negligence: Why in North Carolina a Green Light is not enough.

Have you ever driven through a green light in North Carolina?  Ever wondered how in North Carolina you can have the green light and someone can run a red light, severly injure you, and still not recover for your injuries?  North Carolina is one of a handfull of states that clinges to the antiquated notion of contributory negligence as a complete bar to recovery for negligence.  In other words if by your own actions you contribute one percent and the defendant is 99% at fault you still cannot recover in North Carolina for your injuries.   This is not new law.  In 1955 the Supreme Court of North Carolina looked at these issues in the Hyder case. Hyder v. Asheville Storage Battery Co., 242 N.C. 553,  89 S.E.2d 124 (1955).  In Hyder, the Court looked at what duties are owed regardless of whether you have a legal right to enter an intersection.   "Unquestionably it is the duty of the driver of an automobile approaching a street intersection, when faced with a municipally maintained traffic signal showing red, to stop before entering. It is also true that if faced with a green light the driver is warranted in moving into the intersection unless the circumstances are such as to indicate caution to one of reasonable prudence. Notwithstanding the driver is faced with green light, however, the duty rests upon him to maintain a reasonable and proper lookout for other vehicles in or approaching the intersection." Hyder v. Asheville Storage Battery Co., 242 N.C. 553, 556, 89 S.E.2d 124, 127-28 (1955).   The Court went on to state: 'The fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control".  Hyder v. Asheville Storage Battery Co., 242 N.C. 553, 557, 89 S.E.2d 124, 128 (1955).   The Court was clearly concerned about people automatially relying on the then very unreliable traffic control devices.  Although our deices have improved with technology, human error or the lack of the same is still an issue.  Even in 2011 we are still having courts in North Carolina trying to decide where the bright line is to absolve someone of responsibility for the negligence of others.   In the Bass case, the Court of Appeals, in an unpublished decision did a good job tracing the evolution of the need or lack thereof for contributory negligence.   "The fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control...." Bass v. Lee, 255 N.C. 73, 79, 120 S.E.2d 570, 573 (1961) (quoting Funeral Service v. Charlotte Coach Lines, 248 N.C. 146, 102 S.E.2d 816 (quoting Cox v. Freight Lines, 236 N.C. 72, 72 S.E.2d 25); citing Williams v. Funeral Home, 248 N.C. 524, 103 S.E.2d 714; Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543). However, "in the absence of anything which gives or should give him notice to the contrary, a motorist has the right to assume and to act on the assumption that another motorist will observe the rules of the road and stop in obedience to a traffic signal." Strathopoulos v. Shook, 251 N.C. 33, 36-37, 110 S.E.2d 452, 455 (1959) (quoting Cox, supra). Thus, the mere fact that plaintiff failed to observe traffic conditions east of the intersection is insufficient to establish that plaintiff was contributorily negligent as a matter of law, since "[w]hether such failure to look was a proximate cause of the collision depended upon whether, if he had looked, what he would or should have seen was sufficient to put him on notice, at a time when plaintiff could by the exercise of due care have avoided the collision, that defendant would not stop in obedience to the red light." Id. at 37, 110 S.E.2d 452, 110 S.E.2d at 455 (citing Currin v. Williams, 248 N.C. 32, 102 S.E.2d 455). As a result, the Supreme Court and this Court have held that evidence tending to show that a driver who entered an intersection in reliance on a green light while traveling at about 15 to 20 miles per hour and collided with a driver who entered the intersection against a red light while traveling at 35 to 40 miles per hour and who was approximately 100 feet from the intersection at the time that the plaintiff entered the intersection, Id. at 37, 102 S.E.2d 455, 110 S.E.2d at 456; that a driver who entered an intersection in reliance on a green light while looking ahead into the intersection rather than "sideways" and traveling at about 15 to 20 miles per hour collided with a driver who entered the intersection against a red light, Currin, 248 N.C. at 35, 102 S.E.2d at 457-58; that a driver who entered an intersection in reliance on a green light, after looking both right and left without seeing anything, and collided with another vehicle that entered the intersection at 35 to 40 miles per hour, Wright v. Pegram, 244 N.C. 45, 48-49, 92 S.E.2d 416, 419 (1956); and that a driver who entered an intersection in reliance on a green light without looking to his left, particularly given that his view was blocked by a school bus, and collided with another vehicle, Seaman v. McQueen, 51 N.C.App. 500, 504-05, 277 S.E.2d 118, 120-21 (1981), does not establish the existence of contributory negligence as a matter of law. See also Cicogna v. Holder, 345 N.C. 488, 489-90, 480 S.E.2d 636, 637 (1997) (stating that the issue of contributory negligence should not have been submitted to the jury when "[t] he only evidence presented was that the plaintiff had the green light and was struck by the defendant, who violated the red light."). Instead, the appellate courts in this jurisdiction have simply held that such evidence is sufficient to support the submission of a contributory negligence issue to the jury, with the jury given the responsibility for determining whether any contributory negligence on the part of the plaintiff barred his or her recovery. Bass, 255 N.C. 73, 120 S.E.2d 570 (holding that evidence tending to show that a driver who entered an intersection when the controlling traffic signal was green and made no effort to avoid a collision despite being warned that another driver had "run" a red light and was about to collide with his vehicle supported the submission of a contributory negligence issue to the jury).  After a careful examination of the relevant authorities, we have not been able to find any reported decision concluding that a driver who entered an intersection at a time when the light was green was contributorily negligent as a matter of law.  Bass v. Alvarado, 713 S.E.2d 251 (N.C. Ct. App. 2011)   Therefore, in North Carolina, you should continue to use caution while driving, and if you enter an intersection, don't forget... until we change our laws, you don't have an absolute right to enter... use good common sense and w  

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