McNair v. Boyette , 282 N.C. 230 ( 1972 )

192 S.E.2d 457 (1972) 282 N.C. 230

Thomas B. McNAIR
v.
Edward Lee BOYETTE and Oscar Lee Hall.

No. 34.

Supreme Court of North Carolina.

November 15, 1972.

Twiggs & McCain, by Howard F. Twiggs and Grover C. McCain, Jr., Yarborough, Blanchard, Tucker & Denson, by Charles F. Blanchard and James E. Cline, Raleigh, for plaintiff appellant.

Maupin, Taylor & Ellis, by Armistead J. Maupin, Raleigh, for defendant Boyette, appellee.

MOORE, Justice.

Plaintiff assigns as error the signing and granting of summary judgment for defendant Boyette contending that there is a genuine issue as to defendant Boyette's negligence being a proximate cause of plaintiff's injuries.

The rules for granting summary judgment under Rule 56 of the North Carolina Rules of Civil Procedure (G.S. § 1A-1) have been fully discussed in recent decisions of this Court. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E.2d 793 (1971); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). It is, therefore, only necessary to briefly review the pertinent rules of law applicable to entry of summary judgment under that rule.

Rule 56 is not limited in its application to any particular type or types of action, and the procedures are available to both plaintiff and defendant. The purpose of summary judgment can be summarized as being a device to bring litigation to an early decision on the merits without the delay and expense of a trial where it can be readily demonstrated that no material facts are in issue. Two types of cases are involved: (a) Those where a claim or defense is utterly baseless in fact, and (b) those where only a question of law on the indisputable facts is in controversy and it can be appropriately decided without full exposure of trial.

The standard for summary judgment is fixed by Rule 56(c). "The judgment sought shall be rendered forthwith 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 judgment as a matter of law." See 2 McIntosh, N.C. Practice and Procedure §§ 1660.5 and 1660.10 (2d Ed., Phillips' Supp. 1970); 3 Barron and Holtzoff, Federal Practice and Procedure §§ 1234 and 1236 (Wright Ed., 1958); Gordon, The New Summary Judgment Rule in North Carolina, 5 Wake Forest Intra.L.Rev. 87 (1969).

"The determination of what constitutes a ``genuine issue as to any material fact' is often difficult. It has been said that an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. A question of fact which is immaterial does not preclude summary judgment. It has been said that a genuine issue is one which can be maintained by substantial evidence. Where the pleadings or proof of either party disclose that no cause of action or defense exists, a summary judgment may be granted.. . ." 3 Barron and Holtzoff, supra, § 1234; Koontz v. City of Winston-Salem, supra; Singleton v. Stewart, supra; Harrison Associates v. State Ports Authority, supra; Kessing v. Mortgage Corp., supra.

A careful review of the record in the instant case reveals that, conceding defendant Boyette's negligence, plaintiff and defendant Boyette are in agreement as to all the factual particulars concerning the manner in which the plaintiff was injured. There was no "genuine issue as to any material fact." The effect of the undisputed facts was a question of law for the court to determine. 3 Barron and Holtzoff, supra, § 1231; Koontz v. City of Winston-Salem, supra; Singleton v. Stewart, supra; Harrison Associates v. State Ports Authority, supra; Kessing v. Mortgage Corp., supra. The issue then becomes: Did the trial court correctly determine the question of law involved?

In an action for recovery of damages for injury resulting from actionable negligence of defendant, plaintiff must show (1) that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed, and (2) that such negligent breach of duty was the proximate cause of the injury, a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which a man of ordinary prudence could have foreseen that such result was probable under the facts as they existed. Moody v. Kersey, 270 N.C. 614, 155 S.E.2d 215 (1967); Morris v. Transport Co., 235 N.C. 568, 70 S.E.2d 845 (1952); Godwin v. Nixon, 236 N.C. 632, 74 S.E.2d 24 (1952); 6 Strong, N.C. Index 2d, Negligence § 29.

Foreseeability of injury is an essential element of proximate cause. Luther v. Asheville Contracting Co., 268 N.C. 636, 151 S.E.2d 649 (1966). It is not required that the injury in the precise form in which it occurred should have been foreseeable but only that, in the exercise of reasonable care, consequences of a generally injurious nature might have been expected. Williams v. Boulerice, 268 N.C. 62, 149 S.E.2d 590 (1966). However, the law requires only reasonable prevision and a defendant is not required to foresee events which are merely possible but only those which are reasonably foreseeable. Bennett v. R. R., 245 N.C. 261, 96 S.E.2d 31 (1956); 6 Strong, N.C. Index 2d, Negligence § 9.

What is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist. This rule extends and applies not only to the negligent breach of duty but also to the feature of proximate cause. Hudson v. Transit Co., 250 N.C. 435, 108 S.E.2d 900 (1959); Godwin v. Nixon, supra; 6 Strong, N.C. Index 2d, Negligence § 30.

Defendant Boyette denied that he was negligent as alleged by plaintiff, but alleged that his negligence, if any, was insulated by the negligence of defendant Hall.

The material facts are not in dispute. Conceding Boyette was negligent, was his negligence insulated by the alleged negligence of defendant Hall? In the leading case on insulated negligence in North Carolina, Butner v. Spease and Spease v. Butner, 217 N.C. 82, 6 S.E.2d 808 (1939), Chief Justice Stacy stated:

"This doctrine of insulating the negligence of one by the subsequent intervention of the active negligence of another really belongs to the definition of proximate cause. Boyd v. R. R., 200 N.C. 324, 156 S.E. 507; R. R. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256. The principle is stated in Craver v. Cotton Mills, 196 N.C. 330, 145 S.E. 570, as follows: ``While there may be more than one proximate cause, that which is new and entirely independent breaks the sequence of events, and insulates the original or primary negligence.' Lineberry v. R. R., 187 N.C. 786, 123 S.E. 1; Thompson v. R. R., 195 N.C. 663, 143 S.E. 186.

* * * * * *

"``. . . The test . . . is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected.' Harton v. Tel. Co., 141 N.C. 455, 54 S.E. 299. ``The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor. Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted.' Osborne v. Coal Co., 207 N.C. 545, 177 S.E. 796; Beach v. Patton, supra [208 N.C. 134, 179 S.E. 446]."

In Insurance Co. v. Stadiem, 223 N.C. 49, 25 S.E.2d 202 (1943), Chief Justice Stacy said:

"In searching for the proximate cause of an event, the question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Do the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? Milwaukee and St. P. Ry. Co. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256. Many causes and effects may intervene between the original wrong and the final consequence, and if they might reasonably have been foreseen, the last result, as well as the first and every immediate consequence, is to be considered in law as the proximate cause of the original wrong. But when a new cause intervenes, which is not itself a consequence of the first wrongful cause, nor under the control of the original wrongdoer, nor foreseeable by him in the exercise of reasonable prevision, and except for which the final injurious consequence would not have happened, then such injurious consequence must be deemed too remote to constitute the basis of a cause of action against the original wrongdoer. McGhee v. R. R., supra [147 N.C. 142, 60 S.E. 912]; Ramsbottom v. R. R., 138 N.C. 38, 50 S.E. 448."

In Godwin v. Nixon, 236 N.C. 632, 74 S.E.2d 24 (1952), plaintiff was a passenger in a car driven by one of the codefendants. The driver of a truck owned by the other codefendant had parked the truck on the road in a negligent manner. The driver of the car in which plaintiff was riding drove his car into the parked truck injuring plaintiff. The Court held that the negligence of the truck driver in parking his truck was insulated by the negligence of the driver of the car in which plaintiff was a passenger. Justice Winborne (later Chief Justice), speaking for the Court, said:

". . . On the other hand, it is manifest from the evidence that the injury of which plaintiff complains was ``independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person.' In so far as Nixon Brothers [owners of the truck] are concerned, there would have been no injury to plaintiff but for the intervening wrongful act, neglect or default of the driver of the automobile in which she was riding, in failing either to keep a proper lookout for hazards of the road, such as disabled vehicles, or, in the exercise of due care, to keep his automobile under such control as to be able to stop within the range of his lights. . . ."

Accord, Clark v. Lambreth, 235 N.C. 578, 70 S.E.2d 828 (1952); Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88 (1937).

Plaintiff's own affidavit and deposition, considered by the court in passing upon Boyette's motion for summary judgment, disclose that plaintiff left a place of safety in the median, crossed a high-speed highway where the traffic was heavy, and borrowed a flashlight from the occupant of a car parked on the right shoulder. He then turned and took one step onto the traveled portion of the highway immediately in front of the oncoming vehicle driven by defendant Hall, was struck by Hall's car, and thereby sustained the injuries for which he seeks to recover damages from both Boyette and Hall. Under these facts, which as between plaintiff and Boyette on this motion must be taken as true, defendant Boyette's negligence, if any, was not a proximate cause of plaintiff's injuries. These facts, of course, have not been established in plaintiff's case against Hall.

Plaintiff, however, contends that Boyette is not entitled to summary judgment because the "rescue doctrine" is applicable to this case, citing Britt v. Mangum, 261 N.C. 250, 134 S.E.2d 235 (1963). In that case a female defendant was operating her car in a negligent manner and was pinned under the vehicle when it overturned. Plaintiff was summoned from his house by another member of his family who had seen the accident. He lifted the automobile in order to free defendant's arm, got her out of the car, and took her into his home. Plaintiff alleged that he sustained substantial injuries in his effort to lift the vehicle. This Court held that the rescue doctrine was applicable under those facts. In Britt, Chief Justice Denny quotes with approval from Norris v. R. R., 152 N.C. 505, 67 S.E. 1017 (1910):

"``* * * (I)t is well established that, when the life of a human being is suddenly subjected to imminent peril through another's negligence, either a comrade or a bystander may attempt to save it, and his conduct is not subjected to the same exacting rules which obtain under ordinary conditions; nor should contributory negligence on the part of the imperiled person be allowed as a rule to affect the question * * * (W)hen one sees his fellow man in such peril he is not required to pause and calculate as to court decisions, nor recall the last statute as to the burden of proof, but he is allowed to follow the promptings of a generous nature and extend help which the occasion requires, and his efforts will not be imputed to him for wrong, * * * unless his conduct is rash to the degree of recklessness; and all of them say that full allowance must be made for the emergency presented.'"

See also Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915 (1953).

The present case is factually distinguishable from Britt v. Mangum, supra. Plaintiff's deposition shows that he came upon the scene of the collision, investigated and found that no one was hurt in the collision, and that neither Boyette nor Fowlkes, the driver of the other car, needed rescuing. Thereafter, plaintiff crossed the highway to get a flashlight, not for the purpose of rescuing Boyette or other occupants of either car but apparently for the purpose of directing traffic, and after obtaining the flashlight he stepped into the highway without seeing defendant Hall's car until "just as he hit me." Under these facts, the rescue doctrine does not apply.

We do not pass upon plaintiff's contributory negligence as this issue may arise in subsequent litigation between plaintiff and defendant Hall.

For the reasons stated above the decision of the Court of Appeals is affirmed.

Affirmed.