{ "id": 8525298, "name": "ANNETTE GREEN, Plaintiff v. JOHN ROUSE, Defendant", "name_abbreviation": "Green v. Rouse", "decision_date": "1994-10-18", "docket_number": "No. 949SC85", "first_page": "647", "last_page": "651", "citations": [ { "type": "official", "cite": "116 N.C. App. 647" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "348 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739816 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0407-01" ] }, { "cite": "339 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "818" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522346 ], "year": 1986, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0605-01" ] }, { "cite": "398 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "608", "parenthetical": "quoting Tatum v. Tatum, 79 N.C. App. 605, 607, 339 S.E.2d 817, 818, modified and aff'd, 318 N.C. 407, 348 S.E.2d 813 (1986)" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527427 ], "year": 1990, "pin_cites": [ { "page": "178", "parenthetical": "quoting Tatum v. Tatum, 79 N.C. App. 605, 607, 339 S.E.2d 817, 818, modified and aff'd, 318 N.C. 407, 348 S.E.2d 813 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0175-01" ] }, { "cite": "370 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516910, 2513367 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0610-01", "/nc/322/0610-02" ] }, { "cite": "365 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520082 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0033-01" ] }, { "cite": "221 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567809 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0246-01" ] }, { "cite": "158 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572574 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0256-01" ] }, { "cite": "154 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "270 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568092 ], "year": 1967, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0367-01" ] }, { "cite": "442 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527713 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/114/0470-01" ] }, { "cite": "176 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1970, "pin_cites": [ { "page": "794" }, { "page": "794-95" } ], "opinion_index": 0 }, { "cite": "277 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563608 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0179-01" ] } ], "analysis": { "cardinality": 506, "char_count": 9265, "ocr_confidence": 0.755, "pagerank": { "raw": 2.250373944882211e-07, "percentile": 0.781473746152768 }, "sha256": "2eaff10a2fc3c0c7ed0a4c003dc3ffe4e4e746230e50e6a721691d2330571ec9", "simhash": "1:3b207e281e39c65a", "word_count": 1500 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and THOMPSON concur." ], "parties": [ "ANNETTE GREEN, Plaintiff v. JOHN ROUSE, Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nPlaintiff Annette Green brought a personal injury action against defendant John Rouse, alleging that defendant\u2019s negligence proximately caused injuries sustained by plaintiff in an automobile accident occurring on 5 May 1990.\nEvidence presented at trial showed the following: Plaintiff was operating a motor vehicle in a southerly direction on N.C. 39 at approximately 6:45 p.m. Plaintiff had a passenger in the front seat, and plaintiff\u2019s daughter and another occupant were in the back seat. It had been raining heavily off and on. Plaintiff was operating her vehicle at approximately forty-eight miles per hour in a fifty-five mile per hour zone, and at all times up until the moment of the collision stayed within her lane. Defendant was operating a motor vehicle in a northerly direction on N.C. 39. Plaintiff observed defendant\u2019s vehicle as it came out of a curve, approaching her from the opposite direction. After defendant\u2019s vehicle came out of the curve, defendant\u2019s vehicle crossed the centerline into plaintiff\u2019s lane of travel; at this time, it was raining. Plaintiff recalled that once defendant crossed the yellow centerline, she said, \u201c[Y]ou all sit back, this fool is going to hit me.\u201d Plaintiff testified that she \u201cwent as far as [she] could get over\u201d and \u201ctried to get out [sic] the way\u201d and that she was not sure if she went on the shoulder of the road because the collision happened so quickly, noting also that she believed there was a ditch on the side of the road. The vehicles collided. An investigating officer determined that the point of impact was approximately one foot within the lane of plaintiff\u2019s lane of travel and that defendant\u2019s vehicle was, at the point of impact, between one foot and eighteen (18) inches across the centerline. Plaintiff\u2019s vehicle spun 180 degrees and traveled a total of thirty-eight feet from the point of impact. Defendant\u2019s vehicle spun somewhat less than 180 degrees and traveled thirty-one feet from the point of impact. The width of N.C. 39 is twenty-four feet and there was a fourteen foot shoulder on either side of the highway. There were no visible tire marks on the roadway before the impact. Each vehicle was damaged on the left front from the impact. Plaintiff introduced evidence of her injuries which were a result of this accident.\nThe investigating officer found beer cans in plaintiffs front seat and plaintiff had a blood alcohol level of 0.18% when a blood sample was taken at the hospital two hours after the accident. Based upon the officer\u2019s observations of plaintiff and his interview of her, he was of the opinion that she had consumed a sufficient quantity of an impairing substance to appreciably impair both her mental and her physical faculties. In his opinion, the effects of alcohol were obvious and plaintiff was unfit to drive.\nAt the close of defendant\u2019s evidence, plaintiff moved for a directed verdict on the issue of negligence, which the trial court granted. Defendant moved for a directed verdict on the issue of plaintiff\u2019s contributory negligence, which the trial court denied. The case was submitted to the jury on the issue of contributory negligence and damages. Plaintiff\u2019s attorney objected to the jury instruction on contributory negligence as it related to driving while impaired; the trial court declined to revise the jury instruction. The jury returned a verdict finding plaintiff contributorily negligent. Subsequently, plaintiff filed N.C.R. Civ. P. 50 and 59 motions, which were denied. Plaintiff filed notice of appeal to our Court.\nPlaintiff argues on appeal that plaintiff was entitled to a directed verdict on the issue of contributory negligence and to a new trial pursuant to plaintiff\u2019s N.C.R. Civ. P. 50 and 59 motions. Plaintiff notes that this action was submitted to the jury on the issue of contributory negligence based upon three grounds: that plaintiff (1) failed to keep a reasonable lookout; (2) failed to keep her vehicle under proper control; and (3) operated her motor vehicle while impaired. Plaintiff argues that none of these grounds were the proximate cause of the collision.\nRelevant to the instant case is our Supreme Court\u2019s analysis of contributory negligence in this context in Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970):\nUnquestionably a motorist is guilty of negligence if he operates a motor vehicle on the highway while under the influence of intoxicating liquor. Such conduct, however, will not constitute either actionable negligence or contributory negligence unless \u2014 like any other negligence \u2014 it is causally related to the accident. Mere proof that a motorist involved in a collision was under the influence of an intoxicant at the time does not establish a causal relation between his condition and the collision. His condition must have caused him to violate a rule of the road and to operate his vehicle in a manner which was a proximate cause of the collision. (Citations omitted.)\nId. at 186, 176 S.E.2d at 794.\nThe evidence that plaintiff in the instant case was operating her motor vehicle while impaired was a\npertinent circumstance for the jury to consider, not as conclusively establishing [her] negligence as a proximate cause of the collision if [she] was under the influence, but in determining whether [she] was capable of keeping a proper lookout, of maintaining proper control over [her] automobile, and of coping with highway and weather conditions in the manner of the reasonably prudent person. (Citations omitted.)\nId. at 187, 176 S.E.2d at 794-95.\nIn Bosley v. Alexander, 114 N.C. App. 470, 442 S.E.2d 82 (1994), Judge Wynn undertook an analysis of our State\u2019s doctrine of contributory negligence:\nContributory negligence is \u201cnegligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant... to produce the injury of which the plaintiff complains.\u201d Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471 (1967). The defendant bears the burden of proving that certain acts or conduct of the plaintiff constituted contributory negligence. [Atkins;] Mims v. Dixon, 272 N.C. 256, 158 S.E.2d 91 (1967). The defendant must prove by the greater weight of the evidence that the plaintiffs negligence was one of the proximate causes of his injury or damages. Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976). The issue of contributory negligence should be submitted to the jury if all the evidence and reasonable inferences drawn therefrom viewed in the light most favorable to the defendant tend to establish or suggest contributory negligence. Wentz v. Unifi, 89 N.C. App. 33, 365 S.E.2d 198, disc. review denied, 322 N.C. 610, 370 S.E.2d 257 (1988). \u201cIf there is more than a scintilla of evidence, contributory negligence is for the jury.\u201d Blankley v. Martin, 101 N.C. App. 175, 178, 398 S.E.2d 606, 608 (1990) (quoting Tatum v. Tatum, 79 N.C. App. 605, 607, 339 S.E.2d 817, 818, modified and aff'd, 318 N.C. 407, 348 S.E.2d 813 (1986)).\nBosley at 472, 442 S.E.2d at 83.\nThe issue of plaintiff\u2019s contributory negligence should have been submitted to the jury if all the evidence and reasonable inferences drawn therefrom viewed in the light most favorable to defendant tended to establish or suggest contributory negligence. We find that defendant has met this burden by producing evidence that not only was plaintiff driving while impaired at a blood alcohol level registered to be 0.18% shortly after the collision, but that plaintiff may have had a blood alcohol level as high as 0.20% at the time of the collision. The jury could properly consider such evidence while ascertaining whether plaintiff\u2019s condition caused her to \u201coperate [her] vehicle in a manner which was a proximate cause of the collision\u201d and whether plaintiff was capable of \u201ccoping with highway and weather conditions in the manner of the reasonably prudent person.\u201d We find there was \u201cmore than a scintilla of evidence\u201d on the issue of contributory negligence and that the issue was properly submitted to the jury.\nNo error.\nJudges MARTIN and THOMPSON concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Robert A. Miller, P.A., by Robert A. Miller, for plaintiff-appellant.", "Smith & Holmes, P.G., by Robert E. Smith, for defendant-appellee." ], "corrections": "", "head_matter": "ANNETTE GREEN, Plaintiff v. JOHN ROUSE, Defendant\nNo. 949SC85\n(Filed 18 October 1994)\nAutomobiles and Other Vehicles \u00a7 644 (NCI4th)\u2014 automobile accident \u2014 plaintiff driving while impaired \u2014 sufficiency of evidence of contributory negligence\nIn an action to recover for injuries sustained in an automobile accident, evidence of plaintiffs contributory negligence was sufficient to be submitted to the jury where it tended to show that plaintiffs blood alcohol level was .18% shortly after the collision, and the jury could properly consider such evidence while ascertaining whether plaintiffs condition caused her to operate her vehicle in a manner which was a proximate cause of the collision and whether plaintiff was capable of coping with highway and weather conditions in the manner of the reasonably prudent person.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 422.\nAppeal by plaintiff from order entered 15 November 1993 by Judge E. Lynn Johnson in Franklin County Superior Court. Heard in the Court of Appeals 3 October 1994.\nRobert A. Miller, P.A., by Robert A. Miller, for plaintiff-appellant.\nSmith & Holmes, P.G., by Robert E. Smith, for defendant-appellee." }, "file_name": "0647-01", "first_page_order": 677, "last_page_order": 681 }