{ "id": 11094063, "name": "GETTY DALE LONG and DALE A. LONG, Plaintiffs v. RON RUSSELL HARRIS, Defendant", "name_abbreviation": "Long v. Harris", "decision_date": "2000-04-18", "docket_number": "No. COA99-454", "first_page": "461", "last_page": "471", "citations": [ { "type": "official", "cite": "137 N.C. App. 461" } ], "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": "349 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "397", "parenthetical": "Court of Appeals \"declined] to consider\" unpublished opinion cited by party" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 195", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358272 ], "year": 1986, "pin_cites": [ { "page": "199", "parenthetical": "Court of Appeals \"declined] to consider\" unpublished opinion cited by party" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0195-01" ] }, { "cite": "356 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738632 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0627-01" ] }, { "cite": "492 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551140, 551241, 551058, 551257, 551261 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0141-04", "/nc/347/0141-03", "/nc/347/0141-05", "/nc/347/0141-02", "/nc/347/0141-01" ] }, { "cite": "485 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 393", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710933 ], "year": 1997, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0393-01" ] }, { "cite": "151 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "559" }, { "page": "559" } ], "opinion_index": 0 }, { "cite": "268 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564514 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "647" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0643-01" ] }, { "cite": "119 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "254 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627245 ], "year": 1961, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0575-01" ] }, { "cite": "475 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "734" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888405 ], "year": 1996, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0032-01" ] }, { "cite": "504 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1998, "pin_cites": [ { "page": "102" }, { "page": "102", "parenthetical": "citation omitted" }, { "page": "102" }, { "page": "102", "parenthetical": "emphasis added" }, { "page": "102" }, { "page": "102" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469893 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "673" }, { "page": "674" }, { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0670-01" ] }, { "cite": "472 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "179" }, { "page": "179" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911687 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "73" }, { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0070-01" ] }, { "cite": "454 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "677-78" }, { "page": "678" }, { "page": "678" }, { "page": "678" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917064 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "153" }, { "page": "153" }, { "page": "153" }, { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0151-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] }, { "cite": "354 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4746211, 4744518, 4745104, 4748123, 4747612 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0459-02", "/nc/319/0459-03", "/nc/319/0459-05", "/nc/319/0459-04", "/nc/319/0459-01" ] }, { "cite": "350 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "891", "parenthetical": "directed verdicts for party with burden of proof \"rarely granted, because there will ordinarily remain in issue the credibility of the evidence\"" }, { "page": "891" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358890 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "484", "parenthetical": "directed verdicts for party with burden of proof \"rarely granted, because there will ordinarily remain in issue the credibility of the evidence\"" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0480-01" ] }, { "cite": "464 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "342 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795955 ], "year": 1995, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0389-01" ] }, { "cite": "436 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "825" }, { "page": "825" } ], "opinion_index": 0 }, { "cite": "335 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530532 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "215" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0209-01" ] }, { "cite": "370 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "387" }, { "page": "386" }, { "page": "386" }, { "page": "386" } ], "opinion_index": 0 }, { "cite": "322 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518481 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "661" }, { "page": "662" }, { "page": "661" }, { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0643-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "351 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731217 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0669-01" ] }, { "cite": "341 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "81", "parenthetical": "decision to admit evidence rests in discretion of trial court" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 54", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521793 ], "year": 1986, "pin_cites": [ { "page": "62", "parenthetical": "decision to admit evidence rests in discretion of trial court" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0054-01" ] }, { "cite": "441 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532706, 2528068, 2529860, 2528941, 2532657 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0553-04", "/nc/335/0553-01", "/nc/335/0553-03", "/nc/335/0553-05", "/nc/335/0553-02" ] }, { "cite": "435 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "548, 549" }, { "page": "550" }, { "page": "550" } ], "opinion_index": 0 }, { "cite": "112 N.C. App 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521444 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "332, 335" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0328-01" ] } ], "analysis": { "cardinality": 908, "char_count": 20909, "ocr_confidence": 0.766, "pagerank": { "raw": 3.574637054537459e-07, "percentile": 0.8864595966791886 }, "sha256": "b22b68e21789f8601524ce3f9ec75e8c87a62e0921c375583833f994e4da2457", "simhash": "1:8725d56a9d6dc95a", "word_count": 3408 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "GETTY DALE LONG and DALE A. LONG, Plaintiffs v. RON RUSSELL HARRIS, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiffs Dale A. Long and Getty Dale Long (Mr. and Mrs. Long) appeal, assigning error to certain aspects of a jury trial resulting in a verdict in favor of defendant Ron Russell Harris. We conclude the trial court committed no error.\nRelevant factual and procedural information includes the following: On 22 December 1995, Mrs. Long and defendant were each operating their automobiles in the same direction on U.S. Highway 70 in Burke County. As Mrs. Long conducted a right turn into the driveway of the residence of her son, Gary Long (Gary), defendant\u2019s automobile veered off the side of the roadway, jumped the curb, and impacted Mrs. Long\u2019s vehicle on the passenger side.\nPlaintiffs filed the instant suit 20 November 1996, seeking damages for injuries to Mrs. Long\u2019s left ankle, foot, neck and back, and for loss of consortium by Mr. Long. Defendant answered denying negligence and asserting that\nhe was confronted with a certain sudden emergency, to which he did not contribute in any manner, when an unidentified motor vehicle pulled into the path of the [defendant and in such close proximity to him, whereupon [defendant immediately applied his brakes and turned to the right and left the roadway in order to avoid colliding with the vehicle that had pulled into his path of travel, and in so doing, the [defendant was unable to avoid colliding with [Mrs. Long\u2019s] vehicle ....\nThe case was tried before a jury 18 November 1998. Plaintiffs offered testimony from both Mr. and Mrs. Long and their son, Gary. During Gary\u2019s testimony, plaintiffs sought to introduce his observations of defendant\u2019s habitual manner of driving. Following a voir dire hearing, the trial court rejected the tendered evidence.\nAt the close of plaintiffs\u2019 evidence and again at the close of defendant\u2019s evidence, plaintiffs moved for directed verdict pursuant to N.C.G.S. \u00a7 1A-1, Rule 50(a) (1999), which motions were denied by the trial court. Over plaintiffs\u2019 objections, the trial court instructed the jury on the doctrine of sudden emergency. The jury returned a verdict in favor of defendant and plaintiffs timely appealed.\nPlaintiffs first assign error to the exclusion of Gary\u2019s testimony regarding defendant\u2019s driving habits. This assignment of error is unfounded.\nDuring the voir dire hearing conducted by the trial court, Gary testified he had been at home \u201cevery day\u201d recovering from an eye injury during the \u201cprevious month before this accident happened,\u201d and that he had observed defendant operating his automobile on Highway 70 \u201cevery day\u201d from a \u201cpicture window facing the road.\u201d According to Gary, defendant passed in front of his residence driving \u201c[w]ide open as usual\u201d on the day prior to the collision. Further, defendant had driven the \u201csame way\u201d on each previous occasion.\nThe North Carolina Rules of Evidence provide that\n[e]vidence of the habit of a person .... is relevant to prove that the conduct of the person... on a particular occasion was in conformity with the habit or routine practice.\nN.C.G.S. \u00a7 8C-1, Rule 406 (Rule 406) (1999).\n[0]ur case law establishes that \u201chabit\u201d may be proven by testimony of a witness who is sufficiently familiar with the person\u2019s conduct to conclude that the conduct in question is habitual.\n. . . Before evidence of. . . conduct may be admitted to prove habit, however, the trial court must. . . determine the reliability and probative value of the proffered evidence.\nCrawford v. Fayez, 112 N.C. App 328, 332, 335, 435 S.E.2d 545, 548, 549 (1993), disc. review denied, 335 N.C. 553, 441 S.E.2d 113 (1994).\nFurther, whether the proffered evidence is\nsufficient to establish habit is a question to be decided on a case-by-case basis, and the trial court\u2019s rulings thereon will not be disturbed absent an abuse of discretion.\nId. at 335, 435 S.E.2d at 550; see also State v. Wortham, 80 N.C. App. 54, 62, 341 S.E.2d 76, 81 (1986) (decision to admit evidence rests in discretion of trial court), rev\u2019d on other grounds, 318 N.C. 669, 351 S.E.2d 294 (1987). An\n[a]buse of discretion results where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\nState v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).\nGiven the vague and imprecise nature of Gary\u2019s testimony regarding defendant\u2019s speed (defendant was driving \u201cwide open\u201d) and Gary\u2019s potential, albeit understandable, interest in the outcome of the case as the son of plaintiffs, we cannot say the trial court\u2019s ruling appears \u201cmanifestly unsupported by reason or... so arbitrary that it could not have been the result of a reasoned decision.\u201d Id. The court therefore did not abuse its discretion by excluding Gary\u2019s testimony on this issue, see Crawford, 112 N.C. App. at 335, 435 S.E.2d at 550, and plaintiffs\u2019 first assignment of error fails.\nPlaintiffs next assign error to the trial court\u2019s denial of their motions for directed verdict. Originally, plaintiffs also assigned error to the denial of their new trial motion. However, as that point was not argued in plaintiffs\u2019 appellate brief, it is deemed abandoned under our Rules of Appellate Procedure (the Rules). See N.C.R. App. P. 28(b)(5) (\u201c[assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned\u201d).\nPlaintiffs insist the evidence adduced at trial led to \u201cno other possible logical conclusion other than that [defendant] was negligent\u201d in that he operated his vehicle \u201cat a speed that was greater than [wa]s reasonable and prudent under the conditions then existing\u201d and did not \u201ckeep a reasonably careful lookout.\u201d\nThe question presented by a motion for a directed verdict is whether the evidence is sufficient to entitle the non-movant to have a jury decide the issue in question.\nUnited Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). Upon a motion for directed verdict, the evidence must be considered in the light most favorable to the non-movant, resolving all conflicts in the latter\u2019s favor, id., and giving to the non-movant \u201cthe benefit of all reasonable inferences that may be drawn from that evidence,\u201d Abels v. Renfro Corp., 335 N.C. 209, 215, 436 S.E.2d 822, 825 (1993).\nMoreover, if there is conflicting testimony that permits different inferences, one of which is favorable to the non-moving party, a directed verdict in favor of the party with the burden of proof is improper.\nUnited Laboratories, 322 N.C. at 662, 370 S.E.2d at 386.\nIn addition, we note our courts have repeatedly observed that it \u201cis seldom appropriate to direct a verdict in a negligence action,\u201d Stanfield v. Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294, 297 (1995), particularly in favor of the party with the burden of proof, see La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 484, 350 S.E.2d 889, 891 (1986) (directed verdicts for party with burden of proof \u201crarely granted, because there will ordinarily remain in issue the credibility of the evidence\u201d), cert. denied, 319 N.C. 459, 354 S.E.2d 888 (1987). Further, \u201c[n]egligence is not presumed from the mere fact of injury.\u201d Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 68, 414 S.E.2d 339, 345 (1992).\nReview of the evidence adduced at trial in the light most favorable to defendant, see United Laboratories, 322 N.C. at 661, 370 S.E.2d at 386, reveals the latter\u2019s testimony that he was driving at \u201c[a]bout thirty, thirty-five\u201d miles per hour when suddenly a \u201ctruck pull[ed] out... [and] swervfed] in front of\u201d him. According to defendant, he \u201cturned [his] wheels to keep from hitting it and ... hit the brakes\u201d and then \u201chit that curb thing and that\u2019s when [he] hit\u201d Mrs. Long. Roger Willis, a witness to the collision, also testified that a truck crossed over Highway 70 just before the accident \u201cquick like he saw somebody coming [and] wanted to speed up and hurry and get across.\u201d\nConstruing all inferences in defendant\u2019s favor as we must, see Abels, 335 N.C. at 215, 436 S.E.2d at 825, the record thus reflects evidence that a truck suddenly crossed in front of the automobile operated by defendant, causing him to brake and swerve to his right to avoid colliding with that truck, whereupon he struck Mrs. Long\u2019s vehicle as she was turning into the driveway of her son\u2019s residence. Although plaintiffs presented conflicting evidence as to defendant\u2019s speed and opportunity to avoid the collision at issue, defendant\u2019s showing permitted the inference that he was not negligent. The trial court therefore properly denied the directed verdict motion of plaintiffs, the party with the burden of proof. See United Laboratories, 322 N.C. at 662, 370 S.E.2d at 386; see also La Notte, Inc., 83 N.C. App. at 484, 350 S.E.2d at 891.\nLastly, plaintiffs contend the trial court erred by instructing the jury on the doctrine of sudden emergency. We do not agree.\n[T]he doctrine of sudden emergency provides a less stringent standard of care for one who, through no fault of his own, is suddenly and unexpectedly confronted with imminent danger to himself or others.\nHolbrook v. Henley, 118 N.C. App. 151, 153, 454 S.E.2d 676, 677-78 (1995). For the doctrine to apply, two elements must coincide. First, \u201can emergency situation must exist requiring immediate action to avoid injury.\u201d Conner v. Continental Industrial Chemicals, 123 N.C. App. 70, 73, 472 S.E.2d 176, 179 (1996). To satisfy this element, the party asserting the doctrine \u201cmust have perceived the emergency circumstance and reacted to it.\u201d Pinckney v. Baker, 130 N.C. App. 670, 673, 504 S.E.2d 99, 102 (1998). Second, \u201cthe emergency must not have been created by the negligence of the party seeking the protection of the doctrine.\u201d Conner, 123 N.C. App. at 73, 472 S.E.2d at 179.\nA sudden emergency jury instruction is properly rendered if substantial evidence on each of the two essential elements of the doctrine has been presented. Banks v. McGee, 124 N.C. App. 32, 34, 475 S.E.2d 733, 734 (1996). In determining whether the substantial evidence test has been satisfied, \u201cthe evidence must be considered in the light most favorable\u201d to the party requesting the benefit of the instruction. Holbrook, 118 N.C. App. at 153, 454 S.E.2d at 678.\nPlaintiffs maintain defendant failed to present sufficient evidence on either element of the doctrine, asserting he failed to \u201cperceive the emergency circumstance compelling him to act instantly to avoid a collision\u201d and \u201cby his own negligent conduct created any emergency that may have existed.\u201d We address plaintiffs\u2019 contentions ad seriatim.\nPlaintiffs cite Pinckney and point to defendant\u2019s testimony as supporting their contention he did not \u201cperceive [] the emergency circumstance\u201d he claimed caused the collision at issue. In Pinckney, plaintiff Robin Pinckney (Pinckney) sued defendant Joseph Baker (Baker) for injuries resulting from a collision between Baker\u2019s vehicle and one operated by Kami Luces (Luces), in which Pinckney was a passenger. The evidence adduced at trial indicated Luces was attempting to merge in front of Baker into Baker\u2019s lane of travel when the vehicles collided.\nAccording to Baker, the alleged emergency circumstance . . . was the action of Luces in pulling suddenly and unexpectedly in front of Baker\u2019s van. However, Baker repeatedly testified he did not see Luces\u2019 vehicle prior to the collision, and that his attention was directed to it only upon impact.... [T]he sole indication in the record is that Baker was unaware of the alleged emergency until the actual collision.\nPinckney, 130 N.C. App. at 674, 504 S.E.2d at 102 (citation omitted) (emphasis added). We therefore held the trial court\u2019s instruction on the sudden emergency doctrine was improper in that Baker\u2019s testimony demonstrated he never \u201cperceived the emergency circumstance\u201d and thus could not have been \u201creactfing] to it\u201d when the collision occurred. Id. at 673, 504 S.E.2d at 102.\nNotwithstanding plaintiffs\u2019 argument to the contrary, defendant in the case sub judice testified he saw \u201ca little Chevrolet, like an S-10,\u201d that \u201cpulled out in front of [him],\u201d causing him to \u201chit the brake and tum[] the wheel.\u201d Defendant thus presented evidence indicating he perceived the truck in his path and then reacted to the emergency by applying his brakes and turning his automobile to the right.\nNonetheless, plaintiffs further seize upon a statement by defendant in which he agreed he did not see the truck until \u201cit was right in front of [him and] at no other time.\u201d Such circumstance, however, is not equivalent to that in Pinckney, wherein the \u201csole indication in the record,\u201d id. at 674, 504 S.E.2d at 102 (emphasis added), was that Baker did not see the vehicle alleged to have caused the emergency until the impact and took no evasive action. By contrast, defendant herein presented evidence he indeed saw the truck alleged to have caused the sudden emergency in time to apply his brakes and swerve to avoid colliding with that truck.\nFinally, plaintiffs highlight defendant\u2019s admission he failed to see Mrs. Long\u2019s automobile until impact. However, defendant\u2019s acknowledgment is irrelevant to whether an instruction on the sudden emergency doctrine was appropriate. Defendant must only have \u201cperceived the emergency circumstance\u201d herein, id. at 673, 504 S.E.2d at 102, i. e., the truck which pulled out in front of him. There is no requirement that he must have observed prior to impact other vehicles involved in the collision, such as that of Mrs. Long, which in no way contributed to the \u201cemergency circumstance.\u201d Id.\nPlaintiffs also contend the sudden emergency doctrine was inapposite at trial because defendant\u2019s \u201cinattention and failure to maintain a proper lookout was a cause in the accident.\u201d Specifically, plaintiffs maintain defendant was traveling too fast and should have seen both the truck and Mrs. Long\u2019s vehicle in time to avoid the collision.\nViewing the evidence in the light most favorable to defendant, see Holbrook, 118 N.C. App. at 153, 454 S.E.2d at 678, it appears that a truck suddenly crossed in front of defendant\u2019s automobile which was traveling at thirty miles per hour, and that a collision would have resulted between the truck and defendant\u2019s vehicle but for defendant\u2019s quick maneuvering.\nA driver is under no duty to anticipate disobedience of law or negligence on the part of others, but he has the duty to take such action as an ordinarily prudent person would take in avoiding collision with persons or vehicles upon the highway when, in the exercise of due care, danger of such collision is discovered....\nRouse v. Jones, 254 N.C. 575, 581, 119 S.E.2d 628, 633 (1961).\nAlthough\na party cannot by his own negligent conduct permit an emergency to arise and then excuse himself for his actions or omissions on the ground that he was called to act in an emergency,\nHolbrook, 118 N.C. App. at 153, 454 S.E.2d at 678, we are not persuaded that \u201call of the evidence . . . show[ed] that [defendant] by his negligence brought about or contributed to the emergency,\u201d Day v. Davis, 268 N.C. 643, 647, 151 S.E.2d 556, 559 (1966). The issue thus was a \u201cmatter]] . . . for jury determination under proper instructions . ...\u201d Id.\nIn the foregoing regard, we note the trial court\u2019s jury instructions correctly charged the jury that the doctrine of sudden emergency would not apply if it found defendant\u2019s negligence contributed to the emergency:\nthe doctrine of sudden emergency is not applicable to one who, by his own negligence, has brought about or contributed to the emergency.\nThe court further emphasized that requirement while expounding on the doctrine:\n[A] person who, through no negligence of his own, is suddenly and unexpectedly confronted with imminent danger ... is not required to use the same judgment that would be required if there was more time to make a decision ....\n... [A] person\u2019s conduct which might otherwise be negligent in and of itself would be \u2014 would not be negligent if it results from a sudden emergency that is not of that person\u2019s own making.\n(emphasis added).\nIn sum, the evidence was in conflict on the sudden emergency element of whether defendant \u201cperceived the emergency circumstance and reacted to it,\u201d Pinckney, 130 N.C. App. at 673, 504 S.E.2d at 102, and on the element of whether defendant\u2019s negligence contributed to the emergency. Further, the jury was properly instructed at length on the doctrine of sudden emergency. See Day, 268 N.C. at 677, 151 S.E.2d at 559. Plaintiffs\u2019 final assignment of error is therefore unavailing.\nPrior to concluding, we are compelled to address a violation by defendant of the Rules. In his appellate brief, defendant cited as authority, and quoted extensively from, an unpublished opinion of this Court filed in 1998.\nA decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered.\nN.C.R. App. 30(e)(3) (emphasis added). An unpublished opinion \u201cestablished] no precedent and is not binding authority,\u201d United Services Automobile Assn. v. Simpson, 126 N.C. App. 393, 396, 485 S.E.2d 337, 339, disc. review denied, 347 N.C. 141, 492 S.E.2d 37 (1997).\nCompliance with the Rules is mandatory and violation thereof subjects a party to sanctions. See N.C.R. App. P. 25(b) (Court may \u201cimpose a sanction against a party or attorney or both when the court determines that such party or attorney or both substantially failed to comply with\u201d the Rules). Notwithstanding, we have elected in our discretion pursuant to N.C.R. App. P. 2 to review defendant\u2019s contentions herein, but without consideration of the unpublished decision cited in his appellate brief. See Harris v. Duke Power Co., 83 N.C. App. 195, 199, 349 S.E.2d 394, 397 (1986) (Court of Appeals \u201cdeclined] to consider\u201d unpublished opinion cited by party), aff\u2019d, 319 N.C. 627, 356 S.E.2d 357 (1987). Nonetheless, we \u201cremind counsel of the [explicit] provisions of [N.C.R. App. P.j 30(e),\u201d id., prohibiting citation of unpublished opinions and use thereof as precedent.\nNo error.\nJudges McGEE and HUNTER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Tippens & Zurosky, L.L.P., by Kirk S. Zurosky, for plaintiffs-appellants.", "Crosswhite & Crosswhite, P.A., by William E. Crosswhite, for defendant-appellee." ], "corrections": "", "head_matter": "GETTY DALE LONG and DALE A. LONG, Plaintiffs v. RON RUSSELL HARRIS, Defendant\nNo. COA99-454\n(Filed 18 April 2000)\n1. Evidence\u2014 habit \u2014 driving\nThe trial court did not abuse its discretion in an action arming from an automobile accident by excluding testimony from plaintiffs\u2019 son that he had been home recovering from an injury, that he had observed defendant\u2019s driving every day, that defendant had driven \u201cwide open as usual\u201d the day before the collision, and that defendant had driven the same way on each previous occasion. It cannot be said that the court\u2019s ruling was unsupported by reason, given the vague and imprecise nature of the testimony regarding defendant\u2019s speed and the witness\u2019s potential interest in the outcome. N.C.G.S. \u00a7 8C-1, Rule 406.\n2. Motor Vehicles\u2014 negligence \u2014 collision while avoiding a third vehicle\nThe trial court did not err in an action arising from an automobile accident by denying a directed verdict for plaintiffs where, construing all inferences in defendant\u2019s favor, the record reflects evidence that a truck suddenly crossed in front of the automobile operated by defendant, causing him to brake and swerve to his right to avoid colliding with that truck, whereupon defendant struck plaintiffs\u2019 car as it turned into a driveway. Although plaintiffs presented conflicting evidence as to defendant\u2019s speed and opportunity to avoid the collision at issue, defendant\u2019s showing permitted the inference that he was not negligent.\n3. Motor Vehicles\u2014 negligence \u2014 sudden emergency \u2014 perception of emergency\nThe trial court did not err in an action arising from an automobile collision by instructing the jury on the doctrine of sudden emergency where the evidence was in conflict on whether defendant perceived the emergency circumstance and reacted to it and whether defendant\u2019s negligence contributed to the emergency. Furthermore, the jury was properly instructed at length on -the doctrine.\n4. Appeal and Error\u2014 use of unpublished opinions\nDefendant violated Appellate Rule 30(e) by citing as authority and extensively quoting from an unpublished opinion. While his contentions were reviewed, the unpublished opinion was not considered and counsel are reminded of the explicit provisions of the rule prohibiting the citation of unpublished opinions and their use as precedent.\nAppeal by plaintiffs from judgment entered 30 November 1998 by Judge Claude S. Sitton in Burke County Superior Court. Heard in the Court of Appeals 13 January 2000.\nTippens & Zurosky, L.L.P., by Kirk S. Zurosky, for plaintiffs-appellants.\nCrosswhite & Crosswhite, P.A., by William E. Crosswhite, for defendant-appellee." }, "file_name": "0461-01", "first_page_order": 493, "last_page_order": 503 }