{ "id": 8550133, "name": "VIRGIE M. HESTER v. JAMES ALBIN MILLER, CHRISTOPHER EDWARD MILLER, an infant, JOY MAYO IPOCK, and DAVID GENTRY IPOCK", "name_abbreviation": "Hester v. Miller", "decision_date": "1979-06-05", "docket_number": "No. 7810SC745", "first_page": "509", "last_page": "514", "citations": [ { "type": "official", "cite": "41 N.C. App. 509" } ], "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": "125 S.E. 2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566757 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0215-01" ] }, { "cite": "139 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572161 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0601-01" ] }, { "cite": "114 S.E. 2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624199 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0520-01" ] }, { "cite": "29 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "742" } ], "opinion_index": 0 }, { "cite": "224 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597672 ], "year": 1944, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0211-01" ] }, { "cite": "51 N.C.L. Rev. 951", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1973, "opinion_index": 0 }, { "cite": "43 N.C.L. Rev. 906", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1965, "pin_cites": [ { "page": "927-30" } ], "opinion_index": 0 }, { "cite": "192 S.E. 2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564121 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0230-01" ] }, { "cite": "25 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "223 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600802 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/223/0134-01" ] }, { "cite": "11 S.E. 2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622054 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0515-01" ] }, { "cite": "151 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564186 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0591-01" ] }, { "cite": "113 S.E. 2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623336 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0476-01" ] }, { "cite": "133 S.E. 2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575805 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0641-01" ] }, { "cite": "160 S.E. 2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575494 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0418-01" ] }, { "cite": "183 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568480, 8568641, 8568552, 8568595, 8568445, 8568511 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0395-02", "/nc/279/0395-06", "/nc/279/0395-04", "/nc/279/0395-05", "/nc/279/0395-01", "/nc/279/0395-03" ] }, { "cite": "181 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "150" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554419 ], "year": 1971, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0275-01" ] }, { "cite": "178 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "10 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552852 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/10/0231-01" ] } ], "analysis": { "cardinality": 567, "char_count": 11068, "ocr_confidence": 0.81, "pagerank": { "raw": 4.1166993029305195e-07, "percentile": 0.910271795768788 }, "sha256": "ee35cefebb96ed22078da364547607ac7859cca95b14dcc5063394abca5e3bca", "simhash": "1:297388d40935b44c", "word_count": 1879 }, "last_updated": "2023-07-14T18:02:40.540741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Carlton concur." ], "parties": [ "VIRGIE M. HESTER v. JAMES ALBIN MILLER, CHRISTOPHER EDWARD MILLER, an infant, JOY MAYO IPOCK, and DAVID GENTRY IPOCK" ], "opinions": [ { "text": "CLARK, Judge.\nPlaintiff contends that the court erred in granting defendants\u2019 motion for summary judgment, since there are material issues of fact as to whether Joy Mayo Ipock negligently failed to provide a turn signal, and whether such negligence was a proximate cause of the automobile accident. Defendants contend that, even assuming that Joy Mayo Ipock was negligent, that her negligence was not the proximate cause of the accident since her negligence was completely insulated by the negligence of Christopher Edward Miller in following the Hester vehicle too closely and in failing to maintain a proper lookout.\nSummary judgment is appropriate only when the moving party establishes that there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law. Lee v. Shor, 10 N.C. App. 231, 178 S.E. 2d 101 (1970). It is only in the exceptional negligence case, however, that summary judgment is appropriate. . . This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury ... to apply the standard of the reasonably prudent man to the facts of the case in order to determine where the negligence, if any, lay and what was the proximate cause of the aggrieved party\u2019s injuries. . . .\u201d Robinson v. McMahan, 11 N.C. App. 275, 280, 181 S.E. 2d 147, 150, cert. denied, 279 N.C. 395, 183 S.E. 2d 243 (1971).\nProximate cause has been defined as a \u201ccause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff\u2019s injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable. . . .\u201d 9 Strong\u2019s N.C. Index 3d Negligence \u00a7 8, at 363 (1977); Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E. 2d 296 (1968).\nThere may be more than one proximate cause of an injury. It is not required that the defendants\u2019 negligence be the sole proximate cause of injury, or the last act of negligence. See Batts v. Faggart, 260 N.C. 641, 133 S.E. 2d 504 (1963); Richardson v. Grayson, 252 N.C. 476, 113 S.E. 2d 922 (1960). In order to hold the defendant liable, it is sufficient if his negligence is one of the proximate causes. McEachern v. Miller, 268 N.C. 591, 151 S.E. 2d 209 (1966); Bechtler v. Bracken, 218 N.C. 515, 11 S.E. 2d 721 (1940).\nIn order to insulate the negligence of one party, the intervening negligence of another must be such as to break the sequence or causal connection between the negligence of the first party and the injury. The intervening negligence must be the sole proximate cause of the injury. Rattley v. Powell, 223 N.C. 134, 25 S.E. 2d 448 (1943). In cases involving rearend collisions between a vehicle slowing or stopping on the road without proper warning signals, and following vehicles, the test most often employed by North Carolina courts is foreseeability. The first defendant is not relieved of liability unless the second independent act of negligence could not reasonably have been foreseen. See McNair v. Boyette, 282 N.C. 230, 192 S.E. 2d 457 (1972); Byrd and Dobbs, Survey of North Carolina Case Law, Torts, 43 N.C.L. Rev. 906, 927-30 (1965). See Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L. Rev. 951 (1973). The foreseeability standard should not be strictly applied. It is not necessary that the whole sequence of events be foreseen, only that some injury would occur.\nSince \u201c[p]roximate cause is an inference of fact . . . [i]t is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not.\u201d Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 214, 29 S.E. 2d 740, 742 (1944); Pruett v. Inman, 252 N.C. 520, 114 S.E. 2d 360 (1960). The question of intervening and concurring negligence is also ordinarily for the jury. Moore v. Beard-Laney, Inc., 263 N.C. 601, 139 S.E. 2d 879 (1965); Davis v. Jessup, 257 N.C. 215, 125 S.E. 2d 440 (1962). Only if the court is able to determine from the undisputed facts that the defendants\u2019 negligence was remote, and not a proximate cause of the injury, does the question become one of law for the court. 57 Am. Jur. 2d Negligence \u00a7 198 (1971).\nThe testimony set forth in the depositions of the plaintiff and Mrs. Berry Morris tends to show that Joy Mayo Ipock slowed down and turned off the road without giving a turn signal, that Mrs. Morris and plaintiff had to brake hard, that their vehicles came to a stop and that within moments the defendant Miller\u2019s truck struck the rear of plaintiff\u2019s camper. There is no testimony as to how fast the Miller vehicle was traveling or how closely the Miller vehicle was following the Hester camper. The testimony is also unclear as to how much time elapsed between the stopping of the Morris and Hester vehicles and the impact. The testimony of the time lapse varied from \u201ca few seconds\u201d to \u201ca couple of minutes.\u201d\nIn the case before us we apply the law to the proof in light of the fact that the proof supporting the motion for summary judgment is but a forecast of the evidence and that the danger of leaving the plaintiff with no avenue of relief should be avoided in a case alleging concurring negligence of multiple defendants which may best be determined simultaneously. We conclude that the proof supporting the motion for summary judgment does not establish intervening negligence as a matter of law and that the negligence of the defendants Ipock might have set in motion a chain of circumstances leading up to plaintiff\u2019s injuries.\nThere remains, therefore, a question of fact as to whether the defendant Joy Mayo Ipock\u2019s alleged negligence was a proximate cause of the plaintiffs injuries. The order entering summary judgment in favor of the defendants Joy Mayo Ipock and David Gentry Ipock was erroneously granted.\nReversed and remanded.\nJudges Parker and Carlton concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Johnson, Gamble and Shearon by Samuel H. Johnson for plaintiff appellant.", "Ragsdale, Liggett & Cheshire by Peter M. Foley for defendant appellees." ], "corrections": "", "head_matter": "VIRGIE M. HESTER v. JAMES ALBIN MILLER, CHRISTOPHER EDWARD MILLER, an infant, JOY MAYO IPOCK, and DAVID GENTRY IPOCK\nNo. 7810SC745\n(Filed 5 June 1979)\n1. Negligence \u00a7 10\u2014 proximate cause\nIt is not required that defendant\u2019s negligence be the sole proximate cause of an injury or the last act of negligence in order to hold him liable, but it is sufficient if his negligence was one of the proximate causes.\n2. Negligence \u00a7 10.1\u2014 intervening negligence\nIn order to insulate the negligence of one party, the intervening negligence of another must be such as to break the sequence or causal connection between the negligence of the first party and the injury and must be the sole proximate cause of the injury.\n3. Negligence \u00a7 29.3\u2014 proximate cause \u2014 insulating neligence \u2014question of fact\nThe trial court erred in granting defendant automobile driver\u2019s motion for summary judgment on the ground that her negligence was not, as a matter of law, a proximate cause of plaintiff\u2019s injuries but was insulated by the negligence of defendant dump truck driver where plaintiff presented materials tending to show that defendant automobile driver slowed down and turned from the road without giving a turn signal, that the driver of two following vehicles, including plaintiff, had to brake hard and come to a complete stop, and that plaintiff\u2019s vehicle was struck from the rear by the dump truck, since a question of fact was presented as to whether defendant automobile driver\u2019s negligence set in motion a chain of circumstances leading up to plaintiff\u2019s injuries and was a proximate cause of those injuries.\nAPPEAL by plaintiff from McLelland, Judge. Order granting summary judgment for the defendants Joy Mayo Ipock and David Gentry Ipock entered 20 June 1978 in Superior Court, WAKE County. Heard in the Court of Appeals 1 May 1979.\nOn 27 May 1977 plaintiff filed a complaint alleging that on 1 September 1976, plaintiff was injured in an automobile collision caused by the joint and concurring negligence of the defendants. The complaint alleged, inter alia, that plaintiff was following two cars down Highway 55 near Reelsboro, North Carolina, heading east at about 50 to 55 miles per hour. The first automobile was driven by the defendant Joy Mayo Ipock and was owned by defendant David Gentry Ipock. The second automobile was operated by Mrs. Berry Morris. The first car abruptly slowed and then its driver applied brakes and turned to the right into a private driveway without providing a turn signal. The Morris car veered left and proceeded beyond the point where the Ipock car turned off the road. Plaintiff braked and came to a complete stop. Within seconds, a dump truck operated by Christopher Edward Miller, and owned by James Albin Miller, struck the rear of plaintiff\u2019s camper truck and pushed it off the road into a tree. The gasoline tank exploded and plaintiff suffered severe burns.\nThe defendants Ipock denied negligence and denied that any negligence on their part proximately caused the plaintiff\u2019s injuries. The defendants Miller also denied negligence and denied that their negligence proximately caused- plaintiff\u2019s injuries.\nOn 23 March 1978, the defendants Joy Mayo Ipock and David Gentry Ipock moved for summary judgment on the grounds that, assuming that Joy Mayo Ipock was negligent in failing to provide a turn signal, that said negligence was not, as a matter of law, a proximate cause of the plaintiff\u2019s injuries. In support of their motion for summary judgment, the defendants presented the depositions of Mrs. Berry Morris and the plaintiff. The deposition of Mrs. Morris tended to show that the road was straight and level and the weather was clear at the time of the accident. Mrs. Morris was following the Ipock car at about 50 to 55 miles per hour. A little less than 50 yards before the driveway, Mrs. Ipock slowed somewhat. Mrs. Ipock then braked, brought her car almost to a complete stop, and turned right without indicating that she intended to turn. Mrs. Morris braked hard and came to a stop about one-half of a car length before the driveway. The plaintiff also, braked to a complete stop. Just as Mrs. Morris was preparing to drive forward, she heard the impact of Miller\u2019s truck striking plaintiff\u2019s camper. The Ipock car was either off the road at that time, or partly off the road.\nThe deposition of the plaintiff tended to show that the brake lights on Ipock\u2019s car were on for four or five seconds. The car slowed down gradually, stopped, and then turned right. Plaintiff braked and came to a complete stop. Within a few seconds she heard Miller\u2019s truck approaching, she heard the brakes applied and the truck hit her camper on the left rear.\nOn 20 June 1978, the court granted the defendants\u2019 motion for summary judgment on the grounds that the alleged negligence of Joy Mayo Ipock was not, as a matter of law, a proximate cause of the plaintiff\u2019s injuries.\nJohnson, Gamble and Shearon by Samuel H. Johnson for plaintiff appellant.\nRagsdale, Liggett & Cheshire by Peter M. Foley for defendant appellees." }, "file_name": "0509-01", "first_page_order": 537, "last_page_order": 542 }