{ "id": 8527864, "name": "JASPER WARREN, JR., Administrator of the Estate of ROBERT WARREN, Plaintiff-Appellant v. MICHAEL COLOMBO, Administrator of the Estate of KARSON LEE CONGER, Deceased; MILITARY DISTRIBUTORS OF VIRGINIA, INC. and THOMAS BUILT BUSES, INC., Defendants-Appellees", "name_abbreviation": "Warren v. Colombo", "decision_date": "1989-03-07", "docket_number": "No. 878SC1258", "first_page": "92", "last_page": "106", "citations": [ { "type": "official", "cite": "93 N.C. App. 92" } ], "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": "454 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6371072, 6369370, 6369640, 6371688, 6371242, 6371465, 6370572, 6369837, 6370189, 6370729, 6370899, 6370004, 6370394 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/454/0867-10", "/us/454/0867-01", "/us/454/0867-02", "/us/454/0867-13", "/us/454/0867-11", "/us/454/0867-12", "/us/454/0867-07", "/us/454/0867-03", "/us/454/0867-05", "/us/454/0867-08", "/us/454/0867-09", "/us/454/0867-04", "/us/454/0867-06" ] }, { "cite": "479 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6337380, 6335429, 6337829, 6337129, 6336041, 6336299, 6338284, 6335857, 6336722, 6336918, 6338071, 6336536, 6335641, 6337599 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/479/0835-10", "/us/479/0835-01", "/us/479/0835-12", "/us/479/0835-09", "/us/479/0835-04", "/us/479/0835-05", "/us/479/0835-14", "/us/479/0835-03", "/us/479/0835-07", "/us/479/0835-08", "/us/479/0835-13", "/us/479/0835-06", "/us/479/0835-02", "/us/479/0835-11" ] }, { "cite": "283 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "304 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567608 ], "year": 1981, "pin_cites": [ { "page": "337-38" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0332-01" ] }, { "cite": "348 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738374 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0352-01" ] }, { "cite": "330 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 736", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526160 ], "year": 1985, "pin_cites": [ { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0736-01" ] }, { "cite": "130 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "259 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560021 ], "year": 1963, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0264-01" ] }, { "cite": "311 S.E. 2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "565" }, { "page": "565-66" } ], "opinion_index": 0 }, { "cite": "310 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402972 ], "year": 1984, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0227-01" ] }, { "cite": "177 S.E. 796", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "opinion_index": 0 }, { "cite": "207 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627238 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/nc/207/0545-01" ] }, { "cite": "146 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559997 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0206-01" ] }, { "cite": "51 N.C.L. Rev. 951", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1973, "opinion_index": 0 }, { "cite": "139 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571261 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0503-01" ] }, { "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": "221 N.E. 2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "192 So. 2d 49", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9830289, 9830267 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/so2d/192/0049-02", "/so2d/192/0049-01" ] }, { "cite": "160 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "68" } ], "opinion_index": 0 }, { "cite": "273 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575009 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0228-01" ] }, { "cite": "648 F. 2d 833", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1229793 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/648/0833-01" ] }, { "cite": "157 S.E. 2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "102-03" } ], "opinion_index": 0 }, { "cite": "271 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565083 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0485-01" ] }, { "cite": "268 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "300 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564292 ], "year": 1980, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0651-01" ] }, { "cite": "347 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779714 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0579-01" ] }, { "cite": "812 F. 2d 172", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1694522 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/f2d/812/0172-01" ] }, { "cite": "707 F. 2d 823", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1862050 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/f2d/707/0823-01" ] }, { "cite": "268 S.E. 2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564386 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0669-01" ] }, { "cite": "656 F. 2d 960", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1267803 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/656/0960-01" ] }, { "cite": "438 F. Supp. 1", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3961528 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f-supp/438/0001-01" ] }, { "cite": "346 F. Supp. 320", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3528658 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f-supp/346/0320-01" ] }, { "cite": "54 F.R.D. 479", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3728844 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/frd/54/0479-01" ] }, { "cite": "588 F. 2d 1351", "category": "reporters:federal", "reporter": "F.2d", "year": 1978, "opinion_index": 0 }, { "cite": "437 F. Supp. 445", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5732680 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/437/0445-01" ] }, { "cite": "499 F. Supp. 475", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1447223 ], "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f-supp/499/0475-01" ] }, { "cite": "391 F. 2d 495", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2103091 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/391/0495-01" ] }, { "cite": "62 N.C.L. Rev. 643", "category": "journals:journal", "reporter": "N.C. L. Rev.", "weight": 3, "year": 1984, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "338 S.E. 2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "78 N.C. App. 763", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524124 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/78/0763-01" ] }, { "cite": "337 S.E. 2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719732 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0103-01" ] }, { "cite": "322 S.E. 2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "71 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525220 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/71/0289-01" ] }, { "cite": "459 U.S. 1107", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6516417, 6516291, 6517028, 6516934, 6516488, 6516365, 6516879, 6516751, 6516658, 6516819, 6516568 ], "year": 1983, "pin_cites": [ { "parenthetical": "\"second collision\" doctrine does not have a life of its own but is applicable in cases tried on negligence theory" } ], "opinion_index": 1, "case_paths": [ "/us/459/1107-03", "/us/459/1107-01", "/us/459/1107-11", "/us/459/1107-10", "/us/459/1107-04", "/us/459/1107-02", "/us/459/1107-09", "/us/459/1107-07", "/us/459/1107-06", "/us/459/1107-08", "/us/459/1107-05" ] }, { "cite": "318 S.E. 2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "250", "parenthetical": "court determined damage complained of was the indivisible result of several causes" } ], "opinion_index": 1 }, { "cite": "69 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526785 ], "year": 1984, "pin_cites": [ { "page": "635", "parenthetical": "court determined damage complained of was the indivisible result of several causes" } ], "opinion_index": 1, "case_paths": [ "/nc-app/69/0630-01" ] }, { "cite": "91 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "896", "parenthetical": "where intervening cause \"becomes itself solely responsible for the injuries\" original wrongdoer is relieved of liability" } ], "opinion_index": 1 }, { "cite": "243 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626690 ], "year": 1956, "pin_cites": [ { "page": "671", "parenthetical": "where intervening cause \"becomes itself solely responsible for the injuries\" original wrongdoer is relieved of liability" } ], "opinion_index": 1, "case_paths": [ "/nc/243/0668-01" ] }, { "cite": "332 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "314 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694724, 4688358, 4688327, 4694514, 4692506 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/314/0116-02", "/nc/314/0116-05", "/nc/314/0116-01", "/nc/314/0116-04", "/nc/314/0116-03" ] }, { "cite": "326 S.E. 2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "275" } ], "opinion_index": 1 }, { "cite": "73 N.C. App. 182", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522802 ], "year": 1985, "pin_cites": [ { "page": "186" } ], "opinion_index": 1, "case_paths": [ "/nc-app/73/0182-01" ] }, { "cite": "669 F. 2d 1199", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1161556 ], "year": 1982, "pin_cites": [ { "page": "1206", "parenthetical": "if manufacturer's negligence \"is found to be a substantial factor in causing an indivisible injury . . . then absent a reasonable basis to determine which wrongdoer actually caused the harm, the defendants should be treated as joint and several tort-feasors\"" } ], "opinion_index": 1, "case_paths": [ "/f2d/669/1199-01" ] }, { "cite": "14 S.E. 2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "652", "parenthetical": "where no concert of action or no single indivisible injury, physician who negligently treats injury negligently inflicted by another is not a joint tort-feasor" } ], "opinion_index": 1 }, { "cite": "219 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625562 ], "year": 1941, "pin_cites": [ { "page": "611", "parenthetical": "where no concert of action or no single indivisible injury, physician who negligently treats injury negligently inflicted by another is not a joint tort-feasor" } ], "opinion_index": 1, "case_paths": [ "/nc/219/0607-01" ] }, { "cite": "79 S.E. 2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "229", "parenthetical": "concurrent negligence occurs when two or more persons concur \"in point of consequence in producing a single indivisible injury\"" } ], "opinion_index": 1 }, { "cite": "239 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625445 ], "year": 1953, "pin_cites": [ { "page": "9-10", "parenthetical": "concurrent negligence occurs when two or more persons concur \"in point of consequence in producing a single indivisible injury\"" } ], "opinion_index": 1, "case_paths": [ "/nc/239/0001-01" ] }, { "cite": "92 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "433" } ], "opinion_index": 1 }, { "cite": "244 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219547 ], "year": 1956, "pin_cites": [ { "page": "22" } ], "opinion_index": 1, "case_paths": [ "/nc/244/0017-01" ] }, { "cite": "322 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "168", "parenthetical": "the elements of proof of contributory negligence include proving that the \"breach of duty was a proximate cause of the injury suffered\"" } ], "opinion_index": 1 }, { "cite": "312 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751791 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "187", "parenthetical": "the elements of proof of contributory negligence include proving that the \"breach of duty was a proximate cause of the injury suffered\"" }, { "page": "194" }, { "page": "194" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0181-01" ] }, { "cite": "365 S.E. 2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "900", "parenthetical": "an element of actionable negligence is whether the breach of a duty was \"the proximate cause of the injury\"" } ], "opinion_index": 1 }, { "cite": "321 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566622 ], "year": 1988, "pin_cites": [ { "page": "709", "parenthetical": "an element of actionable negligence is whether the breach of a duty was \"the proximate cause of the injury\"" } ], "opinion_index": 1, "case_paths": [ "/nc/321/0706-01" ] }, { "cite": "62 N.C.L. Rev. 642", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1984, "pin_cites": [ { "page": "657", "parenthetical": "\"enhanced injury theory is neither sui generis nor the subject for a mechanical application of other tort formulas\"" } ], "opinion_index": 1 }, { "cite": "647 F. 2d 241", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1224237 ], "year": 1981, "pin_cites": [ { "page": "250", "parenthetical": "proximate cause issue should be addressed as two separate issues involving the occurrence and the extent of the enhancement" } ], "opinion_index": 1, "case_paths": [ "/f2d/647/0241-01" ] }, { "cite": "537 F. 2d 726", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1050140 ], "year": 1976, "pin_cites": [ { "page": "742", "parenthetical": "the concept of second collision liability is sui generis and common law doctrines of negligence are of no useful purpose" } ], "opinion_index": 1, "case_paths": [ "/f2d/537/0726-01" ] }, { "cite": "575 F. 2d 774", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 930112 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "787", "parenthetical": "orthodox tort principles can be routinely applied to enhanced injury litigation" }, { "page": "787", "parenthetical": "adopting Restatement (Second) of Torts Sec. 433A (1965)" } ], "opinion_index": 1, "case_paths": [ "/f2d/575/0774-01" ] }, { "cite": "103 S.Ct. 732", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "pin_cites": [ { "parenthetical": "\"second collision\" doctrine does not have a life of its own but is applicable in cases tried on negligence theory" } ], "opinion_index": 1 }, { "cite": "74 L.Ed. 2d 956", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "pin_cites": [ { "parenthetical": "\"second collision\" doctrine does not have a life of its own but is applicable in cases tried on negligence theory" } ], "opinion_index": 1 }, { "cite": "688 F. 2d 820", "category": "reporters:federal", "reporter": "F.2d", "year": 1982, "opinion_index": 1 }, { "cite": "521 F. Supp. 59", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3328774 ], "year": 1981, "pin_cites": [ { "page": "63" } ], "opinion_index": 1, "case_paths": [ "/f-supp/521/0059-01" ] }, { "cite": "283 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "348 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "774", "parenthetical": "in products liability action a party must show \"injury caused directly or proximately by the breach\"" } ], "opinion_index": 1 }, { "cite": "318 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738374 ], "year": 1986, "pin_cites": [ { "page": "355", "parenthetical": "in products liability action a party must show \"injury caused directly or proximately by the breach\"" } ], "opinion_index": 1, "case_paths": [ "/nc/318/0352-01" ] }, { "cite": "160 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "73", "parenthetical": "plaintiffs failure to buckle his seat belt, generally, does not impair his right to recover from an active tort-feasor because the failure to buckle the seat belt \"in no way contributed to the accident\"" } ], "opinion_index": 1 }, { "cite": "273 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575009 ], "year": 1968, "pin_cites": [ { "page": "237", "parenthetical": "plaintiffs failure to buckle his seat belt, generally, does not impair his right to recover from an active tort-feasor because the failure to buckle the seat belt \"in no way contributed to the accident\"" } ], "opinion_index": 1, "case_paths": [ "/nc/273/0228-01" ] }, { "cite": "268 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "194", "parenthetical": "question in a products liability case is whether the injuries were caused \"directly or proximately by the breach\"" } ], "opinion_index": 1 }, { "cite": "300 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564292 ], "year": 1980, "pin_cites": [ { "page": "656", "parenthetical": "question in a products liability case is whether the injuries were caused \"directly or proximately by the breach\"" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0651-01" ] }, { "cite": "311 S.E. 2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 2 }, { "cite": "310 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402972 ], "year": 1984, "opinion_index": 2, "case_paths": [ "/nc/310/0227-01" ] } ], "analysis": { "cardinality": 1328, "char_count": 33034, "ocr_confidence": 0.742, "pagerank": { "raw": 1.2415001069853416e-06, "percentile": 0.9884462375991805 }, "sha256": "ba86c4f20b279b0de926b6b4b74bf9c2b9e4ee1635989dd641239627ab08f61b", "simhash": "1:daff7daa657a86f7", "word_count": 5391 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs in the result.", "Judge ARNOLD dissents." ], "parties": [ "JASPER WARREN, JR., Administrator of the Estate of ROBERT WARREN, Plaintiff-Appellant v. MICHAEL COLOMBO, Administrator of the Estate of KARSON LEE CONGER, Deceased; MILITARY DISTRIBUTORS OF VIRGINIA, INC. and THOMAS BUILT BUSES, INC., Defendants-Appellees" ], "opinions": [ { "text": "ORR, Judge.\nThe trial court dismissed plaintiffs claims under G.S. 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The test on a motion under this rule is whether the pleading is legally sufficient, and the trial court must treat the allegations of the challenged pleading as true. Azzolino v. Dingfelder, 71 N.C. App. 289, 322 S.E. 2d 567 (1984), aff\u2019d in part, rev\u2019d in part, 315 N.C. 103, 337 S.E. 2d 528 (1985), cert. denied, 479 U.S. 835 (1986). The legal insufficiency of a complaint may be due to the absence of law to support a claim, absence of fact to support a good claim, or the disclosure of some fact which will defeat the claim. State of Tennessee v. Environmental Management Comm., 78 N.C. App. 763, 338 S.E. 2d 781 (1986).\nI.\nPlaintiff first contends that the trial court erred in dismissing the claim against defendant Thomas Built for negligent design and manufacture of the school bus, thereby proximately causing or enhancing the injuries in question.\nThe concept of enhanced injury is set forth in an article by Thomas V. Harris entitled Enhanced Injury Theory: An Analytic Framework, 62 N.C.L. Rev. 643 (1984):\nEnhanced injury liability is based on the premise that some objects, while they are not made for the purpose of undergoing impact, should be reasonably designed to minimize the injury-producing effect of such contact. In Larsen v. General Motors Corp. the court discussed the nature of this type of liability:\n\u2018Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types.\nNo rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resultant injury . . . all are foreseeable.\nWe perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents.\u2019\nThe proper terminology for characterizing the theory is \u2018enhanced injury\u2019 liability. In addition to that term, courts and commentators have described such accidents as involving \u2018crashworthiness\u2019 or a \u2018second collision.\u2019 In many cases, courts have used the three terms interchangeably.\nId. at 646. (Footnotes omitted.) (Emphasis added.)\nWhile the case sub judice arises from a crash between a tractor-trailer and a school bus, the issue presented is couched in the terms of \u201cenhanced injury.\u201d Therefore, we shall specifically address the issue as \u201cenhanced injury\u201d and not \u201ccrashworthiness\u201d or a \u201csecond collision.\u201d\nThis cause of action has not yet been addressed by this Court or our Supreme Court. Under this negligence theory, recovery may be allowed when defects in a vehicle enhance or increase plaintiff\u2019s injuries in an accident, although the defect did not cause the accident. Larsen v. General Motors Corporation, 391 F. 2d 495 (8th Cir. 1968). The defect must result from some negligence of the manufacturer in the design or construction of the vehicle. Id. Since Larsen, a majority of states have adopted some form of this doctrine. Sealey v. Ford Motor Co., 499 F. Supp. 475 (E.D.N.C. 1980) (citations omitted). See generally Harris, Enhanced Injury Theory: An Analytic Framework, 62 N.C.L. Rev. 643 (1984).\nThe federal district courts in North Carolina that have considered this issue are divided in their forecast of what North Carolina courts would do on this issue. Those cases which predict that we would not allow recovery based upon an enhanced injury claim are Simpson v. Hurst Performance, Inc., 437 F. Supp. 445 (M.D.N.C. 1977), aff'd, 588 F. 2d 1351 (4th Cir. 1978); Bulliner v. General Motors Corp., 54 F.R.D. 479 (E.D.N.C. 1971); and Alexander v. Seaboard Air Line Railroad Company, 346 F. Supp. 320 (W.D.N.C. 1971). Those predicting that we would allow recovery are Isaacson v. Toyota Motor Sales, 438 F. Supp. 1 (E.D.N.C. 1976) and Sealey v. Ford Motor Co., 499 F. Supp. 475 (E.D.N.C. 1980).\nThe United States Fourth Circuit Court of Appeals also has considered this question. In the per curiam opinion of Wilson v. Ford Motor Company, 656 F. 2d 960 (4th Cir. 1981), the Fourth Circuit upheld the district court ruling based upon the prediction that the Supreme Court of North Carolina would not allow a claim for injuries \u201cwhich neither caused nor contributed to the accident.\u201d The Court stated in a footnote that because North Carolina rejects strict liability, then we would also reject an enhanced injury claim. Id. See Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E. 2d 504 (1980). The Wilson Court did not address the likelihood of a successful enhanced injury claim under negligence or product liability theories. Relying upon Wilson, the Fourth Circuit again rejected enhanced injury claims in Martin v. Volkswagen of America, Inc., 707 F. 2d 823 (4th Cir. 1983) and Erwin v. Jeep Corp., 812 F. 2d 172 (4th Cir. 1987).\nWhile the decisions of federal district and appellate courts are instructive on these issues, we are not bound by their decisions. Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E. 2d 25 (1986). Instead, this Court must determine whether a cause of action for enhanced injuries is permissible under North Carolina law. We conclude that it is for the reasons set forth below.\nThe enhanced injury concept has been grounded in other jurisdictions in both general negligence law and product liability.\nAs in any action for negligence, the essential elements of a suit for products liability sounding in tort must include\n(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances;\n(2) breach of that standard of care;\n(3) injury caused directly or proximately by the breach, and;\n(4) loss because of the injury.\nW. Prosser, Hornbork of the Law of Torts sec. 30 (4th ed. 1971); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E. 2d 190, 194 (1980).\nA.\nWe first address the question of duty of a manufacturer under North Carolina law.\nA manufacturer\u2019s standard of care in products liability is found in the leading case of Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E. 2d 98 (1967).\nSince the liability is to be based on negligence, the defendant is required to exercise the care of a reasonable man under the circumstances. His negligence may be found over an area quite as broad as his whole activity in preparing and selling the product. He may be negligent first of all in designing it, so that it becomes unsafe for the intended use. He may be negligent in failing to inspect or test his materials, or the work itself, to discover possible defects, or dangerous propensities.\nId. at 491, 157 S.E. 2d at 102-03, quoting W. Prosser, Law of Torts sec. 665 (3d ed. 1964).\nNone of the courts addressing the issue of enhanced injury under a negligence theory have imposed a duty on the defendant to build a vehicle that would withstand all crashes. All manufacturers owe a duty to their purchasers to design and build a vehicle reasonably safe to minimize its injury producing effects. See Seese v. Volkswagen-werk A.G., 648 F. 2d 833 (3d Cir. 1981), cert. denied, 454 U.S. 867 (1981). We believe that defendant was under the same duty. The pleadings adequately set forth allegations of defendant\u2019s duty, and the law as set forth in Corprew controls on this question.\nB.\nPlaintiff must next establish that defendant breached the duty. W. Prosser, Law of Torts sec. 30 (4th ed. 1971). Plaintiff alleged the following breaches of defendant\u2019s duty:\n45. That the injuries herein and subsequent death suffered by plaintiff\u2019s intestate were proximately caused by or enhanced by the negligent conduct of defendant Thomas in that it:\na. Failed to adequately pad the seats in said bus.\nb. Failed to adequately secure the seats to the floor of the bus.\nc. Constructed seats of materials of insufficient quality and strength so as to withstand reasonably foreseeable forces acting upon them.\nd. Constructed seats of metal tubing which breaks easily and becomes sharp and dangerous when broken.\ne. Constructed the exterior siding of the bus of materials that are not sufficient to withstand reasonably foreseeable forces acting upon them.\nf. Constructed the exterior siding of the bus of a material inadequate to withstand impacts reasonably expected to be encountered in the normal useage [sic] of a school bus.\ng. Designed the bus using materials which would not withstand collisions normally encountered during the normal life of a school bus.\nh. Failed to provide seat belts for the passengers of the bus.\ni. Failed to use reasonable care in the design of its vehicle to avoid subjecting the passengers to an unreasonable risk of collision injury.\n46. That the negligence, carelessness and wilful and wanton conduct of the defendant Thomas was a proximate cause of the collision, injuries and subsequent death of the plaintiffs intestate and was a proximate cause of the enhancement of injuries and subsequent death of plaintiffs intestate.\nTaking plaintiffs allegations to be true as required by G.S. 1A-1, Rule 12(b)(6), plaintiff sufficiently alleged that defendant breached its duty of reasonable care in the design and manufacture of the school bus.\nC.\nThe third element of any negligence test, proximate cause, is the most troublesome aspect in enhanced injury cases.\nIn his special concurring opinion in Martin v. Volkswagen of America, Inc., 707 F. 2d 823 (4th Cir. 1983), Judge Phillips sets out the conceptual problem based on proximate cause arising in enhanced injury cases.\nThe underlying conceptual problem in substantive crash-worthiness doctrine precisely concerns identification of the accident-occurrence upon which the proximate causation inquiry is to be focused. Is it the initial impact of vehicle with some external object \u2014 another vehicle, a tree, a ditchbank\u2014 that sets in train a series of traumatic \u2018crashes\u2019? Or is it the specific physical trauma traceable to second (and third, etc.) \u2018crashes\u2019 that are in turn arguably traceable in causal terms to design defects that concededly have no causal relation to the \u2018first crash\u2019? Courts that reject crashworthiness doctrine are likely to do so by a purely conceptual analysis that identifies the first impact as the sole accident-occurrence upon which proximate causation injury is rightly focused, with liability for all direct and consequential damages flowing from that impact (including all ensuing \u2018crashes\u2019) then being imposed solely upon the actor whose negligence proximately caused that impact.\nId. at 827. Judge Phillips next contends that the decision in Miller v. Miller, 273 N.C. 228, 160 S.E. 2d 65 (1968) is a \u201cstrong indication\u201d that the North Carolina Supreme Court identifies the \u201cfirst impact\u201d as the critical and sole one for proximate causation. Based upon his interpretation of Miller, Judge Phillips states \u201c[.Miller\u2019s] conceptual analysis of the critical causation issue must be the starting point for any honest reappraisal leading to adoption by North Carolina courts of the crashworthiness doctrine.\u201d\nWhile we agree that Miller must be the starting point, this Court concludes that Miller does not indicate that the \u201cfirst impact\u201d is the critical and sole one for proximate causation and thus precludes a cause of action for enhanced injuries. Miller was not a \u201ccrash-worthiness\u201d or enhanced injury case. The only question presented for consideration was set out specifically by Justice Sharp at page 230: \u201cDoes the occupant of an automobile have a duty to use an available seat belt whenever it is operated on a public highway?\u201d In Miller, a passenger had sued the driver of the automobile for negligence, and defendant contended plaintiff was contributorily negligent for failure to wear a seat belt. The portion relied upon by Judge Phillips taken in the full context of the entire paragraph states:\nWhen the occupant of an automobile is injured in a collision, upset, or deviation of the vehicle from the highway, it goes without saying that his failure to have his seat belt fastened did not contribute to the occurrence of the accident. Brown v. Kendrick, 192 So. 2d 49 (Fla. Dist. Ct. App. 1966); Kavanagh v. Butorac, --- Ind. App. ---, 221 N.E. 2d 824 (1966). Obviously, however, in some accidents, an after-the-fact appraisal would reveal that his injuries would probably have been minimized had he been using a seat belt. But whether the occupant of an automobile was contributorily negligent in failing to fasten his seat belt must, of course, be determined in view of his knowledge of conditions prevailing prior to the accident, and not in the light of hindsight.\nMiller, at 231, 160 S.E. 2d at 68. (Emphasis added.)\nThus, we see that the offhand reference to \u201coccurrence\u201d is not in the context of proximate causation, but simply is part of a sentence concluding that failure to wear a seat belt could not be a contributing factor in the \u201coccurrence of the accident.\u201d We therefore conclude that Miller does not provide controlling guidance on this question and turn our attention elsewhere.\nAn examination of North Carolina law pertaining to joint tort-feasors provides a foundation for analyzing the proximate causation question in enhanced injury cases.\nProximate cause is a cause 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 consequences of a generally injurious nature, was probable under all the facts as they existed. Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E. 2d 296 (1968); Green v. Tile Co., 263 N.C. 503, 139 S.E. 2d 538 (1965). See generally Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L. Rev. 951 (1973). Foreseeability is thus a requisite of proximate cause, which is, in turn, a requisite for actionable negligence. Nance v. Parks, 266 N.C. 206, 146 S.E. 2d 24 (1966); Osborne v. Coal Co., 207 N.C. 545, 177 S.E. 796 (1935).\nHairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E. 2d 559, 565 (1984).\n\u201cThere may be more than one proximate cause of an injury. When two or more proximate causes join and concur in producing the result complained of, the author of each cause may be held for the injuries inflicted. The defendants are jointly and severally liable.\u201d Hairston, at 234, 311 S.E. 2d at 565-66.\n\u201cNegligence, in order to be actionable, must be shown to have been the proximate cause or one of the proximate causes of the plaintiffs injuries. There must be some causal relationship between the breach of duty and the injury.\u201d Reason v. Sewing Machine Co., 259 N.C. 264, 267, 130 S.E. 2d 397, 399 (1963). (Emphasis added.)\nThe theory advanced by plaintiff alleging enhanced injuries does not, however, focus on one injury caused by concurring sources. Instead, the focus is allegedly on an injury caused by the negligence of the tractor-trailer driver and the enhancement of that injury proximately caused by the negligence of the manufacturer of the bus.\nRelying on the logic and law of joint and concurrent negligence that more than one proximate cause can result in one injury, it follows that there is nothing in our law that would preclude more than one proximate cause that results in an original injury and the enhancement of that injury. Thus, as in the case sub judice, the allegation that the injuries sustained in this accident were proximately caused by both the impact with the truck and enhanced by the alleged negligence of the manufacturer is sufficient to withstand a 12(b)(6) motion.\nD.\nThe final element to be considered is damages. We decline to address defendant\u2019s contention that enhanced injury claims are not appropriate in severe collision cases. We also acknowledge the potential difficulty in enhanced injury cases dealing with the apportionment of damages should a jury find that the manufacturer\u2019s negligence was the proximate cause of the enhanced injuries. For the purpose of a 12(b)(6) motion, plaintiff has adequately alleged damages arising out of enhanced injuries. Therefore, we decline to speculate on the other aspects of damages noted above. The adequacy of plaintiff\u2019s evidence will no doubt be tested upon motions for summary judgment and directed verdict if the case is tried. At this stage of the litigation, this Court simply finds that plaintiff\u2019s complaint survives a motion to dismiss for failure to state a claim.\nTo hold that the allegations in plaintiff\u2019s complaint do not state a claim would be, as previously pointed out, not supported by North Carolina law. Likewise, such a determination would result in the possible insulation of negligent parties from responsibility in a situation where the initial event would have caused only minor injuries absent the event causing enhanced injuries. This Court declines to pronounce that as the law in North Carolina.\nII.\nPlaintiff\u2019s final assignments of error that the trial court erred in dismissing his claims for strict liability and punitive damages are without merit.\nNorth Carolina expressly rejects strict liability in products liability actions. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E. 2d 504 (1980); Holley v. Burroughs Wellcome Co., 74 N.C. App. 736, 742, 330 S.E. 2d 228, 232 (1985), aff'd, 318 N.C. 352, 348 S.E. 2d 772 (1986).\nPlaintiff specifically sought punitive damages against defendants Military Distributors of Virginia and Colombo in its amended complaint and prayer for relief. The issue of punitive damages against defendant Thomas Built was briefed by both sides, and the trial court dismissed the claim against Thomas Built.\nPlaintiff\u2019s sixth cause of action alleges that the negligence, carelessness and willful and wanton conduct of Thomas Built was a proximate cause of the collision, injuries and subsequent death of the plaintiff\u2019s intestate.\nIn the absence of any intentional, malicious, or willful act, punitive damages may not be recovered in a case involving an ordinary motor vehicle collision caused by negligence. The injury must result from defendant\u2019s wanton negligence. Conduct is wanton when it is in conscious and intentional disregard of and indifference to the rights and safety of others. Hightower, North Carolina Law of Damages sec. 30-13 (1981).\nPlaintiff is correct that under the \u201cnotice theory\u201d of pleading he need not allege circumstances justifying recovery of punitive damages. Shugar v. Guill, 304 N.C. 332, 337-38, 283 S.E. 2d 507, 510 (1981). However, plaintiff\u2019s amended complaint does not meet the minimum requirements for \u201cnotice theory\u201d of pleading for punitive damages against Thomas Built. Plaintiff\u2019s allegation of willful and wanton conduct against Thomas Built is buried among negligence allegations. Plaintiff does not request punitive damages against Thomas Built in any claim nor in his prayer for relief. Although both parties admit they briefed this issue in the court below, we do not have those briefs before us and can only determine the sufficiency of the amended complaint before us. Under G.S. 1A-1, Rule 12(b)(6), plaintiff\u2019s complaint fails to allege sufficient facts to support a claim for punitive damages against defendant.\nFor the reasons set forth above, we hold that plaintiff\u2019s complaint sufficiently states a cause of action against defendant for enhanced injuries due to negligent design and manufacture of the school bus. Further, the trial court did not err in dismissing the complaint for failure to state a claim for which relief can be granted for strict liability and punitive damages. Accordingly, we reverse and remand solely on the issue of enhanced injuries.\nReversed in part, affirmed in part.\nJudge GREENE concurs in the result.\nJudge ARNOLD dissents.", "type": "majority", "author": "ORR, Judge." }, { "text": "Judge GREENE\nconcurring in the result.\nI join with the majority in holding the trial court erred in dismissing the plaintiffs fifth cause of action against Thomas for the negligent design and construction of the school bus. The plaintiff has sufficiently alleged a duty by defendant Thomas, a breach of that duty and that the breach resulted in injuries proximately caused by the breach.\nI do not find it necessary or helpful, however, to recognize a new cause of action for enhanced injuries. In fact, the term \u201cenhanced injury,\u201d along with the terms \u201ccrashworthiness,\u201d \u201csecond collision\u201d and \u201csecond accident,\u201d is merely an expression for \u201cthe notion that, within limits, automobile manufacturers may be held liable for injuries caused by their failure to take the possibility of automobile accidents into consideration in designing their products.\u201d 5 S. Speiser, C. Krause & A. Gans, The American Law of Torts, Sec. 18:89, P. 932 (1988) [hereinafter Speiser, Krause, & Gans]. These concepts do not have a \u201clife of [their] own as separate and distinct causefs] of action.\u201d Id. Instead, they are but a part of the necessary proofs of any traditional negligence action. See Olsen v. United States, 521 F. Supp. 59, 63 (E.D. Pa. 1981), aff\u2019d without op., 688 F. 2d 820 (3d Cir. 1982), cert. denied, 459 U.S. 1107, 74 L.Ed. 2d 956, 103 S.Ct. 732 (1983) (\u201csecond collision\u201d doctrine does not have a life of its own but is applicable in cases tried on negligence theory); Fox v. Ford Motor Co., 575 F. 2d 774, 787 (10th Cir. 1978) (orthodox tort principles can be routinely applied to enhanced injury litigation); hut see Huddell v. Levin, 537 F. 2d 726, 742 (3d Cir. 1976) (the concept of second collision liability is sui generis and common law doctrines of negligence are of no useful purpose); Caizzo v. Volkswagenwerk A.G., 647 F. 2d 241, 250 (2d Cir. 1981) (proximate cause issue should be addressed as two separate issues involving the occurrence and the extent of the enhancement); Harris, Enhanced Injury Theory: An Analytic Framework, 62 N.C.L. Rev. 642, 657 (1984) (\u201cenhanced injury theory is neither sui generis nor the subject for a mechanical application of other tort formulas\u201d).\nPlaintiff\u2019s attempt to establish joint and several liability for injuries allegedly caused by several tort-feasors is a common practice and is governed by traditional principles of negligence, such as:\n(1) The plaintiffs injuries must have been caused directly or proximately by the negligent acts of the defendants. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts Sec. 30 (5th ed. 1984) [hereinafter Prosser and Keeton]; Speiser, Krause & Gans, Sec. 9:1, p. 994; City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E. 2d 190, 194 (1980) (question in a products liability case is whether the injuries were caused \u201cdirectly or proximately by the breach\u201d); Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E. 2d 898, 900 (1988) (an element of actionable negligence is whether the breach of a duty was \u201cthe proximate cause of the injury\u201d); Holley v. Burroughs Wellcome, 318 N.C. 352, 355, 348 S.E. 2d 772, 774 (1986) (in products liability action a party must show \u201cinjury caused directly or proximately by the breach\u201d); Adams v. Mills, 312 N.C. 181, 187, 322 S.E. 2d 164, 168 (1984) (the elements of proof of contributory negligence include proving that the \u201cbreach of duty was a proximate cause of the injury suffered\u201d); hut see Miller v. Miller, 273 N.C. 228, 237, 160 S.E. 2d 65, 73 (1968) (plaintiffs failure to buckle his seat belt, generally, does not impair his right to recover from an active tort-feasor because the failure to buckle the seat belt \u201cin no way contributed to the accident\u201d).\n(2) Two or more tort-feasors may be responsible for the same injuries. Adams, 312 N.C. at 194, 322 S.E. 2d at 172 (there may be more than one proximate cause of an injury).\n(3) Tort-feasors are jointly and severally liable if they either act together in committing the wrong or commit separate negligent acts which concur as to time and place and unite in proximately causing a single indivisible injury. Phillips v. Hassett Mining Co., 244 N.C. 17, 22, 92 S.E. 2d 429, 433 (1956); see Yandell v. Fireproofing Corp., 239 N.C. 1, 9-10, 79 S.E. 2d 223, 229 (1953) (concurrent negligence occurs when two or more persons concur \u201cin point of consequence in producing a single indivisible injury\u201d); Bost v. Metcalfe, 219 N.C. 607, 611, 14 S.E. 2d 648, 652 (1941) (where no concert of action or no single indivisible injury, physician who negligently treats injury negligently inflicted by another is not a joint tort-feasor); Mitchell v. Volkswagenwerk A.G., 669 F. 2d 1199, 1206 (8th Cir. 1982) (if manufacturer\u2019s negligence \u201cis found to be a substantial factor in causing an indivisible injury . . . then absent a reasonable basis to determine which wrongdoer actually caused the harm, the defendants should be treated as joint and several tort-feasors\u201d); see also Restatement (Second) of Torts Sec. 433A(1) (1965) (\u201cdamages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm\u201d); Fox, 575 F. 2d at 787 (adopting Restatement (Second) of Torts Sec. 433A (1965)); see generally Prosser and Keeton, Sec. 30, p. 346-47 (two or more persons may be liable for the entire wrong if they act in concert or if the actions of both persons produce a single indivisible result).\n(4) A single indivisible injury exists if apportionment among the tort-feasors is impossible. See Ipock v. Gilmore, 73 N.C. App. 182, 186, 326 S.E. 2d 271, 275, disc. rev. denied, 314 N.C. 116, 332 S.E. 2d 481 (1985); Prosser and Keeton, Sec. 30, p. 347.\n(5) Negligent conduct of first tort-feasor may be insulated by independent negligent acts of second tort-feasor. Adams, 312 N.C. at 194, 322 S.E. 2d at 172-73. The test is whether the independent negligent act of the second actor is reasonably foreseeable on the part of the original actor. Id.; see 5 Speiser, Krause & Gans, Sec. 18:92, p. 940 (1988) (\u201c. . . an accident or collision is considered a foreseeable result of the normal use of a motor vehicle . . .\u201d); Riddle v. Artis, 243 N.C. 668, 671, 91 S.E. 2d 894, 896 (1956) (where intervening cause \u201cbecomes itself solely responsible for the injuries\u201d original wrongdoer is relieved of liability); Restatement (Second) of Torts Sec. 442A (1965) (\u201cWhere the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause.\u201d).\n(6) Whether injuries are capable of apportionment among the tort-feasors is an issue of law for the trial court to decide. See Casado v. Melas Corp., 69 N.C. App. 630, 635, 318 S.E. 2d 247, 250 (1984) (court determined damage complained of was the indivisible result of several causes); Restatement (Second) of Torts Sec. 434(l)(b) (1965) (trial court to determine \u201cwhether the harm to the plaintiff is capable of apportionment among two or more causes\u201d). If the trial court determines the damages are capable of apportionment, the actual apportionment is a question of fact for the jury. Restatement (Second) of Torts Sec. 434(2)(b) (1965); see Restatement (Second) of Torts Sec. 433B(2) (1965) (\u201cwhere the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor\u201d); see also 1 Speiser, Krause & Gans, Sec. 3:7, p. 398 (\u201cthe burden of proof is on defendant once the plaintiff has made a prima facie showing that the defendant\u2019s conduct contributed as a proximate cause to the harm suffered by plaintiff\u201d).\nI likewise join with the majority in holding, for the reasons stated in that opinion, that the trial court committed no error in dismissing the plaintiff\u2019s cause of action based on strict liability or in dismissing the third cause of action for punitive damages.", "type": "concurrence", "author": "Judge GREENE" }, { "text": "Judge ARNOLD\ndissenting.\nI dissent from the majority\u2019s conclusion that plaintiff\u2019s allegations of enhanced injury against Thomas Built are sufficient to withstand a 12(b)(6) motion.\nIt is my opinion that the \u201cfirst impact\u201d is the critical and sole event of proximate causation in vehicular collision cases, and therefore actions for enhanced injuries are precluded. The initial impact of the truck with the bus was the cause, which in natural and continuous sequence, unbroken by any new and independent cause, that produced plaintiff\u2019s harm. See Hairston v. Alexander, 310 N.C. 227, 311 S.E. 2d 559 (1984).\nI vote no error.", "type": "dissent", "author": "Judge ARNOLD" } ], "attorneys": [ "Taft, Taft & Haigler, by Thoma\u00e9 F. Taft, Kenneth E. Haigler, Robert H. Hochuli, Jr. and James M: Stanley, Jr., for plaintiff-appellant.", "Sumrell, Sugg, Carmichael & Ashton, by James R. Sugg and Rudolph A. Ashton, III, for defendant-appellee Thomas Built Buses, Inc." ], "corrections": "", "head_matter": "JASPER WARREN, JR., Administrator of the Estate of ROBERT WARREN, Plaintiff-Appellant v. MICHAEL COLOMBO, Administrator of the Estate of KARSON LEE CONGER, Deceased; MILITARY DISTRIBUTORS OF VIRGINIA, INC. and THOMAS BUILT BUSES, INC., Defendants-Appellees\nNo. 878SC1258\n(Filed 7 March 1989)\n1. Sales \u00a7 22; Negligence \u00a7 22\u2014 enhanced injury liability \u2014negligent design and manufacture of school bus \u2014 sufficiency of complaint\nPlaintiffs complaint was sufficient to state a claim against defendant school bus manufacturer for negligent design and manufacture of a school bus which enhanced injuries received by plaintiff\u2019s intestate when a truck crossed the center line and collided with the school bus.\n2. Sales \u00a7 22\u2014 product liability \u2014strict liability inapplicable\nNorth Carolina expressly rejects strict liability in product liability actions.\n3. Damages \u00a7 12.1\u2014 punitive damages \u2014insufficiency of complaint\nPlaintiff\u2019s complaint failed to allege sufficient facts to support a claim against the manufacturer of a school bus for punitive damages in an enhanced injury liability action.\nJudge GREENE concurring in the result.\nJudge ARNOLD dissenting.\nAPPEAL by plaintiff from Llewellyn (James D.j, Judge. Order entered 29 September 1987 in Superior Court, Greene County. Heard in the Court of Appeals 11 May 1988.\nThis appeal arises out of the 31 May 1985 school bus accident near Snow Hill, North Carolina, in which six children were killed and numerous others injured. The accident occurred when a tractor-trailer truck driven by Karson Lee Conger (deceased) crossed the center line of the highway and collided with a school bus. Plaintiff is the administrator of the estate of Robert Warren, one of the young children killed. Defendants are Colombo, administrator of the estate of Karson Lee Conger; Military Distributors of Virginia, Inc., owners of the truck Conger was driving; and Thomas Built Buses, Inc., manufacturers of the school bus.\nOn 26 August 1985, plaintiff filed an amended complaint alleging seven causes of action. The first and second claims allege negligence by Conger and Military Distributors of Virginia, Inc.; the third claim seeks punitive damages against the administrator of Conger\u2019s estate and Military Distributors of Virginia, Inc.; the fourth claim alleges negligence by defendant Thomas Built Buses, Inc. (Thomas Built) proximately caused pain, suffering and wrongful death; the fifth claim alleges that defendant Thomas Built negligently designed and manufactured the bus which proximately caused or enhanced the injuries; the sixth claim alleges strict liability of defendant Thomas Built; and the seventh claim alleges breach of implied warranty by defendant Thomas Built.\nTwo defendants petitioned for removal of the case to the United States District Court for the Eastern District of North Carolina. On 8 November 1985, defendant Thomas Built filed its answer and moved to dismiss the amended complaint under the Federal Rules of Civil Procedure, Rule 12(b)(6), for failure to state a claim upon which relief could be granted. The case was remanded to Greene County Superior Court on 20 February 1986.\nOn 29 September 1987, Judge Llewellyn entered an order dismissing three of plaintiffs claims under G.S. 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The three claims dismissed are those against defendant Thomas Built for negligent design and manufacture of the bus which enhanced plaintiffs injuries; for strict liability of defendant Thomas Built; and for punitive damages against defendant Thomas Built. The remaining claims including plaintiffs claim against Thomas Built for negligence and implied warranty proximately causing the accident were denied and are not before us on appeal.\nFrom this order, plaintiff appeals.\nTaft, Taft & Haigler, by Thoma\u00e9 F. Taft, Kenneth E. Haigler, Robert H. Hochuli, Jr. and James M: Stanley, Jr., for plaintiff-appellant.\nSumrell, Sugg, Carmichael & Ashton, by James R. Sugg and Rudolph A. Ashton, III, for defendant-appellee Thomas Built Buses, Inc." }, "file_name": "0092-01", "first_page_order": 122, "last_page_order": 136 }