FREQUENTLY USED DEFENSES IN MOTOR VEHICLE LAWSUITS. Todd King. Cranfill, Sumner & Hartzog LLP

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1 FREQUENTLY USED DEFENSES IN MOTOR VEHICLE LAWSUITS Todd King Cranfill, Sumner & Hartzog LLP Most automobile negligence cases usually amount to: 1) a dispute regarding the extent and causal link of plaintiff s injuries to the accident; or 2) a swearing match between the parties in instances where liability is disputed. In situations involving the latter, the defense of contributory negligence is usually asserted by defense counsel. And while the hammer dealt by a successful contributory negligence defense makes it the obvious choice for inclusion among the defendant s affirmative defenses, defense counsel should also consider whether other potential defenses exist for their client. Contributory Negligence and the Last Clear Chance Doctrine: As long as contributory negligence remains the law in North Carolina, defense counsel should know the elements and application of the last clear chance doctrine. Last clear chance permits the plaintiff s contributory negligence to be excused, and permit him to recover despite his own negligence. Plaintiff s counsel usually raises the defense of last clear chance by way of a Reply after the defendant raises contributory negligence in the Answer. And while the plaintiff s failure to file a Reply alleging last clear chance may operate as a waiver of the doctrine, the Supreme Court has held that where the Complaint alleges sufficient facts that put the defendant on notice of last clear chance, a formal reply is not necessarily required. Vernon v. Christ, 291 N.C. 646, 231 S.E.2d 591 (1977). Since many plaintiffs attorneys will file and serve a Reply alleging last clear chance any time the defense of contributory negligence is raised, it is important for defense counsel to carefully scrutinize whether their case s facts fit within the elements of the doctrine. The last clear chance doctrine requires the plaintiff to prove: 1) that the plaintiff, by his own negligence, placed himself in a position of peril from which he could not escape; 2) that the defendant saw, or by the exercise of reasonable care should have seen, and understood the perilous position of the plaintiff; 3) that the defendant had the time and means to avoid the accident if the defendant had seen or discovered the plaintiff s perilous position;

2 4) that notwithstanding such notice, the defendant failed or refused to use every reasonable means at his command to avoid the impending injury to the plaintiff; and 5) That as a result of such failure or refusal to avoid impending injury, the plaintiff was in fact injured. Coleman v. Hines, 133 N.C. App. 147, 515 S.E.2d 57 (1999). The first element is one that can often be attacked based on the case s facts. The Court of Appeals explained that element in greater detail in Culler v. Hamlet, 148 N.C.App. 372, 559 S.E.2d 195 (2002). Helpless peril arises when a person s prior contributory negligence has placed her in a position from which she is powerless to extricate herself; while inadvertent peril focuses on failure to focus on one s surroundings and discover her own peril. The doctrine is, however, inapplicable where the injured party is at all times in control of the danger and simply chooses to take the risk. Id. Accordingly, defense counsel should attempt to elicit deposition or trial testimony from the plaintiff that: 1) he was aware his actions placed him in a position of danger; 2) he had the ability to eliminate this danger; and 3) despite this knowledge and ability, he simply decided to take the risk. In addition to analyzing whether the facts of the case fall within these requirements, defense counsel would be well advised to consider the literal words of the last clear chance doctrine in their arguments to the judge or jury. That is, it is not the last possible chance, nor the last theoretical or hypothetical chance to avoid the accident. Instead, the defendant must have had exactly what the doctrine states the last clear chance. Grant v. Green, 11 N.C.App. 537, 181 S.E.2d 770 (1971). Sudden Incapacitation The defense of sudden incapacitation is raised by a defendant when he alleges that his sudden incapacitation, rather than his alleged negligence, was the cause of the accident. The requirements for this defense are fairly straightforward, and require: 1) a sudden incapacitation; 2) that was unforeseeable; 3) that resulted in defendant being unable to control his motor vehicle; 4) which in turn caused the plaintiff s injuries. Word v. Jones 350 N.C. 557, 516 S.E.2d 144 (1999). In Word v. Jones, the defendant alleged three different medical explanations supporting her sudden incapacitation defense: Alzheimer s disease, TIA, and arrhythmia. Evidence of these conditions was presented by way of expert medical testimony. Since the defendant had never

3 before been diagnosed with, or suffered from any incapacitation caused by these conditions, the court submitted the defense to the jury. A defendant with a prior history of incapacitations, or who can be faulted for the incapacitation (such as forgetting to take necessary medication) would not be able to use the defense. Sudden Emergency The sudden emergency defense is simply the name given to the effect which external forces can have on the determination of whether the defendant acted negligently. The sudden emergency jury instruction provides as follows: 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 were more time to make a decision. The person s duty is to use that degree of care which a reasonable and prudent person would use under the same or similar circumstances. If, in a moment of sudden emergency, a person makes a decision that a reasonable and prudent person would make under the same or similar circumstances, he does all that the law requires, even if in hindsight a different decision would have been better or safer. N.C.P.I. Civil However, the defense of sudden emergency is not applicable to one who, by his own negligence, has brought about or contributed to the emergency. For example, in Allen v. Efird, 123 N.C.App. 701, 474 S.E.2d 141 (1996), the defendant tried to slow down on a wet roadway where the evidence showed it had been raining for some time. He then hydroplaned, crossed the center lane and struck the oncoming plaintiff. The defendant requested and received an instruction on sudden emergency, resulting in a jury verdict for the defendant. The Court of Appeals overturned the trial court s instruction on sudden emergency, and held that a reasonable driver knows that traction on wet roads is greatly reduced. Just because the driver later lost control due to a condition that was actually present for some time does not warrant a sudden emergency instruction. Thus, a sudden emergency instruction is improper absent evidence of a sudden and unforeseeable change in conditions to which the driver must respond to avoid injury. While this instruction appears to reduce the standard of care, it is really just one of the factors the jury may consider in determining whether the defendant acted reasonably under the circumstances. Nevertheless, North Carolina case law has previously held that sudden emergency is an affirmative defense which must be specifically plead. Hinson v. Brown, 80 N.C.App. 661, 343 S.E.2d 284 (1986).

4 Factual scenarios that have been found to create sudden emergencies include: an oncoming car crossing the center line, Roberts v. Whitley, 17 N.C.App. 554, 195 S.E.2d 62 (1973); a tire blowing out, Ingle v. Cassady, 208 N.C. 497, 181 S.E.2d 562 (1935); a disabled vehicle partially blocking the road at night, Foy v. Bremson, 286 N.C. 108, 209 S.E.2d 439 (1974); and severe rain, Bolick v. Sunbird Airlines, Inc. 96 N.C.App. 443, 386 S.E.2d 76 (1989). However, it should be noted that the sudden emergency must have been brought about by an action which the defendant had no control over, and not by his own negligence or wrongful conduct. Foy v. Bremston, 286 N.C. 108, 209 S.E.2d 439 (1974). Note that if the defendant is found to be negligent per se because he violated a safety statute, the defense of sudden emergency can still be used to excuse that negligence. Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337 (1945). Unavoidable Accident The affirmative defense of unavoidable accident, on the other hand, has been defined as an occurrence which was not intended and which, under all the circumstances, could not have been foreseen or prevented by the exercise of reasonable precautions. W. Page Keeton et. al., Prosser and Keeton on the Law of Torts 29, at 162 (5th ed. 1984). An unavoidable accident can only occur in the absence of causal negligence. Giles v. Smith, 112 N.C.App.508, 435 S.E.2d 832 (1993). The defense of unavoidable accident has been applied to factual scenarios like children darting into the street, Dixon v. Lilly, 257 N.C. 228, 125 S.E.2d 426 (1962), or suffering a seizure and losing control of a car, Giles v. Smith, 112 N.C. App. 508, 435 S.E.2d 832 (1993). The Giles case illustrates that a sudden incapacitation could well result in an unavoidable accident. An important part of the unavoidable accident defense is that there is really no negligent act committed by the defendant in the first place. It is often difficult to differentiate between unavoidable accident and sudden emergency, and in many cases the terms are used interchangeably by the courts. However, sudden emergency focuses on the person s reaction and/or judgment when encountered with a sudden and unexpected situation that requires them to react instantly. Conversely, with unavoidable accident, the defendant often never has a chance to react to, or perceive, the dangerous situation. Intervening, Insulating and Superseding Negligence An intervening cause serves to break the chain of causation arising from the original negligent act. An efficient intervening cause is a new proximate cause which breaks the

5 connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote. Coleman v. Rudisill, 131 N.C.App. 530, 508 S.E.2d 297 (1998). Insulating negligence is more than a subsequent independent act of negligence that unites with the original act to cause a single injury. Hairston v. Alexander Tank and Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984). It must be a new independent negligent act which interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different results, that reasonably might not have been anticipated. Id. The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury. Id. It is not enough to invoke insulating negligence as a defense by showing that your client did not foresee the injury in the precise form in which it occurred, as long as the plaintiff can show that the defendant could have foreseen some injury resulting from his act or omission. Id. On the other hand, a defendant is not required to foresee events which are merely possible, but only those which are reasonably foreseeable. Id. Similarly, in the absence of any facts which put a defendant on notice of potential danger, the law does not require him to anticipate specific acts of negligence by another. Id. In Hairston, the plaintiff purchased a car from a dealership and requested that premium wheels be placed on it. The dealership did so, and within minutes after leaving the dealership one of the tires came off the car causing the plaintiff s vehicle to become disabled in the right hand lane of I-85 on a bridge overpass. Several vehicles moved into the left hand lane to avoid the plaintiff s car, but a flat bed truck driven by Defendant Alexander did not, and struck and killed the plaintiff. The evidence at trial showed that the dealership had not properly tightened the lug nuts on the tire. The dealership argued that its negligence was insulated by Defendant Alexander s negligence. However, the Court held that both actions were proximate causes of the accident; that it was foreseeable that the dealer s failure to tighten the lug nuts on the tire could cause the car to be disabled on the highway and struck by another vehicle; and that Defendant Alexander s negligence did not insulate the dealer from liability. Thus, foreseeability, and not remoteness in time, should be the focus of the analysis. Act of God The Act of God defense exists only when the incident occurs by violence of nature, and when it is the sole proximate cause of a person s injury. If an Act of God joins with the negligent act of another in causing injury, the defense is not applicable. More specifically, an Act of God is an act, event, happening, or occurrence, due to natural causes and inevitable

6 accident, or disaster; a natural and inevitable necessity which implies entire exclusion of all human agency which operates without interference or aid from man and which results from natural causes and is in no sense attributable to human agency. Lea v. N.C. Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983). Prior to Lea, an Act of God required an unforeseeable event. However, the Lea Court clarified that the analysis should instead focus on whether the event was reasonably foreseeable given the circumstances. Mitigation of Damages Every plaintiff has a duty to mitigate their alleged damages stemming from an automobile accident (or any other personal injury). Plaintiffs are not permitted to any recovery for damages that could have been avoided or lessened with proper, reasonable mitigation. However, the duty to mitigate applies only to damages occurring after the accident. Therefore, a failure to take certain actions before an accident that could have decreased the plaintiff s damages (such as wearing a seatbelt) are not evidence of a failure to mitigate. Furthermore, plaintiffs are not required to take undue risk or expense in mitigating any damages, and the adequacy of any mitigation is assessed by rules of common sense, good faith, and fair dealing. Commonwealth Land Title Ins. Co. v. Walker & Romm, 883 F. Supp. 25, 28 (E.D.N.C. 1994). For example, failing to promptly seek medical treatment, unreasonably failing to follow a doctor s recommendations, or even engaging in ill-advised dangerous physical activities that delay recovery from an accident, all could be arguments in favor of a failure to mitigate. The defendant has the burden of proving that a failure to mitigate occurred.