Plaintiff’s Failure to Practice Defensive Driving Could Lead to Verdict for Defendant

A driver traveling under the speed limit is passed by another driver, who then swerves into the lane directly in front of her. They collide.

The passing driver is at fault, of course.

Not necessarily. The driver who was passed may have been contributorily negligent, meaning that she too played a role in the collision, by not driving defensively.

On North Carolina Highway 55, also known as Alston Avenue, it had been raining all morning when the defendant, a student at Durham Technical Community College, left campus in her car, planning to take N.C. Highway 55 to Interstate 40 to return to her home in Chapel Hill. She pulled onto the highway behind the plaintiff, who was driving her Honda Accord in the right lane. The plaintiff was also a student, but at North Carolina State University. She had just left Vocational Rehab, where she worked as an intern, on her way to drop off some documents at her professor’s office on the NCCU campus.

The defendant decided to pass the plaintiff, whom she perceived to be going slower than the 45 mph speed limit. The plaintiff noticed the defendant in her rearview mirror, approaching from the rear, weaving in and out of traffic. She honked her horn as the defendant passed.

The defendant moved alongside the plaintiff’s car, turned on her right turn signal, and attempted to re-enter the right lane but in front of the plaintiff. She thought the plaintiff was quite a distance behind her, judging from her mirrors and looking directly over her shoulder. As she attempted to merge into the right lane, she felt a bump. The driver’s side of the plaintiff’s vehicle had collided with the passenger-side back bumper of the defendant’s vehicle.

Both drivers pulled over, and the plaintiff called police. An officer from the Durham Police Department arrived and completed an accident report.

The plaintiff filed a complaint against the defendant in Wake County Superior Court, alleging that the defendant’s negligence caused the accident and the plaintiff’s resulting injuries. The defendant denied the plaintiff’s allegations and asserted the plaintiff’s contributory negligence as an affirmative defense. She claimed that the plaintiff failed to keep a proper lookout, failed to control her vehicle, and failed to use reasonable care to avoid hitting the defendant’s vehicle.

A jury trial was held, and at the close of the plaintiff’s evidence the plaintiff moved for a directed verdict on the issues of negligence and contributory negligence, which the judge denied. She renewed her motion at the close of all evidence, and it was again denied.

The jury returned a verdict finding the defendant negligent but also finding the plaintiff contributorily negligent. The trial court entered judgment based on the jury’s verdict. The plaintiff moved for entry of judgment notwithstanding the verdict (JNOV), which was also denied. The plaintiff appealed.

The Court of Appeals of North Carolina ruled that, taken together, both parties’ testimony at trial provided sufficient evidence so that the trial judge was correct in submitting the issue of contributory negligence to the jury, rather than issuing a directed verdict for the plaintiff. The Court’s opinion was unpublished, which means that it is not precedent for other cases, and applies only to the circumstances of this case. However, the principles discussed by the Court are fairly simple, and the judge’s analysis is instructive.

The judge found that the plaintiff had testified that she saw the defendant weaving in and out of traffic as she approached her car from the rear, and that she honked her horn as the defendant’s car passed hers. She also saw the defendant’s turn signal, indicating her intention to merge into the plaintiff’s lane, which put the plaintiff on notice of the defendant’s intention to enter her projected path of travel.

The defendant testified that the plaintiff was a great distance away when she looked over her shoulder preparatory to re-entering the right lane, but then when she started to move over, the plaintiff just “came out of nowhere.”

The Court of Appeals found that the jury could reasonably infer from this evidence that the plaintiff was aware of the defendant’s approach but breached her duty of care when she failed to reduce her speed or otherwise avoid a collision. There was sufficient evidence for the jury properly to consider the question of the plaintiff’s alleged contributory negligence and the trial judge’s denials of the plaintiff’s motions for directed verdict on this issue were proper. The Court of Appeals affirmed the trial judge’s decisions and allowed the verdict to stand.

In effect, the plaintiff was penalized for failing to drive defensively or do her part to prevent the accident.

If you or someone you know has been injured in a car accident, you should contact an attorney regarding your case. The experienced personal injury attorneys at the Tatum Law Firm offer a free legal consultation and will work with you to evaluate your options.