in the Court of Appeals 18 September 2017.
by Plaintiff from order entered 10 November 2016 by Judge
Bradley B. Letts in Superior Court, Buncombe County No.
R. Denton, P.A., by Lakota R. Denton, for
Barden & Cury, P.A., by Alexandra Cury, for
Ray Proffitt ("Plaintiff") appeals from the trial
court's order granting summary judgment in favor of James
Kelly Gosnell ("Defendant"). For the reasons
discussed below, we affirm.
was driving a truck east on Bear Creek Road, near Asheville,
shortly before 6:00 p.m. on 16 October 2015. Plaintiff's
father, Manon Proffitt ("Plaintiff's father"),
was a passenger in the truck. About a quarter mile from their
home, Plaintiff and Plaintiff's father observed a fallen
tree obstructing both lanes of traffic in the road ahead. The
tree's vertical branches held its trunk approximately
five feet above the surface of the road. Plaintiff's
father told Plaintiff to slow down, and Plaintiff pulled off
the road and stopped the truck thirty or forty feet from the
tree. Plaintiff's father turned on the truck's hazard
lights and called Plaintiff's mother to ask that she
bring down a chainsaw so he could cut up the tree and remove
it from the road. Plaintiff's father instructed Plaintiff
"to get across the tree and try to wave traffic down,
slow [cars] down, [while] waiting on his mom to get there
[with the chainsaw]." Plaintiff climbed on the tree.
After noticing he was getting pine sap on his hands,
Plaintiff asked his father for a pair of gloves.
Plaintiff's father searched for gloves for Plaintiff,
Plaintiff stood on top of the tree. According to
Plaintiff's father, shortly after Plaintiff climbed onto
the tree, they heard an oncoming vehicle approaching an
uphill curve in the road ahead. Plaintiff began waving his
arms at the approaching vehicle and yelling in an attempt to
get the driver's attention. Plaintiff's father
testified that Plaintiff "never got down" from the
tree; had been "goofing off" while standing on the
tree; and was "just being a teenager[, ] . . . [b]ecause
[he] thought [the other driver] was going to stop."
Plaintiff's father said he told Plaintiff to jump down
from the tree, and Plaintiff turned to jump, but
Plaintiff's pants snagged on a tree limb.
was driving a truck on Bear Creek Road coming from the
opposite direction around 6:00 p.m. on 16 October 2015.
Defendant testified that as he approached the curve in the
road, the sunlight hit his windshield, creating a glare.
Defendant stated he "took [his] foot off the gas, moved
it towards the brake[, ]" and reached up for his sun
visor. Defendant was driving forty-five miles per hour, five
miles per hour over the posted speed limit. Defendant
testified that, as he moved his foot toward the brake to slow
down, he noticed something in the corner of his windshield.
Defendant alleged he did not realize there was a tree in the
road, or see Plaintiff, before colliding with the fallen
impact, one of the tree's branches struck Plaintiff in
the back of the head, propelling Plaintiff through the air
and into the roadway, where he landed on his back. Plaintiff
was unconscious, barely breathing, and bleeding from his
ears. He was airlifted to Mission Hospital, where he was
treated for injuries that included skull fractures and
swelling of the brain. At a deposition in June 2016,
Plaintiff indicated he had no recollection of the several
days preceding the 16 October 2015 collision, the collision
itself, or the days he spent in the hospital thereafter.
filed a complaint on 22 December 2015 alleging he was
seriously injured as a result of Defendant's
negligence. In response, Defendant asserted numerous
affirmative defenses, including contributory negligence.
Defendant filed a motion for summary judgment on 5 October
2016. Following a hearing on 24 October 2016, the trial court
entered an order on 10 November 2016 finding that Defendant
was entitled to summary judgment as a matter of law.
Standard of Review
Court "review[s] a trial court's order granting or
denying summary judgment de novo. Under a de
novo review, the [reviewing] court considers the matter
anew and freely substitutes its own judgment for that of the
lower [court]." Blackmon v. Tri-Arc Food Systems,
Inc., __ N.C.App. __, __, 782 S.E.2d 741, 743 (2016)
(citation and quotation marks omitted).
judgment is appropriately entered "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law."
See N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015).
The party moving for summary judgment bears the burden of
showing that no triable issue of fact exists, and may satisfy
its burden "by proving: (1) that an essential element of
the non-moving party's claim is nonexistent; (2) that
discovery indicates the non-moving party cannot produce
evidence to support an essential element of his claim; or (3)
that an affirmative defense would bar the [non-moving
party's] claim." CIM Ins. Corp. v. Cascade Auto
Glass, Inc., 190 N.C.App. 808, 811, 660 S.E.2d 907, 909
(2008) (citation omitted). "[I]n ruling on a motion for
summary judgment[, ] the [trial] court does not resolve
issues of fact and must deny the motion if there is any issue
of genuine material fact." Singleton v.
Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972)
Court reviews the record "in a light most favorable to
the party against whom the order has been entered to
determine whether there exists a genuine issue as to any
material fact." Smith v. Harris, 181 N.C.App.
585, 587, 640 S.E.2d 436, 438 (2007) (citation and quotation
marks omitted). "If the trial court grants summary
judgment, the decision should be affirmed on appeal if there
is any ground to support the decision." Nifong v.
C.C. Mangum, Inc., 121 N.C.App. 767, 768, 468 S.E.2d
463, 465 (1996) (citation omitted).
this Court has cautioned that summary judgment "is
rarely an appropriate remedy in cases of negligence or
contributory negligence[, ]" we have clarified that
"summary judgment is appropriate in a cause of action
for negligence where the [plaintiff's] forecast of
evidence fails to show negligence on [the] defendant's
part, or establishes [the] plaintiff's contributory
negligence as a matter of law." Blackmon, __
N.C.App. at __, 782 S.E.2d at 744 (citation, quotation marks,
and internal quotation marks omitted).
Defendant's Motion for Summary Judgment
argues summary judgment was improper in the present case
because he was not contributorily negligent as a matter of
law. He further contends that, even assuming Plaintiff was
negligent, Defendant had the last clear chance to avoid the
collision that resulted in Plaintiff's injuries. We
address each argument in turn.
negligence is negligence on the part of the plaintiff which
joins, simultaneously or successively, with the negligence of
the defendant alleged in the complaint to produce the injury
of which the plaintiff complains." Meinck v. City of
Gastonia, __ N.C.App. __, __, 798 S.E.2d 417, 423 (2017)
(citation and internal quotation marks omitted). "In
order to prove contributory negligence on the part of a
plaintiff, the defendant must demonstrate: (1) [a] want of
due care on the part of the plaintiff; and (2) a proximate
connection between the plaintiff's negligence and the
injury." Daisy v. Yost, __ N.C.App. __, __, 794
S.E.2d 364, 366 (2016) (citation and internal quotation marks
omitted) (alteration in original). However, a plaintiff
"may relieve the defendant of the burden of showing
contributory negligence when it appears from [the
plaintiff's] own evidence that he was contributorily
negligent." Price v. Miller, 271 N.C. 690, 694,
157 S.E.2d 347, 350 (1967) (citation and quotation marks
Court has held that
[a p]laintiff cannot recover if she, too, was negligent
where that negligence was a proximate cause of her
injuries.[C]ontributory negligence consists of conduct
which fails to conform to an objective standard of
behavior - the care an ordinarily prudent person would
exercise under the same or similar circumstances to avoid
injury. The existence of contributory negligence is
ordinarily a question for the jury; such an issue is rarely
appropriate for summary judgment, and only where the
evidence establishes a plaintiff's negligence so
clearly that no other reasonable conclusion may be reached.
Contradictions or discrepancies in the evidence even when
arising from [the] plaintiff's evidence must be
resolved by the jury rather than the trial judge.
Cone v. Watson, 224 N.C.App. 241, 245, 736 S.E.2d
210, 213 (2012) (citations and internal quotation marks
omitted) (emphasis in original) (first alteration added). In
general, a person who possesses the
capacity to understand and avoid a known danger and
fails to take advantage of that opportunity, and [is injured
as a] result, . . . is chargeable with contributory
negligence, . . . [and] [summary judgment] is proper on the
theory that [the] defendant's negligence and
[the] plaintiff's contributory negligence are proximate
causes of the injury[.] Blue v. Canela, 139 N.C.App.
191, 193-94, 532 S.E.2d 830, 832 (2000) (citation omitted)
(first emphasis added).
Plaintiff's Mental Capacity
first argues that, because his IQ "falls into the
category of mild mental retardation[, ]" the ordinary
standard of care does not apply in this case. Instead,
Plaintiff contends, a jury must determine whether "[he]
acted with the degree of care he [was] able to perceive based
on his diminished [mental] capacity." We disagree.
record discloses insufficient evidence that Plaintiff lacked
the capacity to "understand and avoid a clear
danger." See Burgess v. Mattox, 260 N.C. 305,
307, 132 S.E.2d 577, 578 (1963). Accordingly, we conclude
Plaintiff was "subject to [the] universal rule"
that "[e]very person having the capacity to exercise
ordinary care for his own safety against injury is required
by law to do so, and if he fail[ed] to exercise such care,
and such failure . . . contribute[d] to the injury complained
of, he is ...