in the Court of Appeals 28 February 2019.
by plaintiff from judgment entered 5 June 2018 by Judge
Phyllis M. Gorham in Wayne County Superior Court. No. 17 CVS
Everett, Womble & Lawrence, L.L.P., by Ronald T. Lawrence
II and Kristy J. Jackson, for plaintiff-appellant.
Simpson Law, PLLC, by Caroline P. Stutts, for
Patterson ("Plaintiff") appeals from the trial
court's order granting summary judgment in favor of
Taylor Nicole Worley ("Defendant"). Because
Plaintiff was unable to show through pleadings, depositions,
or other evidence that Defendant owed her a duty recognized
by North Carolina law, that her contributory negligence would
not defeat her claim, or that the doctrine of last clear
chance would apply, Defendant was entitled to judgment as a
matter of law. We therefore affirm the order of the trial
court granting summary judgment to Defendant.
and Procedural Background
March 28, 2017 at approximately 6:11 p.m., Plaintiff, a
pedestrian, left her apartment and began walking eastbound on
Spence Avenue towards the Wal-Mart shopping center located in
Goldsboro, North Carolina. Defendant was returning home from
work, driving northbound in her Lexus sedan. It was a bright,
clear, sunny day, and Defendant was traveling approximately
thirty-five miles per hour on Spence Avenue in Goldsboro.
Spence Avenue is a five-lane road, with two lanes on each
side, a turn lane in the middle, and a paved median.
Plaintiff made her way towards Wal-Mart, she crossed the two
southbound lanes of Spence Avenue, and then stopped at the
paved median. A vehicle had entered the turning lane, but had
come to a stop to allow Plaintiff to cross. In a northbound
lane adjacent to the turning lane, a Ford Explorer had also
come to a stop because of traffic backed up in its lane.
Plaintiff stepped into the road in front of the Explorer and
looked around the vehicle to see if the last lane of travel
was clear. The Explorer driver blew its horn, and Plaintiff
began running across the road. Plaintiff was then immediately
hit by Defendant's car and injured.
filed her complaint on August 3, 2017, alleging Defendant had
been negligent in the operation of her vehicle when she hit
Plaintiff on Spence Avenue. Defendant responded September 21,
2017, alleging, inter alia, the affirmative defense
of contributory negligence. On January 31, 2018, Defendant
moved for summary judgment. After a May 29, 2018 hearing,
Defendant's motion for summary judgment was granted by
the trial court in a June 5 order. It is from this order that
Plaintiff timely appeals.
motion for summary judgment, our standard of review of the
trial court's ruling is well-established:
Under [the North Carolina Rules of Civil Procedure], Rule
56(a), summary judgment is properly 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. In a
motion for summary judgment, the evidence presented to the
trial court must be admissible at trial, and must be viewed
in a light most favorable to the non-moving party. We review
a trial court's order granting or denying summary
judgment de novo. Under a de novo review,
the court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal. The party
moving for summary judgment bears the burden of establishing
that there is no triable issue of material fact. This burden
may be met by proving that an essential element of the
opposing party's claim is nonexistent, or by showing
through discovery that the opposing party cannot produce
evidence to support an essential element of his claim or
cannot surmount an affirmative defense which would bar the
Once the party seeking summary judgment makes the required
showing, the burden shifts to the nonmoving party to produce
a forecast of evidence demonstrating specific facts, as
opposed to allegations, showing that he ...