North Carolina Lawyers Weekly
On Oct. 22, 2008, at approximately 6:52 a.m. – before sunrise – the plaintiff’s husband was driving his 2000 Toyota automobile in the middle lane in a generally westerly direction on N.C. Highway 49 approaching the intersection of Kee Lane in Harrisburg.
A white compact being operated by an unknown driver was traveling beside the plaintiff’s husband’s vehicle in the right lane in the same generally westerly direction on N.C. 49. The white compact began moving over into the plaintiff’s husband’s lane of travel, confronting the plaintiff’s husband with a sudden emergency, causing the plaintiff’s husband to swerve his vehicle to the left in an effort to prevent a collision with the white compact, and thereby forcing his vehicle into the center multi-use turn lane of Highway 49 where he was unable to avoid colliding with the tractor-trailer, which had earlier been willfully and wantonly parked and abandoned in the center lane by the defendant before sunrise and without warning devices posted around the vehicle.
The defendant’s sole purpose in abandoning the tractor-trailer in the road, in violation of safety statutes, was to obtain a biscuit and coffee at the McDonald’s contiguous to the location of the crash; and this purpose was negligent per se, grossly negligent, willful, wanton conduct and recklessly indifferent to the safety of others, including the plaintiff’s husband.
As a direct and proximate concurring cause of the collision brought about by the willful and wanton actions of the defendant, the plaintiff’s husband was mortally wounded, suffered excruciating pain and died.
The death of the plaintiff’s husband was directly due to and proximately caused by the concurring negligence, gross negligence, careless, reckless, willful and wanton conduct of the defendant in one or more or all of the following particulars, whether singularly, concurrently or in combination: (1) failure to have the tractor-trailer under proper control; (2) failure to maintain a proper lookout for the traveling public; (3) failure to use reasonable care in parking, leaving unattended and abandoning the tractor-trailer; (4) parking the tractor-trailer on the road in violation of Chapter 71, § 71.01 of the Town Ordinance of the Town of Harrisburg, a violation thereof being negligence per se; (5) abandoning the tractor-trailer on the road in violation of Chapter 90, § 90.02 of the Town Ordinance of the Town of Harrisburg, a violation thereof being negligence per se; (6) parking the tractor-trailer on the road in violation of N.C. Gen. Stat. § 20-161(a), a violation thereof being negligence per se; (7) parking the tractor-trailer on the road in violation of N.C. Gen. Stat. § 20-161(c), a violation thereof being negligence per se; and (8) failure in other ways to act with reasonable care or within the law.
The plaintiff’s husband was not negligent even though his vehicle collided with the rear of the defendants’ tractor-trailer. As a result of the sudden emergency caused by the white compact, the plaintiff’s husband was not required to use the same judgment that is required when there is more time to decide what to do. The plaintiff’s husband did all that the law requires of him under these circumstances and as set forth in N.C.P.I. § 104.40. He exercised that care which a reasonably careful and prudent person would exercise in the same situation, although in the light of after-events, it appears that some different action may have been better and safer.
Settlement Report
Type of action: Wrongful death
Injuries alleged: Death
Case name: Confidential
Court: The accident occurred in Cabarrus County, and the case settled in federal court.
Judge: Confidential
Verdict or settlement: Court-approved settlement involving minors.
Date: Jan. 6, 2010
Amount: Policy limits of $1 million
Insurer: Confidential
Experts: Michael A. Sutton, PE, accident reconstruction
Plaintiff’s attorney: W. Joseph Dozier Jr. of Dozier, Miller, Pollard & Murphy (Charlotte)
Editor’s note: The information in Lawyers Weekly’s verdicts and settlements reports was submitted by the counsel for the prevailing party and represents the attorney’s characterization of the case.
