Fisk v. Murphy (Lawyers Weekly No. 11-07-0612, 11 pp.) (Robert N. Hunter, Jr., J.) Appealed from Buncombe County Superior Court (James U. Downs, J.) N.C. App. Click here for the full-text opinion.
Holding: The testimony of plaintiffs’ expert varied on how much time plaintiff Phillip Fisk had to realize defendant Charles’ pickup truck was a threat and to react. The trial court did not err in instructing the jury on the defense of contributory negligence.
The trial court also did not err in denying the plaintiffs’ motion for a judgment n.o.v. or abuse its discretion in rejecting the plaintiffs’ new trial motion.
This action arises out of a collision that occurred on Sept. 15, 2005 at approximately 10:15 a.m. at the intersection of Glenn Bridge Road and Old Shoals Road in Asheville. Plaintiff Phillip Fisk was riding his motorcycle east on Glenn Bridge Road when he collided with defendant Charles Murphy’s pickup truck traveling north on Old Shoals Road. Murphy worked for defendant Republic Services of North Carolina, LLC, and he was engaged in a job-related activity at the time of the collision.
At the site of the collision, Fisk was traveling on Glenn Bridge Road, the dominant road, which was equipped with a continuously flashing yellow caution light and a sign that read “Vehicles Entering When Flashing.” Murphy was traveling on Old Shoals Road, the servient road, which was equipped with a stop sign located approximately 50 feet prior to the intersection. Additionally, a flashing red light faces Old Shoals Road and is designed to flash when triggered by a vehicle passing over a sensor on Glenn Bridge Road, located approximately 300 feet from the center of the intersection. Plaintiffs’ expert, Michael Sutton , testified that the flashing light system was installed at this intersection because of the limited sight distance at the intersection.
Fisk did not testify at trial, although his deposition was read into evidence during the trial. In his brief, Fisk concedes that he traveled Glenn Bridge Road on a regular basis and was familiar with the intersection. Fisk, however, has no memory of the collision. His last memory prior to the accident was of passing a business located approximately 200 yards before the intersection.
Murphy, the only witness to the accident to testify, stated that he came to a complete stop at the stop sign on Old Shoals Road and looked to his left and his right, did not see Fisk, and “eased” through the intersection. As Murphy crossed Glenn Bridge Road, he heard the squeal of tires and, in response, pressed the accelerator and pulled the steering wheel to the right, but was unable to avoid the collision. At the point of impact, Murphy’s four-door pickup truck was straddling the double yellow line of Glenn Bridge Road. Fisk’s motorcycle struck Murphy’s truck on the driver’s side at a point behind the four-door passenger compartment, but immediately in front of the rear tire well.
Trooper Robert Baker of the Highway Patrol responded to the scene of the accident. Trooper Baker testified that there were no gouge or skid marks in the roadway.
Fisk and his wife, Carol Fisk, filed this action Aug. 6, 2008 alleging, inter alia, negligence by defendants Murphy and Republic. Murphy and Republic pled the affirmative defense of contributory negligence by Fisk for failing to keep a proper lookout, to maintain proper control, or to otherwise operate his motorcycle in a safe manner.
Plaintiffs place great emphasis on the testimony of their expert witness, Sutton, arguing his testimony established that Fisk’s actions could not support a finding of contributory negligence. We disagree.
Sutton, qualified by the trial court as an expert in accident reconstruction, testified for plaintiffs as to the results from his reconstruction of the accident under different variables. Sutton concluded that under each scenario he tested, Fisk did not have sufficient time to avoid the collision. The record reveals, however, multiple inconsistencies in Sutton’s testimony that would permit a jury to reach a different conclusion.
Sutton’s multiple reconstruction scenarios differed by varying the assumed speeds of Fisk and Murphy and the distance from the intersection at which Murphy came to a stop. The result of each scenario produced an estimate of the sight distance each driver had of oncoming traffic and an estimate of the number of seconds Fisk had to avoid the collision.
Because the stop sign in Murphy’s direction of travel was located 50 feet from the intersection, there was a great deal of testimony as to where Murphy came to a stop — at the stop sign, at the intersection, or at some point in between. When Sutton assumed Murphy stopped at a point in between the stop sign and the edge of the intersection — as Murphy testified in court that he did — then both Fisk and Murphy would have been able to see over 700 feet of the road leading up to the point of the collision. Traveling at 35 miles per hour (approximately 51 feet per second), the highest rate of speed Sutton assumed Fisk was travelling, Fisk would have had approximately 14 seconds to perceive Murphy’s truck. Sutton insisted, however, that Fisk had less than one second to perceive Murphy’s truck as a hazard and attempt to avoid the collision.
Sutton’s conclusion ignores the possibility that Fisk could have perceived Murphy’s truck as a hazard and responded accordingly before Murphy was in Fisk’s lane of travel. A jury could readily discern this discrepancy in Sutton’s testimony and conclude Fisk had sufficient time to see Murphy’s truck and avoid the collision.
In fact, Sutton further testified that Fisk had an opportunity to decide whether he was in danger of colliding with Murphy’s truck before Murphy entered the intersection.
This testimony provides more than a scintilla of evidence that Fisk was negligent and his negligence contributed to his own injuries. From this evidence, a jury could conclude circumstances existed that would reasonably put Fisk on notice that he could not assume Murphy would yield at the intersection. Thus, it was proper to put to the jury the issue of whether Fisk was contributorily negligent for failing to reduce his speed, keep a proper lookout, or maintain control of his motorcycle such that it contributed to his injuries.