Tort/Negligence – Contributory Negligence – Last Clear Chance Defense – Punitive Damages

Plaintiff’s negligence claim is barred by his own contributory negligence.

We affirmed the trial court’s orders.

Plaintiff sued defendant Hendricks in 2019, alleging a ball strike during a golf match caused injury and blindness to his left eye. Plaintiff filed an amended complaint in 2020 adding the City of Wilson as a defendant. The trial court entered an order in favor of Hendricks on based on the finding that there was “no genuine issue as to any material fact and that Hendricks was entitled to judgment as a matter of law on plaintiff’s contributory negligence, the defense of last clear chance, and plaintiff’s claim for punitive damages.” Defendant City of Wilson then moved for summary judgment on the basis that there were “no genuine issues as to any material fact . . . on the issues of immunity, negligence, and contributory negligence.” The court entered an order in favor of the city and plaintiff appealed from both orders.

On appeal, plaintiff contended the court erred in granting Hendricks’ motion for summary judgment on the issues of contributory negligence, last clear chance, and punitive damages. Plaintiff further contended the court erred in granting City of Wilson’s motion for summary judgment on the issues of sovereign immunity, negligence, and contributory negligence.

First, plaintiff contended the court erred in granting summary judgment for defendants as to the contributory negligence claim because genuine issues of material fact remain in the matter. We disagreed. Plaintiff failed to exercise ordinary care for his safety, and there was a proximate connection between that failure and his injury. Although not an avid golfer, plaintiff testified that, having previously played and watched the sport, he was familiar with its rules and the dangers of being exposed to areas where balls are hit. Thus, when plaintiff became exposed to the flight of defendant Hendricks’ ball in the driving range, his lack of situational awareness, due at least in part to his intoxication5 and the distraction from his cell phone, constituted plaintiff’s failure to exercise ordinary care. Although plaintiff testified he was unaware he was even at the driving range, let alone in an exposed area, he would have known had he acted reasonably by maintaining awareness of his surroundings.

Exactly how the golf cart plaintiff was sitting in became exposed to Hendricks’ ball is not a material issue. The court did not err in granting defendants’ motions for summary judgment as to contributory negligence.

Plaintiff’s contention pursuant to the last clear chance doctrine also failed because Hendricks did not discover, nor should he have discovered, plaintiff’s position until after he had already hit the ball. Specifically, if the cart had moved forward onto the driving range while Hendricks was looking down and addressing his ball, Hendricks would not have known of plaintiff’s precarious position until after he hit the ball. Golfers in North Carolina have a duty to “give adequate and timely notice to persons who appear to be unaware of their intentions to hit the ball when they know, or should know, that such persons are so close to the intended flight of the ball that danger to them may be reasonably anticipated.” However, they are not “insurer[s] of such persons, nor does such duty arise for the benefit of persons situate[d] in a place where danger from the driven ball might not be reasonably anticipated.”

Plaintiff next contended the court erred in granting summary judgment on the issue of punitive damages. We disagreed. To recover punitive damages in North Carolina, “a claimant must prove that an aggravating factor of fraud, malice, or willful or wanton conduct is present and related to the injury subject to compensatory damages.” None of Hendricks’ actions rose to this level.

Finally, plaintiff contended the court erred in granting City of Wilson’s motion for summary judgment on the issues of sovereign immunity and negligence. However, even assuming that governmental immunity is not available to City of Wilson as a defense, neither issue needed to be addressed because there was no genuine dispute of material fact as to plaintiff’s contributory negligence as detailed in the analysis for his claim against Hendricks. Plaintiff’s negligence claim is therefore barred by his own contributory negligence.

Affirmed.

Moseley v. Hendricks (Lawyers’ Weekly No. 011-021-24, 22 pp.) (John Arrowood, J.) Appealed from Wilson County Superior Court (William D. Wolfe, J.) Narron & Holdford, P.A., by Ben L. Eagles, and Schmidt Law, PLLC, by Kurt Schmidt, for plaintiff-appellant; Brown, Crump, Vanore & Tierney, PLLC, by O. Craig Tierney, Jr. and Noelle K. Demeny, for defendant-appellee Johnny A. Hendricks, Jr.; Cauley Pridgen, P.A., by James P. Cauley, III, Emily C. Cauley-Schulken, and Clayton H. Davis, for defendant-appellee City of Wilson. North Carolina Court of Appeals