Opinion

Cissell v. Glover Landscape Supply, Inc.

  • 126 N.C. App. 667
  • 486 S.E.2d 472
  • 1997 N.C. App. LEXIS 605
Court
Court of Appeals of North Carolina
Filed
Jul 1, 1997
Status
Published
Author
John
On the bench
Greene, John, Walker
Cited by
10 cases
Authority
More cited than 12.8%

Reversed on other grounds by Cissell v. Glover Landscape Supply, Inc., 348 N.C. 67 (1998)

this Court “decline [d] to follow” earlier Court of Appeals decision “inconsistent with prior decisions of this Court and our Supreme Court”

How later courts described this case

  • this Court “decline [d] to follow” earlier Court of Appeals decision “inconsistent with prior decisions of this Court and our Supreme Court”

Written by the judges who cited it.

The opinion

Judge John

dissenting.

I concur with that portion of the majority opinion which holds that in the context of a standard negligence case, with its attendant issues of contributory negligence, “gross negligence” and “willful or wanton conduct” refer to the same level of tortious behavior.

However, I respectfully dissent from the majority’s holding that the conduct of defendant herein might properly be characterized as willful or wanton. While defendant’s violation of N.C.G.S. § 20-161(a) (1993) by leaving his nondisabled vehicle parked on the paved portion of a highway outside municipal corporate limits indisputably constituted negligence per se, see Hughes v. Vestal, 264 N.C. 500, 508 , 142 S.E.2d 361, 367 (1965), I do not believe his conduct manifested “a reckless indifference to the rights of others,” see Brewer v. Harris, 279 N.C. 288, 297 , 182 S.E.2d 345, 350 (1971) (citation omitted), in light of previous holdings of our courts.

The North Carolina Supreme Court has considered numerous cases in which plaintiff motorists collided with vehicles stopped on the road in the dark with no warning lights. See, e.g., King v. Allred, 309 N.C. 113 , 305 S.E.2d 554 (1983); Beasley v. Williams, 260 N.C. 561 , 133 S.E.2d 227 (1963); Cummins v. Fruit Co., 225 N.C. 625 , 36 S.E.2d 11 (1945). In each instance, the court decided the issue of the plaintiff’s contributory negligence was for the jury; in none of these cases did the court suggest the defendant’s actions might constitute willful or wanton conduct so as to overcome the plaintiff’s contributory negligence. Further, in State v. Gooden, 65 N.C. App. 669 , 309 S.E.2d 707 (1983), disc. review denied, 311 N.C. 766 , 321 S.E.2d 150 (1984), the State’s evidence showed that, upon running out of gas on a dark night, the defendant abandoned his vehicle protruding approximately six feet into the roadway and with no warning lights acti *672 vated. This Court reversed the defendant’s conviction of involuntary manslaughter, holding his conduct, which could not be considered willful, wanton, or intentional, did not support the element of culpable negligence necessary to constitute the crime. Id. at 674, 309 S.E.2d at 710 . See also Dixon v. Weaver, 41 N.C. App. 524 , 255 S.E.2d 322 (1979) (evidence plaintiff struck defendant’s automobile which had run out of gas and been abandoned by defendant in left lane of 1-40 in daytime, and that defendant failed to flag or warn other motorists of upcoming danger, insufficient to require submission to jury of issue of willful or wanton conduct).

In the case sub judice, defendant parked his 8-foot wide truck and trailer on a sunny morning on the right-hand side of an approximately 36-foot wide, straight and level roadway which presented no obstructions to hinder the view of approaching motorists. In view of the precedent cited above, the trial court did not err in declining to submit the issue of defendant Robert Glover’s willful and/or wanton conduct (gross negligence) to the jury. I vote no error.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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