# Cissell v. Glover Landscape Supply, Inc.

> Court of Appeals of North Carolina · July 1, 1997 · 126 N.C. App. 667

URL: https://www.frixlaw.com/law-library/cases/9850944

## Case

- **Full name:** JAMES KEVIN CISSELL, Administrator of the Estate of CARLA T. CISSELL, Plaintiff v. GLOVER LANDSCAPE SUPPLY, INC. and ROBERT C. GLOVER, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** July 1, 1997
- **Citations:** 126 N.C. App. 667; 486 S.E.2d 472; 1997 N.C. App. LEXIS 605
- **Precedential status:** Published
- **Opinion:** Dissent by John
- **Judges:** Greene, John, Walker
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Cissell v. Glover Landscape Supply, Inc., 348 N.C. 67 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9850944

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9850944. Public record. Not legal advice.