Manley ex rel. Manley v. Parker

McGEE, Judge. The determining issue on appeal is whether plaintiff presented sufficient evidence to overcome defendants’ motion for a directed [542] verdict. After reviewing the record and transcript, we hold that he did not and affirm the order of the trial court. The well-settled rule in this state is that a driver who otherwise exercises reasonable care has no duty to foresee the sudden appearance of a child who darts out into a street. Koonce v. May, 59 N.C. App. 633, 635-36, 298 S.E.2d 69, 72 (1982). “[T]he rule is that the driver is not the insurer of the safety of children in the street, and that under ordinary circumstances he is not bound to anticipate children in his pathway; a driver has to have enough time to stop or to avoid a collision before his failure to do so can be actionable negligence.” Koonce, 59 N.C. App. at 636, 298 S.E.2d at 72. “It should be noted that the ‘darting children’ cases affirming a defendant driver’s motion for a directed verdict appear to share a common theme. Generally, the plaintiff in those cases failed to present sufficient evidence on the defendant’s ability to avoid the accident.” Phillips v. Holland, 107 N.C. App. 688, 692, 421 S.E.2d 608, 610 (1992), affirmed, 333 N.C. 571, 429 S.E.2d 347 (1993). In this case, plaintiff failed to produce any evidence that defendant Phillips could have avoided the accident. The only testimony presented showed that neither plaintiff nor his sister saw Phillips’ vehicle before the accident and that Phillips told Officer Cates she did not see plaintiff until he darted into her path. Phillips was traveling below the posted speed limit and there was no evidence she left her proper lane of travel. Therefore, plaintiff presented no evidence that Phillips did see him or should have seen him in time to avoid the accident. However, plaintiff contends he presented evidence creating an issue of material fact from which a jury could find negligence. First, he argues that because Phillips told Officer Cates she saw a young girl, presumably plaintiff’s sister, across the street, Phillips was either improperly distracted from keeping a proper lookout and/or had a heightened duty to be on the lookout for children. See Koonce, 59 N.C. App. at 636, 298 S.E.2d at 72 (“When a driver knows or should know . . . that there are children on or near a roadway, he has a duty to use due care to control the speed and movement of his vehicle and to keep a vigilant lookout to avoid injury.”). However, even if Phillips had a heightened duty to keep a proper lookout because she saw a young girl by the roadside or even if she was improperly distracted by the girl, there is no evidence in the record that, in the exercise of due care, Phillips should have seen the plaintiff in time to avoid the acci [543] dent. Without proof that a defendant’s inattention was a proximate cause of a collision with a child and that the defendant could have avoided the accident with the exercise of reasonable care, the defendant is entitled to a directed verdict in her favor, even assuming she failed to keep a proper lookout. Daniels v. Johnson, 25 N.C. App. 68, 71, 212 S.E.2d 245, 247 (1975). Plaintiff also argues that since Officer Cates testified there were no obstructions to a driver’s view on the roadway, it can be inferred that Phillips could have seen the child. However, this inference, without more, is insufficient to show negligence. In Daniels, this Court held that even though it could be reasonably inferred the defendant could have seen the plaintiff child crossing the street sometime during his crossing, without any evidence of when and where the plaintiff became visible to the defendant in relation to the positions of the two parties, the plaintiff failed to present sufficient evidence to overcome defendant’s motion for a directed verdict. Daniels, 25 N.C. App. at 70, 212 S.E.2d at 246-47. In so holding, this Court said: There is no evidence in this record whatsoever as to where the defendant was at any particular time until she apparently applied her brakes five feet before striking the plaintiff. Thus, the evidence adduced at trial does not provide the answer to the crucial question in the case, that is, whether defendant, in the exercise of due care, could have seen the plaintiff in sufficient time to anticipate his collision course and to have taken effective measures to avoid striking him. Left to speculation is where the defendant was when she saw or by the exercise of reasonable care should have seen the plaintiff. Id. Here, as in Daniels, there is only speculation, not evidence, concerning whether defendant should have seen the plaintiff and could have avoided the accident. For the reasons stated, the order of the trial court granting defendants’ motion for a directed verdict is affirmed. Affirmed. Judges GREENE and MARTIN, Mark D. concur.