Jolly v. McBarney et al

Filing 46

ORDER denying 39 Motion for Summary Judgment. Signed by District Judge Richard Voorhees on 8/1/2013. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:11-cv-00062-RLV-DSC
PETER JOLLY

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Plaintiff,
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v.
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DAVID THOMAS MCBURNEY, GUNTIS
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GRABAZS, and CAITLIN ELIZABETH
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JOY,
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Defendants.
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_____________________________________ )

MEMORANDUM AND ORDER

THIS MATTER is before the Court on Defendants Grabazs and Joy’s Motion for
Summary Judgment and Memorandum in Support of Summary Judgment (Doc. 39), filed on
March 28, 2013. Unnamed Defendant, GEICO Indemnity Company, filed a Memorandum in
Opposition to Motion for Summary Judgment (Doc. 41) on April 15, 2013, and Plaintiff filed a
Response in Opposition to Motion for Summary Judgment (Doc. 42) on April 15, 2013. All of
the responsive pleadings were timely filed and have been fully considered by this Court.
I. BACKGROUND
The present case arises from a multi-vehicular collision that occurred in Boone, North
Carolina, on May 2, 2008, involving three automobiles: a 1998 Mazda (Unit 3), owned and
operated by Plaintiff Peter Jolly, a 1995 Volvo (Unit 2), owned by Defendant Guntis Grabazs
and operated by Defendant Caitlin Elizabeth Joy, and a 1989 Chevrolet (Unit 1), owned and
operated by Defendant David McBurney. Doc. 39, Ex. 1. Immediately before the collision
occurred, Defendant Joy was traveling south on Blowing Rock Road directly behind Plaintiff
Jolly, and Defendant McBurney was traveling south directly behind Defendant Joy. Id.

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Allegedly, Plaintiff Jolly brought his vehicle to a stop behind a large, white SUV and was then
struck from behind by Joy. Doc. 39, Ex. 5; Jolly Dep. 21, 24–26.
On May 2, 2011, Plaintiff commenced litigation, bringing claims against Defendants Joy
and McBurney for negligence, and against Defendant Grabazs for negligent entrustment,
respondeat superior, and the family-purpose doctrine.1 Doc. 1. Plaintiff filed an Amended
Complaint on August 17, 2011, in order to correct the spelling of Defendant McBurney’s
surname. Doc. 17. In the Complaint, Jolly avers two different sequences of events preceding the
collision. In paragraph twelve of the Amended Complaint, Plaintiff alleges that Defendant
McBurney struck Defendant Joy’s vehicle, which caused Defendant Joy to “forcefully collide”
with Plaintiff. Compl. ¶ 12. In paragraph thirteen of the Amended Complaint, Plaintiff alleges
that Defendant Joy struck Plaintiff and, after their vehicles came to rest, Defendant McBurney
struck Defendant Joy, causing a second impact with the rear of Plaintiff’s vehicle. Compl. ¶ 13.
Defendants Joy and Grabazs filed an Answer to the Amended Complaint and crossclaim
for contribution against Defendant McBurney on August 23, 2011, maintaining that Defendant
Joy did not strike Plaintiff’s vehicle until after she was struck from the rear by Defendant
McBurney, admitting that Defendant McBurney struck Defendant Joy’s vehicle, which caused
Defendant Joy to strike the vehicle operated by Plaintiff, and denying all allegations of
negligence. Doc. 19. Unnamed Defendant GEICO Indemnity Company, Plaintiff’s uninsured/
underinsured motorist carrier (UIM), filed an Answer to the Amended Complaint on September
6, 2011, stating Unnamed Defendant lacked sufficient knowledge to form a belief as to the truth
of the allegations and thus denying all allegations. Doc. 21. Defendant McBurney filed an
Answer to the Amended Complaint and Defendants Joy and Grabazs’s crossclaim for
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Defendants Joy and Grabazs jointly answered the Complaint on June 16, 2011, and Unnamed
Defendant GEICO Indemnity Company answered the Complaint on July 19, 2011.

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contribution, and his own crossclaim for contribution or indemnity against Defendants Joy and
Grabazs on September 23, 2011, denying all allegations of negligence and denying the
allegations listed in paragraphs twelve and thirteen of the Complaint. Doc. 22. Defendants Joy
and Grabazs filed an Answer to Defendant’s McBurney’s crossclaim for contribution or
indemnity on September 28, 2011. Doc. 23.
Integon National Insurance Company, Defendant McBurney’s liability carrier, tendered
the full amount of Defendant McBurney’s policy limit of $30,000 to Plaintiff as consideration
for a covenant not to enforce judgment resulting from any and all claims against Defendant
McBurney in connection with the May 2, 2008, collision. Plaintiff executed the Covenant Not to
Enforce Judgment on October 15, 2012. Doc. 36, Ex. A.
According to Defendants Joy and Grabazs, based upon the absence of any genuine issue
of material fact after discovery regarding their negligence, Plaintiff’s counsel agreed to dismiss
Defendants Joy and Grabazs from the lawsuit, and prepared and executed a Stipulation of
Dismissal. Doc. 39, Ex. 2. Purportedly, the Stipulation of Dismissal was not filed because
Unnamed Defendant GEICO refused to consent to the dismissal. Doc. 39 at 3. On March 28,
2013, Defendants Joy and Grabazs filed a Motion for Summary Judgment and memoranda in
support thereof, asserting that they are entitled to judgment as a matter of law because no
genuine issue of material fact exists supporting Plaintiff’s negligence claims against them. Doc.
39.
III. STANDARD OF REVIEW
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The substantive law identifies which facts are material, and a dispute “over facts that

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might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over
facts is genuine only “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
When ruling on a motion for summary judgment, the Court must view the evidence and
any reasonable inferences arising therefrom in the light most favorable to the nonmoving party.
Anderson, 477 U.S. at 255. “Permissible inferences must still be within the range of reasonable
probability, however, and it is the duty of the court to withdraw the case from the jury when the
necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Sylvia
Dev. Corp. v. Calvert County, 48 F.3d 810, 818 (4th Cir. 1995) (quoting Ford Motor Co. v.
McDavid, 259 F.2d 261, 266 (4th Cir. 1958). “Whether an inference is reasonable . . . must be
considered “in light of the competing inferences” to the contrary. Id. at 818 (quoting Matsushita
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Ultimately, “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.” Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (quoting Matsushita v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
A moving party satisfies its burden by showing that “there is an absence of evidence to
support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The
moving party must support its assertion and inform the district court of the basis for its motion
by identifying those portions of the record before the Court that demonstrate the absence of a
genuine issue of material fact. Id. at 323. If the moving party satisfies its burden, the
nonmoving party must establish that there are genuine issues of material fact by presenting
sufficient evidence from which a reasonable jury could return a verdict for the nonmoving party.

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Anderson, 477 U.S. at 252. The nonmoving party may not rely upon mere allegations or denials
of allegations in his pleadings to defeat a motion for summary judgment. Celotex, 477 U.S. at
324. “The mere existence of a scintilla of evidence in support of the [nonmoving party]’s
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [nonmoving party].” Anderson, 477 U.S. at 252.
IV. DISCUSSION
In order to survive a motion for summary judgment, Plaintiff must establish a prima facie
case of negligence by showing “(1) that defendant failed to exercise proper care in the
performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause
of plaintiff's injury; and (3) a person of ordinary prudence should have foreseen that plaintiff's
injury was probable under the circumstances.” McCorkle v. N. Point Chrysler Jeep, Inc., 703
S.E.2d 750, 752 (N.C. Ct. App. 2010) (quoting Pike v. D.A. Fiore Constr. Servs., Inc., 689
S.E.2d 535, 537 (N.C. Ct. App. 2009)). “Ordinarily the mere fact of a collision with a vehicle
ahead furnishes some evidence that the following motorist was negligent as to speed, was
following too closely, or failed to keep a proper lookout.” Parker v. Bruce, 128 S.E.2d 561, 562
(N.C. 1962). While “the fact that a following vehicle has collided with a preceding one does not
compel” a determination as to negligence, it “raises a question for determination by the jury.”
Scher v. Antonucci, 336 S.E.2d 434, 435 (N.C. Ct. App. 1985) (quoting Daughtry v. Turnage,
246 S.E.2d 788, 791 (N.C. 1978)).
Defendants Joy and Grabazs assert there is an absence of any genuine issue of material
fact because the evidence shows that Joy came to a complete stop before she was hit from behind
by McBurney and pushed into Jolly’s vehicle. Doc. 39 at 7. In support, Joy and Grabazs cite

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relevant parts of Defendant Joy’s deposition, Defendant McBurney’s deposition, and Plaintiff
Jolly’s deposition.
Joy testified that immediately prior to the collision, Jolly “slammed on his brakes all the
way” and “stopped short,” and Joy brought her vehicle to a complete stop less than a car length
behind Jolly’s vehicle. Doc. 39, Ex. 3; Joy Dep. 7–8. McBurney testified that he struck Joy in
the rear once she had come to a complete stop. Doc. 39, Ex. 4; McBurney Dep. 30. McBurney
also testified that although he did not see or hear any impact before he struck Joy he has no
knowledge of whether he struck Joy before or after Joy struck Jolly. Doc. 39, Ex. 4; McBurney
Dep. 30–31, 43. Jolly testified that he saw Joy’s vehicle approaching him from behind after he
stopped behind a large white SUV and that she struck his vehicle a few seconds later. Doc. 39,
Ex. 5; Jolly Dep. 29–30. Jolly also testified that he distinctly remembered and is “very certain”
he felt two impacts to the rear of his vehicle. Doc. 39, Ex. 5; Jolly Dep. 31–33, 36.
Many scenarios can reasonably be inferred from the evidence presented. However,
viewing all evidence in the light most favorable to the non-moving party, Jolly’s testimony that
he felt two impacts from behind raises an inference that Joy struck Jolly and, after their vehicles
came to rest, McBurney struck Joy, causing a second impact with the rear of Jolly’s vehicle.

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V. CONCLUSION
Having reviewed the parties’ legal arguments, the evidentiary record, and the applicable
law, the Court finds that genuine disputes of fact surrounding the May 2, 2008, multi-vehicular
collision exist such that summary judgment is precluded.
IT IS, THEREFORE, ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 39) be DENIED.
Signed: August 1, 2013

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