An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-101

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

EBELE ANN ORAEFO,

Plaintiff

v. Wake County

No. 11-CVS-12463

CHRISTINA CLAREASA POUNDS,

Defendant.

Appeal by plaintiff from judgment entered 18 May 2012 by 

Judge Michael R. Morgan in Wake County Superior Court. Heard in 

the Court of Appeals 26 September 2013.

E. Gregory Stott for plaintiff-appellant.

Haywood, Denny and Miller, L.L.P., by George W. Miller, 

III, for defendant-appellee.

DAVIS, Judge.

Plaintiff Ebele Ann Oraefo (“Plaintiff”) appeals from a 

judgment entered by the trial court based on the jury’s verdict 

in favor of Defendant Christina Clareasa Pounds (“Defendant”) in 

a negligence action. Plaintiff’s primary contention on appeal 

is that the trial court committed reversible error by submitting 
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the issue of contributory negligence to the jury. After careful 

review, we affirm.

Factual Background

This case arises out of a motor vehicle collision that 

occurred on 26 August 2008 on N.C. Highway 55 (also known as 

Alston Avenue) in Durham, North Carolina. Defendant, a student 

at Durham Technical Community College, was leaving campus in her 

car and planned to take N.C. Highway 55 to Interstate 40 in 

order to return home to Chapel Hill. Defendant entered N.C. 

Highway 55 – a four lane highway running north and south. 

Defendant was driving southbound when she came upon Plaintiff -

also traveling southbound - who was driving a Honda Accord 

directly in front of Defendant’s vehicle in the far right-hand

lane.

Plaintiff, a student at North Carolina Central University 

(“NCCU”), was traveling on N.C. Highway 55 after leaving 

Vocational Rehab, where she worked as an intern. Plaintiff was 

en route to her professor’s office on NCCU’s campus to drop off

some documents. The weather at this time was misty, and it had 

been raining all morning.

Because Plaintiff appeared to be traveling slower than the 

posted 45 mile per hour speed limit, Defendant decided to switch 
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into the left southbound lane for the purpose of passing 

Plaintiff’s vehicle. From her rear view mirror, Plaintiff saw 

Defendant’s vehicle approaching and noticed that it was “weaving 

in and out of traffic.” As Defendant passed Plaintiff, 

Plaintiff honked her horn. Defendant moved alongside 

Plaintiff’s car, activated her right turn signal and attempted 

to re-enter the far right-hand lane in front of Plaintiff’s 

vehicle. Before Defendant actually moved over into the far 

right-hand lane, she saw Plaintiff’s vehicle both in her side 

view mirror and by looking directly over her shoulder. Because 

she perceived that Plaintiff’s car was a “great amount of 

distance behind” her own vehicle, she attempted to merge into

the far right-hand lane. She then felt a “bump” as the two 

automobiles collided. The collision occurred when the driver’s 

side of Plaintiff’s vehicle made contact with the passenger-side 

back bumper of Defendant’s vehicle.

After the collision, both Plaintiff and Defendant pulled 

over to the side of the road, and Plaintiff called the police. 

Corporal Michael Mole, an officer with the Durham Police 

Department, arrived on the scene and completed an accident 

report.
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On 11 August 2011, Plaintiff filed a complaint against 

Defendant in Wake County Superior Court, alleging that 

Defendant’s negligence was the proximate cause of injuries she

sustained as a result of the collision. In her answer, 

Defendant denied Plaintiff’s allegations and asserted 

contributory negligence as an affirmative defense, alleging that 

Plaintiff “failed to keep a proper lookout, failed to keep her 

vehicle under proper control, and failed to use reasonable care 

to avoid impact with Defendant’s vehicle.”

A jury trial was held on 30 April 2012 before the Honorable 

Michael R. Morgan. At the close of Plaintiff's evidence, 

Plaintiff moved for a directed verdict with respect to the 

issues of negligence and contributory negligence. Plaintiff’s 

motion was denied. At the close of all the evidence, Plaintiff 

renewed her motion for a directed verdict with respect to these

issues. This motion was also denied. The jury returned a 

verdict finding Defendant negligent but also finding Plaintiff 

contributorily negligent. The trial court entered judgment 

based on the jury’s verdict on 18 May 2012.

On 30 May 2012, Plaintiff filed a written motion for entry 

of judgment notwithstanding the verdict (“JNOV”) concerning the 

contributory negligence issue and for a new trial on the issue 
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of damages. The trial court denied Plaintiff's motions. 

Plaintiff filed a timely notice of appeal to this Court.

Analysis

Plaintiff argues on appeal that the trial court erred by

(1) denying her motion for a directed verdict on the issue of 

contributory negligence; and (2) denying her motions for JNOV

and for a new trial.

The standard of review applicable to a motion for a 

directed verdict is “whether the evidence, taken in the light 

most favorable to the non-moving party, is sufficient as a 

matter of law to be submitted to the jury.” Davis v. Dennis 

Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991).

“[A]ll of the evidence which supports the non-movant's claim 

must be taken as true . . . giving the non-movant the benefit of 

every reasonable inference which may legitimately be drawn 

therefrom and resolving contradictions, conflicts, and 

inconsistencies in the non-movant's favor.” Turner v. Duke 

Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989).

If there is more than a scintilla of 

evidence supporting each element of the 

nonmovant's case, the motion for directed 

verdict should be denied. Thus, where a 

defendant pleads an affirmative defense such 

as contributory negligence, a motion for 

directed verdict is properly granted against 

the defendant where the defendant fails to 
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present more than a scintilla of evidence in 

support of each element of his defense.

Whisnant v. Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850 

(2004) (quotation marks and citations omitted). A directed 

verdict in a negligence case is rarely proper because it is the 

duty of the jury to apply the test of a person using ordinary 

care. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 138, 539 

S.E.2d 331, 333 (2000).

The standard of review for a JNOV motion is the same as

that regarding the denial of a directed verdict motion — that

is, “whether the evidence was sufficient to go to the jury.” 

Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness 

Church of God, Inc., 136 N.C. App. 493, 498–99, 524 S.E.2d 591, 

595 (2000). With regard to a motion for a new trial, such 

motions are addressed to the discretion of the trial court, and

our review is strictly limited to whether the record 

affirmatively shows a manifest abuse of discretion. Streeter v. 

Cotton, 133 N.C. App. 80, 82, 514 S.E.2d 539, 542 (1999).

Here, the issues Plaintiff raises on appeal all hinge on 

whether the evidence presented at trial by Defendant – along 

with all reasonable inferences that may be drawn therefrom – was 

sufficient to allow the issue of contributory negligence to be 

submitted to the jury. Because we conclude that sufficient 
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evidence existed to support a finding of contributory negligence 

by the jury, we affirm.

Contributory negligence is “negligence on the part of the 

plaintiff which joins, simultaneously or successively, with the 

negligence of the defendant . . . to produce the injury of which 

the plaintiff complains.” Bosley v. Alexander, 114 N.C. App. 

470, 472, 442 S.E.2d 82, 83 (1994) (citation omitted). In

determining whether a plaintiff is guilty of contributory 

negligence, a jury must determine “whether a person using 

ordinary care for his or her safety under similar circumstances 

would have recognized the danger.” Stallings, 141 N.C. App. at 

137, 539 S.E.2d at 333 (citation omitted).

“The plaintiff's negligence, in order to bar a recovery . . 

., need not be the sole proximate cause of the injury . . . . 

It is sufficient if [the plaintiff's] negligence is a cause, or 

one of the causes, without which the injury would not have 

occurred.” Whaley v. Adams, 25 N.C. App. 611, 613–14, 214 S.E.2d 

301, 303 (1975) (citation omitted). “[S]ince negligence usually 

involves issues of due care and reasonableness of actions under 

the circumstances, it is especially appropriate for 

determination by the jury. In borderline cases, fairness and 

judicial economy suggest that courts should decide in favor of 
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submitting issues to the jury.” Whisnant, 166 N.C. App. at 722-

23, 603 S.E.2d at 850 (citations and quotation marks omitted).

In the context of evaluating a contributory negligence

issue arising from a motor vehicle accident, we have held that 

“a driver must keep such an outlook in the direction of travel 

as a reasonably prudent person would keep under the same or 

similar circumstances.” Sink v. Sumrell, 41 N.C. App. 242, 246, 

254 S.E.2d 665, 668-69 (1979) (citation omitted). We have also 

recognized that “N.C. Gen. Stat. § 20–141(a)1 and N.C. Gen. Stat. 

§ 20–141(m)2, construed together, establish a duty to drive with 

caution and circumspection and to reduce speed if necessary to 

avoid a collision, irrespective of the lawful speed limit or the 

speed actually driven.” State v. Stroud, 78 N.C. App. 599, 603, 

337 S.E.2d 873, 876 (1985).

Our Supreme Court has held that

[o]rdinarily a person has no duty to 

 

1 N.C. Gen. Stat. § 20–141(a) states: “No person shall drive a 

vehicle on a highway or in a public vehicular area at a speed 

greater than is reasonable and prudent under the conditions then 

existing.”

2 N.C. Gen. Stat. § 20–141(m) provides: “The fact that the speed 

of a vehicle is lower than the . . . limits shall not relieve 

the operator of a vehicle from the duty to decrease speed as may 

be necessary to avoid colliding with any person, vehicle or 

other conveyance on or entering the highway, and to avoid injury 

to any person or property.”
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anticipate negligence on the part of others. 

In the absence of anything which gives or 

should give notice to the contrary, he has 

the right to assume and to act on the 

assumption that others will observe the 

rules of the road and obey the law. However, 

the right to rely on this assumption is not 

absolute, and if the circumstances existing 

at the time are such as reasonably to put a 

person on notice that he cannot rely on the 

assumption, he is under a duty to exercise 

that care which a reasonably careful and 

prudent person would exercise under all the 

circumstances then existing.

Penland v. Green, 289 N.C. 281, 283, 221 S.E.2d 365, 368 (1976) 

(citations omitted); see McNair v. Goodwin, 264 N.C. 146, 148, 

141 S.E.2d 22, 23 (1965) (per curiam) (reasonable prudence 

requires motorist who sees another vehicle being operated in 

negligent manner to take all the more care to avoid collision).

We believe that, taken together, Plaintiff’s and 

Defendant’s testimony at trial constituted sufficient evidence 

for the trial court to submit the issue of contributory 

negligence to the jury. Plaintiff testified that she “saw

[Defendant] from the rear view [mirror] weaving in and out of 

traffic,” honked her horn when Defendant was in the process of 

passing her vehicle, and observed Defendant’s turn signal

flashing before Defendant merged back into Plaintiff’s lane, 

thereby putting her on notice of Defendant’s intent to re-enter 

her lane of travel.
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Defendant testified that when she looked over her shoulder

prior to re-entering the far right-hand lane, “[Plaintiff] was a 

great amount of distance behind” and when Defendant started to 

“move over, [Plaintiff] just came out of nowhere.”

The jury could have reasonably inferred from this evidence 

that Plaintiff — being fully aware of Defendant’s intent to reenter her lane of travel — breached her duty of care by failing

to reduce her speed or otherwise attempt to avoid a collision.

Accordingly, we conclude that sufficient evidence existed to 

raise a jury question as to whether Plaintiff was contributorily 

negligent. Therefore, Plaintiff’s motions for a directed 

verdict, JNOV, and new trial were properly denied.

Conclusion

For the reasons stated above, we affirm.

AFFIRMED.

Judges HUNTER, JR. and ERVIN concur.

Report per Rule 30(e).