An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-509

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

JAMES C. BURGESS, III,

Plaintiff,

v. Union County

No. 11 CVS 2342

RANDI L. DORTON,

Defendant.

Appeal by Plaintiff from order entered 4 December 2012 by 

Judge Anna Mills Wagoner in Union County Superior Court. Heard in 

the Court of Appeals 8 October 2013.

Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin 

Smith, and Archibald Law Office, by C. Murphy Archibald, for 

Plaintiff.

Robinson Elliott & Smith, by William C. Robinson, and 

Katherine A. Tenfelde, for Defendant.

DILLON, Judge.

James C. Burgess, III (Plaintiff), appeals from the trial 

court’s order denying his motion for a new trial. We affirm.

I. Factual & Procedural Background

Plaintiff commenced this action in Union County Superior 

Court, seeking damages he sustained when the bicycle he was riding 
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collided with an automobile driven by Randi L. Dorton (Defendant) 

on the evening of 6 November 2010. Defendant filed an answer, 

generally denying Plaintiff’s allegations of negligence and raising 

contributory negligence as a defense to Plaintiff’s claim. The 

matter came on for trial in Union County Superior Court on 13 

August 2012, at which time the trial court allowed Plaintiff to 

amend his complaint to plead that even if his negligence had 

contributed to the accident, he was nevertheless entitled to 

recover for his injuries based upon Defendant’s “last clear chance” 

to avoid the accident. 

Plaintiff testified at trial that he “could see real well” 

when he mounted his silver Colnago road bicycle on the evening in 

question and embarked upon a route he had traveled “hundreds of 

times” previously. Plaintiff rode his bicycle eastbound along a 

two-lane rural, country road in Union County at a speed of 

approximately eight miles per hour. Plaintiff wore a blue jacket 

with “a large white V on the front”; a helmet; black bicycle shoes; 

and black “luminite” pants, which Plaintiff testified had 

reflective qualities that should have made him visible to 

motorists. Plaintiff rode without any safety lights on the front 

or rear of his bicycle and without any safety reflectors on the 

seat, handle bars, or spokes of the bicycle. 
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Defendant testified that “it was dusk” and “getting pretty 

dark” when she left her shift as a prison correctional officer in 

Polkton, North Carolina, shortly after 6:00 p.m. that evening. 

Defendant drove approximately forty-five minutes towards her 

boyfriend’s house, which was located on the aforementioned two-lane 

country road. Defendant testified that her headlights were on and 

that they were set to automatically adjust as lighting conditions 

changed. Defendant presented evidence indicating that the sun set 

that evening at 6:24 p.m. 

Defendant drove westbound towards Plaintiff, as Plaintiff rode 

his bicycle eastbound, on the right hand side of the road, towards 

Defendant. Defendant testified that it was “very dark” by the time 

she approached her boyfriend’s house. Defendant rounded a curve in 

the road and, as she came out of the curve, drove “fairly slow” as 

she approached her boyfriend’s driveway.

Defendant started to make a left-hand turn (across the road) 

into the driveway. Defendant testified that, as she made the turn, 

her vehicle collided with Plaintiff, knocking the driver’s side 

mirror off her vehicle and knocking Plaintiff off his bicycle. 

Defendant testified that although her headlights were on, she did 

not see Plaintiff until the moment of impact. Plaintiff likewise 

testified that he neither saw nor heard Defendant’s vehicle prior 
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to the moment of impact, and, further, that he could not even 

identify the direction in which Defendant had been traveling at the 

time. Plaintiff also testified that he “could see fairly well” at 

the time of the accident, though he subsequently testified that he 

could see “really well out there.” Plaintiff also introduced into 

evidence a video recording that he had made with his wife upon 

returning to the scene of the accident, asserting that the video 

was indicative of the lighting conditions at the time of the 

accident. 

The parties dispute the time period that elapsed between the 

accident and the arrival of Emergency Medical Technicians (EMTs) 

and the first responding police officer, Trooper Brian Kirkpatrick 

of the North Carolina Highway Patrol. Plaintiff testified that the

EMTs arrived at the scene approximately fifteen minutes after the 

accident and that Trooper Kirkpatrick arrived shortly thereafter. 

Defendant, in contrast, averred that Trooper Kirkpatrick arrived at 

the scene only one to two minutes after the accident occurred, at 

6:48 or 6:49 p.m. Trooper Kirkpatrick testified that Plaintiff was 

“[h]ard to see” when he arrived at the scene of the accident; that 

Plaintiff did not appear to be wearing any reflective clothing; and 

that there was “nothing on the bike that reflected.” 

On 16 August 2012, the jury returned verdicts concluding that 
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Plaintiff had been injured as a result of Defendant’s negligence, 

but that Plaintiff’s own negligence had contributed to his 

injuries. Significantly, the trial court had declined to instruct 

the jury on the last clear chance doctrine upon concluding that 

there was insufficient evidence in support thereof, and thus the 

jury did not make any determination on this issue. Accordingly, 

Plaintiff was barred from recovering for any of the damages he had 

incurred as a result of the accident. The trial court entered a 

judgment consistent with the jury’s verdicts on 22 August 2012. 

On 31 August 2012, Plaintiff moved for a new trial pursuant to 

Rule 59 of the North Carolina Rules of Civil Procedure, contending 

that he had presented sufficient evidence to submit the issue of 

last clear chance to the jury. Following a hearing on the matter, 

the trial court entered an order denying Plaintiff’s motion on 4 

December 2012. From this order, Plaintiff appeals. 

II. Analysis

Plaintiff contends (1) that the trial court erred in failing 

to instruct the jury on the doctrine of last clear chance; and (2) 

that the trial court erred in denying his motion for a new trial, 

which Plaintiff had asserted based upon the trial court’s alleged 

error in failing to submit the issue of last clear chance to the 

jury. Because Plaintiff’s arguments both raise the same 
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substantive issue concerning whether application of the last clear 

chance doctrine was supported by the evidence presented at trial, 

we address them together; and, for the reasons that follow, we 

uphold the trial court’s order. 

“The issue of last clear chance ‘[m]ust be submitted to the 

jury if the evidence, when viewed in the light most favorable to 

the plaintiff, will support a reasonable inference of each 

essential element of the doctrine.’” Culler v. Hamlett, 148 N.C. 

App. 372, 379, 559 S.E.2d 195, 200 (2002) (citations omitted) 

(alteration in original). Our Supreme Court has articulated the 

elements that a plaintiff must establish to invoke the doctrine of 

last clear chance as follows: 

Where an injured pedestrian who has been guilty 

of contributory negligence invokes the last 

clear chance or discovered peril doctrine 

against the driver of a motor vehicle which 

struck and injured him, he must establish these 

four elements: (1) That the pedestrian 

negligently placed himself in a position of 

peril from which he could not escape by the 

exercise of reasonable care; (2) that the 

motorist knew, or by the exercise of reasonable 

care could have discovered, the pedestrian’s 

perilous position and his incapacity to escape 

from it before the endangered pedestrian 

suffered injury at his hands; (3) that the 

motorist had the time and means to avoid injury 

to the endangered pedestrian by the exercise of 

reasonable care after he discovered, or should 

have discovered, the pedestrian’s perilous 

position and his incapacity to escape from it; 

and (4) that the motorist negligently failed to 
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use the available time and means to avoid 

injury to the endangered pedestrian, and for 

that reason struck and injured him.

Wade v. Jones Sausage Co., 239 N.C. 524, 525, 80 S.E.2d 150, 151 

(1954) (citations omitted). “[U]nless all the necessary elements 

of the doctrine of last clear chance are present, the case is 

governed by the ordinary rules of negligence and contributory 

negligence.” Culler, 148 N.C. App. at 379, 559 S.E.2d at 200. 

Further, where the last clear chance doctrine does apply, “the 

focus is not on the preceding negligence of the defendant or the 

contributory negligence of the plaintiff which would ordinarily 

defeat recovery. Rather, the doctrine . . . contemplates that if 

liability is to be imposed the defendant must have a last ‘clear’ 

chance to avoid injury.” Id. at 379, 559 S.E.2d at 200-01 

(citations and quotation marks omitted).

Defendant’s negligence and Plaintiff’s contributory negligence 

have been established and are not at issue on appeal. The question 

for this Court is whether the evidence, when viewed in the light 

most favorable to Plaintiff, was sufficient to establish each 

element of the last clear chance doctrine. We conclude that it was 

not. 

Plaintiff was required to show that Defendant “had the time 

and means to avoid injury to [Plaintiff] by the exercise of 
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reasonable care after he discovered, or should have discovered, 

[Plaintiff’s] perilous position and his incapacity to escape from 

it.” Wade, 239 N.C. at 525, 80 S.E.2d at 151. “The essence of 

this element, and the fundamental difference between a ‘last clear 

chance” and a ‘last possible chance,” is that defendant must have 

‘the time and the means to avoid the injury to the plaintiff by the 

exercise of reasonable care after she discovered or should have 

discovered plaintiff’s perilous position.’” Vancamp v. Burgner, 

328 N.C. 495, 499, 402 S.E.2d 375, 377 (1991) (quoting Watson v. 

White, 309 N.C. 498, 505-06, 308 S.E.2d 268, 273 (1983)) (emphasis 

in original). “The reasonableness of a defendant’s opportunity to 

avoid doing injury must be determined on the particular facts of 

each case. Id. (citing Exum v. Boyles, 272 N.C. 567, 575, 158 

S.E.2d 845, 852 (1968)).

Here, Defendant testified that she saw Plaintiff through her 

driver’s side window just as her vehicle struck him. Plaintiff 

similarly testified that he saw Defendant’s vehicle at or about the 

moment of impact and was thus unable to avoid the resulting 

collision. In other words, the undisputed evidence indicated that 

the accident was imminent and unavoidable by the time Defendant 

actually saw Plaintiff and Plaintiff actually saw Defendant. 

Further, whatever opportunity Defendant had to avoid the accident, 
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if any, was minimized by Plaintiff’s inconspicuous attire, which 

Trooper Kirkpatrick described as “black clothing” with “nothing . . 

. that reflected . .. whatsoever.”1 We conclude that these 

circumstances distinguish the present case from cases in which a 

last clear chance instruction was proper due to the defendant’s 

ability to avoid the accident at the last moment, e.g., Vancamp, 

328 N.C. at 500, 402 S.E.2d at 377-78 (holding that a last clear 

chance instruction was warranted where the evidence indicated that 

plaintiff was within defendant’s “clear line of sight for five 

seconds before the collision”; that defendant “had ‘ample’ reaction 

time in which to see plaintiff and come to a complete stop”; and 

that “defendant negligently failed to use the available time and 

means to avoid injury to plaintiff”), and align this case with 

cases in which the defendant’s lack of ability to avoid the 

accident rendered an instruction on last clear chance improper, 

e.g., Watson v. White, 309 N.C. 498, 308 S.E.2d 268 (1983) (holding 

that there was insufficient evidence of defendant’s last clear 

chance to avoid the accident where defendant was traveling forty 

miles per hour, saw plaintiff only after coming out of a curve in 

 

1 We note that with only a cold record before us, we lack the 

perspective that the trial court had in observing first-hand the 

clothing worn by Plaintiff at the time of the accident.
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the road, and had only 1.28 seconds to react before impact); Battle 

v. Chavis, 266 N.C. 778, 147 S.E.2d 387 (1966) (holding 

insufficient evidence of last clear chance where defendant was

traveling at thirty to thirty-five miles per hour and was unable to

see plaintiff until within 130 feet of him, at which time he had

less than three seconds to stop in order to prevent the injury); 

Culler, 148 N.C. App. at 380, 559 S.E.2d at 201 (holding that the 

motorist-defendant may have had the last possible chance, but not 

the last clear chance, to avoid injuring the pedestrian-plaintiff 

where the weather was “foggy and dark,” the defendant had rounded a 

curve in the road just prior to the scene of the accident, and 

headlights facing the defendant obstructed the defendant’s view). 

We accordingly hold on the facts presented that the trial court did 

not err in declining to instruct the jury on the doctrine of last 

clear chance and, further, did not err in denying Plaintiff’s 

motion for a new trial.

III. Conclusion

In light of the foregoing, we affirm the trial court’s 4 

December 2012 order.

NO ERROR IN PART; AFFIRMED IN PART.

Judges McGEE and McCULLOUGH concur.

Report per Rule 30(e).
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