Barber v. Constien8/4/1998
their character and in the natural connection between the original wrong done and the injurious consequence and if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable, the original wrongdoer is liable notwithstanding an intervening act or event. The Court has said that the rule applying in deciding this question is, was there an unbroken connection between the wrongful act and the injury, the original wrongful act. Was it a continuous operation? Do the facts make a natural whole or was there a new and intervening cause between the wrong and the injury? It must appear that the injury was the natural and proximate consequence of the negligence and that it ought to have been foreseen in the light of attending circumstances.
Id. at 90, 52 S.E.2d at 217-18. Notwithstanding inclusion of foreseeability of injury within the court's instructions, far more comprehensive than those at issue sub judice, a new trial was awarded because
whether the negligent act of a defendant may be insulated as a matter of law by an independent act of another, depends on whether or not the original actor, "ought to have foreseen in the exercise of reasonable prevision or in the light of attending circumstances" that the plaintiff or some other person might be injured as a result and probable consequence of the negligence act.
Id. at 90-91, 52 S.E.2d at 218 (citations omitted). See also Rattley v. Powell, 223 N.C. 134, 25 S.E.2d 448 (1943)(new trial granted where "test applied in the instruction [on intervening negligence] . . . not wholly consistent with these rules," which applied test of foreseeability) and Furr v. Pinoca Volunteer Fire Dept., 53 N.C. App. 458, 462, 281 S.E.2d 174, 177-78 (new trial where, inter alia, instructions "failed to relate the law of . . . insulating negligence"), disc. review denied, 304 N.C. 587, 289 S.E.2d 377 (1981).
Dr. Constien relies heavily on this Court's opinion in Thomas v. Deloatch and Long v. Deloatch, 45 N.C. App. 322, 263 S.E.2d 615, disc. review denied, 300 N.C. 379, 267 S.E.2d 685 (1980), wherein we considered, inter alia, a challenge to the trial court's instruction on insulating negligence. As Dr. Constien points out, this Court concluded the instruction was "adequate" and "complied with the law of this State on insulating negligence," id. at 333-34, 263 S.E.2d at 623, despite the apparent absence of any mention of foreseeability by the trial court (neither the quoted portion of the instruction set out in Thomas nor the opinion itself indicate the trial court included foreseeability within its charge on insulating negligence). We conclude that Dr. Constien's reliance on Thomas is unavailing.
First, Thomas is a decision of this Court while Adams v. Mills, 312 N.C. 181, 322 S.E.2d 164, Banks v. Shepard, 230 N.C. 86, 52 S.E.2d 215, and Rattley v. Powell, 223 N.C. 134, 25 S.E.2d 448, emanate from our Supreme Court. Notably, moreover, Adams is subsequent to Thomas, which itself neglects Discussion of Banks v. Shepard. It is well established that this Court has the responsibility to follow Supreme Court decisions "until otherwise ordered" by that court. Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993)(citation omitted); see also Cissell v. Glover Landscape Supply, Inc., 126 N.C. App. 667, 669-70, n.1, 486 S.E.2d 472, 473 (1997)(this Court "decline to follow" earlier Court of Appeals decision "inconsistent with prior decisions of this Court and our Supreme Court"), rev'd on other grounds, 348 N.C. 67, 497 S.E.2d 283 (1998). To the extent that Thomas is inconsistent with the cited decisions of our Supreme Court, therefore, it lacks
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