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Barber v. Constien8/4/1998
persuasive authority herein. Id.
Moreover, while not discussing the apparent lack of mention of foreseeability of injury in the charge at issue, the Thomas Court nonetheless acknowledged that, in rear end collision cases, "the test most often employed by North Carolina courts is foreseeability" to determine if intervening negligence relieves the first defendant of liability. Id. at 334, 263 S.E.2d at 623 (citation omitted).
In sum, the test for determining when one actor's negligent conduct is insulated as a matter of law by the independent negligent act of another "is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury." Adams, 312 N.C. at 194, 322 S.E.2d at 173. Further, "except in cases so clear that there can be no two opinions among fair-minded people," Muse, 117 N.C. App. at 476, 452 S.E.2d at 595-96, it ordinarily should be left to the jury to determine "whether the intervening act and the resultant injury were such that the original wrongdoer could reasonably have expected them to occur as a result of his own negligence." Id. The trial court's instruction on intervening negligence herein having failed to guide the jury properly on that task, we order a new trial.
New trial.
JUDGES LEWIS and SMITH concur.
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