Plaintiffs' appeal of a directed verdict in their wrongul death action was dismissed as
moot where the trial court granted a directed verdict for defendants on most of plaintiffs' claims
arising from the death of their stillborn child but left open the possibility of a recovery of
damages for funeral expenses and nominal damages, keeping alive the underlying issue of
negligence; plaintiffs voluntarily dismissed with prejudice all claims not previously dismissed;
and plaintiffs then appealed the directed verdict. Claims for particular kinds of damage cannot
exist without an underlying claim of negligence or fault and plaintiffs' voluntary dismissal with
prejudice renders this appeal moot. Plaintiffs abandoned their appeal from the directed verdict
by failing to argue it on appeal. Appeal by plaintiffs from judgments entered 20 May 1998 by
Judge H. W. Zimmerman, Jr., in Surry County Superior Court.
Heard in the Court of Appeals 25 August 1999.
Maready Comerford & Britt, L.L.P., by W. Thompson Comerford,
Jr., and Martha Marie Eastman, for plaintiff-appellants.
Carruthers & Roth, P.A., by Richard L. Vanore and Norman F.
Klick, Jr., for defendant-appellees.
MARTIN, Judge.
Plaintiffs brought this action alleging that the negligence
of defendants proximately caused the wrongful death of their
stillborn son, and sought damages for wrongful death, negligent
infliction of emotional distress, and punitive damages. At the
close of plaintiff's evidence, defendants moved for and were
granted a directed verdict dismissing plaintiffs' claims for
emotional distress, punitive damages, and all damages recoverable
under the wrongful death statute except funeral expenses and
nominal damages. Plaintiffs then submitted to a voluntary
dismissal with prejudice as to “all claims which had not
previously been dismissed by the Court pursuant to defendants'
motion for directed verdict.” Plaintiffs appeal the directedverdict; defendants move to dismiss the appeal on grounds that
the issues raised thereby are moot.
To bring an action under G.S. § 28A-18-2 (the wrongful death
statute), a plaintiff must allege a wrongful act, causation, and
damages. Negligence is a “wrongful act” upon which a wrongful
death claim may be predicated. See, e.g., Coleman v. Rusidill,
131 N.C. App. 530, 508 S.E.2d 297 (1998). Therefore, a defendant
may be entitled to a directed verdict on a wrongful death claim
if the plaintiff fails to provide adequate proof of negligence.
N.C. Gen. Stat. § 1A-1, Rule 50(a). In addition, claims for
certain kinds of damages can be dismissed by the trial court as
too speculative. Greer v. Parsons, 331 N.C. 368, 416 S.E.2d 174
(1992) (holding that dismissing claims for pecuniary loss and
loss of companionship for a stillborn child was appropriate
because “an award of damages covering these kinds of losses would
necessarily be based on speculation rather than reason.”).
Dismissal of claims for certain types of damages by the trial
court does not necessarily dismiss the underlying allegation of
negligence upon which the wrongful death claim is predicated;
however, a claim for negligence cannot be split into its various
kinds of damages. Smith v. Red Cross, 245 N.C. 116, 95 S.E.2d559 (1956). Therefore, claims for particular kinds of damage
cannot exist without an underlying claim of negligence or fault.
In the present case, the trial court granted a directed
verdict in favor of defendants with respect to plaintiffs' claims
for loss of companionship, pain and suffering, pecuniary damages,
and punitive damages, holding that these claims were too
speculative because the child was stillborn. However, by leaving
open the possibility of recovery of damages for funeral expenses
and nominal damages, the court kept alive the underlying issue of
negligence for determination by the jury. Plaintiffs then
voluntarily dismissed with prejudice “all claims which had not
previously been dismissed by the Court pursuant to defendants'
motion for a directed verdict.” These dismissed claims included
plaintiffs' claim for nominal damages, damages for funeral
expenses, and the underlying claim of negligence.
A voluntary dismissal with prejudice is the same as a
judgment on the merits, Miller Bldg. Corp. v. NBBJ North
Carolina, Inc., 129 N.C. App. 97, 497 S.E.2d 433 (1998), and when
there has been a judgment on the merits on an issue of
negligence, any appeal concerning a directed verdict on issues
predicated upon that negligence is rendered moot. Bullard v.
N.C. National Bank, 31 N.C. App. 312, 229 S.E.2d 245 (1976) (a
jury's verdict of no negligence on the part of agent doctorsrelieved their parent corporation of any respondeat superior
liability, and rendered moot any assignment of error to the trial
court's directed verdict for the parent corporation).
Therefore, plaintiffs' voluntary dismissal with prejudice of
the issue of negligence, upon which all of their claims were
based, renders this appeal moot, and precludes us from ruling on
any of the other issues raised by the parties in regards to the
wrongful death claim.
When pending an appeal . . ., a
development occurs, by reason of which the
questions originally in controversy between
the parties are no longer at issue, the
appeal will be dismissed for the reason that
this Court will not entertain or proceed with
a cause merely to determine abstract
propositions of law or to determine which
party should rightly have won in the lower
court.
Parent-Teacher Assoc. v. Bd. of Education, 275 N.C. 675, 679, 170
S.E.2d 473, 476 (1969).
Plaintiffs have abandoned their appeal from the directed
verdict dismissing their claim for negligent infliction ofemotional distress by failing to argue it on appeal. N.C.R. App.
P. 28(b). Accordingly, this appeal must be dismissed.
Dismissed.
Judges LEWIS and HUNTER concur.
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