1. Evidence--habit--driving
The trial court did not abuse its discretion in an action arising from an automobile accident
by excluding testimony from plaintiffs' son that he had been home recovering from an injury, that
he had observed defendant's driving every day, that defendant had driven “wide open as usual” the
day before the collision, and that defendant had driven the same way on each previous occasion.
It cannot be said that the court's ruling was unsupported by reason, given the vague and imprecise
nature of the testimony regarding defendant's speed and the witness's potential interest in the
outcome. N.C.G.S. § 8C-1, Rule 406.
2. Motor Vehicles--negligence--collision while avoiding a third vehicle
The trial court did not err in an action arising from an automobile accident by denying a
directed verdict for plaintiffs where, construing all inferences in defendant's favor, the record
reflects evidence that a truck suddenly crossed in front of the automobile operated by defendant,
causing him to brake and swerve to his right to avoid colliding with that truck, whereupon
defendant struck plaintiffs' car as it turned into a driveway. Although plaintiffs presented
conflicting evidence as to defendant's speed and opportunity to avoid the collision at issue,
defendant's showing permitted the inference that he was not negligent.
3. Motor Vehicles--negligence--sudden emergency--perception of emergency
The trial court did not err in an action arising from an automobile collision by instructing
the jury on the doctrine of sudden emergency where the evidence was in conflict on whether
defendant perceived the emergency circumstance and reacted to it and whether defendant's
negligence contributed to the emergency. Furthermore, the jury was properly instructed at length
on the doctrine.
4. Appeal and Error--use of unpublished opinions
Defendant violated Appellate Rule 30(e) by citing as authority and extensively quoting from an
unpublished opinion. While his contentions were reviewed, the unpublished opinion was not
considered and counsel are reminded of the explicit provisions of the rule prohibiting the citation
of unpublished opinions and their use as precedent.
Tippens & Zurosky, L.L.P., by Kirk S. Zurosky, for plaintiffs-
appellants.
Crosswhite & Crosswhite, P.A., by William E. Crosswhite, for
defendant-appellee.
JOHN, Judge.
Plaintiffs Dale A. Long and Getty Dale Long (Mr. and Mrs.
Long) appeal, assigning error to certain aspects of a jury trial
resulting in a verdict in favor of defendant Ron Russell Harris.
We conclude the trial court committed no error.
Relevant factual and procedural information includes the
following: On 22 December 1995, Mrs. Long and defendant were each
operating their automobiles in the same direction on U.S. Highway
70 in Burke County. As Mrs. Long conducted a right turn into the
driveway of the residence of her son, Gary Long (Gary), defendant's
automobile veered off the side of the roadway, jumped the curb, and
impacted Mrs. Long's vehicle on the passenger side.
Plaintiffs filed the instant suit 20 November 1996, seeking
damages for injuries to Mrs. Long's left ankle, foot, neck and
back, and for loss of consortium by Mr. Long. Defendant answered
denying negligence and asserting that
he was confronted with a certain sudden
emergency, to which he did not contribute in
any manner, when an unidentified motor vehicle
pulled into the path of the [d]efendant and in
such close proximity to him, whereupon
[d]efendant immediately applied his brakes and
turned to the right and left the roadway in
order to avoid colliding with the vehicle that
had pulled into his path of travel, and in so
doing, the [d]efendant was unable to avoid
colliding with [Mrs. Long's] vehicle . . . .
The case was tried before a jury 18 November 1998. Plaintiffsoffered testimony from both Mr. and Mrs. Long and the
ir son, Gary.
During Gary's testimony, plaintiffs sought to introduce his
observations of defendant's habitual manner of driving. Following
a voir dire hearing, the trial court rejected the tendered
evidence.
At the close of plaintiffs' evidence and again at the close of
defendant's evidence, plaintiffs moved for directed verdict
pursuant to N.C.G.S. § 1A-1, Rule 50(a) (1999), which motions were
denied by the trial court. Over plaintiffs' objections, the trial
court instructed the jury on the doctrine of sudden emergency. The
jury returned a verdict in favor of defendant and plaintiffs timely
appealed.
[1]Plaintiffs first assign error to the exclusion of Gary's
testimony regarding defendant's driving habits. This assignment of
error is unfounded. During the voir dire hearing conducted by the trial court,
Gary testified he had been at home “every day” recovering from an
eye injury during the “previous month before this accident
happened,” and that he had observed defendant operating his
automobile on Highway 70 “every day” from a “picture window facing
the road.” According to Gary, defendant passed in front of his
residence driving “[w]ide open as usual” on the day prior to the
collision. Further, defendant had driven the “same way” on each
previous occasion.
The North Carolina Rules of Evidence provide that
[e]vidence of the habit of a person . . . . is
relevant to prove that the conduct of the
person . . . on a particular occasion was in
conformity with the habit or routine practice.
N.C.G.S. § 8C-l, Rule 406 (Rule 406) (1999).
[O]ur case law establishes that “habit” may be
proven by testimony of a witness who is
sufficiently familiar with the person's
conduct to conclude that the conduct in
question is habitual.
. . . .
. . . Before evidence of . . . conduct
may be admitted to prove habit, however, the
trial court must . . . determine the
reliability and probative value of the
proffered evidence.
Crawford v. Fayez, 112 N.C. App 328, 332, 335, 435 S.E.2d 545, 548,
549 (1993), disc. review denied, 335 N.C. 553, 441 S.E.2d 113
(1994).
Further, whether the proffered evidence is
sufficient to establish habit is a question to
be decided on a case-by-case basis, and the
trial court's rulings thereon will not bedisturbed absent an abuse of discretion.
Id. at 335, 435 S.E.2d at 550; see also State v. Wortham, 80 N.C.
App. 54, 62, 341 S.E.2d 76, 81 (1986) (decision to admit evidence
rests in discretion of trial court), rev'd on other grounds, 318
N.C. 669, 351 S.E.2d 294 (1987). An
[a]buse of discretion results where the
court's ruling is manifestly unsupported by
reason or is so arbitrary that it could not
have been the result of a reasoned decision.
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
Given the vague and imprecise nature of Gary's testimony
regarding defendant's speed (defendant was driving “wide open”) and
Gary's potential, albeit understandable, interest in the outcome of
the case as the son of plaintiffs, we cannot say the trial court's
ruling appears “manifestly unsupported by reason or . . . so
arbitrary that it could not have been the result of a reasoned
decision.” Id. The court therefore did not abuse its discretion
by excluding Gary's testimony on this issue, see Crawford, 112 N.C.
App. at 335, 435 S.E.2d at 550, and plaintiffs' first assignment of
error fails.
[2]Plaintiffs next assign error to the trial court's denial
of their motions for directed verdict. Originally, plaintiffs also
assigned error to the denial of their new trial motion. However,
as that point was not argued in plaintiffs' appellate brief, it is
deemed abandoned under our Rules of Appellate Procedure (the
Rules). See N.C.R. App. P. 28(b)(5) (“[a]ssignments of error not
set out in the appellant's brief, or in support of which no reason
or argument is stated or authority cited, will be taken asabandoned”).
Plaintiffs insist the evidence adduced at trial led to “no
other possible logical conclusion other than that [defendant] was
negligent” in that he operated his vehicle “at a speed that was
greater than [wa]s reasonable and prudent under the conditions then
existing” and did not “keep a reasonably careful lookout.”
The question presented by a motion for a
directed verdict is whether the evidence is
sufficient to entitle the non-movant to have a
jury decide the issue in question.
United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370
S.E.2d 375, 387 (1988). Upon a motion for directed verdict, the
evidence must be considered in the light most favorable to the non-
movant, resolving all conflicts in the latter's favor, id., and
giving to the non-movant “the benefit of all reasonable inferences
that may be drawn from that evidence,” Abels v. Renfro Corp., 335
N.C. 209, 215, 436 S.E.2d 822, 825 (1993).
Moreover, if there is conflicting testimony
that permits different inferences, one of
which is favorable to the non-moving party, a
directed verdict in favor of the party with
the burden of proof is improper.
United Laboratories, 322 N.C. at 662, 370 S.E.2d at 386.
In addition, we note our courts have repeatedly observed that
it “is seldom appropriate to direct a verdict in a negligence
action,” Stanfield v. Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294,
297 (1995), particularly in favor of the party with the burden of
proof, see La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App.
480, 484, 350 S.E.2d 889, 891 (1986) (directed verdicts for party
with burden of proof “rarely granted, because there will ordinarilyremain in issue the credibility of the evidence”), cert. de
nied,
319 N.C. 459, 354 S.E.2d 888 (1987). Further, “[n]egligence is not
presumed from the mere fact of injury.” Roumillat v. Simplistic
Enterprises, Inc., 331 N.C. 57, 68, 414 S.E.2d 339, 345 (1992).
Review of the evidence adduced at trial in the light most
favorable to defendant, see United Laboratories, 322 N.C. at 661,
370 S.E.2d at 386, reveals the latter's testimony that he was
driving at “[a]bout thirty, thirty-five” miles per hour when
suddenly a “truck pull[ed] out . . . [and] swerv[ed] in front of”
him. According to defendant, he “turned [his] wheels to keep from
hitting it and . . . hit the brakes” and then “hit that curb thing
and that's when [he] hit” Mrs. Long. Roger Willis, a witness to
the collision, also testified that a truck crossed over Highway 70
just before the accident “quick like he saw somebody coming [and]
wanted to speed up and hurry and get across.”
Construing all inferences in defendant's favor as we must, see
Abels, 335 N.C. at 215, 436 S.E.2d at 825, the record thus reflects
evidence that a truck suddenly crossed in front of the automobile
operated by defendant, causing him to brake and swerve to his right
to avoid colliding with that truck, whereupon he struck Mrs. Long's
vehicle as she was turning into the driveway of her son's
residence. Although plaintiffs presented conflicting evidence as
to defendant's speed and opportunity to avoid the collision at
issue, defendant's showing permitted the inference that he was not
negligent. The trial court therefore properly denied the directed
verdict motion of plaintiffs, the party with the burden of proof. See United Laboratories, 322 N.C. at 662, 370 S.E.2d at 386; see
also La Notte, Inc., 83 N.C. App. at 484, 350 S.E.2d at 891.
[3]Lastly, plaintiffs contend the trial court erred by
instructing the jury on the doctrine of sudden emergency. We do
not agree.
[T]he doctrine of sudden emergency provides a
less stringent standard of care for one who,
through no fault of his own, is suddenly and
unexpectedly confronted with imminent danger
to himself or others.
Holbrook v. Henley, 118 N.C. App. 151, 153, 454 S.E.2d 676, 677-78
(1995). For the doctrine to apply, two elements must coincide.
First, “an emergency situation must exist requiring immediate
action to avoid injury.” Conner v. Continental Industrial
Chemicals, 123 N.C. App. 70, 73, 472 S.E.2d 176, 179 (1996). To
satisfy this element, the party asserting the doctrine “must have
perceived the emergency circumstance and reacted to it.” Pinckney
v. Baker, 130 N.C. App. 670, 673, 504 S.E.2d 99, 102 (1998).
Second, “the emergency must not have been created by the negligence
of the party seeking the protection of the doctrine.” Conner, 123
N.C. App. at 73, 472 S.E.2d at 179.
A sudden emergency jury instruction is properly rendered if
substantial evidence on each of the two essential elements of the
doctrine has been presented. Banks v. McGee, 124 N.C. App. 32, 34,
475 S.E.2d 733, 734 (1996). In determining whether the substantial
evidence test has been satisfied, “the evidence must be considered
in the light most favorable” to the party requesting the benefit of
the instruction. Holbrook, 118 N.C. App. at 153, 454 S.E.2d at678.
Plaintiffs maintain defendant failed to present sufficient
evidence on either element of the doctrine, asserting he failed to
“perceive the emergency circumstance compelling him to act
instantly to avoid a collision” and “by his own negligent conduct
created any emergency that may have existed.” We address
plaintiffs'contentions ad seriatim.
Plaintiffs cite Pinckney and point to defendant's testimony as
supporting their contention he did not “perceive[] the emergency
circumstance” he claimed caused the collision at issue. In
Pinckney, plaintiff Robin Pinckney (Pinckney) sued defendant Joseph
Baker (Baker) for injuries resulting from a collision between
Baker's vehicle and one operated by Kimi Luces (Luces), in which
Pinckney was a passenger. The evidence adduced at trial indicated
Luces was attempting to merge in front of Baker into Baker's lane
of travel when the vehicles collided.
According to Baker, the alleged emergency
circumstance . . . was the action of Luces in
pulling suddenly and unexpectedly in front of
Baker's van. However, Baker repeatedly
testified he did not see Luces' vehicle prior
to the collision, and that his attention was
directed to it only upon impact. . . . [T]he
sole indication in the record is that Baker
was unaware of the alleged emergency until the
actual collision.
Pinckney, 130 N.C. App. at 674, 504 S.E.2d at 102 (citation
omitted) (emphasis added). We therefore held the trial court's
instruction on the sudden emergency doctrine was improper in that
Baker's testimony demonstrated he never “perceived the emergency
circumstance” and thus could not have been “react[ing] to it” whenthe collision occurred. Id. at 673, 504 S.E.2d at
102.
Notwithstanding plaintiffs' argument to the contrary,
defendant in the case sub judice testified he saw “a little
Chevrolet, like an S-10,” that “pulled out in front of [him],”
causing him to “hit the brake and turn[] the wheel.”
Defendant thus presented evidence indicating he perceived the truck
in his path and then reacted to the emergency by applying his
brakes and turning his automobile to the right.
Nonetheless, plaintiffs further seize upon a statement by
defendant in which he agreed he did not see the truck until “it was
right in front of [him and] at no other time.” Such circumstance,
however, is not equivalent to that in Pinckney, wherein the “sole
indication in the record,” id. at 674, 504 S.E.2d at 102 (emphasis
added), was that Baker did not see the vehicle alleged to have
caused the emergency until the impact and took no evasive action.
By contrast, defendant herein presented evidence he indeed saw the
truck alleged to have caused the sudden emergency in time to apply
his brakes and swerve to avoid colliding with that truck.
Finally, plaintiffs highlight defendant's admission he failed
to see Mrs. Long's automobile until impact. However, defendant's
acknowledgment is irrelevant to whether an instruction on the
sudden emergency doctrine was appropriate. Defendant must only
have “perceived the emergency circumstance” herein, id. at 673, 504
S.E.2d at 102, i.e., the truck which pulled out in front of him.
There is no requirement that he must have observed prior to impact
other vehicles involved in the collision, such as that of Mrs.Long, which in no way contributed to the “emergency circumstance.
”
Id.
Plaintiffs also contend the sudden emergency doctrine was
inapposite at trial because defendant's “inattention and failure to
maintain a proper lookout was a cause in the accident.”
Specifically, plaintiffs maintain defendant was traveling too fast
and should have seen both the truck and Mrs. Long's vehicle in time
to avoid the collision.
Viewing the evidence in the light most favorable to defendant,
see Holbrook, 118 N.C. App. at 153, 454 S.E.2d at 678, it appears
that a truck suddenly crossed in front of defendant's automobile
which was traveling at thirty miles per hour, and that a collision
would have resulted between the truck and defendant's vehicle but
for defendant's quick maneuvering.
A driver is under no duty to anticipate
disobedience of law or negligence on the part
of others, but he has the duty to take such
action as an ordinarily prudent person would
take in avoiding collision with persons or
vehicles upon the highway when, in the
exercise of due care, danger of such collision
is discovered . . . .
Rouse v. Jones, 254 N.C. 575, 581, 119 S.E.2d 628, 633 (1961).
Although
a party cannot by his own negligent conduct
permit an emergency to arise and then excuse
himself for his actions or omissions on the
ground that he was called to act in an
emergency,
Holbrook, 118 N.C. App. at 153, 454 S.E.2d at 678, we are not
persuaded that “all of the evidence . . . show[ed] that [defendant]
by his negligence brought about or contributed to the emergency,”Day v. Davis, 268 N.C. 643, 647, 151 S.E.2d 556, 559 (1966).
The
issue thus was a “matter[] . . . for jury determination under
proper instructions . . . .” Id.
In the foregoing regard, we note the trial court's jury
instructions correctly charged the jury that the doctrine of sudden
emergency would not apply if it found defendant's negligence
contributed to the emergency:
the doctrine of sudden emergency is not
applicable to one who, by his own negligence,
has brought about or contributed to the
emergency.
The court further emphasized that requirement while expounding on
the doctrine:
[A] person who, through no negligence of his own,
is suddenly and unexpectedly confronted with
imminent danger . . . is not required to use the
same judgment that would be required if there was
more time to make a decision . . . .
. . . .
. . . [A] person's conduct which might
otherwise be negligent in and of itself would
be -- would not be negligent if it results
from a sudden emergency that is not of that
person's own making.
(emphasis added).
In sum, the evidence was in conflict on the sudden emergency
element of whether defendant “perceived the emergency circumstance
and reacted to it,” Pinckney, 130 N.C. App. at 673, 504 S.E.2d at
102, and on the element of whether defendant's negligence
contributed to the emergency. Further, the jury was properly
instructed at length on the doctrine of sudden emergency. See Day,
268 N.C. at 677, 151 S.E.2d at 559. Plaintiffs' final assignmentof error is therefore unavailing.
[4]Prior to concluding, we are compelled to address a
violation by defendant of the Rules. In his appellate brief,
defendant cited as authority, and quoted extensively from, an
unpublished opinion of this Court filed in 1998.
A decision without a published opinion is
authority only in the case in which such
decision is rendered and should not be cited
in any other case in any court for any
purpose, nor should any court consider any
such decision for any purpose except in the
case in which such decision is rendered.
N.C.R. App. 30(e)(3) (emphasis added). An unpublished opinion
“establishe[s] no precedent and is not binding authority,” United
Services Automobile Assn. v. Simpson, 126 N.C. App. 393, 396, 485
S.E.2d 337, 339, disc. review denied, 347 N.C. 141, 492 S.E.2d 37
(1997).
Compliance with the Rules is mandatory and violation thereof
subjects a party to sanctions. See N.C.R. App. P. 25(b) (Court may
“impose a sanction against a party or attorney or both when the
court determines that such party or attorney or both substantially
failed to comply with” the Rules). Notwithstanding, we have
elected in our discretion pursuant to N.C.R. App. P. 2 to review
defendant's contentions herein, but without consideration of the
unpublished decision cited in his appellate brief. See Harris v.
Duke Power Co., 83 N.C. App. 195, 199, 349 S.E.2d 394, 397 (1986)
(Court of Appeals “decline[s] to consider” unpublished opinion
cited by party), aff'd, 319 N.C. 627, 356 S.E.2d 357 (1987).
Nonetheless, we “remind counsel of the [explicit] provisions of[N.C.R. App. P.] 30(e),” id., prohibiting citation of unpub
lished
opinions and use thereof as precedent.
No error.
Judges MCGEE and HUNTER concur.
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