1. Appeal and Error--preservation of issues--punitive damages
Plaintiff properly preserved the punitive damages issue for appellate review in an
automobile collision negligence case by assigning error to the trial court's refusal to submit the
issue of punitive damages to the jury because it encompasses the trial court's grant during the jury
charge conference of defendant's motion for a directed verdict on the issue of punitive damages.
2. Motor Vehicles--driving while intoxicated--accident--punitive damages--no showing
of willful or wanton conduct
The trial court did not err in an automobile collision negligence case by granting
defendant's motion for a directed verdict on the issue of punitive damages even though plaintiff
submitted evidence of defendant's driving while intoxicated, because: (1) while the intentional act
of driving while impaired in violation of the impaired driving statute is sufficiently wanton to
warrant punitive damages, allegations of intoxication alone are not a sufficient basis to permit a
punitive damages claim to be submitted to a jury; and (2) plaintiff failed to carry his burden of
proof that intoxication of defendant while driving rose to the level of willful or wanton conduct
since the only evidence of wanton conduct as a result of driving while intoxicated comes from the
testimony of plaintiff and of the officer investigating the collision that both smelled alcohol on the
breath of defendant at the scene of the collision, plaintiff described some slurring of speech, and
the officer testified he gave field sobriety tests but does not remember which tests that defendant
performed or how well defendant had actually performed them.
Brent Adams & Associates, by Brenton D. Adams, for plaintiff-
appellant.
Smith Law Offices, P.C., by Christopher N. Heiskell, for
defendant-appellee.
McGEE, Judge.
Plaintiff appeals the refusal of the trial court to submit tothe jury an issue of punitive damages in an automobile
collision
negligence case. For the reasons stated below, we affirm the
judgment of the trial court.
Plaintiff's automobile and defendant's pickup truck collided
at the intersection of West Trade Street and Montgomery Avenue in
Charlotte, North Carolina at 8:50 p.m. on the rainy night of 17
February 1995. Plaintiff filed this action seeking compensatory
damages and punitive damages on 23 January 1998.
This case was tried before a jury on 9 and 10 August 1999.
Plaintiff testified at trial that immediately after the collision,
defendant approached plaintiff's vehicle. Plaintiff rolled down
his window and spoke with defendant. Plaintiff stated that he
smelled alcohol on defendant's breath and noticed that defendant's
speech was slurred.
Plaintiff also introduced evidence at trial in the form of
portions of a deposition of the police officer who investigated the
collision on the night of 17 February 1995. The officer testified
that after reviewing the accident report he prepared following the
collision, the only specific recollections he had of defendant were
that defendant had alcohol on his breath, and that defendant was
cooperative and performed certain psycho-physical tests used to
gauge his level of intoxication. However, the officer did not
recall which tests defendant performed, nor the results of thosetests except that they "would have been performed
unsatisfactorily." The officer testified that he formed an opinion
that defendant "consumed a sufficient amount of alcohol that his
physical abilities may be appreciably impaired[,]" and that hisopinion was based on "[t]he odor of alcohol on [defendant's]
breath, and . . . most likely with his psycho physical tests."
The trial court granted plaintiff's motion for a directed
verdict on the issue of negligence and granted defendant's motion
for a directed verdict on the issue of punitive damages. The jury
awarded plaintiff $1,000.00 in compensation for his injuries.
Plaintiff appeals the trial court's directed verdict on the issue
of punitive damages. Plaintiff argues that he presented sufficient
evidence of defendant's wanton behavior due to defendant's driving
while intoxicated to require the trial court to submit an issue of
punitive damages to the jury.
[1]Defendant asserts that plaintiff failed to properly
preserve the punitive damages issue for appellate review in that
plaintiff did not assign error to the trial court's granting of
defendant's motion for directed verdict. The record shows that
plaintiff instead assigned error to the trial court's refusal to
submit an issue of punitive damages to the jury. Defendant argues
that once the motion for a directed verdict was granted, submission
to the jury of the issue of punitive damages became moot.
We disagree with defendant's argument and find that plaintiff
adequately preserved the issue of punitive damages for review. A
motion for a directed verdict pursuant to N.C. Gen. Stat. § 1A-1,Rule 50(a) "presents the question of whether plaintiff's evidence
is sufficient to submit to the jury." Tin Originals, Inc. v.
Colonial Tin Works, Inc., 98 N.C. App. 663, 665, 391 S.E.2d 831,
832 (1990) (citations omitted). We therefore find that plaintiff's
assignment of error to the trial court's refusal to submit an issue
of punitive damages to the jury encompasses the trial court's
grant, during the jury charge conference, of defendant's motion for
a directed verdict on the issue of punitive damages.
[2]Our Court found no error in a trial court's refusal to
submit an issue of punitive damages to the jury in Brake v. Harper,
8 N.C. App. 327, 174 S.E.2d 74 (1970), where the only evidence of
wanton conduct due to driving while intoxicated came in the form of
testimony from the highway patrolman who investigated the
automobile collision. The patrolman testified that, in his
opinion, the defendant was under the influence of alcohol when he
talked to him at the scene of the collision. However, the record
was silent as to the basis for the patrolman's opinion, and the
patrolman could not remember the results of the breathalyzer test
he administered to the defendant other than that it was under .10.
While the "intentional act of driving while impaired in
violation of [the impaired driving statute] is sufficiently wanton"
to warrant punitive damages, Ivey v. Rose, 94 N.C. App. 773, 776,381 S.E.2d 476, 478 (1989) (emphasis in original), "allegation
s of
intoxication alone are not a sufficient basis to permit a punitive
damages claim to be submitted to a jury." Howard v. Parker, 95
N.C. App. 361, 365, 382 S.E.2d 808, 810 (1989) (emphasis added).
In Ivey, we found error in the trial court's refusal to submit an
issue of punitive damages to the jury where the defendant testified
that she had been drinking all day, up until about two hours before
the accident. The police officer who investigated the accident
testified in detail as to how the defendant failed the four psycho-
physical sobriety tests he gave her and described the defendant,
saying:
Her face was flushed, eyes were glassy, and
she had an odor of alcohol on her breath when
I was talking to her, wasn't steady on her
feet. . . . In my opinion she was impaired,
so I put her in my vehicle and charged her
with driving while impaired.
Ivey, 94 N.C. App. at 775-76, 381 S.E.2d at 478. Another officer
testified that he administered a breathalyzer test to the
defendant, and that the lowest reading was .18, well in excess of
the legal limit of .10. Id. at 776, 381 S.E.2d at 478.
In Howard, on the other hand, we affirmed the trial court's
summary judgment removing the issue of punitive damages from the
jury. In Howard, the defendant refused to take a breath analysistest after the accident and pleaded guilty to driving while
impaired under the mistaken belief that he was pleading guilty to
refusing to take the breath analysis test. Howard, 95 N.C. App. at
362, 382 S.E.2d at 809.
Here the evidence does not support a
finding of wantonness: there is no
breathalyzer reading, though defendant pleaded
guilty to driving while impaired and admitted
having consumed three beers earlier in the
day. The complaint alleging impairment is not
verified; there are no affidavits or
depositions of witnesses to the defendant's
impairment.
Id. at 366, 382 S.E.2d at 811.
In Boyd v. L. G. DeWitt Trucking Co., 103 N.C. App. 396, 405
S.E.2d 914 (1991), we affirmed the trial court's denial of the
defendant's motion for a directed verdict on the plaintiff's claim
for punitive damages. Our Court found that the plaintiff's
evidence was "sufficient to support a jury finding that [the
defendant's] conduct 'manifested a reckless indifference to the
rights of others.'" Id. at 402, 405 S.E.2d at 919.
The plaintiff's evidence tended to show
that [the defendant] was intoxicated at the
time of the accident, that he was traveling in
excess of the posted speed limit, with a
fully-loaded [tractor-trailer] rig and with an
unauthorized female passenger, and that no
attempt was made to avoid the accident prior
to its occurrence. In addition, even though
[the defendant] was traveling on a straight,if somewhat hilly road, his own testimony
reveals that he did not see the decedent's
vehicle until an instant before the collision.
Id. at 402, 405 S.E.2d at 918-19. The evidence of the defendant's
intoxication included: (1) an eyewitness who testified that he
smelled alcohol on the defendant following the accident; (2) an
emergency medical technician who testified that he smelled an odor
of alcohol on the defendant as he was helping the defendant into an
ambulance; (3) a nurse who happened upon the scene of the accident
who testified that she smelled alcohol on the defendant's person
and that he looked as if "he might be going to fall down any
minute[,]" id. at 402-03, 405 S.E.2d at 919; and (4) a service
station attendant who testified that he saw the defendant drinking
a beer less than an hour before the accident, id. at 403, 405
S.E.2d at 919, that he had been slapped by the defendant during an
ensuing argument, and that "in his opinion, [the defendant] should
not have been driving that night, due to his intoxication." Id. at
399, 405 S.E.2d at 917.
In the case before us, the only evidence of wanton conduct due
to driving while intoxicated comes from the testimony of plaintiff
and of the officer investigating the collision. Both plaintiff and
the officer testified that they smelled alcohol on the breath of
defendant at the scene of the collision. Plaintiff furtherdescribed some slurring of defendant's speech. The officer
testified that he formed an opinion that defendant's physical
abilities "may be appreciably impaired" (emphasis added), and that
his opinion was based on the odor of alcohol on defendant's breath
and the results of certain psycho-physical tests performed by
defendant, but that he could not remember what tests were performed
or how well defendant had actually performed them.
In granting defendant's motion for a directed verdict on the
issue of punitive damages, the trial court found that
the plaintiff has produced evidence from which
the jury could find that the defendant had a
moderate odor of alcohol about his breath
immediately after the accident, that he was
given field sobriety tests by the officer.
The officer does not remember which tests or
how he performed, except that he assumes that
he would have failed them. That other than
the odor of alcohol, and the "failure," quote-
unquote of the psycho-physical tests, he has
no recollection of -- in regard to the
defendant's state of sobriety, and in fact
says that, "In my opinion he had consumed a
sufficient amount of alcohol that his physical
abilities may be appreciably impaired." That
there is no evidence of any conviction of the
defendant. That there is no evidence of any
Breathalyzer. That there is no evidence as to
how much alcohol was consumed by the
defendant. That there are no affidavits from
any witnesses or testimony from any witnesses
about the defendant's impairment other than
opinion of the officer. That there was no
evidence of any reckless and wanton driving,
other than edging out at a stop sign too farinto traffic and being hit by the plaintiff.
There is no evidence as to the defendant's
physical characteristics such as his face or
eyes or being unsteady on his feet.
Under N.C. Gen. Stat. § 1D-15, enacted in 1995, punitive damages
may now be awarded only if a plaintiff can prove willful or wanton
conduct (or fraud or malice) by clear and convincing evidence. We
hold that plaintiff failed to carry his burden of proof that any
intoxication of defendant while driving rose to the level of
willful or wanton conduct. The trial court did not err in granting
defendant's motion for a directed verdict on the issue of punitive
damages and the judgment of the trial court is affirmed.
Affirmed.
Judges LEWIS and HORTON concur.
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