Appeal by defendant from order entered 16 November 2000 by
Judge Albert A. Corbett, Jr. in Lee County District Court. Heard
in the Court of Appeals 5 November 2001.
Bain & McRae, by Edgar R. Bain, for plaintiff-appellee.
Walker, Clark, Allen, Herrin & Morano, L.L.P., by Jerry A.
Allen, Jr., and Gay Parker Stanley, for defendant-appellants.
BIGGS, Judge.
Defendant appeals the trial court's order, setting aside the
jury's verdict and ordering a new trial on damages. This matter
arises from an automobile collision that occurred on 27 November
1997 between Maria Elliott (Maria) and Shirley Birth (defendant),
in which Brian Elliott (plaintiff) was injured. For the reasons
that follow, we reverse.
The facts are as follows: On 27 November 1997, Thanksgiving,
plaintiff, a three year-old child, was on his way to his uncle's
house for a family Thanksgiving supper, when the accident occurred.
His grandmother, Maria, was driving, while plaintiff rode in achild carrier in the back seat. Maria was driving west on a two-
lane road, and defendant was driving towards them on the same road.
Defendant was distracted by her pet dog, riding on her front seat;
her car swerved across the center line and struck Maria's vehicle
in the front passenger area before coming to rest in the roadside
ditch. After the accident, plaintiff was driven to West Wake
Memorial Hospital and treated for abrasions on his cheek and a
small cut near his eye. The cut did not require stitches, and
plaintiff was released to his parents' care with instructions to
treat the cut with an antibacterial ointment and band aids. Maria
was treated for bruises and pain, and released with instructions to
take ibuprofen if necessary.
Patrick Elliott (Elliott), plaintiff's father, was appointed
as his guardian ad litem, on 24 May 1998. Elliott filed suit on
plaintiff's behalf on 26 May 1998, seeking damages for injuries
sustained in the accident, and attorneys' fees. Although
plaintiff's and Maria's actions were consolidated for trial, their
appeals are reported in separate opinions. The case was tried
before a jury on 4 January 1999. Prior to trial, defendant
stipulated that her negligence was the proximate cause of the
accident, and that plaintiff had suffered at least minor injuries.
Therefore, the only issue at trial was the amount of damages.
The jury awarded plaintiff $350.00. Plaintiff moved the trial
court to set the verdict aside on the grounds that it was
inadequate. The trial court granted plaintiff's oral motion, and
subsequently entered a written order setting aside the verdict andgranting plaintiff a new trial. Defendant appealed, and on 3
October 2000, this Court issued an unpublished opinion which held
that the trial court's findings of fact were inadequate to allow
meaningful appellate review. This Court vacated the trial court's
order, and remanded for entry of “additional findings of fact and
conclusions of law concerning its grant of a new trial.”
On remand, the trial court again entered an order, which is
the subject of the present appeal, setting aside the jury verdict
and awarding plaintiff a new trial. The court's findings of fact
included the following:
18. One of the minor Plaintiff's witnesses
was his grandmother, who was with the child at
the time of the accident. The grandmother is
a native of Salzburg, Austria, and spoke with
a strong German accent.
19. The Court finds that inadequate damages
appear to have been given under the influence
of prejudice as it relates to the Plaintiff's
grandmother, who was with the child at the
time and who testified in the action.
20. The Court finds that the jury acted in
manifest disregard of the Court's instructions
with regard to the right of the minor
Plaintiff to recover in one lump sum all of
his injuries, both present and future, which
would include pain and suffering and medical
expenses. It appears that the jury disregarded
the instructions of the Court, or such an
inadequate jury verdict would not have been
returned.
The trial court's conclusions of law stated that (1) the jury acted
in manifest disregard of the instructions of the Court, (2) the
jury acted under the influence of prejudice against plaintiff's
grandmother, because she “spoke in broken English,” and (3) the
verdict was contrary to the evidence and the law. Based upon its findings of fact and conclusions of law, the
trial court ordered the verdict set aside and the “matter set for
retrial[.]” Defendant again appeals.
The trial court awarded plaintiff a new trial pursuant to
N.C.G.S. § 1A-1, Rule 59 (1999), which authorizes the court to
grant a new trial upon,
inter alia, the following grounds:
. . .
5. Manifest disregard by the jury of the
instructions of the court;
6. Excessive or inadequate damages appearing
to have been given under the influence of
passion or prejudice; . .
7. Insufficiency of the evidence to justify
the verdict or that the verdict is contrary to
law[.] . . .
N.C.G.S. § 1A-1, Rule 59(a)(5), (6) and (7). The trial court's
decision to set aside a jury's verdict and award a new trial is a
discretionary ruling.
Blow v. Shaughnessy, 88 N.C. App. 484, 364
S.E.2d 444,
disc. review denied, 311 N.C. 151, 321 S.E.2d 127
(1988). In
Worthington v. Bynum and Cogdell v. Bynum, 305 N.C.
478, 290 S.E.2d 599 (1982),
the North Carolina Supreme Court held
that:
an appellate court's review of a trial judge's
discretionary ruling either granting or
denying a motion to set aside a verdict and
order a new trial is strictly limited to the
determination of whether the record
affirmatively demonstrates a manifest abuse of
discretion by the judge. . . . [A]n appellate
court should not disturb a discretionary Rule
59 order unless it is reasonably convinced by
the cold record that the trial judge's ruling
probably amounted to a substantial miscarriage
of justice.
Id. at 482 and 487, 290 S.E.2d at 602 and 605. The Court in
Worthington explicitly declined “to formulate a precise test” for
abuse of discretion, noting instead that “it has been a
sufficiently workable standard of review to say merely that a
manifest abuse of discretion must be made to appear from the record
as a whole with the party alleging the existence of an abuse
bearing that heavy burden of proof.”
Id. at 484-485, 290 S.E.2d at
604. However, certain principles have generally played a
significant role in appellate review of a trial court's decision to
grant or deny a motion for a new trial. First, it is the province
of the jury to weigh the evidence and find the facts.
Albrecht v.
Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998). Where the
evidence is conflicting, it is the jury's role to resolve the
conflicts and discrepancies.
Id. In
Albrecht, plaintiffs moved
for a new trial on the basis that the jury had awarded damages in
an amount lower than the medical expenses introduced into evidence.
This Court found that the trial court had not abused its discretion
in denying plaintiffs' motion under Rule 59 for a new trial,
stating that:
. . . as the finder of fact, the jury is
'entitled to draw its own conclusions about
the credibility of the witnesses and the
weight to accord the evidence.' The jury's
function as trier of fact 'must be given the
utmost consideration and deference before a
jury's decision is to be set aside.'
Id. at 505-06, 508 S.E.2d at 322 (quoting
Smith v. Price, 315 N.C.
523, 530, 340 S.E.2d 408, 413 (1986)).
See also Smith v. Beasley,298 N.C. 798, 259 S.E.2d 907 (1979) (jury's exclusive province to
evaluate evidence, weigh credibility, and determine the facts).
However, the jury should not simply ignore or disregard
undisputed evidence.
Daum v. Lorick Enterprises, 105 N.C. App.
428, 432, 413 S.E.2d 559, 561,
disc. review denied, 331 N.C. 383,
417 S.E.2d 789 (1992) (where
jury awarded plaintiff nothing for
pain and suffering, in the face of uncontradicted testimony, this
Court holds that jury “arbitrarily ignored the evidence of
plaintiff's pain and suffering and entered an inconsistent verdict
not in accordance with the law”);
Robertson v. Stanley, 285 N.C.
561, 566, 206 S.E.2d 190, 193 (1974) (new trial required where
although “the evidence of pain and suffering [was] clear,
convincing and uncontradicted,” the jury awarded plaintiff nothing
for pain and suffering).
Thus, the trial court's discretionary power to set aside the
verdict must be balanced against the jury's discretion to determine
the facts of a case, and the trial court “is not free to set aside
the verdict merely because the judge might have awarded a different
amount of damages[.]”
Vanwyk Textile Systems v. Zimmer Mach.
Amer., 994 F.Supp. 350, 358 (W.D.N.C. 1997) (citation omitted).
This Court, in
Howard v. Mercer, 36 N.C. App. 67, 70-71, 243 S.E.2d
168, 170 (1978),
rev'd on other grounds, 305 N.C. 478, 290 S.E.2d
599 (1982), expressed it this way:
[W]here, as here, the jury as primary fact-
finder fixes a quantum, and the trial judge
indicates his view that it is [erroneous,] . .
. the judge's unique opportunity to consider
the evidence . . . must be respected. But
against his judgment we must consider that theagency to whom the Constitution allocates the
fact-finding function in the first
instance--the jury-- has evaluated the facts
differently.
Finally, the trial court's ruling on a Rule 59 motion must
have factual support in the record.
Worthington, 305 N.C. 478, 290
S.E.2d 599 (trial court's award of new trial upheld where North
Carolina Supreme Court concludes that record evidence provides
factual support for judge's decision);
Munie v. Tangle Oaks Corp.,
109 N.C. App. 336, 427 S.E.2d 149 (1993) (trial court's decision to
award new trial on damages reversed where court had reduced damage
award to an amount that was not supported by the evidence);
Daum
105 N.C. App. 428, 413 S.E.2d 559,
disc. review denied, 331 N.C.
383, 417 S.E.2d 789 (1992) (trial court's denial of motion for new
trial reversed where evidence showed that verdict was inconsistent
and not rendered in accordance with the law).
In the instant case, defendant asserts that the findings upon
which the trial court ordered a new trial are not supported by the
record, and consequently do not support its conclusions of law. We
agree.
The trial court's decision to grant a new trial was based upon
the following findings: (1) that the jury's award of damages to
plaintiff was inadequate; (2) that damages were “awarded under the
influence of prejudice” against plaintiff's grandmother, because
she was born in Austria, and still had a German accent, and; (3)
that the jury disregarded the trial court's instructions to award
plaintiff “one lump sum [for] all of his injuries, both present and
future.” Trial evidence regarding damages included the following:
Elliott testified that, although the hospital report described
plaintiff as “alert, no distress and happy,” that when he arrived
at the hospital after the accident, plaintiff was crying. He had
dried blood near the corner of his right eye, and was diagnosed
with a one centimeter laceration. The cut did not require
stitches, although a hospital physician told Elliott that the cut
might leave a scar. Photographs taken of plaintiff after the
accident were published to the jury, and plaintiff himself was
shown to the jury. After the accident, Elliott and his wife
treated plaintiff's cut with ointment and small bandages.
Plaintiff did not like being bandaged, making the recommended
treatment difficult to apply. In addition, plaintiff suffered from
nightmares for a month after the accident. After his examination
at the emergency room, plaintiff did not require any further
medical treatment or counseling related to the accident. Plaintiff
submitted evidence that his medical bills from the accident totaled
$216.
Based upon this evidence, the trial court instructed the jury
on actual damages proximately resulting from the accident, but
denied plaintiff's request for an instruction on permanent injury.
On the issue of damages, the court instructed in relevant part as
follows:
[A]ll damages are to be awarded in one lump
sum[, and] may include medical expenses, pain
and suffering, scars or disfigurement.
Medical expenses include all hospital,
doctors, drugs reasonably paid or incurred by
the plaintiff as a consequence of theirinjury. Damages for personal injury may also
include fair compensation for the actual
physical pain and mental suffering experienced
by the plaintiff as a consequence of [his]
injury. . . . You will determine what is fair
compensation by applying logic and common
sense to the evidence.
The jury awarded plaintiff $350, which is $134 more than his
actual expenses. This award does not support a conclusion that the
jury completely disregarded plaintiff's uncontroverted evidence of
damages. Nor does the evidence establish unequivocally plaintiff's
entitlement to a higher award for pain and suffering.
This Court's examination of the record and transcript reveals
evidence about plaintiff tending to establish that (1) he did not
lose consciousness during the accident, and suffered no broken
bones; (2) he had a bruise and a small cut from the accident; (3)
the cut did not require stitches, or any treatment beyond Neosporin
and butterfly band aids; (4) plaintiff required no further medical
treatment after his emergency room visit, and; (5) the jury was
able to observe plaintiff first hand, to determine whether the cut
left a scar. We conclude that there is ample support for the
jury's award, and that the trial court erred in its conclusion that
the explanation for the jury's verdict of $350.00 must be
prejudice.
We also conclude that the trial court erred in finding that
the jury's verdict was rendered under the influence of prejudice
against Maria, based on her national origin. This allegation is
not supported by the record. Although Maria was originally from
Salzburg, Austria, we find nothing in the record that suggests thejury found her background to be an issue. The trial court did
refer to Maria's “broken English.” However, the transcript
demonstrates that while Maria occasionally misused verb tenses, she
did not require an interpreter, and none of her testimony required
clarification due to linguistic difficulties. There was no
suggestion that she found it a challenge to speak English, and the
jury submitted no questions about her.
Moreover, the record does not support the trial court's
finding that the jury acted in manifest disregard of the court's
instruction to return a verdict that recompensed plaintiff in one
lump sum for “all of his injuries, both present and future[.]” A
review of the jury charge reveals that at no time did the court
instruct the jury to consider future expenses. In fact, the
court's charge on damages employed past tense verbs (paid,
incurred, experienced). This is consistent with the trial court's
determination that there was no basis upon which to instruct on
permanent injury.
A trial court's ruling on a Rule 59(a) motion constitutes an
abuse of discretion if it is based upon findings and conclusions
not supported by the record.
Munie, 109 N.C. App. 336, 427 S.E.2d
149;
Daum, 105 N.C. App. 428, 413 S.E.2d 559,
disc. review denied,
331 N.C. 383, 417 S.E.2d 789 (1992). In the instant case, we
conclude that the record does not support the trial court's
conclusions that (1) the jury's verdict was contrary to the
evidence and inadequate as a matter of law, (2) the jury's verdict
was given under the influence of prejudice against plaintiff'sgrandmother, Maria, or that (3) the jury acted in manifest
disregard of the court's instructions.
For the reasons discussed above, we reverse the trial court's
order which vacated the jury's award and ordered a new trial; the
jury's award is hereby reinstated.
Reversed.
Chief Judge EAGLES and MARTIN concur.
Report per Rule 30(e).
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