TERRY THOMAS
v. Lee County
No. 00 CVS 447
DONNELL EVANS
Staton, Perkinson, Doster, Post & Silverman, P.A., by Norman
C. Post, Jr., P.A., for plaintiff-appellant.
Teague, Rotenstreich & Stanaland, by Kenneth B. Rotenstreich
and Paul A. Daniels, for defendant-appellee.
CAMPBELL, Judge.
On 28 April 2000, plaintiff filed a complaint in which he
alleged defendant negligently drove his vehicle into the rear of
plaintiff's vehicle on 30 November 1998 and caused him to suffer
personal injuries. At the start of trial, defendant amended his
answer to admit failure to reduce speed to the extent necessary to
avoid colliding with the rear of plaintiff's vehicle and that such
failure was negligence.
Plaintiff described defendant's vehicle as approaching at a“high rate of speed” and that defendant made no attempts to slow
down before the front of defendant's vehicle hit the rear of his
vehicle. He indicated he was wearing his seat belt at the time of
the accident. Plaintiff asserted he had not been having problems
with his neck or lower back aside from “little aches and pains”
before the accident, but that “right after the accident I felt pain
in my neck and lower back.” EMS transported plaintiff to the
emergency room, where he was x-rayed, given medicine and released.
Dr. John Mangum, plaintiff's personal physician since 1985,
examined plaintiff on 2 December 1998 and diagnosed him as having
low back strain and a contusion of the left fourth digit. He
prescribed alternating heat and ice to the lower back area and
Tylenol with codeine for pain. Dr. Mangum directed plaintiff to
continue taking an anti-inflammatory medication (Lodine), which
plaintiff was currently taking for arthritis in his right ankle.
On 18 December 1998, plaintiff reported to Dr. Mangum that his neck
was doing fine and his finger was not giving him trouble, but he
was continuing to have pain in the left hip area which went down
his left leg. On 6 January 1999, plaintiff again reported to Dr.
Mangum that his neck was doing all right, but he was still having
dull pain in the left lower back area. Dr. Mangum then referred
plaintiff for physical therapy for his lower back.
During cross-examination, Dr. Mangum testified that plaintiff
on 27 January 1999 had normal range of motion with his neck and
lower back with no tenderness over the neck and only mild
tenderness in the lower back. Plaintiff's straight-leg lift testfor lower back pain was also negative. Dr. Mangum was unaware
plaintiff had claimed to have had no prior low back pain, and he
did not refer plaintiff for chiropractic treatment. He neither
forwarded any records to nor spoke with Dr. Donald Austin,
plaintiff's chiropractor. Dr. Austin, the husband of plaintiff's
first cousin, subsequently treated plaintiff during forty office
visits.
After Dr. Mangum's testimony, plaintiff admitted having slight
back pain following a vehicle accident in 1996. He testified to
having total medical bills of $5,931.10 and total prescription
bills of $764.90. During cross-examination, plaintiff conceded
that approximately $700.00 of those prescription bills were for
Lodine which he had been taking for his right ankle. When asked
why he had not disclosed in two interrogatories either a fall in
1995 or a vehicle accident in 1996 for which he had sought
chiropractic treatment, plaintiff stated he forgot to report those
incidents.
Despite his earlier assertion that he was wearing his seat
belt, plaintiff subsequently admitted he was not wearing it at the
time of the accident. Upon examining his accident report,
plaintiff conceded he had made no mention of defendant's vehicle
approaching at a “high rate of speed,” and he noted the report
stated plaintiff's vehicle had left 130 feet of skid marks.
Plaintiff admitted Dr. Mangum's referral for physical therapy was
for only his back and that he had made no mention of any neck pain
in the intake paperwork which he completed to begin physicaltherapy.
Dr. Austin testified his diagnosis was based on his
examination of plaintiff and on plaintiff's x-rays, but it was made
without the benefit of either the hospital's records or Dr.
Mangum's records. He was unaware of the specifics of plaintiff's
prior medical treatment, but indicated the information was
unimportant because the treatment had been unsuccessful. Although
both Dr. Mangum and the radiologist had concluded plaintiff's x-
rays showed normal alignment of the cervical spine, Dr. Austin
stated he was more qualified than either individual to interpret
plaintiff's spinal x-rays. He found multiple levels of
misalignment. Plaintiff testified his chiropractor's bill was
$2,800.00. Plaintiff's father testified that plaintiff was having
an ongoing problem with pain since the accident. Defendant
presented no evidence, but did cross-examine plaintiff and his
witnesses.
The trial court submitted the following issue to the jury -
“What amount is the plaintiff, Terry Thomas, entitled to recover
for personal injuries?” The trial court then instructed the jury
as to proximate cause and damages. After deliberating, the jury
awarded damages in the amount of $1.00 to plaintiff. On 27 March
2001, plaintiff filed a motion for new trial pursuant to N.C.R.
Civ. P. 59. In an order entered 12 July 2001, the trial court
denied plaintiff's motion. From the trial court's order, plaintiff
appeals.
Plaintiff contends the trial court erred in denying his motionfor a new trial. He argues the jury award of $1.00 was woefully
inadequate, was apparently given under the influence of passion or
prejudice, and was clearly against the greater weight of the
evidence. We are not persuaded by plaintiff's argument.
Pursuant to Rule 59 of the North Carolina Rules of Civil
Procedure, a new trial may be granted on the grounds of
“[e]xcessive or inadequate damages appearing to have been given
under the influence of passion or prejudice[.]” N.C.R. Civ. P.
59(a)(6) (2001). Whether to grant such a motion is within the
trial court's sound discretion, and appellate review “is strictly
limited to the determination of whether the record affirmatively
demonstrates a manifest abuse of discretion by the judge.”
Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602
(1982). Plaintiff, as the party alleging such an abuse of
discretion, bears the burden of proving that it appears from the
record as a whole. Id. at 484-85, 290 S.E.2d at 604.
Both the proximate cause and the extent of plaintiff's
injuries were contested at trial. There were inconsistencies in
plaintiff's evidence as to what injuries he suffered in the
accident and also in his complaints to Dr. Mangum and Dr. Austin.
Although plaintiff introduced evidence of medical bills of
$5,931.10 and prescription bills of $764.90, there was also
evidence that plaintiff's injuries could have occurred on two prior
occasions. “[I]t was for the jury to weigh this evidence and to
determine what damages, if any, the plaintiff was entitled to
recover.” McFarland v. Cromer, 117 N.C. App. 678, 682, 453 S.E.2d527, 529 (1995). Nothing in the record indicates the jury award
was influenced by passion or prejudice. As such, the trial court
did not abuse its discretion in denying plaintiff's motion for a
new trial.
Affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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