HARRIETTE FLOYD and ROBERT J. FLOYD,
Plaintiffs-Appellees,
v
.
STEPHANIE L. MCGILL, TRANSIT MANAGEMENT OF CHARLOTTE, INC., and
the CITY OF CHARLOTTE,
Defendants-Appellants.
Chandler Workman & Hart, by W. James Chandler and W. Michael
Workman, for plaintiffs-appellees.
Frank B. Aycock, III, for defendant-appellant Stephanie L.
McGill.
Robert D. McDonnell, for defendants-appellants Transit
Management of Charlotte, Inc. and the City of Charlotte.
McGEE, Judge.
Plaintiffs filed suit on 10 December 1997 against Stephanie L.
McGill (McGill), Transit Management of Charlotte, Inc. (Transit),
and the City of Charlotte (the City), collectively known as
"defendants," for damages arising from a rear-end collision of
plaintiffs' pickup truck by a bus owned by the City. All three
defendants filed an answer on 23 March 1998. Defendants filed a
motion to dismiss the consortium claim of Robert J. Floyd (Mr.
Floyd) on 10 October 2000. Plaintiffs amended their complaint on
9 November 2000 to include additional allegations of violations ofmotor vehicle statutes. Plaintiffs also filed a separate lawsuit
against defendants seeking damages for personal injuries suffered
by Mr. Floyd in the collision; this suit was settled prior to
trial.
Evidence presented at trial tended to show the following:
McGill was operating a bus owned by the City on 27 March 1996 on
Independence Boulevard in Charlotte, North Carolina. As she
approached an intersection, McGill saw the traffic light turn
yellow and applied her brakes but the bus failed to slow down.
McGill saw plaintiffs' pickup truck in the lane ahead of her and
attempted to steer the bus into the right and left lanes but was
blocked on both sides. She repeatedly pumped the brakes and
attempted to engage the emergency brake. The bus failed to stop
and collided with plaintiffs' pickup truck.
McGill had recently completed a five-week training course and
was a probationary employee authorized to drive a bus. She
testified that she knew the brakes were responding differently than
usual and were the most inefficient brakes she had ever operated.
McGill stated that throughout the day she had to apply the brakes
slowly and provide additional distance to allow the bus to stop.
She stated that the speedometer on the bus was not working and
stated that she had to "kind of feel" her speed. She stated she
was unaware it was illegal to operate a vehicle without a
speedometer and was never informed of the law by her supervisors.
McGill also testified the bus horn was not working and that she
knew it was illegal to operate a vehicle without a functioninghorn. McGill stated that she was supposed to call the dispatcher
if she experienced problems with a bus, but she could not remember
if she reported the problems on the afternoon of the collision.
At the time of the collision, Randy Mullinax (Mr. Mullinax)
had been employed as Transit's director of safety administration
for approximately one month. He testified that drivers who
discovered a problem with a bus were supposed to remove the bus
from service immediately and report the problem to the dispatcher.
He also testified as to the preventative maintenance schedules for
buses and the designation and assignment of bus routes.
Plaintiff Harriette Floyd (Mrs. Floyd) was diagnosed with a
concussion after examination in the Carolinas Medical Center
emergency room following the collision. She testified that since
the collision she often suffered dizziness that caused her to fall
and that she had a constant high-pitched squeal in her head. Mrs.
Floyd also testified that her injuries caused her to resign her job
as a high school math teacher, which she had held for twenty-eight
years. Mrs. Floyd stated because of the collision she had suffered
a loss of friends, low energy, and elimination of exercise and
outdoor activities. Dr. Young Davis, an economics expert,
testified that Mrs. Floyd's lost future earnings and benefits
totaled $534,454.
Dr. Otto Charles Susak, an emergency physician who treated
Mrs. Floyd at Carolinas Medical Center, testified that Mrs. Floyd's
post-accident condition fit into all but one of the categories for
a mild brain injury. Dr. Joseph Estwanik testified that hediagnosed Mrs. Floyd with neck strain, dizziness, and mild symptoms
of post-concussion headache. Dr. Ervin Batchelor (Dr. Batchelor),
a neuropsychologist, diagnosed Mrs. Floyd with post-accident
cognitive difficulties, including problems with concentration,
reading, spelling, forgetfulness, increased irritability, and
depression. Dr. Batchelor testified that Mrs. Floyd complained of
ringing in her ears (tinnitus), blurred vision, headaches, and
dizziness. Dr. Batchelor also testified that Mrs. Floyd would be
unable to maintain any gainful employment due to her injuries.
Dr. Hemanth Rao (Dr. Rao), a neurologist, testified regarding
Mrs. Floyd's injuries from the accident and agreed with Dr.
Batchelor's diagnosis of head trauma and post-concussive syndrome.
Dr. Rao also testified to the mechanics of Mrs. Floyd's brain
injury and the causal connection between the injury and her
symptoms. He also stated that he did not think Mrs. Floyd could
sustain gainful employment as a result of the injuries she
suffered. Dr. Rao also estimated that Mrs. Floyd's medical
expenses would range between four thousand dollars and fifteen
thousand dollars per year for the remainder of her life.
Dr. Dale Brown (Dr. Brown) testified concerning Mrs. Floyd's
balance problems and stated that he diagnosed her with chronic
disequilibrium. He stated that she became dizzy when she turned
her head and demonstrated a lack of balance in an eye-to-eye motion
test. He testified that her chronic disequilibrium and tinnitus
were caused by the collision and had deprived Mrs. Floyd of her
quality of life. Patricia Benfield (Ms. Benfield), a cognitive rehabilitation
expert, testified concerning her evaluation and treatment of Mrs.
Floyd for a brain injury. Ms. Benfield observed Mrs. Floyd in her
teaching environment and testified that Mrs. Floyd lost her balance
several times and had some difficulty in focusing and in assisting
students. She also opined that Mrs. Floyd was overwhelmed and was
experiencing difficulty in carrying out her duties as a math
teacher. She further stated that she was concerned about Mrs.
Floyd's competency to continue teaching.
A jury awarded Mrs. Floyd $750,000 for personal injuries and
awarded Mr. Floyd $75,000 for loss of consortium in a judgment
entered on 19 January 2001. Defendants moved for judgment
notwithstanding the verdict and alternatively for a new trial on 24
January 2001. The trial court denied both motions on 16 March
2001. Defendants appeal.
Defendants first argue the trial court erred in admitting
evidence about Mr. Floyd's claim for loss of consortium and in
submitting the issue to the jury. Defendants contend the release
signed in the voluntary dismissal of Mr. Floyd's negligence claim
settled Mr. Floyd's loss of consortium claim. Defendants argue
that loss of consortium should be viewed as damage to the marital
unit and thus should be the subject of only one claim rather than
separate claims by each spouse.
"[A] spouse may maintain a cause of action for loss of
consortium due to the negligent actions of third parties so long as
that action for loss of consortium is joined with any suit theother spouse may have instituted to recover for his or her personal
injuries." Nicholson v. Hospital, 300 N.C. 295, 304, 266 S.E.2d
818, 823 (1980). In the case before us, Mr. Floyd properly joined
his loss of consortium claim with Mrs. Floyd's negligence claim.
Each party who suffers a loss of consortium is entitled to
institute a suit to recover for his or her individual loss. North
Carolina law does not limit recovery for loss of consortium to one
claim per marital unit as advocated by defendants and we decline to
adopt such a rule. The trial court did not err in admitting
evidence of Mr. Floyd's loss of consortium or in submitting his
claim to the jury. This assignment of error is overruled.
Defendants next argue the trial court erred in submitting
issues of negligence and damages to the jury.
Our standard of review on the grant of a
motion for directed verdict is "whether, upon
examination of all the evidence in the light
most favorable to the nonmoving party [with
this] party be[ing] given the benefit of every
reasonable inference drawn therefrom, the
evidence is sufficient to be submitted to the
jury." A directed verdict should be granted
in favor of the moving party only where "'the
evidence so clearly establishes that fact in
issue that no reasonable inferences to the
contrary can be drawn,' and 'if the
credibility of the movant's evidence is
manifest as a matter of law.'"
Culler v. Hamlett, 148 N.C. App. 372, 374, 559 S.E.2d 195, 198
(2002) (citations omitted). "If there is such relevant evidence as
a reasonable mind might accept as adequate to support the elements
of negligence, the trial court must deny defendant's motion and
allow the case to go to the jury." Cobb v. Reitter, 105 N.C. App.
218, 220-21, 412 S.E.2d 110, 111 (1992). Defendants first argue there was insufficient evidence to
submit the issue of negligent training of McGill to the jury.
McGill testified about the training program and stated that she was
instructed to contact the dispatcher if she experienced trouble
with a bus. She also testified that in her training she was not
instructed that it was unlawful to operate a vehicle without a
functioning speedometer. McGill could not recall the amount of
classroom time she received before she began driving buses and
testified that she was on the wrong route at the time of the
collision. Mr. Mullinax also testified about driver training and
safety procedures to be used when a driver experienced bus problems
while in service. He stated that a driver who experienced
mechanical problems, such as an inoperable speedometer, could
finish the route before finding a location to exchange the bus.
When considered in a light most favorable to the nonmoving
party, there was sufficient evidence presented at trial to allow
the jury to conclude that Transit was negligent in its training of
McGill. The jury was able to weigh the evidence and determine
whether Transit met its duty of care while training McGill. The
trial court did not err in submitting the issue to the jury.
Defendants next argue the trial court erred in submitting to
the jury the issues of inadequate brakes and failure to maintain
the brakes. McGill testified that the brakes on the bus were the
worst she had ever operated and that the condition existed when she
initially left the bus lot. She also testified that a bus company
mechanic and her manager told her that the bus had experiencedbrake failure after an inspection following the accident. Mr.
Mullinax also testified that the brakes were leaking and had been
repaired the evening following the accident, but that the brakes
were not damaged in the accident.
When considered in a light most favorable to the nonmoving
party, there was sufficient evidence presented at trial to allow
the jury to conclude Transit was negligent in allowing a bus to be
operated with inadequate brakes and in failing to maintain the
brakes. The jury was able to weigh the evidence and determine
whether Transit met its duty of care in operating the bus and
maintaining the brakes. The trial court did not err in submitting
the issue to the jury.
Defendants next argue the trial court erred in submitting the
issue of damages to the jury. Defendants argue Mrs. Floyd failed
to provide sufficient evidence of medical expenses to warrant
recovery for medical expenses. Defendants also argue that Mrs.
Floyd failed to prove that her medical expenses were necessary and
reasonable.
"Medical bills are admissible where lay and medical testimony
of causation is provided." Smith v. Pass, 95 N.C. App. 243, 253,
382 S.E.2d 781, 788 (1989). "[T]he treatment for which charges are
incurred must be reasonably necessary, and the charges must be
reasonable in amount." Chamberlain v. Thames, 131 N.C. App. 705,
717, 509 S.E.2d 443, 450 (1998). "[I]t remains entirely within the
province of the jury to determine whether certain medical treatment
was reasonably necessary." Jacobsen v. McMillan, 124 N.C. App.128, 135, 476 S.E.2d 368, 372 (1996).
Evidence in the record shows that Dr. Rao, Dr. Estwanik, Dr.
Batchelor, and Dr. Brown testified to Mrs. Floyd's medical
treatment and resulting expenses. Dr. Rao testified that he
believed all of his charges were "reasonable and necessary based on
treatment rendered following the motor vehicle accident."
Defendants stipulated to the charges for Dr. Estwanik's medical
services. Dr. Batchelor testified to the "reasonably anticipated
and necessary costs" of lifetime treatment for Mrs. Floyd's
injuries. Dr. Brown testified that his charges were "reasonable
and customary . . . to deal with the condition which [he] found in
[Mrs. Floyd]." This testimony provided an evidentiary basis for
Mrs. Floyd's past and anticipated future medical bills to permit
the jury to decide the issue of damages.
When considered in a light most favorable to the nonmoving
party, there was sufficient evidence presented at trial to permit
the jury to decide the issue of damages. The evidence was
sufficient to allow the jury to decide the expenses were necessary
and reasonable and that they resulted from defendants' negligence.
The trial court did not err in submitting the issue to the jury.
Defendants also argue they were prejudiced by Mrs. Floyd's
counsel's statement that Mrs. Floyd incurred actual and projected
medical expenses of approximately $330,000. Defendants failed to
object to this statement at trial and therefore failed to preserve
the issue for appellate review. N.C. R. App. P. 10(b)(1).
Defendants next argue the trial court erred in failing to setaside the verdict and judgment and failing to order a new trial as
a sanction for Mrs. Floyd's willful destruction of evidence.
Defendants cite no authority that compels or permits the trial
court to order a new trial in light of destruction of evidence.
Defendants cite cases that merely discuss the inferences that may
be drawn at trial in the event a party destroys evidence. See
Maraman v. Cooper Steel Fabricators, 146 N.C. App. 613, 555 S.E.2d
309 (2001), aff'd in part, rev'd in part, 355 N.C. 482, 562 S.E.2d
420 (2002); Red Hill Hosiery Mill, Inc. v. Magnetek, Inc., 138 N.C.
App. 70, 530 S.E.2d 321, disc. review denied 353 N.C. 268, 546
S.E.2d 112 (2000). Additionally, defendants fail to develop their
argument that Mrs. Floyd destroyed evidence in bad faith and that
sanctions are warranted. Defendants have failed to demonstrate a
basis for granting a new trial on this issue. This assignment of
error is without merit.
Defendants next argue the trial court erred in allowing expert
witnesses, medical providers, and lay witnesses to testify to
evidence of which they lacked knowledge or that was outside their
area of expertise. Defendants contend Dr. Rao, Dr. Batchelor, and
Dr. Brown lacked the expertise to testify to the biomechanics of a
closed head injury and were not qualified to offer an opinion on
the issue of causation.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2001) permits the
admission of expert testimony if it "will assist the trier of fact
to understand the evidence or to determine a fact in issue." "The
determination of the admissibility of expert testimony is withinthe sound discretion of the trial judge and will not be disturbed
on appeal absent abuse of discretion." Braswell v. Braswell, 330
N.C. 363, 377, 410 S.E.2d 897, 905 (1991).
The trial transcript shows that Dr. Rao was tendered as an
expert in the field of neurology without objection. The record
also shows that defendants stipulated to Dr. Brown's tender as an
expert in otolaryngology. Dr. Rao and Dr. Brown testified
regarding their respective clinical experiences in treating victims
of brain injury. Dr. Rao testified that neurologists specialize in
the treatment of problems affecting the nervous system. Similarly,
Dr. Brown testified that otolaryngologists specialize in treatment
of problems affecting the head and neck. Both Dr. Rao and Dr.
Brown have appropriate educational and clinical backgrounds to
qualify them as experts. Defendants have failed to demonstrate
that Dr. Rao or Dr. Brown were not qualified to testify regarding
biomechanics or that their opinions were confusing or unhelpful to
the jury. We believe the respective specialty of each expert
encompasses biomechanics and qualifies them to offer an opinion
regarding Mrs. Floyd's brain injury.
Dr. Batchelor was tendered as a witness in neuropsychology
over defendants' objection. Dr. Batchelor testified to his
educational background and clinical experience in treating
individuals with brain injuries. Dr. Batchelor also testified that
he had training and experience in neurology and medicine but did
not possess a medical degree in either of those fields. The trial
court conducted a voir dire examination of Dr. Batchelor anddetermined that he was qualified to offer expert testimony.
In Curry v. Baker, 130 N.C. App. 182, 502 S.E.2d 667, disc.
review denied, 349 N.C. 355, 517 S.E.2d 890 (1998), this Court
found no error when a neuropsychologist testified to the brain
injuries suffered by the plaintiff in a car accident. We found
that there was sufficient evidence in the record independent of the
neuropsychologist's testimony to warrant submission of the claim to
the jury. The reports of three doctors who had treated the
plaintiff and diagnosed him with traumatic brain injury were
admitted into evidence during the neuropsychologist's testimony.
The neuropsychologist's testimony served to corroborate the
conclusions of those doctors who had examined and diagnosed the
plaintiff. Id. at 188, 502 S.E.2d at 672-73. Additionally, the
defendants in Curry "did not demonstrate that the conditions
afflicting plaintiff were caused by anything other than the
collision or dispute that these types of conditions are commonly
associated with traumatic brain injury." Id. (citing Goble v.
Helms, 64 N.C. App. 439, 307 S.E.2d 807 (1983), disc. review
denied, 310 N.C. 625, 315 S.E.2d 690 (1984)).
In the present case, Dr. Batchelor's testimony served to
corroborate the testimony of Dr. Rao and Dr. Brown regarding Mrs.
Floyd's brain injury. Dr. Batchelor testified that he had received
training and education in the field of neurology sufficient to
render him qualified to testify to issues in this field. Dr.
Batchelor's testimony was sufficient to permit the trial court to
determine that Dr. Batchelor possessed training and experience tooffer an opinion regarding Mrs. Floyd's brain injury that would be
helpful to the jury. Additionally, defendants failed to
demonstrate that Mrs. Floyd's conditions arose from other
circumstances. There was sufficient evidence presented at trial to
support her claim of brain injury, thereby rendering any error in
the admission of Dr. Batchelor's testimony harmless. This
assignment of error is overruled.
Defendants argue the trial court erred in admitting the
testimony of Ms. Benfield. Defendants argue that no foundation was
laid for Ms. Benfield's evaluation of Mrs. Floyd's condition. N.C.
Gen. Stat. § 8C-1, Rule 703 (2001) states that "[t]he facts or data
in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to him at or
before the hearing."
Ms. Benfield was tendered as an expert witness in the field of
cognitive rehabilitation. Ms. Benfield testified extensively to
her education and background as a cognitive and vocational
rehabilitation therapist and the trial court properly tendered her
as an expert. See Braswell, 330 N.C. at 377, 410 S.E.2d at 905.
Ms. Benfield subsequently testified to her discussions with Dr.
Batchelor regarding Mrs. Floyd's brain injury and her evaluation
and treatment of Mrs. Floyd both inside and outside of Mrs. Floyd's
work environment. The record shows that Ms. Benfield was able to
observe Mrs. Floyd and acquire knowledge about Mrs. Floyd's
condition as a foundation for her testimony. This assignment of
error is without merit. Defendants next argue the trial court erred in admitting
McGill's deposition as an exhibit during her testimony. N.C. Gen.
Stat. § 1A-1, Rule 32(a)(3) (2001) states that the "deposition of
a party . . . may be used by an adverse party for any purpose,
whether or not the deponent testifies at the trial or hearing."
Any part of a party's deposition or all of a party's deposition may
be used against the party "so far as admissible under the rules of
evidence applied as though the witness were then present and
testifying." Rule 32(a).
In the case before us, McGill's deposition was admitted during
her testimony at trial in accordance with Rule 32(a). Defendants
do not assign error to the admission of her deposition based on
violations of the rules of evidence.
Defendants contend that McGill was deprived of her procedural
rights because she was not represented by separate counsel at the
time of her deposition. Defendants argue that these circumstances
show McGill was essentially without counsel during her deposition,
thus prohibiting her deposition from being admitted at trial. Rule
32(a) states that a deposition can be used against "any party who
was present or represented at the taking of the deposition."
McGill was present at her deposition in addition to being
represented by counsel for the City and for Transit. Accordingly,
the admission of McGill's deposition was proper under Rule 32(a).
Additionally, defendants fail to cite any authority that would
compel us to find error as argued by defendants. This argument is
overruled. Defendants also contend the trial court erred in permitting
the jury to read the complete transcript of McGill's deposition.
"[T]he scope of review on appeal is confined to a consideration of
those assignments of error set out in the record on appeal." N.C.
R. App. P. 10(a). Defendants failed to assign error in the record
to the trial court's decision to permit the jury to read the
deposition. Accordingly, we do not address this argument.
Defendants argue the trial court erred in instructing the jury
that plaintiffs could recover damages based on McGill's operation
of a bus with an inoperable horn and speedometer. Defendants argue
there was no evidence that either of these factors was a proximate
cause of the collision.
On appeal, this Court considers a jury
charge contextually and in its entirety. The
charge will be held to be sufficient if "it
presents the law of the case in such manner as
to leave no reasonable cause to believe the
jury was misled or misinformed. . . ." The
party asserting error bears the burden of
showing that the jury was misled or that the
verdict was affected by an omitted
instruction. "Under such a standard of
review, it is not enough for the appealing
party to show that error occurred in the jury
instructions; rather, it must be demonstrated
that such error was likely, in light of the
entire charge, to mislead the jury."
Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002)
(citations omitted).
Proximate cause is an inference of fact
to be drawn from other facts and
circumstances.
It is only when the facts are all
admitted and only one inference may be drawn
from them that the court will declare whether
an act was the proximate cause of an injury ornot. . . . "[W]hat is the proximate cause of
an injury is ordinarily a question for the
jury."
Hairston v. Alexander Tank and Equipment Co., 310 N.C. 227, 234-35,
311 S.E.2d 559, 566 (1984) (quoting Conley v. Pearce-Young-Angel
Co.; Rutherford v. Pearce-Young-Angel Co., 224 N.C. 211, 214, 29
S.E.2d 740, 742 (1944)).
The evidence presented at trial permitted more than one
inference to be drawn regarding the issue of proximate cause. The
evidence demonstrates that McGill operated a bus with an inoperable
speedometer and horn in violation of North Carolina motor vehicle
statutes. The trial court instructed the jury that it could find
that either of these facts was the proximate cause of the collision
but did not require the jury to find proximate cause on these
facts. The trial court properly permitted the jury to draw
inferences from these facts and decide the issue of proximate
cause. Since more than one inference could be drawn from the
evidence, submission of the issue to the jury was appropriate.
Defendants have failed to demonstrate that the jury instruction
given by the trial court was erroneous and likely to mislead the
jury. This assignment of error is without merit.
We have reviewed defendants' remaining arguments and
assignments of error and find them to be without merit.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
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