Appeal by defendants from judgment entered 20 October 1999 and
an order entered 9 November 1999 by Judge J. B. Allen, Jr., and
from a judgment entered 12 December 2001 by Judge David Q. LaBarre
in Chatham County Superior Court. Heard in the Court of Appeals 30
January 2003.
Benjamin Spence Albright for plaintiff-appellee.
Moss, Mason & Hill, by Matthew L. Mason, for defendant-
appellee United States Fidelity and Guaranty Company.
Haywood, Denny & Miller, L.L.P., by Robert E. Levin, for
defendant-appellants.
HUNTER, Judge.
Joshua Brandon Martin (“defendant Joshua”) and Kenneth Martin
(“defendant Kenneth”) (collectively “defendants”), having been
found liable for injuries incurred by Sue Womble Loy (“plaintiff”)
as the result of a motor vehicle accident, appeal the trial court's
(1) grant of plaintiff's motion for a partial new trial on the
issue of damages; (2) denial of defendant Kenneth's motion for
directed verdict; and (3) refusal to allow defendants' expert
witness to offer opinion testimony regarding the speeds of thevehicles at the time of impact. We affirm for the reasons stated
herein.
On 6 November 1996, the vehicles driven by plaintiff and
defendant Joshua collided on Highway 54 in Alamance County, North
Carolina. The accident occurred at approximately 6:50 a.m. and
resulted in injuries to both parties.
Plaintiff filed a complaint on 17 December 1997 alleging the
accident and her resulting injuries were caused by defendant
Joshua's negligence. Plaintiff also alleged that such negligence
was imputed on defendant Kenneth as the owner of the “household
purpose vehicle” driven by defendant Joshua, defendant Kenneth's
minor son, at the time of the accident. Defendants answered and
cross-claimed seeking recovery from plaintiff for defendant
Joshua's medical expenses and pain and suffering. Defendants
subsequently dismissed their cross-claim.
The case was tried before a jury on 4 October 1999. At trial,
plaintiff testified that defendant Joshua suddenly drove onto
Highway 54 from a side road. Additionally, Larry Strickland
(“Strickland”), an eyewitness at the accident scene, testified that
he saw defendant Joshua run a stop sign and skid into the roadway
in front of plaintiff, causing the accident. Strickland further
testified that he encountered no visibility problems at the time of
the accident and considered plaintiff's speed to be appropriate for
the weather conditions. Trooper Floyd T. Wright of the North
Carolina Highway Patrol also testified at the trial and fully
corroborated the testimony of plaintiff and Strickland. Defendant Joshua testified that he could not recall how the
accident occurred because his injuries had caused him to lose all
memory of the events. Thus, defendants offered the testimony of
David McCandless (“McCandless”), an expert in the field of accident
reconstruction, to testify on their behalf. Plaintiff's counsel
objected to portions of McCandless' testimony and, the trial court
refused to allow McCandless to share his opinion with the jury
regarding the speed of the vehicles prior to impact.
At the conclusion of all the evidence, defendant Kenneth
motioned for directed verdict on all claims against him. The
motion was denied. Thereafter, the jury returned a verdict finding
defendant Joshua negligent and awarded plaintiff recovery from
defendants in the amount of one dollar.
Plaintiff immediately filed a Motion for a Partial New Trial,
asking the trial court to set aside that portion of the jury
verdict relating to damages. In turn, defendants replied by asking
that the jury verdict be upheld or, in the alternative, the entire
verdict be set aside because “[t]he issues of liability and damages
[were] so intertwined that any alleged error taint[ed] the entire
verdict.” The trial court granted plaintiff's motion. Defendants
appealed to this Court.
Following our remand of the case to the trial court as
interlocutory, the issue of damages was retried before a jury on 29
October 2001. The jury returned a verdict of $50,000.00 in favor
of plaintiff. Once again, defendants appeal.
I.
By defendants' first assignment of error they argue the trial
court erred in granting plaintiff a partial new trial on the issue
of damages. We disagree.
Rule 59 of the North Carolina Rules of Civil Procedure allows
for the granting of a new trial to all or any of the parties and on
all or part of the issues in an action.
See N.C. Gen. Stat. § 1A-
1, Rule 59 (2001). A new trial may be granted for any of the
following causes or grounds:
(1) Any irregularity by which any party was
prevented from having a fair trial;
(2) Misconduct of the jury or prevailing
party;
(3) Accident or surprise which ordinary
prudence could not have guarded against;
(4) Newly discovered evidence material for
the party making the motion which he
could not, with reasonable diligence,
have discovered and produced at the
trial;
(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;
(8) Error in law occurring at the trial and
objected to by the party making the
motion, or
(9) Any other reason heretofore recognized as
grounds for new trial.
N.C. Gen. Stat. § 1A-1, Rule 59(a)(1)-(9). Furthermore, our
Supreme Court has recognized that a trial court can exercise itsdiscretion by granting a partial new trial solely on the issue of
damages.
See Housing, Inc. v. Weaver, 305 N.C. 428, 441, 290
S.E.2d 642, 650 (1982). In such an instance, the question is not
whether the appellate court would have ruled differently, but
whether the ruling constituted a manifest abuse of discretion.
(See footnote 1)
Id.
In the present case, the court found, in part, that the jury's
award to plaintiff of one dollar in damages was contrary to the
evidence and inadequate. The court's finding was supported by
uncontroverted evidence establishing defendant Joshua's negligence.
Also, there was little to no evidence establishing that plaintiff
was contributorily negligent, especially in light of (1) defendant
Joshua not remembering the events surrounding the accident, and (2)
Strickland's unbiased testimony supporting plaintiff's claim.
Finally, the court found, and the evidence at trial tended to show,
that “plaintiff incurred medical bills relating to the accident in
the sum of $13,118.75.” Thus, the trial court's decision to set
aside the jury's award of damages did not constitute an abuse of
discretion. In the alternative, defendants argue that if this Court
concludes the trial court acted properly in setting aside the jury
award, then the court abused its discretion by not allowing a new
trial on all issues of liability. Defendants contend that
plaintiff's recovery of one dollar likely indicates a compromise
verdict whereby the issues of negligence, contributory negligence,
and damages were so inextricably interwoven by the jury that
allowing only a partial trial on damages was unjust. However,
defendants' contention regarding a compromise verdict is
unsupported by the evidence and based purely on speculation. The
trial court specifically stated in its order that “[t]he issues
submitted to the jury [were] not so intertwined that the entire
verdict [was] tainted and there was sufficient evidence for the
jury to properly find as they found on the first two issues.” This
finding, as well as the other evidence previously mentioned,
further indicate there was no abuse of discretion by the trial
court. Defendants' first assignment of error is overruled.
II.
By their second assignment of error, defendants argue the
trial court erred in not granting defendant Kenneth's motion for
directed verdict. Specifically, defendants contend that plaintiff
failed to establish that the vehicle driven by defendant Joshua in
the accident was a “family purpose” vehicle. We disagree.
“Under the family purpose doctrine, the owner or person with
ultimate control over a vehicle is held liable for the negligent
operation of that vehicle by a member of his household.”
Byrne v.Bordeaux, 85 N.C. App. 262, 264, 354 S.E.2d 277, 279 (1987). It
“is essentially a means for establishing liability of responsible
parties on a theory of
respondeat superior whereby the responsible
party is the principal and the party actively negligent is agent.”
Carver v. Carver, 310 N.C. 669, 680, 314 S.E.2d 739, 746 (1984).
A plaintiff may recover under the doctrine by showing:
(1) [T]he operator was a member of the family
or household of the owner or person with
control and was living in such person's home;
(2) that the vehicle was owned, provided and
maintained for the general use, pleasure and
convenience of the family; and (3) that the
vehicle was being so used with the express or
implied consent of the owner or person in
control at the time of the accident.
Byrne, 85 N.C. App. at 264-65, 354 S.E.2d at 279.
The evidence and admissions by defendants established the
applicability of the family purpose doctrine to the case sub
judice. In their answer, defendants admitted (1) they lived as
father and son at the same residence; (2) defendant Kenneth owned
the vehicle driven by defendant Joshua at the time of the accident;
and (3) defendant Joshua was driving the vehicle with the
permission of defendant Kenneth. There was no evidence offered at
the trial to dispute defendants' earlier admissions. Thus, the
trial court properly denied defendant Kenneth's motion for directed
verdict.
III.
By defendants' final assignment of error they argue McCandless
should have been allowed to offer his expert opinion to the juryregarding the speed of the vehicles at the time of impact. We
disagree.
The admissibility of expert testimony is within the sound
discretion of the trial court and will not be overruled absent an
abuse of discretion.
Griffith v. McCall, 114 N.C. App. 190, 194,
441 S.E.2d 570, 573 (1994). Rule 702 of the North Carolina Rules
of Evidence allows an expert witness to testify in the form of an
opinion if that expert's “scientific, technical or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue[.]” N.C. Gen. Stat.
§ 8C-1, Rule 702(a) (2001). Nevertheless, “[o]ur Court has held
that 'with respect to the speed of a vehicle, the opinion of a[n]
. . . expert witness will not be admitted where he did not observe
the accident, but bases his opinion on the physical evidence at the
scene.'”
Marshall v. Williams, ___ N.C. App. ___, ___, 574 S.E.2d
1, 5 (quoting
Hicks v. Reavis, 78 N.C. App. 315, 323, 337 S.E.2d
121, 126 (1985)),
appeal dismissed and disc. review denied, 356
N.C. 614, ___ S.E.2d ___ (2002).
Here, defendants sought to offer the expert opinion of
McCandless regarding the speed of each vehicle at the time of
impact. Yet, McCandless' expert opinion was (1) based solely on
his view of the accident scene months after the collision, and (2)
of no assistance in establishing the exact locations where the
vehicles came to rest. Without having personally observed the
accident, McCandless' opinion testimony was clearly inadmissible
pursuant to North Carolina case law.
See id. Although defendantscontend several other jurisdictions hold otherwise, we are bound by
a prior decision of another panel of this Court that addressed the
same issue and has not been overturned.
See In the Matter of
Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989). Therefore, we conclude the trial court did not abuse its
discretion in excluding McCandless' opinion testimony with respect
to the speeds of the vehicles.
Accordingly, for the aforementioned reasons, the trial court
did not abuse its discretion in (1) granting plaintiff a partial
new trial on the issue of damages; (2) denying defendant Kenneth's
motion for directed verdict; and (3) preventing McCandless from
offering opinion testimony regarding the speeds of the vehicles at
the time of impact.
Affirmed.
Judges McGEE and CALABRIA concur.
Footnote: 1