Appeal by plaintiff from judgment entered 14 March 2002 by
Judge Charles A. Horne, Sr. in Cleveland County District Court.
Heard in the Court of Appeals 14 May 2003.
Law Offices of Michael J. Bednarik P.A., by Michael J.
Bednarik and Brian R. Hochman, for plaintiff-appellant.
Colombo & Gondek, P.A., by Steven J. Colombo, John P. Schifano
and David M. Harmon, for defendant-appellee.
HUNTER, Judge.
Laura J. Smith (“plaintiff”) appeals a judgment whereby a jury
awarded her one dollar in nominal damages due to personal injuries
she incurred in an automobile accident. For the reasons stated
herein, we find no error.
On 25 May 1998, Donnie Lynn Hamrick (“defendant”) was towing
a trailer behind his truck on Interstate I-85 in Rowan County when
the trailer's rear wheel assembly suddenly detached. The assembly
struck and shattered plaintiff's windshield. Plaintiff sustained
injuries.
Plaintiff instituted a negligence action against defendant on
26 January 2001, which was subsequently tried on 25 February 2002. During the trial, plaintiff testified that she could not have
prevented the accident because the assembly came towards her
suddenly and without warning. She further testified that the
broken glass from the windshield primarily injured her foot,
causing severe pain and discomfort to her leg and hip. With
respect to that injury, plaintiff testified on cross-examination
that her shoe apparently came off during the accident and, since
the shoe was covered in broken glass fragments, she left it off and
walked barefoot on the broken glass around the accident scene.
Plaintiff ultimately sought treatment for the cuts on her foot and
other injuries from a chiropractic physician, Dr. Richard
Berkowitz, who testified that he diagnosed plaintiff with “cervical
somatic dysfunction, lumber somatic dysfunction, sprain/strain of
the neck, a sprain/strain of the lower back and cephalalgia.”
Defendant neither testified nor offered any evidence.
Following the closing arguments and the jury instructions, the
jury unanimously determined that plaintiff was entitled to only one
dollar in nominal damages from defendant, and judgment was entered
accordingly. Plaintiff requested a new trial and was denied.
Plaintiff appeals the judgment. Additional facts regarding this
appeal will be discussed as relevant to plaintiff's arguments.
I.
[1] First, plaintiff argues the court committed reversible
error by denying her motion for a mistrial due to the defense
attorneys making intentionally prejudicial opening and closing
arguments. The facts relevant to this argument are as follows: Defense
attorney Steven Colombo (“Attorney Columbo”) began his opening
argument by stating, “Ladies and Gentleman, this is nonsense; it's
absolute nonsense, and we'll prove it to you.” Plaintiff objected
to Attorney Columbo's characterization of her case, and the
objection was sustained with no curative instruction requested by
plaintiff or given to the jury. Attorney Columbo subsequently
became ill and another attorney from his firm, Charles Collins
(“Attorney Collins”), replaced him as defense attorney for the
remainder of the trial. Thereafter, when the time came for closing
arguments, Attorney Collins began his closing argument by stating:
“Ladies and Gentlemen, this case is -- it's nonsense, and we've
showed [sic] you that.” Plaintiff objected again. That objection
was sustained once again without a curative instruction being
requested by plaintiff or given to the jury. Thereafter, Attorney
Collins continued his closing argument by stating that plaintiff's
case was “not about pain; it's about profit. And it's not about
injury; it's about money.” Plaintiff did not object to the
additional argument. On appeal, plaintiff contends that each of
these statements was made solely to prejudice the jury and
represented the personal opinions of the defense attorneys.
As a general rule, attorneys “'are granted wide latitude in
the scope of their argument[s].'”
State v. Walls, 342 N.C. 1, 48,
463 S.E.2d 738, 762 (1995) (quoting
State v. Zuniga, 320 N.C. 233,
253, 357 S.E.2d 898, 911,
cert. denied, 484 U.S. 959, 98 L. Ed. 2d
384 (1987)). Specifically, an attorney has latitude to argue “allthe evidence to the jury, with such inferences as may be drawn
therefrom; but he may not 'travel outside the record' and inject
into his argument facts of his own knowledge or other facts not
included in the evidence.” C
rutcher v. Noel, 284 N.C. 568, 572,
201 S.E.2d 855, 857 (1974) (citations omitted). Ensuring that
counsel's arguments adhere to this rule is left largely to the
discretion of the trial court.
See State v. Johnson, 298 N.C. 355,
259 S.E.2d 752 (1979). “When counsel makes an improper argument,
it is the duty of the trial judge, upon objection, or
ex mero motu,
to correct the transgression by clear instructions. If timely
done, such action will often remove the prejudicial effect of
improper argument.”
Crutcher, 284 N.C. at 572, 201 S.E.2d at 857
(citation omitted). An appellate court will not review the
exercise of the trial court's discretion unless the impropriety of
the argument made is extreme and clearly calculated to prejudice
the jury in its deliberations.
See Johnson, 298 N.C. at 369, 259
S.E.2d at 761.
In the instant case, defendant contends that her attorneys'
“nonsense” statements merely asserted that plaintiff's decision to
walk barefoot on broken glass was contrary to good sense, i.e.,
nonsense. However, the transcript indicates that defendant's
attorneys stated in opening and closing arguments that plaintiff's
case was nonsense. Rule 3.4(e) of the Revised Rules of
Professional Conduct of the North Carolina State Bar provides that
an attorney, in trial, shall not “state a personal opinion as to
the justness of a cause [or] culpability of a civil litigant[.]” Rev. R. Prof. Conduct N.C. St. B. 3.4(e), 2003 Ann. R. (N.C.) 593,
664. Such statements, especially when they are not further tied
into any aspect of the evidence, exceed the scope of what is
permissible under Rule 3.4(e). Moreover, assuming that
characterization was permissible in the closing argument, it was
wholly inappropriate in the context of the opening argument. This
Court recognizes that the purpose of an opening argument is not to
act as “an argument on the case or an instruction as to the law of
the case[,]” but to “allow the party to inform the court and jury
of the nature of his case and the evidence he plans to offer in
support of it.”
State v. Elliott, 69 N.C. App. 89, 93, 316 S.E.2d
632, 636 (1984). Describing plaintiff's case as “nonsense”
unquestionably constituted argument.
Nevertheless, we do not believe the “nonsense” statements were
so prejudicial as to entitle plaintiff to a new trial. In front of
the jury, the trial court sustained plaintiff's objections to
defense counsels' improper statements and commented on why those
statements were improper. On appeal, plaintiff contends the trial
court should have intervened beyond sustaining the objections and
admonishing defendant's attorneys. Yet, this Court has held that
when an objection is made to an improper argument of counsel and
the court sustains the objection, that court does not err by
failing to give a curative instruction if one is not requested.
See State v. Barber, 93 N.C. App. 42, 48-49, 376 S.E.2d 497, 501
(1989). Plaintiff clearly did not request a curative instruction
after the court sustained either of the objections to the defenseattorneys' characterization of her case as “nonsense” and, given
the nature of the statements, it was unnecessary for the court to
give such an instruction
ex mero motu because the impropriety of
the statements was not extreme.
See Couch v. Private Diagnostic
Clinic, 133 N.C. App. 93, 515 S.E.2d 30 (1999). Finally, with
respect to the additional disputed statements, those statements
were proper in the context of Attorney Collins' closing argument as
an attempt to draw what he deemed were reasonable inferences from
the law and facts offered into evidence.
See generally Crutcher,
284 N.C. at 572, 201 S.E.2d at 857. Thus, the trial court did not
abuse its discretion in denying plaintiff a mistrial based on
statements made by the defense attorneys in their opening and
closing arguments.
II.
[2] Plaintiff also argues the trial court committed reversible
error when it denied plaintiff's motion to strike the use of North
Carolina Pattern Jury Instructions regarding nominal damages.
Specifically, Instruction 106.00 states,
inter alia, that
“[n]ominal damages consist of some trivial amount such as one
dollar in recognition of a technical injury to the plaintiff.”
N.C.P.I.--Civ. 106.00 (motor veh. vol. 2000). Further, Instruction
106.20 states,
inter alia, that if the jury fails to find, by the
greater weight of the evidence, the amount of damages proximately
caused by the negligence of the defendant, “it would be [the
jury's] duty to write a nominal sum such as 'One Dollar' in the
blank space provided.” N.C.P.I.--Civ. 106.20 (motor veh. vol.2000). Defendant contends these two instructions on their face
prevented an impartial determination by a jury because they
required the instructing judge to suggest that plaintiff's nominal
damages were only worth one dollar. We disagree.
Nominal damages are awarded based upon a finding that there
has been an invasion of a party's rights.
Hutton v. Cook, 173 N.C.
496, 92 S.E. 355 (1917). Such an award is recoverable in actions
based on negligence.
Porter v. Leneave, 119 N.C. App. 343, 458
S.E.2d 513 (1995). Here, the nominal damages instructions with
which plaintiff takes issue were created and approved by a
committee of the North Carolina Conference of Superior Court Judges
over twenty-five years ago. During that time these instructions
have served as a way of explaining nominal damages, and it was the
duty of the trial court to instruct the jury upon the law with
respect to the awarding of nominal damages due to the possibility
of them being awarded in this case.
See Mosley & Mosley Builders
v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608 (1987). Plaintiff
does not cite, nor has this Court found, any North Carolina case
law where giving these instructions to a jury was ever questioned
by an appellate court much less deemed prejudicial to the parties.
Further, plaintiff has not argued that submission of the nominal
damages instructions were improper in light of the evidence.
Therefore, the court committed no reversible error in denying
plaintiff's motion to strike the use of the pattern jury
instructions on nominal damages.
No error.
Judges MARTIN and GEER concur.
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