Appeal by plaintiff from judgment entered 8 November 2002 and
orders entered 10 January 2003 and 14 January 2003 by Judge Alice
Stubbs in Wake County District Court. Heard in the Court of
Appeals 2 March 2004.
E. Gregory Stott for plaintiff-appellant.
Yates, McLamb & Weyer, L.L.P., by John T. Honeycutt, for
Cynthia Bobbitt Garrett (plaintiff) appeals from an 8
November 2002 judgment entered consistent with a jury verdict
finding that plaintiff was not injured by the negligence of SarahLynn Smith (defendant). Plaintiff further appeals from orders
dated 10 January 2003 denying her motions for Judgment
Notwithstanding the Verdict (J.N.O.V) and a new trial, and 14
January 2003 taxing costs against plaintiff. We conclude there was
The evidence presented at trial on 4-5 November 2002, and
preserved in the record on appeal to this Court, tends to show the
following. Plaintiff testified that on 6 March 2001 she was in an
automobile driving southbound on Kildaire Farm Road in Cary, North
Carolina. As she approached a traffic light at the intersection of
Kildaire Farm Road and Cary Parkway, the vehicles in front of her
began to slow down and the traffic light turned red; so plaintiff
stopped her car. All of a sudden, a vehicle driven by defendant
hit plaintiff's automobile from behind. Plaintiff testified that
she was by the Goodberry's store when the accident occurred.
Defendant testified that there was a maroon colored SUV type
vehicle in between her vehicle and plaintiff's automobile as they
approached the intersection. The SUV pulled around plaintiff's
vehicle because plaintiff kept stopping and going. Defendant
testified that she saw plaintiff look in her rearview mirror,
making eye contact with defendant, and then suddenly slam on her
brakes. Defendant attempted to stop by applying her brakes but
was unable to avoid hitting plaintiff's automobile. She further
testified that the Goodberry's store was about ten car lengths from
the intersection. Defendant testified on cross-examination that as
they approached the intersection, she was a car length or more
behind plaintiff. There were only two cars in front of plaintiffas they came to the intersection, and when plaintiff suddenly came
to a stop there were no cars in front of her. Defendant further
maintained that there were about ten car lengths between where
plaintiff stopped and the intersection.
On 24 May 2001, plaintiff filed a complaint seeking damages
based upon defendant's negligence. Defendant submitted an answer
to the complaint dated 2 July 2001, denying negligence but not
alleging contributory negligence on the part of plaintiff.
Plaintiff filed a pre-trial motion in limine seeking to exclude any
evidence that plaintiff intentionally slammed on her brakes or
evidence of contributory negligence. There is no indication in the
record that this motion was ever ruled on by the trial court and
this testimony was admitted without objection during trial.
Plaintiff also made an offer of proof regarding a citation
defendant received as a result of the accident. In this offer of
proof, defendant testified on voir dire that when she received the
citation from the police officer following the accident, he told
her to contact her insurance company to resolve the matter.
Defendant's insurance company provided a letter, which defendant
gave to the Wake County District Attorney and the citation was
dismissed. The letter, preserved in the record on appeal, states
that defendant's insurance company would pay for any property
damage arising from the accident and would consider any claim for
personal injury that was submitted. The letter expressly notes
that it was not to serve as an admission of liability or fault, but
was a settlement to resolve a disputed claim. The trial court
ruled this evidence was inadmissible. The issues presented are whether: (I) plaintiff's motion in
limine is sufficient to preserve her objection to testimony that
plaintiff looked in the rearview mirror and then slammed on her
brakes; (II) evidence of the insurance letter used by defendant to
obtain a dismissal of the criminal citation was admissible; (III)
there was sufficient evidence to establish defendant's negligence
as a matter of law; and (IV) the trial court erred in taxing costs
 Plaintiff contends that evidence she looked in her
rearview mirror, made eye contact with defendant, and then slammed
on her brakes is inadmissible evidence that plaintiff negligently
contributed to the accident, as defendant did not plead
contributory negligence as a defense. Plaintiff sought to exclude
this evidence through her motion in limine
, but did not object to
the submission of this testimony at trial. Furthermore, the trial
court's ruling on the motion in limine
is not included in the
record on appeal.
As this Court has previously noted, 'a motion in limine
insufficient to preserve for appeal the question of the
admissibility of evidence if the [movant] fails to further object
to the evidence at the time it is offered at trial.' Nunnery v.
, 135 N.C. App. 556, 566, 521 S.E.2d 479, 486 (1999)
(citation omitted). Thus, plaintiff has failed to preserve thisissue on appeal and we decline to address the merits of this
(See footnote 1)
 Plaintiff next argues that the trial court erred in
excluding evidence of the letter from defendant's insurance company
regarding the settlement of the property damage claim used to
dismiss the criminal citation.
Rule 411 of the North Carolina Rules of Evidence provides,
with certain exceptions, [e]vidence that a person was or was not
insured against liability is not admissible upon the issue [of]
whether [s]he acted negligently or otherwise wrongfully. N.C.
Gen. Stat. § 8C-1, Rule 411 (2003). Furthermore, under N.C. Gen.
Stat. § 1-540.2:
In any claim, civil action, or potential
civil action which arises out of a motor
vehicle collision or accident, settlement of
any property damage claim arising from such
collision or accident, whether such settlement
be made by an individual, a self-insurer, or
by an insurance carrier under a policy of
insurance, shall not constitute an admission
of liability on the part of the person,
self-insurer or insurance carrier making such
settlement, which arises out of the same motor
vehicle collision or accident. It shall be
incompetent for any claimant or party
plaintiff in the said civil action to offer
into evidence, either by oral testimony or
paper writing, the fact that a settlement ofthe property damage claim arising from such
collision or accident has been made . . . .
N.C. Gen. Stat. § 1-540.2 (2003).
The letter in this case confirming that defendant's insurance
company would pay for property damage expressly stated that it was
merely a settlement of a disputed claim and was not an admission of
liability or fault. As such, evidence that defendant's insurance
company had agreed to settle any claim for property damage arising
out of this accident was inadmissible in the subsequent action for
personal injury damages as proof that defendant was liable for the
 Plaintiff further contends that the trial court erred in
denying her motions for a directed verdict, J.N.O.V, and new trial.
Specifically, plaintiff argues that the evidence presented was
sufficient to establish defendant's negligence as a matter of law.
This Court has recently summarized the law regarding the
standard of review in this situation.
The test for determining whether a motion for
directed verdict is supported by the evidence
is identical to that applied when ruling on a
motion for judgment notwithstanding the
verdict. Martishius v. Carolco Studios,
, 355 N.C. 465, 473, 562 S.E.2d 887, 892
(2002) (quoting Smith v. Price
, 315 N.C. 523,
340 S.E.2d 408 (1986)). In ruling on the
motion, the trial court must consider the
evidence in the light most favorable to the
nonmoving party, giving him the benefit of all
reasonable inferences to be drawn therefrom
and resolving all conflicts in the evidence in
his favor. Id
. (quoting Taylor v. Walker
320 N.C. 729, 733-734, 360 S.E.2d 796, 799
(1987)). The party moving for judgment
notwithstanding the verdict, like the partyseeking a directed verdict, bears a heavy
burden under North Carolina law. Id
, 320 N.C. at 733, 360 S.E.2d
Griffis v. Lazarovich
, ___ N.C. App. ___, ___, 588 S.E.2d 918, 924
(2003). Furthermore, '[g]enerally, a motion for new trial is
addressed to the sound discretion of the trial court, and its
ruling will not be disturbed absent a manifest abuse of that
. at ___, 588 S.E.2d at 924-25 (quoting Kinsey v.
, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000)).
In this case, the evidence viewed in the light most favorable
to defendant reveals that despite being more than a car length
behind plaintiff and applying her brakes to come to a stop,
defendant was unable to avoid hitting plaintiff's car when
plaintiff suddenly stopped ten car lengths from a traffic light and
after plaintiff had looked in her rearview mirror making eye
contact with defendant.
Although the admission by defendant that her car collided with
the rear of plaintiff's vehicle permits a legitimate inference that
defendant was not maintaining a proper lookout or was following
plaintiff too closely, it does not, however, compel either of those
conclusions but instead simply raises the question for the jury's
ultimate determination. See Scher v. Antonucci
, 77 N.C. App. 810,
812, 336 S.E.2d 434, 435 (1985). Thus, even though plaintiff's
evidence and defendant's admission that a rear-end collision
occurred produced sufficient evidence to raise an inference that
defendant was negligent in order for plaintiff's case to reach a
jury, we conclude that there is not sufficient evidence to
establish defendant's negligence as a matter of law. Thus, thetrial court did not err in denying plaintiff's motions for directed
verdict and J.N.O.V; nor did the trial court abuse its discretion
by denying plaintiff a new trial.
Plaintiff finally contests the taxing of costs against her
arguing only that as she is entitled to a new trial based upon her
arguments to this Court, the entry of costs should necessarily be
vacated. Because, however, we have rejected plaintiff's arguments
on appeal, we reject plaintiff's argument on this issue.
Accordingly, we conclude there was no error in the trial of this
Judges WYNN and TYSON concur.