RUBYE D. GATTIS,
Plaintiff-Appellant,
v
.
Durham County
No. 01-CVS-01025
T.S. ROYSTER, JR., PUBLIC
ADMINISTRATOR FOR THE ESTATE
OF EUGENE KINYON,
Defendant-Appellee.
Perry, Perry & Perry, P.A., by Robert T. Perry, for plaintiff-
appellant.
Larcade & Heiskell, PLLC, by Christopher N. Heiskell, for
defendant-appellee.
McGEE, Judge.
Rubye D. Gattis (plaintiff) was injured on 25 March 1998 when
her vehicle was struck in the rear by a truck operated by Eugene
Kinyon (defendant), now deceased. At the time of the accident,
defendant's truck was pulling a farm tractor on a trailer and was
traveling southbound on N.C. Highway 75 in the city of Butner. The
collision occurred when plaintiff's vehicle turned in front of
defendant's vehicle, onto N.C. Highway 75, headed south.
Lieutenant Donald Wayne Slaughter (Lieutenant Slaughter) of
Butner Public Safety arrived on the scene shortly after the
collision. Lieutenant Slaughter noted that there were no injuriesand no request was made for an ambulance. Both vehicles remained
operational with minor damage. In his report, Lieutenant Slaughter
described the tire impressions left by defendant's truck as being
from the front wheels and due to the weight being pulled by the
vehicle.
Plaintiff drove her vehicle away from the collision. Several
days later, plaintiff sought medical attention for alleged injuries
resulting from the collision. Plaintiff saw Dr. Theodore Pitts
(Dr. Pitts), an orthopaedic surgeon, on 8 April 1998, complaining
of pain in her left breast and the right side of her lower back.
During a physical examination of plaintiff, Dr. Pitts did not
detect any tenderness in plaintiff's lower back and found her
strength and sensation to be normal. On 22 June 1999, plaintiff
saw Dr. Peter Bronec (Dr. Bronec), a neurosurgeon, for pain she
described as extending from her back into her buttocks and thigh.
Dr. Bronec conducted a physical examination of plaintiff and found
that she had full strength in her back and in her legs and that her
sensation was intact. Dr. Bronec testified as to plaintiff's
extensive medical history, including the presence of degenerative
disk disease in her lumbar area, prior to 25 March 1998.
Plaintiff filed a negligence action against the estate of
defendant on 27 February 2001 seeking to recover damages for
bodily injuries, medical expenses, property damage, lost wages,
attorney's fees, and pre-judgment interest. The jury found that
plaintiff was not injured by the negligence of defendant and
judgment was entered in favor of defendant. Plaintiff appeals. Plaintiff contends that the trial court erred in instructing
the jury as to proximate cause in accordance with the Pattern Jury
Instructions on peculiar susceptibility, N.C.P.I. Civ. 102.20, and
multiple causes, N.C.P.I. Civ. 102.19. At trial, plaintiff
objected to the instruction on multiple causes as a whole and
further argued that the second paragraph of the instruction
regarding a defendant's knowledge of a plaintiff's peculiar
susceptibility to injury was unnecessary. Plaintiff asserts that
giving both instructions, without alteration as to proximate cause,
confused the jury, resulting in substantial prejudice against
plaintiff.
It is well established that it is the duty of the trial court
to instruct the jury as to the law with respect to "every
substantial feature of the case." Mosley & Mosley Builders v.
Landin Ltd., 87 N.C. App. 438, 445, 361 S.E.2d 608, 612 (1987),
cert. denied, 322 N.C. 607, 370 S.E.2d 416 (1988). Further,
according to the introductory comments of the North Carolina
Pattern Jury Instructions, "[t]hese instructions do not eliminate
the need to individually tailor each charge to the given factual
situation and to comply with Rule 51(a) of the North Carolina Rules
of Civil Procedure."
Upon appellate review, a jury instruction is 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.'"
Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847
(2002)(quoting Jones v. Development Co., 16 N.C. App. 80, 86-87,191 S.E.2d 435, 439-40, cert. denied, 282 N.C. 304, 192 S.E.2d 194
(1972)).
The party asserting error bears the burden of
showing that the jury was misled or that the
verdict was affected by an omitted
instruction. Robinson v. Seaboard System
Railroad, 87 N.C. App. 512, 524, 361 S.E.2d
909, 917 (1987)[disc. review denied, 321 N.C.
474, 364 S.E.2d 924 (1988)]. "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, 149 N.C. App. at 160, 560 S.E.2d at 847 (2002)(quoting
Robinson, 87 N.C. App. at 524, 361 S.E.2d at 917). We are to
consider a jury instruction contextually and in its entirety. Id.
In the case before us, the jury responded "No" to the first
issue, which read: "Was the plaintiff injured by the negligence of
the defendant?" It is plaintiff's contention that based on the
trial court's instructions as to proximate cause, the jury had no
alternative but to conclude that even if defendant was negligent,
a reasonable person could not have known or foreseen plaintiff's
injuries. We do not agree with plaintiff's assessment.
Plaintiff cites no authority and we do not find any case law
to support plaintiff's argument that the pattern jury instructions
for peculiar susceptibility and multiple causes are mutually
exclusive, and if read conjunctively, are confusing to a jury. The
instruction as to multiple causes provides a basic definition as to
proximate cause, and the instruction on peculiar susceptibility
serves to further explain proximate cause in a situation where aplaintiff has a pre-existing condition.
Under the doctrine of peculiar susceptibility,
a defendant whose negligent act would not have
resulted in any injury to an ordinary person
will not be liable for its consequences to one
of peculiar susceptibility. As for
aggravation, our case law indicates that where
a pre-existing mental or physical condition is
aggravated or enhanced by a defendant's
negligence, the defendant is liable only to
the extent that the underlying condition is
enhanced and not for damages attributable to
the original condition.
Holtman v. Reese, 119 N.C. App. 747, 749-750, 460 S.E.2d 338, 341
(1995). Also, a defendant's conduct may still be held negligent
although a person of ordinary physical or mental condition would
not reasonably be expected to suffer an injury, if that defendant
had knowledge or reason to know of a plaintiff's peculiar
susceptibility.
By so instructing as to proximate cause, the trial court in
effect permitted the jury to find defendant negligent if the jury
either determined the collision could have injured a person of
ordinary susceptibility, or even if the harm that transpired was
not reasonably foreseeable, the jury could still conclude defendant
was negligent if he knew or should have known of the peculiar
susceptibility of plaintiff. Even though plaintiff did not suggest
defendant had any knowledge of plaintiff's pre-existing condition,
we are unable to conclude that the additional instruction as
embodied in the second paragraph confused the jury. Also,
plaintiff has failed to demonstrate that the trial court's
instruction on multiple causes misled the jury. The multiplecauses instruction provides a basic definition of the proximate
cause. Therefore, we hold that the trial court did not err in its
charge to the jury. Plaintiff's first assignment of error is
overruled.
In her second assignment of error, plaintiff argues that the
trial court committed reversible error when it denied plaintiff's
motion for a mistrial. Plaintiff contends a mistrial was warranted
based on her allegations that certain jurors had taken a defense
exhibit into the jury room during a brief recess without the
consent of counsel.
N.C. Gen. Stat. § 15A-1233(b) (2003) provides that the trial
court may allow exhibits which have been received into evidence
into the jury room "upon request by the jury and with consent of
all parties[.]" Defendant introduced into evidence Defendant's
Exhibit Number 1, a cumulative history of plaintiff's past medical
records, and requested publication to the jury. Each juror was
handed a copy of the exhibit and the jury was then excused for
approximately twenty minutes while the trial court addressed other
matters. The jury did not ask to view the exhibit during the
recess nor did counsel consent to jurors retaining a copy.
However, plaintiff provides no evidence that any juror carried
the exhibit away during the recess. She presents no affidavit from
a juror nor does she direct this Court to anything in the record
supporting her argument. Plaintiff relies on her attorneys'
assertion that they witnessed the jurors return from recess with
the exhibits in hand. Even if this Court accepted plaintiff's allegation that a
juror had retained the exhibit during the recess, plaintiff "is not
entitled to a new trial absent a showing that the error was
prejudicial." Gardner v. Harriss, 122 N.C. App. 697, 700, 471
S.E.2d 447, 450 (1996). In order to obtain a new trial, it is
plaintiff's burden to demonstrate that she was "prejudiced to the
extent that the verdict of the jury was thereby probably influenced
against [her]." Freeman v. Preddy, 237 N.C. 734, 736, 76 S.E.2d
159, 160 (1953).
This Court is not persuaded by plaintiff's claims of
prejudice. The exhibit at issue was published to the jury and the
subject matter of the exhibit was detailed in the cross-examination
of plaintiff as well as in the testimony of her treating physician,
Dr. Bronec. See State v. Locklear, 349 N.C. 118, 151, 505 S.E.2d
277, 296 (1998) (no prejudicial error where a defendant's statement
had been admitted into evidence, read to the jury and published to
the jury), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999);
State v. Wagner, 343 N.C. 250, 288, 470 S.E.2d 33, 37-38 (1996) (no
prejudicial error where subject matter of exhibit was consistent
with a defendant's testimony); State v. Cannon, 341 N.C. 79, 459
S.E.2d 238 (1995). Plaintiff failed to demonstrate prejudice
resulting from the jury viewing the exhibit during the brief
recess. Therefore, we conclude the trial court did not abuse its
discretion in denying plaintiff's motion for a mistrial.
Plaintiff's second assignment of error is overruled.
Plaintiff also argues the trial court erred in denial ofplaintiff's request to instruct the jury as to the alleged lack of
tread on defendant's tires and the alleged overloading of
defendant's truck at the time of the accident.
"It is an elementary principle of law that the trial judge
must submit to the jury such issues as are necessary to settle the
material controversies raised in the pleadings and supported by the
evidence." Uniform Service v. Bynum International, Inc., 304 N.C.
174, 176, 282 S.E.2d 426, 428 (1981); see also, N.C. Gen. Stat. §
1A-1, Rule 49 (2003) ("Issues shall be framed in direct and concise
terms and prolixity and confusion must be avoided by not having too
many issues."). "One of the primary purposes of the charge is to
assist the jury by eliminating irrelevant matters and bringing into
focus the evidence and law that are material and essential for a
proper determination of the issues in the case." Johnson v.
Douglas and Ferguson v. Douglas, 6 N.C. App. 109, 113, 169 S.E.2d
505, 508 (1969).
In this case, plaintiff failed to allege anything in her
pleading about the tread on defendant's tires or whether
defendant's vehicle was overloaded. The plaintiff also failed to
present sufficient evidence at trial to support an instruction to
the jury on either matter.
Plaintiff's sole evidence as to the state of defendant's tires
was the testimony of a lay eyewitness, Gloria Alston (Alston).
Alston stated she observed defendant's truck smoking and that a
tire located in the ditch appeared to have no tread on it. She was
unable to express any opinion about the tires on defendant's truckor trailer. Without additional evidence, Alston's testimony was
inadequate to support an instruction to the jury about the tread on
the tire on defendant's vehicle at the time of the collision.
Plaintiff's assignment of error is overruled.
Plaintiff further requested the trial court to give North
Carolina Pattern Instruction Civil 215.20: Overloading and
Overcrowding Motor Vehicles Prohibited. In arguing the trial
court's denial of her request was in error, plaintiff misstates the
testimony and police report of Lieutenant Slaughter. Lieutenant
Slaughter, in his report, noted only that the "tire impressions
left by vehicle one [defendant's] were from front wheels only due
to the weight load being pulled." The officer also testified at
trial that, "when he [defendant] applied the brakes, the front
wheel brakes actually grabbed and started presenting yaw marks, and
the back end of the truck lifted up from the weight coming forward,
the inertia, pushing it." Lieutenant Slaughter repeatedly answered
that he had no knowledge as to whether defendant's truck was
overloaded and that his report should not be construed otherwise.
Lieutenant Slaughter's testimony was the sole evidence presented by
plaintiff in support of her request for an instruction on
overloading. Because we find Lieutenant Slaughter's testimony to
be inconclusive on the issue, and therefore insufficient to support
an instruction, the trial court did not err in denying plaintiff's
request. Plaintiff's assignment of error is overruled.
Plaintiff failed to present an argument in support of her
remaining assignments of error and they are therefore deemedabandoned. N.C.R. App. R. 28(b)(6).
Having determined that the trial court did not err, it is
unnecessary for this Court to address defendant's cross-assignments
of error.
Affirmed.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***