An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1723


Filed: 3 February 2004


v .                      Durham County
                            No. 01-CVS-01025

    Appeal by plaintiff from judgment filed 30 May 2002 by Judge David Q. LaBarre in Superior Court, Durham County. Heard in the Court of Appeals on 16 October 2002.

    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.
    Judges HUDSON and CALABRIA concur.
    Report per Rule 30(e).

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