Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JEAN MARIE OSETEK Plaintiff, v. JASON LEE JEREMIAH, Defendant
Filed: 15 November 2005
1. Damages_medical_instructions_presumption of reasonableness
Although the trial court in an automobile accident case did not give plaintiff's requested
instruction on the rebuttable presumption of the reasonableness of medical charges, the
instructions given were accurate statements of law and were fully supported by the evidence.
2. Motor Vehicles_new trial denied_instructions proper
A new trial was not warranted for erroneous and inadequate instructions in an automobile
accident case where the court properly instructed the jury.
3. Motor Vehicles_rear-end collision_contributory negligence_directed verdict denied
The trial court correctly granted plaintiff's motion for directed verdict on contributory
negligence in an automobile accident a case where plaintiff testified that she was stopped at a
stop sign when she was hit, and defendant admitted that he was looking to his left as he drove
straight ahead and that he could have seen plaintiff's car if he had been looking. Defendant
failed to offer any evidence that plaintiff was negligent.
Judge HUNTER concurring in part and dissenting in part.
Appeal by plaintiff from an order filed 11 December 2003 by
Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in
the Court of Appeals 13 January 2005. Unpublished opinion filed 16
August 2005. Petition for rehearing granted 19 September 2005,
reconsidering the case without the filing of additional briefs and
without oral argument. The following opinion supersedes and
replaces the opinion filed 16 August 2005.
E. Gregory Stott for plaintiff-appellant.
Hall & Messick, L.L.P., by Jonathan E. Hall and Kathleen M.Millikan, for defendant-appellee.
Jean Marie Osetek (plaintiff) appeals from an order filed 11
denying her motion for judgment notwithstanding the
verdict (JNOV) and for a new trial for damages arising out of a car
accident with Jason Lee Jeremiah (defendant).
On 17 April 2001, plaintiff was operating her car in a
southerly direction on Merchant Drive in Apex, North Carolina.
Plaintiff stopped her car at a stop sign. Defendant failed to stop
his car and drove into the rear end of plaintiff's car.
Plaintiff filed a complaint on 8 March 2002 requesting
monetary damages from defendant for personal injuries sustained as
a result of the accident. On 1 May 2002, defendant filed an answer
which denied negligence and alleged plaintiff was contributorily
negligent. By consent order dated 23 September 2003, this case was
transferred to the Superior Court Division of Wake County.
At trial, plaintiff tendered and offered into evidence various
medical bills totaling $15,554.30
incurred for treatment of her
injuries. In addition to her own testimony, plaintiff presented
testimony of her chiropractor, Dr. Robert Baric and several other
witnesses before resting her case-in-chief.
Plaintiff and defendant's motions for directed verdict at theclose of plaintiff's evidence and at the close of all evidence were
denied. Plaintiff's motion on the issue of contributory negligence
was allowed, all other motions were denied.
During the charge conference, plaintiff offered written
requests for special jury instructions on the issues of
presumptions and damages
which were denied. After the trial court
concluded its instructions to the jury, plaintiff renewed
objections to the instructions and renewed requests for
instructions to the trial court.
The jury returned a verdict answering the first issue, Was
Jean Marie injured by the negligence of the defendant, Jason [Lee]
Jeremiah? Yes; and the second issue, What amount is the
plaintiff entitled to recover for her personal injuries?
$600.00. On 14 August 2003, a written judgment was entered by
the trial court
for plaintiff to receive
$600.00 in damages for
On 18 August 2003, plaintiff filed a written motion pursuant
to Rules 50, 59 and 60 of the North Carolina Rules of Civil
Procedure for JNOV and for a new trial. By order filed on 11
December 2003, the trial court denied plaintiff's motion for JNOV
and for a new trial. Plaintiff appealed.
On appeal plaintiff raises the following issues whether thetrial court erred in: (I) failing to submit plaintiff's requested
; (II) signing and entering the 14 August 2003
judgment; and (III) denying plaintiff's motion for JNOV and for a
new trial. Defendant cross-assigns as error whether the trial
court erred in (IV) entry of a directed verdict on the issue of
plaintiff's contributory negligence.
 Plaintiff argues the trial court failed to properly
instruct the jury on the issue of presumptions related to the
reasonableness of medical care charges and personal injury damages,
and she is therefore entitled to a new trial. We disagree.
To prevail on the issue of whether her requested instructions
should have been given to the jury, plaintiff must demonstrate
(1) the requested instruction was a correct
statement of the law, and (2) was supported by
the evidence, and that (3) the instruction
given, considered in its entirety, failed to
encompass the substance of the law requested,
and (4) such failure likely misled the jury.
Liborio v. King
, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274
(2002). A jury charge will be sufficient if it presents the law of
the case in such a manner as to leave no reasonable cause to
believe the jury was misled or misinformed. Bass v. Johnson
N.C. App. 152, 560 S.E.2d 841 (2002). Refusal of a requestedcharge is not error where the instructions fairly represent the
issues. Bowers v. Olf
, 122 N.C. App. 421, 428, 470 S.E.2d 346, 351
(1996). The decision whether to give jury instructions is within
the trial court's sound discretion, and will not be overturned
absent an abuse of discretion. Blackmon v. Bumgardner
, 135 N.C.
App. 125, 138, 519 S.E.2d 335, 343 (1999).
Plaintiff contends the trial court should have instructed the
jury as follows on the portion of North Carolina Pattern Jury
Instructions (N.C.P.I. -- Civ. 101.62
(motor veh. vol. 2004)
[Y]ou will accept as conclusive and binding on you that the
charges for hospital, medical, chiropractic, therapy and
medication, as to which the plaintiff testified, are reasonable in
amount, unless you find that the defendants have produced evidence
to the effect that the charges are not reasonable.
N.C. Gen. Stat. § 8-58.1 creates a rebuttable mandatory
presumption of the reasonableness of medical charges under certain
(See footnote 1)
. N.C.G.S. § 8-58.1 (2003).
Where a plaintiffintroduces medical bills in support of her testimony, unless the
defendant rebuts this presumption with other evidence,
must find that the amount is reasonable. Jacobsen v. McMillan
N.C. App. 128, 134, 476 S.E.2d 368, 371-72 (1996).
Analyzing the facts in the instant case
, plaintiff presented
her medical expenses to the jury, which were challenged by
defendant's rebuttal evidence. The parties did not stipulate to
plaintiff's medical expenses, which left an issue for the jury to
resolve. See Blackmon
at 134, 519 S.E.2d at 341 ([b]ecause the
parties did not stipulate to . . . damages, [this issue was] to be
considered by the jury.).
Defendant's rebuttal evidence challenged whether plaintiff's
medical treatment and expenses from the 2001 collision
reasonable and necessary. Defendant's evidence showed plaintiff
had been receiving chiropractic
care since 1995 for low back pain
resulting from a prior collision. Testimony from the chiropractor
and the physical therapist showed plaintiff accumulated substantial
medical bills for various
other treatments. Defendant's evidence
challenged the legitimacy of these treatments and whether the
resulting medical charges were a proximate cause of the 2001collision with defendant
Thereafter, the trial court gave the following instruction
The Plaintiff may also be entitled to recover
. On this issue, the burden of
proof is on the Plaintiff
. This means that the
Plaintiff must prove by the greater weight of
the evidence the amount of actual damages
proximately caused by the negligence of the
, Jason Lee Jeremiah. Actual damages
are the fair compensation to be awarded to the
person for any past, present or future injury
proximately caused by the negligence of
. The total of all damages are to be
awarded in one lump sum. Such damages may
include medical expenses, loss of earnings,
pain and suffering, and permanent injury
would now explain the law of damages as it
relates to each of these. Medical expenses
includes all hospital, doctor, chiropractic,
physical therapy and drug bills reasonably
paid or incurred by the Plaintiff as a
proximate result of the negligence of the
. . . .
Members of the jury, if you reach th[e] issue
[of damages], I want to caution you that
you're not to mention, discuss or consider in
any respect any matter that is not in evidence
in this case which did not arise as a
reasonable inference from the evidence in this
case in arriving at the amount of damages you
award. This is most important because your
consideration of such matters would have to be
based on speculation, and might well be
inaccurate and could result in an injustice to
one party or the other. Also, for you to
consider or speculate on any matter not in
evidence or not reasonable [sic] inferred from
the evidence in arriving at the amount of
damages would be a violation of your oath as a
juror, which binds you to follow the law asgiven you by the Court in arriving at your
verdict. The appropriate measure of damages in
this case given you by the Court is provided
by law, and you should consider this measure
. I instruct you that if you reach this
issue, your decision should be based on the
evidence and the rules of law I've given you
with respect to the measure of damages
not required to accept the amounts of damages
suggested by the parties or their attorneys
Your award should be fair and just. You should
remember that you're not seeking to punish
either party and you're not awarding or
withholding anything on the basis of sympathy
or pity. Finally, as to this second issue [of
damages] on which the Plaintiff has the burden
of proof, if you find by the greater weight of
the evidence the amount of actual damages
proximately caused by the negligence of
Defendant, Jason Lee Jeremiah, then it would
be your duty to write that amount in the blank
space provided. If, on the other hand, you
fail to so find, it would be your duty to
write a nominal number, such as one dollar, in
the blank space provided
N.C.P.I. -- Civ. 101.62
(motor veh. vol. 2004)(emphasis added).
Here, the trial court's instructions as to plaintiff's medical
treatment and damages were accurate statements of law and were
fully supported by the evidence. Moreover, there is nothing to
indicate the jury was in any way misled. Therefore,
we find the
trial court has properly instructed the jury. This assignment of
error is overruled.
II & III
 We combine issues II and III, in which plaintiff
challenges the trial court's denial of
her motions for judgmentnotwithstanding the verdict and for a new trial
Whether to grant or deny a motion for a judgment
notwithstanding the verdict or a new trial is within the sound
discretion of the trial jury and absent a manifest abuse of
discretion, the trial court's ruling will not be disturbed. Fenz
v. Davis, 128 N.C. App. 621, 624, 495 S.E.2d 748, 751 (1998); Smith
v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986). An
assignment of error concerning the signing and entry of a judgment
presents only the question of whether an error of law appears on
the face of the record, which includes whether the facts found or
admitted support the judgment and whether the judgment is regular
in form. Green v. Maness, 69 N.C. App. 403, 407, 316 S.E.2d 911,
913, disc. rev. denied, 312 N.C. 622, 323 S.E.2d 922 (1984).
Plaintiff argues a new trial is warranted because the
instructions as given by the trial court were inadequate and
erroneous as a matter of law. Because we have found the trial
court properly instructed the jury under the law, this assignment
of error is overruled.
 Defendant cross-assigns as error the trial court's
granting of plaintiff's motion for directed verdict as to
A motion for a directed verdict tests the legal sufficiency ofthe evidence to take the case to the jury and supports a verdict
for the plaintiff. Wiggins v. Paramount Motor Sales, Inc.
, 89 N.C.
App. 119, 121, 365 S.E.2d 192, 194 (1988). Where a defendant
pleads contributory negligence, a motion for directed verdict is
properly granted against the defendant where the defendant fails to
present more than a scintilla of evidence in support of each
element of his defense. Snead v. Holloman
, 101 N.C. App. 462,
464, 400 S.E.2d 91, 92 (1991)
Evidence which merely raises a
conjecture as to plaintiff's negligence will not support a jury
instruction. Radford v. Norris
, 74 N.C. App. 87, 88, 327 S.E.2d
, disc. rev. denied
, 314 N.C. 117, 332 S.E.2d 483 (1985)
In the instant case, plaintiff testified, I drove through the
parking lot to the exit that goes out to 64 because that would be
how I go home. I stopped at the stop sign. I was turned left
watching for traffic to clear. It was pretty busy, because it was
lunchtime. And I was hit. Plaintiff further testified she had
been stopped for a good while before she was hit. Defendant
admitted he did not know what plaintiff was doing because he was
looking to his left while driving straight ahead. On cross-
examination, defendant stated that had he been looking straight,
before starting to move forward, he could have seen plaintiff's
stopped car. Defendant failed to offer any evidence to showplaintiff was negligent. Therefore the trial court's ruling on
plaintiff's motion for directed verdict as to contributory
negligence was proper. See Maye v. Gottlieb
, 125 N.C. App. 728,
482 S.E.2d 750 (1997) (affirming the trial court's directed verdict
in favor of plaintiff
where defendants have failed to provide more
that a scintilla of evidence supporting plaintiff's contributory
negligence). This assignment of error is overruled.
Judge JACKSON concurs.
Judge HUNTER concurs in part, dissents in part.
HUNTER, Judge, concurring in part, dissenting in part.
Although I concur with the majority's holding as to
defendant's cross-assignment of error of the trial court's grant of
plaintiff's motion for directed verdict, I respectfully dissent
from the majority's holding as to the trial court's failure to give
plaintiff's requested jury instructions. Based on this Court's
ruling in the case of Griffis v. Lazarovich, 161 N.C. App. 434, 588
S.E.2d 918 (2003), disc. review denied, 358 N.C. 375, 598 S.E.2d
135 (2004), I would hold that the trial court erred in failing to
give the requested instruction as to the mandatory presumption on
the issue of medical damages.
Plaintiff contends that N.C. Gen. Stat. § 8-58.1 creates a
mandatory presumption on the issue of the amount of medical
damages, and that N.C. Gen. Stat. § 8C-1, Rule 301 requires the
court to give such an instruction upon request. I agree.
N.C. Gen. Stat. § 8-58.1 (2003) sets out that:
Whenever an issue of hospital, medical,
dental, pharmaceutical, or funeral charges
arises in any civil proceeding, the injured
party or his guardian, administrator, or
executor is competent to give evidence
regarding the amount of such charges, provided
that records or copies of such charges
accompany such testimony. The testimony of
such a person establishes a rebuttable
presumption of the reasonableness of the
amount of the charges.
Id. Rule 301 states: When the burden of producing evidence to
meet a presumption is satisfied, the court must instruct the jury
that it may, but is not required to, infer the existence of the
presumed fact from the proved fact. N.C. Gen. Stat. § 8C-1, Rule
301 (2003) (emphasis added).
It is the trial court's duty to instruct the jury as to the
burden of proof upon each issue arising upon the pleadings. King
v. Bass, 273 N.C. 353, 354, 160 S.E.2d 97, 98 (1968). ''It is
said that 'the rule as to the burden of proof is important and
indispensable in the administration of justice. It constitutes a
substantial right of the party upon whose adversary the burden
rests; and, therefore, it should be carefully guarded and rigidly
enforced by the court[s].[']'' Id. at 354, 160 S.E.2d at 98
(citations omitted). Our courts have held that
when a request is made for a specific
instruction, correct in itself and supported
by evidence, the trial court, while not
obliged to adopt the precise language of the
prayer, is nevertheless required to give the
instruction, in substance at least, and unless
this is done, either in direct response to the
prayer or otherwise in some portion of the
charge, the failure will constitute reversible
McLain v. Taco Bell Corp., 137 N.C. App. 179, 182, 527 S.E.2d 712,
715 (2000) (citation omitted). In Griffis v. Lazarovich, the plaintiff contended, as in this
case, that the trial court erred in failing to instruct the jury
that the amount of her medical expenses was presumed reasonable.
Griffis, 161 N.C. App. at 442, 588 S.E.2d at 924. The Court in
Griffis noted that:
N.C.R. Evid. 301 states that the trial court
must instruct the jury when a statutory or
judicial presumption exists. N.C. Gen. Stat.
§ 8C-1, Rule 301 (2001). N.C. Gen. Stat. §
8-58.1 (2001) creates a mandatory presumption
of reasonableness for a plaintiff's medical
expenses if the medical expenses are an issue
and evidence is presented showing the total
Id. Therefore, Griffis held that an instruction on the mandatory
presumption of reasonableness as to medical expenses must be given
to the jury when such expenses are at issue and there is evidence
of the total charges. In Griffis, the Court determined that the
amount of medical expenses had already been stipulated to by the
parties and were not at issue, and therefore found no error in the
failure to give the instruction. Id.
Here, as the majority notes, the amount of medical expenses
was at issue and was contested by both sides. Further, evidence of
the total charges for the expenses was presented by plaintiff and
records of expenses were submitted into evidence. Therefore, under
the statutory requirements of N.C. Gen. Stat. § 8-58.1, Rule 301,
and this Court's holding in Griffis, plaintiff's request forinstructions as to the mandatory presumption of reasonableness for
medical expenses was correct in itself and supported by evidence.
Here, a review of the instructions indicates that the
substance of the requested instructions was not given to the jury.
The trial court instructed the jury that the burden of proof of
damages was on plaintiff and that such damages may include medical
expenses, loss of earnings, pain and suffering, and permanent
injury. The trial court also defined medical expenses for the
jury. However, nowhere in the instructions did the trial court
instruct the jury as to the rebuttable presumption that such
charges were reasonable, as required by N.C. Gen. Stat. § 8-58.1.
As the requested instruction was correct and supported by the
evidence, the trial court's failure to give the substance of the
requested instruction constitutes reversible error. McLain, 137
N.C. App. at 182, 527 S.E.2d at 715. I would, therefore, grant a
new trial as to damages.
N.C. Gen. Stat. § 8-58.1 states:
Injured party as witness when medical charges
at issue -- Whenever an issue of hospital,
medical, dental, pharmaceutical, or funeral
charges arises in any civil proceeding, the
injured party or his guardian . . . is
competent to give evidence regarding the
amount of such charges, provided that records
or copies of such charges accompany suchtestimony. The testimony of such a person
establishes a rebuttable presumption of the
reasonableness of the amount of the charges.
N.C.G.S. § 8-58.1
*** Converted from WordPerfect ***