CLARENCE DEW
v
.
Wilson County
No. 02 CVS 2222
PAUL HRONJAK
Newton, Lee & Boyd, by Eldon S. Newton, III and Cyrus F. Lee,
for plaintiff-appellee.
Wallace, Morris, Barwick, Landis, Braswell & Stroud, P.A., by
Edwin M. Braswell, Jr. and Kimberly A. Connor, for defendant-
appellant.
JACKSON, Judge.
Clarence Dew (“plaintiff”) was involved in an automobile
accident in which Paul Hronjak (“defendant”) collided with the rear
of the vehicle that plaintiff was driving. Plaintiff filed a
complaint 25 November 2002 alleging that defendant had negligently
caused the collision and that defendant's negligence proximately
caused him personal injuries and damages in excess of $10,000.00.
Defendant filed an answer 10 January 2003 in which he admitted that
the collision was proximately caused by his negligence, but denied
that his negligence proximately caused plaintiff's injuries. At trial the evidence tended to show that plaintiff had
stopped at a stop sign and defendant stopped behind plaintiff in
the same lane of travel. Plaintiff began to proceed forward and
defendant also began moving forward at about “walking speed.”
Plaintiff testified that he observed a vehicle approaching the
intersection at a high rate of speed from his right. To yield the
right of way to the oncoming vehicle, plaintiff stopped again
before fully entering the roadway. Defendant, who was looking to
his left for oncoming traffic, did not see plaintiff's vehicle stop
and bumped the back bumper of plaintiff's vehicle with the front
bumper of his vehicle. Plaintiff testified that before the
collision he did not know defendant's vehicle was behind him as he
had not looked in his rearview mirror upon stopping at the stop
sign.
Plaintiff further testified that he was wearing his seatbelt
and that the collision caused his body to be propelled forward and
to the right. Plaintiff immediately felt a sharp pain and vomited
after getting out of his vehicle. Plaintiff was transported to the
hospital by ambulance complaining of neck and back pain. The
physician at the hospital gave plaintiff Motrin, and sent plaintiff
home.
The damage to the vehicles was described by defendant and the
investigating officer as minor. The rear bumper of plaintiff's
vehicle was bent under slightly. The only damage suffered by
defendant's vehicle was that the plastic front license plate
bracket was knocked off. Plaintiff presented evidence of his subsequent medical
treatment by a chiropractor for approximately six weeks and by a
physical therapist for approximately four weeks through 3 August
2000. One year later, plaintiff presented to Dr. Kushner at Wilson
Orthopedic Surgery and Neurology Center. Plaintiff testified that
he did not seek additional treatment during that one year because
payment was required before treatment was rendered and he did not
have the money to pay the fees up-front. When plaintiff resumed
treatment he underwent three back surgeries in October 2001,
December 2002 and May 2003. Dr. Kushner testified that it was his
opinion that plaintiff was injured in the vehicle accident in
question. However, Dr. Kushner also testified that plaintiff had
degenerative disk disease, and that plaintiff's injuries could have
resulted from other causes such as sneezing or bending the wrong
way.
At the close of all evidence defendant made a motion to amend
his answer to conform to the evidence by including the defense of
contributory negligence. Defendant's motion was denied by the
trial court. Plaintiff then moved for directed verdict on the
issue of whether plaintiff was injured as a result of defendant's
negligence. The trial court granted plaintiff's motion for
directed verdict on the grounds that defendant had admitted his
negligence and that his negligence was the proximate cause of the
accident in his answer. The court also pointed out that defendant
had denied that his negligence had proximately caused plaintiff's
injuries, however, and, accordingly, only the issue of how muchplaintiff was entitled to recover for personal injury would be
submitted to the jury. Defendant objected to the issue of
causation not being submitted to the jury, but the trial court
maintained its position on the issue.
Consequently, the sole issue submitted to the jury was what
amount plaintiff was entitled to recover from defendant for his
personal injuries. The jury was instructed that plaintiff was
entitled to recover nominal damages even without proof of actual
damages. The jury was further instructed that to recover actual
damages plaintiff had to prove by the greater weight of the
evidence that defendant's negligence proximately caused his
injuries and actual damages. Defendant objected to the jury
instructions.
The jury returned a verdict in favor of plaintiff for damages
in the amount of $450,000.00. Defendant filed a motion for new
trial which was denied. Defendant timely appealed the verdict and
award.
Defendant makes thirteen assignments of error in the record on
appeal, but presents argument in support of only six. Assignments
of error for which no reason or argument is stated in appellant's
brief are taken as abandoned. N.C. R. App. P. 28(b)(6) (2006).
Accordingly, defendant's seven assignments of error not argued in
his brief are deemed abandoned and are not considered on appeal.
Defendant's remaining assignments of error are: (1) the trial
court's grant of plaintiff's motion for directed verdict on the
issue of whether plaintiff's injuries were caused by defendant'snegligence; (2) the trial court's failure to submit the issue of
causation to the jury; (3) the trial court's grant of directed
verdict in favor of plaintiff on the causation issue, as it denied
defendant his right to trial by jury; (4) the trial court's
instructions to the jury, as they constituted an expression of the
court's opinion as to a material issue in the case; (5) the denial
of defendant's motion to amend his answer to conform to the
evidence at the close of all evidence; and (6) the denial of
admission of evidence of plaintiff's health insurance coverage.
Defendant's initial argument incorporates the first three
assignments of error listed above. Defendant contends that the
trial court erred by granting plaintiff's motion for directed
verdict as to all issues except damages as there were issues of
material fact regarding whether defendant's admitted negligence
proximately caused plaintiff's injuries. Defendant further argues
that this error caused the trial court to fail to submit the issue
of causation to the jury which deprived him of his right to a trial
by jury.
“The standard of review of directed verdict is whether the
evidence, taken in the light most favorable to the non-moving
party, is sufficient as a matter of law to be submitted to the
jury.” Di Frega v. Pugliese, 164 N.C. App. 499, 505, 596 S.E.2d
456, 461 (2004). “'If there is more than a scintilla of evidence
supporting each element of the nonmovant's case, the motion for
directed verdict should be denied.'” Whisnant v. Herrera, 166 N.C.
App. 719, 722, 603 S.E.2d 847, 850 (2004) (quoting Snead v.Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991)). An
appellate court reviews a trial court's ruling on a motion for
directed verdict de novo. Maxwell v. Michael P. Doyle, Inc., 164
N.C. App. 319, 323, 595 S.E.2d 759, 762 (2004).
In the case sub judice, plaintiff's complaint alleged the
following facts:
8. The Defendant was negligent in that he:
a. negligently drove a vehicle on
a highway or a public vehicular
area at a speed greater than
was reasonable and prudent
under the conditions then
existing, in violation of
N.C.G.S. . 20-141(a);
b. negligently operating a motor
vehicle upon a public street or
highway without keeping a
proper lookout, without paying
proper attention and without
keeping the vehicle under
proper control;
c. negligently drove the vehicle
upon a highway or public
vehicular area without due
caution and circumspection and
at a speed or in a manner so as
to endanger or be likely to
endanger persons or property,
in violation of N.C.G.S. . 20-
140(b);
d. negligently drove from a
stopped position without first
seeing such movement could be
made in safety, in violation of
N.C.G.S. . 20-154(a); and
e. negligently operated the
vehicle in other ways which
will be developed during
Discovery and proven at trial.
9. The negligence of the Defendant was the
proximate cause of the collision.
. . . .
12. The negligence of the Defendant was the
sole proximate cause of the Plaintiff's
injuries.
To wit, defendant filed the following responses in his answer:
8. Denied. Without admitting, and while
denying, the allegations of paragraph 8
including each and every subparagraph,
defendant admits that the contact between
the front of the vehicle he was driving
and the rear of the vehicle driven by
Clarence Dew was caused by Defendant's
negligence.
9. The contact between the two vehicles was
no more than a bump and certainly was not
a collision; however, defendant admits
that the contact between the two vehicles
was proximately caused by his negligence.
. . . .
12. Denied.
Thus, defendant admitted in his answer that there had been a
collision between his vehicle and the vehicle driven by plaintiff,
and that the collision itself was proximately caused by defendant's
negligence. Defendant denied that his negligence had proximately
caused plaintiff's injuries.
At trial, plaintiff moved for a directed verdict on the issue
of whether or not plaintiff was injured because of defendant's
negligence. The trial court partially granted plaintiff's motion
for directed verdict. The trial court reasoned that defendant
admitted the accident was caused by the negligence of defendant,
not that plaintiff's injuries were. The trial court instructed the jury that, because defendant
admitted negligence, then plaintiff was entitled to recover nominal
damages without proof of actual damages. “[N]ominal damages are
allowed where a legal right has been invaded but there has been no
substantial loss or injury to be compensated.” Lee Cycle Ctr.,
Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App. 1, 9-10, 545 S.E.2d
745, 750 (citing Potts v. Howser, 274 N.C. 49, 61, 161 S.E.2d 737,
747 (1968)), aff'd, 354 N.C. 565, 556 S.E.2d 293 (2001). “Nominal
damages are awarded in recognition of the right and of the
technical injury resulting from its violation.” Potts, 274 N.C. at
61, 161 S.E.2d at 747. Thus, as the proximate cause of the
collision had been established as a result of defendant's
admission, the trial court acted properly in not submitting this
issue to the jury. Further, the trial court's instruction with
regards to nominal damages also was proper.
The trial court further instructed the jury as follows:
Proximate cause is a cause which in a natural
and continuous sequence produces a person's
injury and is a cause which a reasonable and
prudent person could have foreseen would
probably produce such injury or some similar
injurious result.
The court instructs you that even though the
issue of who was at fault or who was negligent
in causing the accident has been determined in
the plaintiff's favor, the plaintiff must
still prove to you by the greater weight of
the evidence the extent of any injury and the
amount of actual damages suffered by him
proximately caused by the negligence of the
defendant.
In other words, the plaintiff must prove to
you, by the greater weight of the evidence,
what injuries, if any, were suffered by him bythe proximate cause by the negligence of the
defendant and what damages, if any, he has
sustained.
Although defendant admitted that his negligence caused the
contact between the front of his vehicle and the rear of
plaintiff's vehicle, defendant did not admit that his negligence
caused the injuries to plaintiff's person. Thus, defendant
admitted causation with regards to injury to property - not injury
to person. In plaintiff's complaint, he seeks damages to “recover
judgment against the Defendant for Plaintiff's personal injuries
and damages in an amount in excess of $10,000.00.” Plaintiff bears
the burden of proving all elements of negligence, including
causation. See McNeill v. R.R., 167 N.C. 390, 83 S.E. 704 (1914).
As defendant did not admit to the causation of plaintiff's personal
injuries, the trial court properly submitted to the jury the issues
of “what injuries, if any” and “what damages, if any” defendant's
negligence proximately caused.
Defendant was not deprived of his right to a trial by jury on
the issue of causation of plaintiff's personal injuries, as his
admissions established plaintiff's right to recover, at a minimum,
nominal damages. In addition, the trial court partially granted
plaintiff's motion for directed verdict, only on the issue of
causation of the collision, not on the issues of causation of
plaintiff's injuries and actual damages. Defendant does not
contend the trial court incorrectly instructed the jury on
plaintiff's burden of proof on the issue of actual damages. The
jury, after being properly instructed, determined that plaintiffhad established that defendant's negligence had proximately caused
personal injuries resulting in actual damages, and defendant's
right to a jury trial was, therefore, afforded to him. These
assignments of error are overruled.
Defendant's next argument is that the trial court's jury
instruction, that if the jurors did not find plaintiff had
established that his actual injuries were proximately caused by
defendant's negligence then they should award plaintiff a nominal
amount of damages, was an impermissible expression of opinion.
However, as we have already held that defendant's admissions
established plaintiff's right to nominal damages, the trial court's
instructions on the issue were a correct statement of the law and
did not constitute an impermissible opinion. Accordingly, this
assignment of error is overruled.
Defendant next argues that the trial court abused its
discretion by denying his motion to amend his answer at the close
of all evidence. We review a trial court's denial of a motion to
amend pleadings for an abuse of discretion. Bass v. Johnson, 149
N.C. App. 152, 157, 560 S.E.2d 841, 845 (2002). “'An abuse of
discretion occurs when the trial court's ruling “is so arbitrary
that it could not have been the result of a reasoned decision.”'”
Warren v. Gen. Motors Corp., 142 N.C. App. 316, 319, 542 S.E.2d
317, 319 (2001) (quoting Chicora Country Club, Inc. v. Town of
Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc.
review denied, 347 N.C. 670, 500 S.E.2d 84 (1998)). When a trial court does not state its reasons for a ruling on
a motion to amend pleadings, an appellate court “may examine any
apparent reasons for the ruling.” Delta Env. Consultants of N.C.
v. Wysong & Miles Co., 132 N.C. App. 160, 166, 510 S.E.2d 690, 694,
disc. review denied, 350 N.C. 379, 536 S.E.2d 70 (1999). Proper
reasons to deny a motion to amend pleadings include, inter alia,
undue delay by the moving party, unfair prejudice to the non-moving
party, bad faith, and futility of the amendment. Id. The
existence of several of these grounds is evident in the record.
Most persuasive is the futility of the amendment. There was no
evidence presented at trial that demonstrated plaintiff was
negligent and contributed to the accident. Defendant asserts
plaintiff was contributorily negligent in failing to check his
mirrors. However, even had plaintiff been aware of defendant's
presence behind him, as a practical matter he could not have
prevented defendant from rear-ending him. Apparently defendant
would have had plaintiff continue on into traffic rather than
stopping to yield the right of way before determining that he could
stop without being rear-ended. Undue delay is an additional basis
apparent from the record as defendant waited until the close of all
evidence before seeking leave to amend his answer.
As it is apparent from the record that the trial court had
proper reason to deny defendant's motion to amend his answer we
hold that the trial court did not abuse its discretion in denying
defendant's motion. Accordingly, this assignment of error is
overruled. Finally, defendant argues that the trial court erred in
denying the admissibility of evidence of plaintiff's health
insurance. A plaintiff's receipt of benefits for injuries from
sources other than defendant, or sources connected to defendant,
generally is not admissible pursuant to the collateral source rule.
The collateral source rule is premised on the principle that a
tort-feasor's liability should not be reduced by compensation
received from an independent source by the plaintiff. White v.
Lowery, 84 N.C. App. 433, 436, 352 S.E.2d 866, 868, disc. review
denied, 319 N.C. 678, 356 S.E.2d 786 (1987).
Defendant argues that evidence of plaintiff's health insurance
was not sought to reduce any liability on his part, but rather to
impeach plaintiff's testimony that he did not seek medical
treatment for his injuries for a year-long period because he did
not have the money to pay for the treatment. Introduction of
evidence of plaintiff's health insurance for this purpose is not
precluded by the collateral source rule. The showing of an
erroneous evidentiary ruling alone, however, is not sufficient to
warrant a new trial. See Bowers v. Olf, 122 N.C. App. 421, 427,
470 S.E.2d 346, 350 (1996) (citing Board of Education v. Lamm, 276
N.C. 487, 492, 173 S.E.2d 281, 285 (1970)). The party asserting
error also must show that but for the error a different result
likely would have occurred. Id.
In the case sub judice, plaintiff testified on voir dire that
he could not afford to pay for treatment because his healthcare
provider did not accept his insurance - not because he did not havehealth insurance. Consequently, admission of evidence that
plaintiff had health insurance would not have served to impeach his
testimony regarding the reasons he did not seek treatment during
that time period. It is unlikely, therefore, that admission of the
disputed evidence would have resulted in a different outcome.
Accordingly, this assignment of error is overruled.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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