An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA05-657


Filed: 2 May 2006

Administratrix of the Estate of
Administrator of the Estate of
JESSE EUGENE VINCENT,                Guilford County
    Plaintiffs                    No. 02 CVS 10110

v .                             

    Appeal by plaintiffs from judgment entered 8 June 2004 and order entered 21 September 2004 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 7 December 2005.

    Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Katherine A. Murphy, Derek J. Allen, Robert J. King, III, and Teresa DeLoatch Bryant for plaintiffs-appellants.

    Pinto, Coates, Kyre & Brown, P.L.L.C., by Richard L. Pinto and Nancy R. Meyers for defendants-appellees.

    CALABRIA, Judge.

    Catherine L. Vincent, administratrix of the estate of Roger Craig Vincent, III, and Billy Andrew Hanks, Sr., administrator of the estate of Jesse Eugene Vincent (“plaintiffs”) appeal the 8 June 2004 jury verdict and judgment in favor of John Thomas Billingsley(“Billingsley”), Billingsley Associates, LLC (“Associates”), and Billingsley Septic Tank Company (“Company”) (collectively known as “defendants”). Plaintiffs also appeal the 21 September 2004 order denying their motions for judgment notwithstanding the verdict (“jnov”) or, alternatively, a new trial. We affirm in part and find no error in part.
    On the afternoon of 16 July 2001, Roger Craig Vincent (“Tripp”), seventeen years of age, and his brother, thirteen-year- old Jesse Eugene Vincent (“Jesse”), drove westbound on N.C. Highway 150 (“150”) in a 1985 Chevrolet Blazer (“the Blazer”). At the same time, Billingsley, then sixty-seven years of age, drove a 1998 Ford dump truck (“the dump truck”) eastbound on 150. The Blazer driven by Tripp collided with Billingsley's dump truck. Both Tripp and Jesse died and Billingsley survived. Plaintiffs sued defendants alleging negligence and negligent entrustment on 13 September 2002.
    At trial, plaintiffs presented the expert testimony of Michael Sutton (“Mr. Sutton”), a consulting engineer, that according to his independent analysis of the accident scene and the Blazer and the dump truck, the dump truck struck the Blazer head on and further, at the point of impact, the dump truck was in the Blazer's lane. Mr. Sutton also testified that due to the weight of the dump truck, if the two vehicles had been in Billingsley's lane at the point of impact, neither vehicle could have come to rest on Tripp's side of 150 as they did.
    At trial, Billingsley testified on his own behalf that he drove within the speed limit in his lane when the Blazer crossedover the center line, hit his dump truck head-on, and angled back to the right at the point of impact. Trooper Michael Marshall (“Trooper Marshall”) of the North Carolina State Highway Patrol (“N.C. Patrol”), a collision reconstructionist in the accident reconstruction division of the N.C. Patrol, and Justin Dodson (“Trooper Dodson”) of the N.C. Patrol, each testified about the accident scene. Fred Tyner (“Mr. Tyner”), an accident reconstruction expert, testified the accident occurred when the Blazer driven by Tripp crossed the center line and collided with the dump truck driven by Billingsley. Mr. Tyner further testified consistently with Billingsley's account that the Blazer, while in the dump truck's lane, turned to the right in an attempt to return to its lane just prior to impact.
    In addition to the instant suit, the collision also prompted a second legal action, No. 03 CVS 8778. This action involved Jesse's Estate suing Tripp's Estate in the event the jury found Tripp negligent. The attorney representing Jesse's Estate, Jeffrey K. Peraldo (“Mr. Peraldo”), filed a complaint alleging Tripp was negligent. This led plaintiff Hanks to dismiss Mr. Peraldo and file an amended complaint through attorney James A. Dickens. After voluntarily dismissing the suit, plaintiffs then attempted to exclude both the original and amended complaints from the trial in the instant case by a motion in limine. The trial court denied plaintiffs' motion.
    On 30 April 2004, the jury returned a verdict and concluded the deaths of Tripp and Jesse were not negligently caused by Billingsley. Further, the jury determined Tripp was not negligent in damaging the dump truck owned by Associates. On 8 June 2004, plaintiffs moved for jnov or alternatively, a new trial. The court denied this motion. Plaintiffs appeal.
    Plaintiffs argue they are entitled to judgment on the issue of defendants' negligence, or, in the alternative, are entitled to a new trial. Plaintiffs specifically contend the following: the jury verdict is inconsistent with the evidence presented at trial; the trial court should have granted plaintiffs' motion for jnov; or, in the alternative, the trial court should have granted plaintiffs' motion for a new trial. We disagree.
    First, in North Carolina the standard for jnov is well established. “In ruling on a motion for judgment notwithstanding the verdict, the trial court must be guided by the same principles and standards applicable to motions for directed verdict.” Page v. Tao, 56 N.C. App. 488, 491, 289 S.E.2d 910, 912-13 (1982) (citations omitted). “The trial court must determine whether plaintiff has made out a prima facie case by presenting evidence sufficient to justify a verdict in [plaintiff's] favor.” Id. 56 N.C. App. at 492, 289 S.E.2d at 913 (quotation marks and citation omitted) (emphasis added). Consequently, “the trial court's ultimate inquiry is whether the evidence would reasonably satisfy an impartial mind of the truth of the proposition sought to be proved.” Id. In so doing, the trial court uses the following well known test.        All the evidence supporting the nonmovant's claim must be taken as true and considered in the light most favorable to the nonmovant; all contradictions, conflicts, and inconsistencies must be resolved in the nonmovant's favor; and the nonmovant must be given the benefit of every reasonable inference which may be legitimately drawn from the evidence.

Id. (emphasis added). Additionally, “whether to grant or deny a motion for judgment notwithstanding the within the sound discretion of the trial court and absent a manifest abuse of discretion, the trial court's ruling will not be disturbed.” Osetek v. Jeremiah, __ N.C. App. __, __, 621 S.E.2d 202, 206 (2005).
    Here, plaintiffs' jnov motion questions the sufficiency of the evidence by expressly alleging the evidence is inconsistent with the verdict. However, defendants' evidence, considered in the light most favorable to defendants as nonmovants, was sufficient to support the jury's verdict that the deaths of Tripp and Jesse were not negligently caused by Billingsley.
    Billingsley presented testimony of two key witnesses: himself and accident reconstructionist Tyner. Both testified consistently the accident was caused when the Blazer driven by Tripp crossed the center line and hit the dump truck driven by Billingsley. Further, each testified consistently the Blazer turned back to the right at the point of impact indicating an attempt by Tripp to pull the Blazer back into the right lane. Though plaintiffs produced evidence through consulting engineer Sutton that Billingsley crossed the center line and caused the accident, the jury determined based upon all the evidence presented that Billingsley did not negligentlycause the deaths of Tripp and Jesse. “From their verdict it is apparent that the jury determined that the defendant's rather than plaintiff's version was established by the evidence.” Ramsey v. Christie, 19 N.C. App. 255, 257, 198 S.E.2d 470, 471 (1973). The trial court did not abuse its discretion by denying plaintiffs' motion for jnov.
    Second, in North Carolina the standard for new trial motions is well established. “An appellate court's review of a trial judge's discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge.” Pittman v. Nationwide Mut. Fire Ins. Co., 79 N.C. App. 431, 434, 339 S.E.2d 441, 444 (1986). Furthermore, “[i]t is well-established that a 'trial court's decision to exercise its discretion to grant or deny a Rule 59(a)(7) motion for a new trial for insufficiency of the evidence must be based on the greater weight of the evidence as observed firsthand only by the trial court.'” City of Charlotte v. Whippoorwill Lake, Inc., 150 N.C. App. 579, 583, 563 S.E.2d 297, 299 (2002) (emphasis added) (quoting In re Buck, 350 N.C. 621, 629, 516 S.E.2d 858, 863 (1999)).
    As previously stated regarding plaintiffs' jnov motion, there was sufficient evidence presented by defendants, including eyewitness and expert testimony that Tripp and not Billingsley caused the accident, and a unanimous jury concluded the deaths of Tripp and Jesse were not caused by the negligence of Billingsley. Consequently, the trial court did not abuse its discretion indenying plaintiffs' new trial motion. Thus, we overrule plaintiffs' assignment of error regarding motions for jnov or, alternatively, a new trial.
    Plaintiffs next argue the trial court erred in denying their motion in limine to exclude the complaint and the amended complaint filed in 03 CVS 8778. Plaintiffs contend these allegations are unauthorized, unfounded, and have no probative value. Though plaintiffs objected to the court's admission of the complaints during the motion in limine, plaintiffs failed to object to the same at trial. Thus, the question before this Court is whether the plaintiffs' argument is preserved under the North Carolina Rules of Appellate Procedure. For the following reasons, we determine it is not preserved.

    N.C. R. App. P. 10(b)(1) (2005) provides “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds are not apparent from the context.” (Emphasis added). “Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of evidence.” State v. Tutt, __ N.C. App. __, __, 615 S.E.2d 688, 690 (2005) (internal quotation marks and citation omitted) (emphasis added). Accordingly, “[o]ur SupremeCourt has consistently held that [a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.” Id. (internal quotation marks and citations omitted) (emphasis added). By contrast, however, N.C. R. Evid. 103 provides “[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2005) (emphasis added). Therefore, “Rule 103(a)(2) would allow appellate review of an evidentiary ruling even though the party failed to follow the Supreme Court's procedural requirements under N.C. R. App. P. 10(b)(1) mandating that the party further object at trial.” Tutt, __ N.C. App. at __, 615 S.E.2d at 692. In Tutt, this Court expressly addressed whether an objection during a motion in limine was sufficient to preserve appellate review absent a timely objection at trial and “h[e]ld that to the extent...N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App. P. 10(b)(1), it must fail. Id. __ N.C. App. at __, 615 S.E.2d at 692- 93 (emphasis added). Consequently, in closely adhering to this Court's rationale in Tutt, supra, we hold plaintiffs, by not objecting separately at trial to the admission of the complaint and amended complaint, failed to preserve for appellate review whether the trial court properly admitted the complaints. This assignment of error is overruled.
    Plaintiffs last argue the trial court erred by not instructing the jury on the last clear chance doctrine. Plaintiffs contend sufficient evidence existed to support such an instruction. We disagree.
    “The issue of last clear chance must be submitted to the jury if the evidence, viewed in the light most favorable to the plaintiff, will support a reasonable inference of each essential element of the doctrine.” Bass v. Johnson, 149 N.C. App. 152, 158, 560 S.E.2d 841, 845 (2002) (emphasis added). In fact, “[f]ailure to submit the issue of last clear chance, when proper, is reversible error that mandates a new trial.” Id. An instruction on last clear chance is mandated when the following five elements are satisfied.
        (1) that the plaintiff negligently placed himself in a position of helpless peril; (2) that the defendant knew or, by the exercise of reasonable care, should have discovered the plaintiff's perilous position and his incapacity to escape from it; (3) that the defendant had the time and ability to avoid the injury by the exercise of reasonable care; (4) that the defendant negligently failed to use available time and means to avoid injury to the plaintiff and (5) as a result, the plaintiff was injured.

Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184, 186 (2004), disc. review denied, 359 N.C. 411, 612 S.E.2d 322 (2005); Privett v. Yarborough, 166 N.C. App. 664, 603 S.E.2d 579 (2004). However, “unless all the necessary elements of the doctrine of last clear chance are present, the case is governed by the ordinary rules of negligence and contributory negligence.” Culler v. Hamlett, 148 N.C. App. 372, 379, 559 S.E.2d 195, 200 (2002). Importantly, “[t]heburden is on plaintiff to establish that the doctrine is applicable to the facts.” Williams v. Odell, 90 N.C. App. 699, 703, 370 S.E.2d 62, 65 (1988).
    In the instant case, the judge's decision to include an instruction to the jury on last clear chance expressly revolved around the fourth element, the time and means of the defendant to avoid the accident. During the charge conference, the judge stated “I think the matter's going to turn on whether [the plaintiff] put on enough [evidence] with regard to the time and means.” Attorneys for both parties then argued, almost exclusively, the issue of whether the defendant had the time and means to avoid the accident. Moreover, the only question plaintiffs argue in their brief to this Court is whether the defendant had the time and means to avoid the accident. Therefore, we will limit our analysis to whether or not the plaintiffs presented enough evidence regarding the fourth element of last clear chance to warrant its submission to the jury.
        The essence of this element, and the fundamental difference between a last clear chance and a last possible chance, is that defendant must have the time and the means to avoid the injury to the plaintiff by the exercise of reasonable care after she discovered or should have discovered plaintiff's perilous position.

Vancamp v. Burgner, 328 N.C. 495, 499, 402 S.E.2d 375, 377 (1991) (internal quotation marks and citation omitted) (emphasis added). Moreover, this fourth element is met
        only in the event it is made to appear that there was an appreciable interval of time between the plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should haveavoided the effect of plaintiff's prior negligence.

Watson v. White, 309 N.C. 498, 506, 308 S.E.2d 268, 273 (1983) (emphasis added) (citing Mathis v. Marlow, 261 N.C. 636, 639, 135 S.E.2d 633, 635 (1964) (quoting Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 448, 35 S.E.2d 337, 340 (1945)).
    In the instant case and according to the evidence at trial, Billingsley had neither the time nor the means to avoid the injury to Tripp and Jesse. Billingsley testified he was driving 45 mph when the Blazer crossed the center line at a speed of approximately 65 mph. Billingsley also testified he believed the Blazer would return to its lane. Billingsley further testified that at the moment he realized the Blazer would not return to its lane he began applying his brakes, but did not have time to “mash them.” All of the above happened within three to five seconds according to Billingsley. “Where there is no evidence that a person exercising a proper lookout would have been able, in the exercise of reasonable care, to avoid the collision, the doctrine of last clear chance does not apply.” Watson, 309 N.C. at 506, 308 S.E.2d at 273. Within this three to five second window, Mr. Billingsley exercised a proper lookout: he was driving in his lane and within the speed limit when the Blazer, traveling nearly 65 mph, drove into his lane; he believed the Blazer would turn back to the right, and when it failed to do so, he attempted to apply his brakes but was unsuccessful due to limited time. Despite Mr. Billingsley's exercise of reasonable care throughout this three to five second interval, there was no evidence he could have avoided the accident. Thus, the trial courtproperly denied plaintiffs' request for a last clear chance instruction to the jury. This assignment of error is overruled.
    Affirmed in part; no error in part.
    Judges BRYANT and JACKSON concur.
    Report per Rule 30(e).

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