Appeal by plaintiff and third-party defendant from judgment
entered 19 September 2005 and orders entered 5 January 2006 by
Judge James R. Fullwood in Wake County District Court. Heard in
the Court of Appeals 21 February 2007.
E. Gregory Stott for plaintiff-appellant and third-party
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by
Kathrine Downing Fisher and Heather R. Wilson, for defendants-
appellees and third-party plaintiffs-appellees.
Plaintiff Paula Ann Hoffman and her daughter, third-party
defendant Catherine Michelle Hoffman (the "Hoffmans"), appeal from
a judgment in favor of defendants/third-party plaintiffs, Shawn
Cherri Oakley and David Reade Oakley, entered in accordance with a
jury verdict, concluding that Catherine Michelle Hoffman had been
contributorily negligent in an automobile collision. The primary
issue on appeal is whether the trial court erred by admitting the
testimony of the defendant/third-party plaintiffs' accident
reconstruction expert, which, the Hoffmans contend, constituted
improper expert testimony regarding the speed Catherine was
It has long been the law, in North Carolina, that an expert
witness may not testify regarding the speed of a vehicle unless he
or she personally observed the vehicle. See 2 Kenneth S. Broun,
Brandis & Broun on North Carolina Evidence § 183, at 37-38 n.166(6th ed. 2004) (urging elimination of limitations on accident
reconstruction expert testimony). Although our legislature has
recently amended Rule 702 to overturn this doctrine,
(See footnote 1)
applies only to "offenses" committed on or after 1 December 2006.
2006 N.C. Sess. Laws 253, sec. 33. Since the automobile collision
in this case occurred on 13 March 2003, we must apply the former
law. Nevertheless, we hold that the expert's testimony did not
amount to an opinion on Catherine Hoffman's speed, but rather was
the type of testimony admissible even under the previously existing
In addition, the Hoffmans challenge the trial court's award of
costs. We believe the trial court properly determined costs in
accordance with Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App.
385, 618 S.E.2d 838 (2005). The amounts awarded either fell within
N.C. Gen. Stat. § 7A-305(d) (2005) or constituted a "common law
cost." As to the latter costs, we find no abuse of discretion.
At approximately 7:30 a.m. on 13 March 2003, Catherine Hoffman
was driving her mother's 1996 Honda Civic on Brooks Avenue in
Raleigh, North Carolina. As Catherine approached the defendant
Oakleys' home on Brooks Avenue, Shawn Oakley was backing David
Oakley's mini-van out of their driveway when the two cars collided. On 28 April 2003, Paula Hoffman filed suit against the
Oakleys, in Wake County District Court, for losses resulting from
the property damage to her car. She alleged that Shawn Oakley had
been negligent in backing the mini-van out of her driveway and had
caused the collision. The Oakleys filed an answer denying the
relevant allegations of Paula Hoffman's complaint and,
subsequently, filed an amended answer and a third-party complaint
against Catherine Hoffman. The Oakleys' third-party complaint
alleged that Catherine's negligence had been the sole cause of the
collision or, alternatively, that her contributory negligence
precluded her mother's recovery.
The case was tried before a jury on 8 and 9 August 2005 in
Wake County District Court, with the parties stipulating that any
negligence by Catherine Hoffman was to be imputed to Paula Hoffman.
After hearing testimony from the Hoffmans, Shawn Oakley, the police
officers who arrived on the scene after the collision, and an
expert in accident reconstruction, the jury determined that
although Paula Hoffman's vehicle was damaged by Shawn Oakley's
negligence, Catherine Hoffman _ and, therefore, Paula Hoffman _ was
contributorily negligent. Accordingly, the trial court entered
judgment ordering that the Hoffmans recover nothing from the
The Hoffmans' subsequent motions for a new trial or judgment
notwithstanding the verdict were denied, and the trial court
awarded the Oakleys certain specified "reasonable costs and
expenses." The Hoffmans filed a timely appeal to this Court.
 The Hoffmans first argue that the trial court erred in
admitting the testimony of the Oakleys' expert on accident
reconstruction. They contend that the witness gave impermissible
opinion testimony regarding the speed Catherine Hoffman was
traveling. We disagree.
Typically, an expert witness may testify in the form of an
opinion if that expert's "scientific, technical or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue . . . ." N.C.R. Evid.
702(a). "[E]xpert testimony in the field of accident
reconstruction has been widely accepted as reliable by the courts
of this State." State v. Holland
, 150 N.C. App. 457, 463, 566
S.E.2d 90, 94 (2002), cert. denied
, 356 N.C. 685, 578 S.E.2d 316
Nevertheless, our appellate courts held, prior to the
amendment to add Rule 702(i), "that 'with respect to the speed of
a vehicle, the opinion of a[n] . . . expert witness will not be
admitted where he did not observe the accident, but bases his
opinion on the physical evidence at the scene.'" Marshall v.
, 153 N.C. App. 128, 135, 574 S.E.2d 1, 5 (quoting Hicks v.
, 78 N.C. App. 315, 323, 337 S.E.2d 121, 126 (1985), cert.
, 316 N.C. 553, 344 S.E.2d 7 (1986)), appeal dismissed and
disc. review denied
, 356 N.C. 614, 574 S.E.2d 683 (2002).
Accordingly, unless an accident reconstruction expert actually
observed the accident, the expert may not testify as to the speeda vehicle was traveling. See Van Reypen Assocs., Inc. v. Teeter
175 N.C. App. 535, 542, 624 S.E.2d 401, 405 (noting that, under
this rule, "our trial courts are forced to exclude accident
reconstruction testimony regarding speed"), disc. review
, 361 N.C. 107, 637 S.E.2d 536 (2006).
Here, the Oakleys' expert, Sean Dennis, testified that he had
performed several "skid test[s]" at the accident scene using a 1997
two-door Honda Civic that Mr. Dennis considered to be a "sister or
clone" of the 1996 four-door Honda Civic that Catherine Hoffman was
driving at the time of the accident. Because the speed limit at
the scene of the accident was 35 miles per hour, Mr. Dennis' skid
tests included "full, panic-stop application of the brake pedal" at
33, 34.2, 40, 46, and 50 miles per hour. According to Mr. Dennis,
his test results indicated that if a vehicle like the one driven by
Catherine Hoffman was traveling at 35 miles per hour, it would be
able to stop "in just under 54 feet." The Hoffmans argue that this
testimony, when viewed in conjunction with that of a responding
police officer who found skid marks at the scene measuring 80 feet
in length, was merely "evidence of speed through the 'back door.'"
Our Supreme Court has, however, specifically held that such
testimony about stopping distances is admissible. See State v.
, 180 N.C. 697, 702, 104 S.E. 647, 650 (1920) ("Admitting,
then, that each of the particular witnesses was an expert in regard
to the matter about which he was examined, testimony as to the
distance within which such a truck, as [the] truck [at issue,]
could be stopped when going at a rate of speed 20 to 25 miles anhour was plainly admissible."). See also Draper v. Atl. Coast Line
, 161 N.C. 308, 312, 77 S.E. 231, 232-33 (1913) (holding
that testimony was competent when witness testified that train
traveling at particular speed could have stopped within 200 yards).
, Mr. Dennis' testimony about stopping
distances at various speeds was admissible.
These decisions are consistent with subsequent Supreme Court
decisions holding that expert testimony about speed is
inadmissible. In Shaw v. Sylvester
, 253 N.C. 176, 180, 116 S.E.2d
351, 355 (1960), the Court held that "[a] witness who investigates
but does not see a wreck may describe to the jury the signs, marks,
and conditions he found at the scene, including damage to the
vehicle involved. From these, however, he cannot give an opinion
as to its speed. The jury is just as well qualified as the witness
to determine what inferences the facts will permit or require."
The Court stressed, however, that "[t]he qualified expert, the
nonobserver, may give an opinion in answer to a proper hypothetical
question in matters involving science, art, skill and the like. .
. . An automobile, like any other moving object, follows the laws
of physics . . . ." Id.
This Court has held that the restriction on expert testimony
set out in Shaw
"is limited to opinions regarding speed
; it does
not apply to opinions concerning other elements of an accident."
State v. Purdie
, 93 N.C. App. 269, 276, 377 S.E.2d 789, 793 (1989).
Thus, an expert's testimony is properly admitted when he gives no
opinion as to the actual speed of a vehicle. Id. See also McKayv. Parham
, 63 N.C. App. 349, 353, 304 S.E.2d 784, 786-87 (1983)
(holding admissible expert testimony that applied the law of
physics to post-collision movement of two cars), disc. review
, 310 N.C. 477, 312 S.E.2d 885 (1984).
Here, Mr. Dennis never gave an opinion as to the speed that
Catherine Hoffman was traveling. He used his scientific expertise
to perform an experiment that demonstrated stopping distances at
various speeds. See, e.g.
, Addison v. Moss
, 122 N.C. App. 569,
571-73, 471 S.E.2d 89, 90-92 (holding result of experiment
involving vehicle admissible on question of contributory
negligence), disc. review denied
, 345 N.C. 179, 479 S.E.2d 203
(1996). It was left up to the jury to determine Catherine
Hoffman's stopping distance _ which was a subject of dispute at
trial _ and make the ultimate determination of the speed of her
car, precisely as required by Shaw
. The trial court, therefore,
did not err in admitting Mr. Dennis' testimony.
(See footnote 2)
 The Hoffmans next argue that the trial court erred by
denying their motions for a directed verdict on the issue of
contributory negligence and for judgment notwithstanding the
verdict ("JNOV"). When considering a motion for a directed
verdict, a trial court must view the evidence in the light most
favorable to the non-moving party, giving that party the benefit of
every reasonable inference arising from the evidence. Clark v.
, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580 (1983). Any
conflicts and inconsistencies in the evidence must be resolved in
favor of the non-moving party. Davis & Davis Realty Co. v.
, 96 N.C. App. 306, 308-09, 385 S.E.2d 539, 541 (1989),
disc. review denied
, 326 N.C. 263, 389 S.E.2d 112 (1990). If there
is more than a scintilla of evidence supporting each element of the
non-moving party's claim, the motion for a directed verdict should
be denied. Clark
, 65 N.C. App. at 610, 309 S.E.2d at 580-81. The
same standard applies to motions for JNOV. Smith v. Price
N.C. 523, 527, 340 S.E.2d 408, 411 (1986).
Because contributory negligence is an affirmative defense, the
burden was on the Oakleys to prove that there was more than a
scintilla of evidence supporting each element of contributory
negligence. Snead v. Holloman
, 101 N.C. App. 462, 464, 400 S.E.2d
91, 92 (1991). Evidence that a party was exceeding the posted
speed limit is sufficient to send the issue of contributory
negligence to the jury. See, e.g.
, Whisnant v. Herrera
, 166 N.C.
App. 719, 723, 603 S.E.2d 847, 850 (2004) (evidence that plaintiffwas "exceed[ing] the speed limit" justified submission of issue of
plaintiff's contributory negligence to the jury).
In the present case, the parties stipulated at trial that any
negligence by Catherine Hoffman was to be imputed to Paula Hoffman.
The speed limit on Brooks Avenue was 35 miles per hour. Shawn
Oakley testified that Catherine Hoffman told her that she was
traveling "about" 40 miles per hour. In addition, as discussed in
the prior section, the Oakleys' evidence included expert testimony
that a car like the one driven by Catherine Hoffman would be able
to stop "in just under 54 feet" if it was traveling at 35 miles per
hour, the road's speed limit. Some of the measurements taken at
the scene of the accident indicated that the skid marks from the
Hoffman car measured 80 feet in length. If the jury accepted the
accuracy of those measurements, then the jury could draw the
inference, based on the accident reconstruction expert's testimony,
that Catherine Hoffman was exceeding the speed limit. The issue of
her contributory negligence was, therefore, properly submitted to
The Hoffmans nevertheless argue that Catherine Hoffman's speed
was not a proximate cause of the collision. "In order for a
contributory negligence issue to be presented to the jury, the
defendant must show that plaintiff's injuries were proximately
caused by his own negligence." McGill v. French
, 333 N.C. 209,
217, 424 S.E.2d 108, 113 (1993). In other words, "'[t]here must be
not only negligence on the part of the plaintiff, but contributory
negligence, a real causal connection between the plaintiff'snegligent act and the injury, or it is no defense to the action.'"
, 166 N.C. App. at 722, 603 S.E.2d at 850 (quoting West
Constr. Co. v. Atl. Coast Line R.R. Co.
, 184 N.C. 179, 180, 113
S.E. 672, 673 (1922) (emphasis original)).
According to the Hoffmans, because the jury found that Shawn
Oakley had been negligent, and Shawn herself testified that she did
not see the Hoffmans' car before the collision, she must have
backed into the roadway without looking. Therefore, the Hoffmans
argue, regardless of Catherine Hoffman's speed, Shawn Oakley's
negligence must have been the sole proximate cause of the
collision. In support of their argument, the Hoffmans point to
Ellis v. Whitaker
, 156 N.C. App. 192, 576 S.E.2d 138 (2003), in
which this Court noted that a plaintiff is not required to
anticipate a defendant's negligence and "'has a right to assume
that any motorist approaching from his left on the intersecting
street will stop in obedience to the red light [or a stop sign]
facing him unless and until something occurs that is reasonably
calculated to put him on notice that such motorist will unlawfully
enter the intersection.'" Id.
at 196, 576 S.E.2d at 141
(alteration in original) (quoting Cicogna v. Holder
, 345 N.C. 488,
490, 480 S.E.2d 636, 637 (1997)). The Ellis
Court concluded that,
although the evidence suggested that the plaintiff may have been
speeding, the defendant had failed to show a "real causal
connection" between the plaintiff's speed and the accident, and,
therefore, the plaintiff's speed was not a proximate cause of the
, however, in which no evidence was presented
indicating that the collision could have been avoided had the
plaintiff been traveling the posted speed limit, the evidence in
the present case was sufficient to allow a jury to find that had
Catherine Hoffman not been speeding, she would have been able to
stop in less than 54 feet, which would have brought her vehicle to
a halt prior to any impact. This is sufficient to demonstrate a
causal connection between Catherine Hoffman's excessive speed and
the resulting accident. See Whisnant
, 166 N.C. App. at 723-24, 603
S.E.2d at 851 (distinguishing Ellis
and concluding that defendant
demonstrated real causal connection between collision and
plaintiff's speed when evidence showed plaintiff was speeding while
approaching defendant's vehicle and, by the time plaintiff saw
defendant, plaintiff was unable to stop). The trial court,
therefore, properly denied the Hoffmans' motion for a directed
verdict and motion for JNOV.
(See footnote 3)
 Finally, the Hoffmans challenge the trial court's award of
costs to the Oakleys on various grounds. N.C. Gen. Stat. § 6-1
(2005) provides: "To the party for whom judgment is given, costs
shall be allowed as provided in Chapter 7A and this Chapter." N.C.
Gen. Stat. § 7A-305 (2005), in turn, governs costs assessable in
civil actions. With respect to negligence actions, costs "may beallowed or not, in the discretion of the court, unless otherwise
provided by law." N.C. Gen. Stat. § 6-20 (2005). "The costs
referred to in section 6-20 are the items enumerated in section
7A-305(d)." Smith v. Cregan
, 178 N.C. App. 519, 525, 632 S.E.2d
206, 210 (2006).
After trial, the Oakleys stipulated that State Farm Mutual
Automobile Insurance Company had paid all of their costs in
accordance with an automobile insurance policy, and, as a result,
they had "not personally paid any court costs as a result of the
filing, hearing and trial of this case." According to the
Hoffmans, because N.C. Gen. Stat. § 6-1 provides that costs shall
be allowed "[t
]o the party
for whom judgment is given," the trial
court erred by taxing as costs expenses actually paid by the
Oakleys' insurer. (Emphasis added.)
This issue has not been specifically addressed by North
Carolina courts. The Hoffmans have cited no authority suggesting
that costs are unavailable when paid for by the insurance carrier
pursuant to the insurance policy. At least one other jurisdiction
has, however, rejected this argument. See Hough v. Huffman
So. 2d 942, 943-44 (Fla. Dist. Ct. App. 1990) (despite insurer's
payment of prevailing party's costs, prevailing party could still
receive costs under statutory provision granting costs to "party
recovering judgment"). See also Aspen v. Bayless
, 564 So. 2d 1081,
1083 (Fla. 1990) (approving Hough
). Based on the plain language of the statute,
(See footnote 4)
we do not believe
N.C. Gen. Stat. § 6-1 should be construed as precluding a recovery
of costs under these circumstances. By its express terms, N.C.
Gen. Stat. § 6-1 identifies to whom
costs may be awarded, but does
not limit recovery to unreimbursed costs. As the trial court
awarded costs to the Oakleys _ who are the parties "for whom
judgment [was] given" _ we conclude that the court's award complies
with N.C. Gen. Stat. § 6-1.
The Hoffmans point to N.C. Gen. Stat. § 7A-305(d), which
provides that certain specified expenses "when incurred" are
recoverable as costs. The Oakleys, however, did incur the expenses
_ the Hoffmans do not suggest that the Oakleys would not have been
liable for the expenses had the carrier not paid them.
The Hoffmans alternatively contend that the trial court erred
by awarding the Oakleys their arbitration fee, deposition fee, and
expert witness fees as "costs." In analyzing whether the trial
court properly assessed costs we must undertake a three-step
, 173 N.C. App. at 391, 618 S.E.2d at 843. First,
we must determine whether the cost sought is one enumerated in N.C.
Gen. Stat. § 7A-305(d); if so, the trial court is required to
assess the item as a cost. Miller
, 173 N.C. App. at 391, 618
S.E.2d at 843. Second, if the cost is not an item listed under
N.C. Gen. Stat. § 7A-305(d), we must determine if it is a "common
law cost." Miller
, 173 N.C. App. at 391, 618 S.E.2d at 843. Third, if the cost sought to be recovered is a "common law cost,"
we must determine whether the trial court abused its discretion in
awarding or denying the cost under N.C. Gen. Stat. § 6-20. Miller
173 N.C. App. at 391, 618 S.E.2d at 843.
With respect to the arbitration fee, N.C. Gen. Stat. § 7A-
305(d)(7) designates as costs "[f]ees of guardians ad litem,
referees, receivers, commissioners, surveyors, arbitrators
appraisers, and other similar court appointees, as provided by
law." (Emphasis added.) As the Oakleys' arbitration fee is
specifically enumerated in N.C. Gen. Stat. § 7A-305(d), the trial
court properly assessed the fee as a cost. Miller
, 173 N.C. App.
at 391, 618 S.E.2d at 843.
As for the deposition fee, the Oakleys concede there is no
statutory authority for awarding deposition fees as costs. See
also Oakes v. Wooten
, 173 N.C. App. 506, 519, 620 S.E.2d 39, 48
(2005) ("[T]here [i]s no statutory authority for the award of
deposition costs."). "[T]his Court [has] held that '[e]ven though
deposition expenses do not appear expressly in the statutes they
may be considered as part of 'costs' and taxed in the trial court's
discretion.'" Muse v. Eckberg
, 139 N.C. App. 446, 447, 533 S.E.2d
268, 269 (2000) (alteration in original) (quoting Dixon, Odom & Co.
, 59 N.C. App. 280, 286, 296 S.E.2d 512, 516 (1982)).
Consequently, as deposition fees have been allowed as common law
costs, we may overturn the trial court's award only upon a showing
of abuse of discretion. Miller
, 173 N.C. App. at 391, 618 S.E.2d
at 843. We discern no abuse of discretion by the trial court, andthe Hoffmans have made no showing of an abuse of discretion.
Accordingly, we hold the trial court did not err by awarding the
Oakleys their deposition fee.
Finally, with respect to expert witness fees, the Hoffmans
purport to contest awards of $1,060.00 and $625.00, both for Mr.
Dennis' fees. The trial court, however, actually denied the
Oakleys' motion for Mr. Dennis' $625.00 fee. The sole issue before
this Court is the propriety of the trial court's award of the
$1,060.00 fee. This fee included Mr. Dennis' time spent reviewing
the case materials, talking with the investigating police officer,
and conducting the stopping-distance experiment.
Our appellate courts have previously upheld the award of an
expert witness fee for time spent outside of testifying. See,
, 173 N.C. App. at 520, 620 S.E.2d at 49 (finding no
abuse of discretion when trial court awarded expert witness fee in
part for time spent on preparation); Lewis v. Setty
, 140 N.C. App.
536, 539, 537 S.E.2d 505, 507 (2000) (allowing taxation of expert
witness fee for review of medical records); Campbell v. Pitt County
Mem'l Hosp., Inc.
, 84 N.C. App. 314, 328, 352 S.E.2d 902, 910
(allowing recovery as cost time spent by expert witnesses outside
of trial), aff'd in part and disc. review improvidently allowed in
, 321 N.C. 260, 362 S.E.2d 273 (1987), overruled on other
grounds by Johnson v. Ruark Obstetrics & Gynecology Assocs.
N.C. 283, 395 S.E.2d 85 (1990). We are bound by these prior
decisions, and, therefore, uphold the trial court's award of a$1,060.00 expert witness fee. Consequently, we hold that the trial
court did not err in awarding costs.
Judges TYSON and ELMORE concur.