ANNA MARIE HENDERSON,
Plaintiff-Appellant,
v
.
Davidson County
No. 04 CVS 446
ANGELA DRUSCILLA HENDERSON,
Defendant-Appellee.
R. Steve Bowden & Associates, by Edward P. Yount, for
Plaintiff-Appellant.
Hall, Rodgers, Gaylord, Millikan & Croom, PLLC, by Dwight G.
Rodgers and Kathleen M. Millikan, for Defendant-Appellee.
McGEE, Judge.
Anna Marie Henderson (Plaintiff) filed a complaint against
Angela Druscilla Henderson (Defendant) on 9 February 2004 to
recover for injuries Plaintiff sustained while riding as a
passenger in Defendant's automobile on 27 July 2003. Plaintiff
alleged that Defendant, her cousin, picked Plaintiff up at
Plaintiff's home at approximately 5:40 a.m. on 27 July 2003.
Defendant drove westerly on Kindley Street in Lexington, North
Carolina, rounded a curve, lost control of her vehicle, and struck
a telephone pole. Plaintiff alleged that Defendant (1) failed to
keep a proper lookout and keep her vehicle under control; (2) drove
carelessly and recklessly; (3) operated her vehicle without duecaution and circumspection; (4) failed to reduce the speed of her
vehicle to avoid a collision; and (5) drove at a high rate of speed
for the existing conditions. Plaintiff sought to recover an amount
in excess of $10,000.00 to compensate her for bodily injuries she
sustained in the crash.
Defendant filed an answer in which she denied the majority of
Plaintiff's allegations. Defendant admitted that she lost control
of her vehicle but denied that it was the result of any negligence
on her part.
At trial, Officer Brian Jacobs (Officer Jacobs) of the
Lexington Police Department testified that he responded to the
vehicle crash involving Plaintiff and Defendant. Officer Jacobs
testified that when he arrived at the scene, the vehicle was
completely off the roadway, with its front end against a telephone
pole. According to Officer Jacobs, the front of the vehicle was
severely damaged and could no longer be driven. Defendant's
statement was taken at the scene and admitted into evidence during
Officer Jacobs' testimony. In her statement, Defendant said that
when she came around a curve in the roadway, "[her] vehicle locked
up and cut off."
Plaintiff testified that Defendant picked up Plaintiff to
drive her to work on the morning of 27 July 2003. It was still
dark when Defendant arrived at Plaintiff's home, and it was not
raining. During Plaintiff's direct testimony, the following
exchange occurred:
Q: And when . . . [D]efendant got there, what
was the first thing that happened when shepicked you up?
A: She pulled in my driveway, I got my
pocketbook, my keys, locked my door, and I got
in the car.
Q: What happened next?
A: We pulled out of the driveway. We went
around the curve, and the next thing I know we
[were] on the pole.
. . .
Q: . . . What part of the car hit the pole?
A: The front end.
Q: What was that collision like?
A: Hard.
Q: Hard. How so?
A: The glass shattered.
Q: Did the airbags deploy?
A: Yes.
Q: And what first made you aware . . . that
[the ]collision was about to happen?
A: I wasn't aware.
Q: It just happened?
A: It just happened.
Q: Did . . . [D]efendant warn you in any way
that the collision was coming?
A: No.
Q. She didn't scream?
A: No.
Q: She didn't yell or anything?
A: No.
. . .
Q: How much time were you actually driving
down the road before you hit the pole?
A: I would say five or ten seconds.
Q: . . . What were you doing during that
period of time?
A: Looking out the window.
Q: What were you looking at, it was dark?
A: Just looking.
Q: Were you paying attention to . . .
[D]efendant?
A: No.
Q: What were you paying attention to?
A: I was just looking out the window.
. . .
Q: Do you know what . . . [D]efendant was
doing right before the collision occurred?
A: No.
Q. Why not?
A: I wasn't paying attention.
Q: Now, in your opinion, was there anything
that . . . [D]efendant could have done
differently to avoid the collision?
A: I wasn't paying attention.
Q: Okay. So you don't know what she did?
A: No.
Q: Did you notice anything unusual about the
way the car was running that morning?
A: No.
Q: Did you hear any strange sounds coming fromthe car?
A: No.
Q: Had you ever noticed anything wrong with
that car before that day?
A: No.
As a result of the crash, Plaintiff's wrist was broken and she was
taken to Lexington Memorial Hospital. Her foot was also bruised,
but not broken. Plaintiff had surgery to repair her wrist injury,
and physical therapy was prescribed. After several months of
physical therapy, Plaintiff was released from medical care with a
lifting restriction of ten pounds. Plaintiff was unable to return
to her job because her job required that she be able to lift thirty
pounds.
On cross-examination, Plaintiff testified that (1) Defendant
was traveling within the speed limit at the time of the crash; (2)
there were no adverse weather conditions; (3) there were no
distractions like coffee or the radio; and (4) Defendant was
driving "normal" that morning. Plaintiff was also asked:
Q: At any time or any point leading up to this
accident did you see [Defendant] do anything
wrong?
A: I was looking out the window.
Q: That's not what I asked you. I'm asking
you at any point leading up to this accident
did you see [Defendant] do anything wrong?
A: No.
Q: Did you hear or feel or otherwise sense her
doing anything wrong?
A: No.
Q: In fact, there's nothing that you can think
of that [Defendant] could have done
differently that you know of to have avoided
this accident; isn't that correct?
A: I'm not sure what you are asking me.
Q: You can't think of anything she could have
done differently to have avoided this
accident, can you?
A: Not sure what you are asking me.
Q: I guess, suffice it to say, that you didn't
see her do anything wrong?
A: No.
Plaintiff also testified that immediately after Defendant's vehicle
came to rest, Defendant told Plaintiff the steering had locked up
while Defendant was driving. Plaintiff's testimony on cross-
examination continued:
Q: Let me ask this. You don't have any
evidence then that [Defendant] wasn't keeping
a proper look out, [or] proper control of her
car, do you?
. . .
A: No.
Q: Just to speed it up, do you have any
evidence that [Defendant] drove - was driving
or drove in a careless and reckless manner?
A: No.
Q: Do you have any evidence that [Defendant]
was driving without due caution or care
leading up to this accident?
A: I'm not sure what you are asking.
Q: Do you have any evidence that [Defendant]
was driving carelessly leading up to this
accident?
A: I was looking out the window.
Q: Is that a no then, you don't have any
evidence that she was driving carelessly?
. . .
A: No.
. . .
Q: Okay. Is it also true that you don't have
any evidence that [Defendant] was driving at a
speed or in a manner so as to endanger you or
her car or telephone pole leading up to this
accident?
A: No.
Q: The fact is, you don't know of anything
that [Defendant] did wrong to cause this
wreck, do you?
A: No, no more than she was driving the car.
William Allen (Allen), a licensed vehicle appraiser for Direct
Insurance, also testified for Plaintiff. Allen testified that he
inspected Defendant's vehicle on two occasions after the crash. On
the second occasion, Allen was asked to inspect the vehicle's
brakes and steering. Allen did not have a key to the vehicle, so
he could not turn the steering wheel; however, he visually
inspected the steering and "what [he] could of the brakes[.]" He
also "mash[ed] the brakes" to make sure the brakes were working.
According to Allen's report, his "visual inspection showed the
brakes and steering to be in working order as far as [he] could
tell from looking at [the brakes and steering] with [his] eyes."
At the close of Plaintiff's evidence, Defendant moved for a
directed verdict. Defendant argued that Plaintiff's evidence was
insufficient to send the case to the jury. The trial court granted
Defendant's motion. Plaintiff appeals. When ruling on a motion for a directed verdict, a trial court
must "consider the evidence in the light most favorable to the
non-movant, and determine whether the evidence is sufficient as a
matter of law to be submitted to the jury." Town of Highlands v.
Edwards, 144 N.C. App. 363, 366, 548 S.E.2d 764, 766, disc. review
denied, 354 N.C. 74, 553 S.E.2d 212 (2001). Further, on a
defendant's motion for a directed verdict, a plaintiff's evidence
must be taken as true, along with all reasonable inferences,
resolving all conflicts and inconsistencies in the plaintiff's
favor. Forsyth Co. v. Shelton, 74 N.C. App. 674, 676, 329 S.E.2d
730, 732, disc. review denied, 314 N.C. 328, 333 S.E.2d 484 (1985).
"[A] [d]efendant's evidence insofar as it conflicts or refutes the
plaintiff's evidence is not considered, but the other evidence
presented by [the] defendant may be considered to the extent that
it clarifies the plaintiff's case." Henderson v. Traditional Log
Homes, 70 N.C. App. 303, 306, 319 S.E.2d 290, 292 (1984). Where a
plaintiff has failed to offer evidence sufficient to establish
every essential element of negligence beyond mere speculation or
conjecture, a motion for a directed verdict is properly granted.
Oliver v. Royall, 36 N.C. App. 239, 242, 243 S.E.2d 436, 439
(1978).
Plaintiff argues the trial court erred by granting Defendant's
motion for a directed verdict because the evidence, taken in the
light most favorable to Plaintiff, was sufficient to require that
the case be submitted to the jury. Plaintiff contends the present
case is analogous to Drumwright v. Wood, 266 N.C. 198, 146 S.E.2d1 (1966).
In Drumwright, the plaintiff, who was a passenger in her
husband's vehicle, alleged he negligently operated the vehicle and
proximately caused her serious injuries and substantial medical
expenses. Id. at 199, 146 S.E.2d at 2. The plaintiff's evidence
tended to show that the vehicle was discovered down an embankment,
with the vehicle lights on, and the motor running. Id. at 200-01,
146 S.E.2d at 3. The plaintiff was thrown through the windshield
of the vehicle and was bleeding profusely. Id. at 201, 146 S.E.2d
at 3. The plaintiff's husband died before arriving at the
hospital. Id. The plaintiff offered evidence from a state highway
patrolman who investigated the scene of the accident. He testified
that he found nothing on the highway where the vehicle left the
road, but he observed tire marks leading from the shoulder of the
road to the rear of the vehicle. Id. at 201-02, 146 S.E.2d at 4.
He also testified that the road was dry on the evening of the
accident, the highway was intact, and there were no holes in the
road. Id. at 202, 146 S.E.2d at 4. Additionally, the individual
who towed the vehicle from the scene of the accident testified that
when he arrived to remove the vehicle, he found it had sustained
significant damage. Id. Two other individuals were in the
vicinity of the accident and testified they went to the scene after
hearing "a loud roar and a big thud or bump[.]" Id. at 200, 146
S.E.2d at 3. Our Supreme Court found this evidence permitted
inferences that the plaintiff's husband (1) failed to decrease the
speed of the vehicle when approaching a curve in the road; (2)operated the vehicle in excess of the speed limit; (3) operated the
vehicle recklessly; and (4) failed to keep a proper lookout. Id.
at 205, 146 S.E.2d at 6. Therefore, in Drumwright the trial court
had properly submitted the case to the jury. Id.
Defendant argues that Drumwright is distinguishable from the
present case, and we agree. In Drumwright, the driver of the
vehicle was killed and there was no evidence offered of his account
of the accident. Further, there is no indication that the
plaintiff offered an account of the events preceding the accident.
In the present case, however, the evidence included Plaintiff's
account of the crash, and the statement Defendant made to police
after the crash. Additionally, in Drumwright the evidence included
detailed testimony regarding the terrain of the road, the tire
marks found leading to the rear of the vehicle, and the distance
from the road that the vehicle was recovered. In the present case,
Officer Jacobs' testimony lacked the specificity of the testimony
in Drumwright.
Taken in the light most favorable to Plaintiff, Plaintiff's
evidence was insufficient to submit the issue of Defendant's
negligence to the jury. "[N]egligence is not presumed from the
mere fact that there has been an accident and an injury."
Drumwright, 266 N.C. at 203, 146 S.E.2d at 5. Further, in Lewis v.
Piggott, 16 N.C. App. 395, 192 S.E.2d 128 (1972), our Court
reviewed the trial court's grant of the defendant's motion for a
directed verdict. In Lewis, the defendant was driving on a clear
night within the maximum speed limit when the vehicle ran over a"wet spot in the road" and hit a tree. Id. at 397, 192 S.E.2d at
130. The plaintiff testified that "there wasn't exactly anything
wrong with [the defendant's] driving." Id. As in the present
case, res ipsa loquitor was not applicable. Therefore, we noted
that it was "necessary for the plaintiff to plead and prove facts
which constitute[d] negligence." Id. at 397, 192 S.E.2d at 131.
We found that the plaintiff's evidence failed to show "that the
defendant was operating the automobile improperly or that there
existed a situation in the roadway which [the defendant] should
have seen, and which constituted a threat of foreseeable harm."
Id.
Additionally, in Johnson v. Brooks, 23 N.C. App. 321, 323, 208
S.E.2d 875, 877, cert. denied, 286 N.C. 335, 210 S.E.2d 57 (1974),
this Court upheld the grant of a directed verdict for the defendant
where "all the plaintiff showed by her evidence was that the
defendant's automobile skidded into an embankment as it entered a
curve at a time when it was [traveling] 40 to 45 miles per hour."
We concluded this was insufficient to survive the defendant's
motion for a directed verdict. Id.
In the present case, as in Lewis and Johnson, Plaintiff has
not shown anything more than a crash and an injury. Plaintiff's
own testimony does not reveal any basis for a finding of
Defendant's negligence, nor does any other evidence that Plaintiff
offered. Plaintiff could not identify anything that Defendant did
that caused the crash; nor could Plaintiff identify anything that
Defendant failed to do that could have avoided the crash. Allen'sinspection report stated only that "the steering and brakes [were]
working in a normal manner" after he visually inspected them.
Plaintiff's evidence does not offer evidence of Defendant's
negligence beyond mere speculation or conjecture. Therefore, we
conclude the trial court did not err in granting Defendant's motion
for a directed verdict.
Affirmed.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).
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