Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-971


Filed: 5 June 2007


v .                         Davidson County
                            No. 04 CVS 446

    Appeal by Plaintiff from judgment entered 13 March 2006 by Judge W. Erwin Spainhour in Superior Court, Davidson County. Heard in the Court of Appeals 22 February 2007.

    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.
    Judges CALABRIA and STEPHENS concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***