Appeal by plaintiffs from judgment entered 2 February 2006 by
Judge A. Leon Stanback, Jr. in Wake County Superior Court. Heard
in the Court of Appeals 27 March 2007.
Law Offices of Stephanie Brown, by Stephanie J. Brown, for
Cranfill, Sumner & Hartzog, L.L.P., by George L. Simpson, IV,
for defendant-appellee James Kummerer.
Plaintiffs Christina Wright and her parents, Roger B. and
Patricia Wright, appeal from a judgment awarding Christina $500.00
and her parents $4,000.00 for personal injuries sustained by
Christina in an automobile accident. On appeal, plaintiffs contend
that the limited damages were the result of (1) the trial court's
ruling allowing defense counsel to elicit testimony from Christina
Wright that she tested positive for marijuana after the accident
and (2) the trial court's refusal to take judicial notice of the
fact that marijuana use will yield positive urinalysis results forup to 30 days. Since plaintiffs moved the admission of all of
Christina Wright's medical records _ which included a copy of the
positive marijuana test results _ we hold that plaintiffs waived
their objection regarding those test results. Further, plaintiffs'
assertion that marijuana is detectable for 30 days is not
information that is subject to judicial notice. We, therefore,
hold that plaintiffs have failed to establish a basis for
disturbing the judgment below.
On 10 June 2000, Christina Wright, who was 16 years old,
traveled with three teenage male friends to Roanoke, Virginia for
an all-night "rave" party. Defendant James Kummerer ("Jim"), one
of Christina's classmates, drove. Neither Christina nor Jim told
their parents that they were going out of state to a rave.
The teenagers left Raleigh in the late afternoon and arrived
in Roanoke late that evening. The rave ended at about 7:00 a.m.
the next morning, as the sun rose. Rather than returning directly
to Raleigh, the teenagers visited the home of one of the hosts of
the rave, toured a park in Roanoke, and finally went to see a
"really cool" parking deck. They left Roanoke in the early
afternoon to return to Raleigh. At trial, Christina denied
consuming any drugs or alcohol during the rave or at any other
point during the trip.
Although Jim had not slept, he drove on the way home. At the
outset of the trip, Christina rode in the front passenger seat, but
when she became tired, she moved to the back and fell asleep, asdid the male friend also in the back. At around 4:10 p.m., Jim
fell asleep behind the wheel. The car drifted across the median of
Highway 220 in Rockingham County, North Carolina, then returned
back over the median and the southbound lanes and crashed into a
small ditch and an embankment. Christina was transported to a
hospital emergency room for treatment of her injuries, including a
broken nose, a cut on her face requiring stitches, and back, neck,
and knee pain.
Christina Wright and her parents brought suit against Jim and
his father. Following trial, the jury returned a verdict finding
that Christina was contributorily negligent, but also finding that
Jim had the "last clear chance" to avoid the injuries. Initially,
the jury awarded Christina zero damages and her parents $4,000.00
in damages. After the trial judge directed the jury to award
Christina at least nominal damages, the jury returned with a
verdict awarding Christina $500.00 for her injuries and her parents
$4,000.00. The jury also found that Jim was not driving the car
for a family purpose at the time of the collision. The trial
court, therefore, entered judgment against Jim Kummerer, but not
against his father, Paul Kummerer, in the amounts awarded by the
jury plus interest. Plaintiffs timely appealed to this Court.
In their first assignment of error, plaintiffs argue that the
trial judge impermissibly allowed defense counsel to question
Christina about the results of a drug test administered at Moses
Cone Hospital following the car accident. Prior to trial,plaintiffs filed a motion in limine to exclude evidence of
Christina's urine test, which was positive for the presence of
marijuana. The trial court denied plaintiffs' motion based on
defendants' representation that they would present eyewitness
testimony that Christina had used marijuana during the trip to
Roanoke. The trial court further ruled that defense counsel could
ask Christina about the drug test during his cross-examination of
Over objection by plaintiffs' counsel, Christina admitted on
cross-examination that she tested positive for marijuana following
the accident, although she denied using marijuana during the
Roanoke trip. Defendants, however, never presented the promised
testimony that Christina had smoked marijuana on the trip. The
trial court, therefore, instructed the jurors that the drug test
was "irrelevant to [the] consideration of the facts in this case"
and directed them to "disregard that evidence." We note that the
law presumes jurors will follow a judge's instruction to disregard
evidence. Shields v. Nationwide Mut. Fire Ins. Co.
, 61 N.C. App.
365, 378, 301 S.E.2d 439, 447, disc. review denied
, 308 N.C. 678,
304 S.E.2d 759 (1983).
Plaintiffs, however, argue that evidence of the drug test was
both irrelevant and unfairly prejudicial under North Carolina Rules
of Evidence 402 and 403. Plaintiffs contend that this evidence
"made [Christina] an object of scorn to the jury," as reflected by
the jury's decision to award minimal damages. Even assuming, without deciding, that the trial court erred in
allowing defense counsel to question Christina about her positive
drug test and that the error was not cured by the instruction,
plaintiffs waived their objection when they later introduced
evidence of that test. As our Supreme Court has stated, "[w]here
evidence is admitted over objection, and the same evidence has been
previously admitted or is later admitted without objection, the
benefit of the objection is lost." State v. Whitley
, 311 N.C. 656,
661, 319 S.E.2d 584, 588 (1984). See also Brooks v. Wal-Mart
, 139 N.C. App. 637, 656, 535 S.E.2d 55, 67 (2000) ("by
eliciting on its cross-examination essentially the same testimony
to which it had previously objected, [defendant] thereby waived the
benefit of the earlier objection"), disc. review denied
, 353 N.C.
370, 547 S.E.2d 2 (2001).
Here, plaintiffs offered into evidence an exhibit that was a
compilation of Christina's medical records, including her 11 June
2000 records from Moses Cone Hospital. That exhibit contained an
unredacted copy of the hospital's urinalysis stating, in capital
letters, that Christina had tested "POSITIVE." After the trial
judge admitted the records into evidence, plaintiffs requested that
they _ including the drug screen _ be published to the jury. Since
plaintiffs themselves provided the jury with Christina's positive
drug screen, they have waived any objection to the questions on
cross-examination regarding that drug screen.
Plaintiffs next argue that the court erred when it failed to
take judicial notice that marijuana remains detectable in the humansystem for 30 days after the time of usage. When plaintiffs made
their request for judicial notice of this purported fact, the trial
judge declined, stating, "I have no reference point to draw from."
Under the Rules of Evidence, "[a] judicially noticed fact must
be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned." N.C.R.
Evid. 201(b). This rule further provides that "[a] court shall
take judicial notice if requested by a party and supplied with the
necessary information." N.C.R. Evid. 201(d).
Contrary to plaintiffs, we do not believe that the length of
time marijuana remains detectable in the human system is a
"generally known" fact. See State v. Canady
, 110 N.C. App. 763,
766, 431 S.E.2d 500, 501 (1993) ("The exact time of sunset and the
current phase of the moon on a particular date are not facts
'generally known.'"); see also United States v. Simon
, 842 F.2d
552, 555 (1st Cir. 1988) (trial court did not err in refusing to
take judicial notice "that Rastafarians use marijuana as part of
Nor have plaintiffs met the requirements of N.C.R. Evid.
201(b)(2). They did not refer the trial judge to any sources
regarding the marijuana detection window. Even on appeal,
plaintiffs, as support for their assertion, cite only the text of
brief submitted to the United States Supreme Court in the
1980s. It was not the responsibility of the trial judge "'to makean independent search for data of which he may take judicial
, 110 N.C. App. at 766, 431 S.E.2d at 501 (quoting
State v. Dancy
, 297 N.C. 40, 42, 252 S.E.2d 514, 515 (1979)).
Since plaintiffs point to nothing in the record to show that they
presented any information to the trial court regarding the
particular scientific assertion that they sought to have judicially
noticed, the trial court did not err in refusing plaintiffs'
Chief Judge MARTIN concurs.
Judge WYNN concurs in the result only.
Report per Rule 30(e).
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