Recent North Carolina Decisions

1. Recent North CarolinaDecisions J. Donald Cowan, Jr. Smith Moore LLP 17 June 2004 1

2. LIABILITY 2

3. Motor Vehicles 3

4. Pintacuda v. Zuckeberg(N.C. 2004) (1) Issue: Whether independent conduct of plaintiff relieved defendant’s negligence of stopping suddenly on interstate? 4

5. FACTS • Plaintiff, on motorcycle, following defendant on I-240 • Plaintiff traveling under speed limit and several car lengths behind defendant • As plaintiff crested hill, saw defendant stopped “instantaneously” in the plaintiff’s travel lane • Plaintiff applied brakes, swerved into adjoining lane to avoid defendant’s vehicle 5

6. FACTS (Cont’d.) • Plaintiff testified that he “skidded on something or hit reflector marker” • Trial court grants defendant’s motion for summary judgment • Court of Appeals reverses because jury question as to whether plaintiff’s skidding was foreseeable when defendant stopped 6

7. HELD: Summary judgment for defendant affirmed. • When plaintiff becomes aware of potential danger created by negligence of another, then by plaintiff’s independent act of negligence, causes the accident, the defendant is relieved of liability • Responsibility for the accident was the plaintiff’s “skidding on something or hitting the reflector marker” • Plaintiff was aware of the defendant stopping and had sufficient time to brake, see that the adjoining lane was clear and began to move to adjoining lane 7

8. Overton v. Purvis (N.C. 2003) (2) Issue: When plaintiff stood in the defendant’s lane of travel attempting to get the defendant to slow down because of conditions on the road, whether the defendant had the last clear chance to avoid striking the plaintiff? 8

9. FACTS • As dogs involved in fox hunt crossed highway, plaintiff stood in the road to get traffic to slow down • Defendant approached the hunt crossing • When the defendant did not slow down, the plaintiff ran to opposite lane of travel where he was struck by the defendant who swerved to avoid hitting the plaintiff • Jury found negligence and contributory negligence, but concluded that the defendant had the last clear chance to avoid the accident • Court of Appeals held it was error to instruct on last clear chance 9

10. HELD: Trial court correctly instructed on last clear chance. • Since lighting and visibility good, plaintiff acted reasonably in remaining in the defendant’s travel lane and attempting to get the defendant’s attention • Because defendant was not keeping a proper lookout, he did not notice the plaintiff until it was too late • If defendant had stayed in his lane of travel, he could have avoided the accident • By keeping a proper lookout, the defendant would have seen the plaintiff sooner and had the times and means to avoid hitting the plaintiff 10

11. Overton v. Purvis (N.C. App. 2004) (4) Issue: Whether the trial court properly refused to instruct on sudden emergency? 11

12. HELD: Sudden emergency instruction properly refused. • Defendant testified that he saw the hunters’ vehicles parked along the side of the road and also saw the plaintiff in the road waving his arms • Defendant could have stopped, but did not • Defendant failed to establish element of sudden emergency; that emergency was not created by his own negligence 12

13. Headley v. Williams,review denied (N.C.App. 2004) (6) Issue: • Whether trial court correctly granted defendant’s motion for directed verdict when decedent collided with defendant’s vehicle and physical evidence showed that accident occurred in decedent’s lane of travel? • Whether findings of fact and conclusions of law should be made when trial court bifurcates liability and damages? 13

14. FACTS • Decedent, operating motorcycle, rounds curve in road and collides with defendant’s vehicle • No witnesses to accident other than defendant • Witness had been following decedent’s motorcycle and testified that decedent was operating within speed limit and in normal manner • Investigating highway patrolman testified that gouge marks in decedent’s lane of travel • Defendant’s driver’s license restricted operation of vehicle to wearing corrective lenses – no contacts or glasses worn by defendant when patrolman arrived on scene • Trial court grants defendant’s motion for a directed verdict 14

15. HELD: Directed verdict reversed. • Taking evidence in light most favorable to plaintiff: • collision occurred in decedent’s lane of travel; and • no evidence that defendant wearing corrective lenses • Although decision to bifurcate liability and damages is in discretion of trial court, trial court should consider making findings of fact and conclusions of law “which clearly establish that severance is appropriate” 15

16. Dunn v. Custer (N.C.App. 2004) (7) Issue: • When plaintiff had just begun a second, part-time employment, whether plaintiff’s economist’s opinions were too speculative and improperly utilized “opportunity cost?” • Whether passenger in vehicle in which plaintiff was injured was improperly permitted to testify as to effect of impact on passenger’s injuries? 16

17. FACTS • Plaintiff, a licensed dentist, had just begun working part-time for Dr. Teague at the time of the accident and had received his first pay check of $1,200 the day before the accident • The plaintiff’s economic expert, Dr. Shirley Browning, testified that the plaintiff would not have left his employment with the County Health Department for a lesser-paying job, thus using the Health Department salary and “opportunity cost” to reach his opinion. • The defendant admitted liability • Dr. Teague was a passenger in the plaintiff’s car and was permitted over objection to testify about the force of impact and injuries he received in the accident. The jury awarded the plaintiff $310,000. 17

18. HELD: • Testimony of economic expert properly admitted. Defendant did not challenge Dr. Browning’s methodology. Dr. Browning properly assumed that the plaintiff would not leave the Health Department for a lesser-paying job. • The admission of evidence of injuries by an occupant in the vehicle is in the discretion of the trial court. Although opposite result of excluding evidence of occupant’s injuries was affirmed in Griffis v. Lazaronich (N.C.App.2003), the defendant in the present case did not show abuse of discretion by the trial judge. 18

19. Sharp v. CSX Transportation(N.C.App. 2003) (10) Issue: Whether decedent’s driving around railroad crossing gates in violation of statute was grounds for contributory negligence as a matter of law and grant of defendant’s 12 (b) (6) motion? 19

20. HELD: • G.S. §20-142.1 prohibits a person from driving around a crossing gate, but also provides that violation of statute shall not constitute negligence per se • Since violation of statute would not establish contributory negligence per se, error to grant defendant’s 12 (b) (6) motion 20

21. Williams v. Davis (N.C.App. 2003) (11) ISSUE: Whether defendant’s motion for directed verdict properly granted when plaintiff’s evidence showed that defendant’s headlights were not on at time of collision at night? 21

22. FACTS • Plaintiff was entering University Parkway from Holiday Inn in Winston-Salem at 9:30 p.m. when struck by defendant’s vehicle. • Plaintiff testified that she looked right and left before entering road. • Plaintiff’s evidence showed that defendant’s headlights were not on at time of collision. • Plaintiff’s evidence also showed that defendant traveling in excess of posted speed of 45 mph. 22

23. FACTS (Cont’d.) • Defendant’s vehicle entering University Parkway from exit ramp. • Area in which collision occurred was heavily commercialized with large car dealerships “lit up like a Christmas tree.” • Trial Court grants defendant’s motion for directed verdict based on plaintiff’s contributory negligence. 23

24. HELD: Affirmed. • Even though plaintiff testified that she looked left and right before entering the Parkway, she failed to look at the exit ramp. • Although defendant’s headlights may not have been on, there was sufficient light for the plaintiff to see the defendant’s vehicle approaching. • Plaintiff pulled into the Parkway “when a reasonable person should have seen it was unsafe to enter the intersection.” 24

25. Horne v. Vassey (N.C.App. 2003) (12) ISSUE: Whether trial judge properly denied plaintiff’s motion for a new trial when plaintiff’s evidence showed that defendant struck plaintiff’s vehicle from the rear and plaintiff incurred $9,005 in medical bills as a result of injuries received from the accident and jury awarded no damages? 25

26. FACTS • Defendant struck plaintiff’s vehicle from the rear. • Plaintiff’s treating neurologist, Dr. Maier, testified that plaintiff had a 10% permanent disability to her entire body as a result of the accident. • Plaintiff introduced evidence of $9,005 in medical bills incurred as a result of the accident. • Plaintiff had “numerous medical problems” before the accident, including chronic pain syndrome. 26

27. FACTS • During defendant’s cross-examination of plaintiff, plaintiff identified four photographs of her vehicle that were taken the day after the accident. • Plaintiff disputed the photographs, contending there was more damage to the rear of her vehicle than shown on the photographs. She admitted that the photographs were taken before her car was repaired. • The jury awarded no damages. The trial judge denied the plaintiff’s motion for a new trial. 27

28. HELD: Affirmed. • Photographs properly admitted by the trial court: “Testimony that the exhibit is a fair and accurate portrayal of the scene at the time of the accident is ordinarily sufficient to authenticate the exhibit.” Although plaintiff disputed the accuracy of the photographs as showing all of the damage to her vehicle, this was an issue of the weight of the photographs for the jury and did not relate to the admissibility of the photographs. 28

29. HELD: Affirmed. (Cont’d.) • Motion for new trial properly denied. Even though the defendant did not present expert medical testimony, the defendant’s cross-examination of the plaintiff’s medical expert, Dr. Maier, produced Dr. Maier’s opinion that “it would be very hard to sustain a significant injury” from an impact by the defendant’s vehicle traveling at a speed of five miles per hour. The defendant testified that his vehicle was traveling at no more than one to two miles per hour when he “rolled into” the plaintiff’s vehicle. Additional cross-examination indicated that the plaintiff had a “multitude of pre-existing medical problems.” Credibility of the evidence is for the jury. “It was well within the jury’s power to minimize or wholly disregard the testimony given by Dr. Maier.” 29

30. Premises 30

31. Barringer v. Mid Pines Development Group (N.C. 2003) (14-15) ISSUES: 1. Whether trial court properly denied plaintiff’s requested jury instruction that plaintiff is not contributorily negligent when plaintiff’s attention is diverted from seeing an existing dangerous condition? 2. Whether the trial court properly admitted testimony about the interpretation of the plaintiff’s MMPI when the doctor interpreting the MMPI did not testify? 31

32. FACTS • Plaintiff is attending employment-related workshop at Mid Pines. • Buffet lunch provided at the Inn. • Plaintiff had been to the buffet table to make a sandwich and salad. • Plaintiff returns to the buffet table, and, as returning to his table, he trips over electrical cord connecting warming pot to electrical outlet. • Trial court denies plaintiff’s request for jury instruction that plaintiff is not contributorily negligent when his attention is diverted from discovering or seeing an existing dangerous condition. 32

33. FACTS • Jury finds plaintiff contributorily negligent and does not award damages. • Court of Appeals reverses on basis that requested jury instruction should have been given. 33

34. HELD: Trial court affirmed. • Requested jury instruction by plaintiff properly denied. “Doctrine of diverted attention” has not been adopted in North Carolina. Pattern jury instruction on negligence includes the duty of ordinary care in varying circumstances. Thus, when jury instructed that a party must act as an ordinary prudent person under the circumstances, this is sufficient statement of duties. The jury may not ignore or fail to apply contributory negligence as requested by the plaintiff. 34

35. HELD: Trial court affirmed. (Cont’d.) • MMPI properly admitted. Dr. Edmundson, the plaintiff’s primary treating physician, was cross-examined by the defense about the plaintiff’s MMPI and the interpretation of the MMPI by Dr. Crovitz, a non-testifying witness. The Court of Appeals held that it was error to admit the testimony because there was no evidence that the test was properly administered and the MMPI was admitted for the truth of the matters in the test. 35

36. HELD: Trial court affirmed. (Cont’d.) • MMPI properly admitted. (Cont’d.) The Supreme Court held that the test was properly admissible under Rule 803(6). There was evidence at trial that the record was made at or near the time of evaluation; that the results were created by a person with knowledge; and that the record was kept in the ordinary course of business. The plaintiff was given the opportunity to depose Dr. Crovitz, but declined. 36

37. Nelson v. Novant Health Triad Region (N.C.App. 2003) (17) ISSUE: Whether trial court properly denied defendant’s motion for directed verdict when plaintiff testified that she was looking ahead of her and did not see that the floor where she was walking was slippery from water? 37

38. FACTS • Plaintiff was at Forsyth Memorial Hospital as part of her employment. • She was walking down a hall past the hospital’s dishwashing area. • Food trays and carts were across the hall as she walked through the area. • She testified that the floor was “shiny and buffed” and had a “glassy appearance.” • She slipped and fell and injured her right knee. • The trial court denied the defendant’s motion for directed verdict. The jury awarded the plaintiff $14,500. 38

39. HELD: Affirmed. • Plaintiff testified that she was not aware of the slippery condition of the floor and that the film of water on the floor would have been impossible to see because of the shiny linoleum floor. • Therefore, the dangerous condition was not open and obvious as a matter of law. • The decision of the plaintiff to look ahead and avoid the food trays and carts rather than look down at the floor was a question of fact for the jury. 39

40. Clontz v. St. Mark’s Evangelical Lutheran (N.C.App. 2003) review denied (19) ISSUE: Whether operation of equipment on land is sufficient basis for premises liability? 40

41. FACTS • The plaintiff was participating in the church’s annual Halloween festival held on Allen Sloop’s farm. • As guests at the festival were being pulled through the woods by a tractor-trailer, the plaintiff came out of the woods to make “scary noises.” • The plaintiff noticed that one of the children on the trailer appeared to be falling off. When the plaintiff attempted to assist the child, the plaintiff was pulled under the trailer and was injured. • The trial court granted the 12(b)(6) motions of the Church and Allen Sloop, but denied similar motions by Harry Sloop, the operator of the tractor-trailer. 41

42. HELD: Affirmed. • Even though appeals of thechurch and Allen Sloop were interlocutory, because the claim against Harry Sloop was still in the trial court, it affected a substantial right. A substantial right is affected because of the right of the parties “to try all issues before the same jury as well as the right to avoid inconsistent verdicts in separate trials.” 42

43. HELD: Affirmed. (Cont’d.) • The premises liability claims against the church and Allen Sloop were properly dismissed. The claims related only to the operation of the tractor-trailer. “Hazards relating only to an activity . . . apart from the condition or maintenance of the property do not give rise to a claim for premises liability. Allegations involving the applicability of the motor vehicle laws in the operation of the tractor-trailer did not apply because the operation was on the Sloop farm, therefore, they were not governed by the motor vehicle statutes. 43

44. INSURANCE 44

45. Motor Vehicles 45

46. State Farm Fire and Casualty Co. v. Darsie, review denied (N.C.App. 2003) (21) Issues: • Whether allegation of fraud in amended counterclaim related back to time original counterclaim filed? • Whether the insured was on notice of the alleged fraud more than three years before the counterclaim was filed? 46

47. FACTS • Mr. and Mrs. Leinfelders had been insured by State Farm since 1984 • At suggestion of agent, Mr. High, for “check-up” of coverage, automobile limits were reduced from $500,000/person to $100,000/$300,000 and separate $1 million umbrella policy was purchased. Umbrella policy had “intra-family” exclusion of claim against insured by spouse or named insured. • Leinfelders involved in accident on 29 October 1996 in which Mr. Leinfelder waskilled and Mrs. Leinfelder received serious injuries and medical bills over $500,000 • The accident was caused by the negligence of Mr. Leinfelder • Mrs. Leinfelders sued her husband’s estate on 5 October 1999 47

48. FACTS (Cont’d.) • State Farm filed declaratory judgment action on 4 March 2000 contending that no coverage under umbrella policy and limits of $100,000 under automobile policy • On 8 March 2000, Mrs. Leinfelder counterclaimed in the declaratory judgment action: (1) denying that coverage under automobile policy was limited; and (2) alleging intra-family exclusion void as against public policy • Mrs. Leinfelder allowed to amend counterclaim on 10 May2001 to allege fraud and equitable estoppel • Trial court sitting without jury (1) intra-family exclusion applied (2) statue of limitations on claims alleging fraud had not run; (3) Mrs. Leinfelder entitled to reformation of umbrella policy 48

49. HELD: Reversed. • Statute of limitations on fraud had run at the time Mrs. Leinfelder was allowed to amend her counterclaim on 10 May 2001. Amended counterclaim allegations of fraud did not relate back to original filing of counterclaim on 8 March 2000. The original counterclaim did not contain sufficient factual allegations about the transactions to put State Farm on notice of the later-alleged fraud. Fraud is required to be alleged specifically. • Statute of limitations on fraud was not tolled during three years before complaint was filed; no equitable estoppel. Since statute of limitations was raised as a defense, the burden was on Mrs. Leinfelder to “excuse the statutory bar.” “We hold as a matter of law that an otherwise reasonable time to discover fraud or misrepresentation in the PLUP policy was when the policy itself required certain claims, such as an accident, be brought to the attention of the insurer for the purposes of determining coverage.” 49

50. HELD: Reversed. (Cont’d.) • (Cont’d.) Mrs. Leinfelder was “charged” was discovery of the fraud “at least sometime within a year of the accident.” She should have discovered the fraud by 29 October 1997-one year after the accident – and more than three years before the amended counterclaim on 10 May 2001. 50