Casey By and Through Kirton v. Fredrickson Motor Exp. Corp.

• Decision Date: 16 January 1990
• Docket Number: No. 8828SC1274,8828SC1274
• Citation: 387 S.E.2d 177,97 N.C.App. 49
• Parties: Kelly Robert CASEY, By and Through his Guardian ad Litem, Brenda KIRTON and Mary Lois Casey, Plaintiffs, v. FREDRICKSON MOTOR EXPRESS CORPORATION, Defendant.
• Court: North Carolina Court of Appeals

Page 177

387 S.E.2d 177

97 N.C.App. 49

Kelly Robert CASEY, By and Through his Guardian ad Litem Brenda KIRTON and Mary Lois Casey, Plaintiffs, v. FREDRICKSON MOTOR EXPRESS CORPORATION, Defendant.

No. 8828SC1274.

Court of Appeals of North Carolina.

Jan. 16, 1990.

Tharrington, Smith & Hargrove by John R. Edwards and Douglas E. Kingsbery, Raleigh, for plaintiffs-appellants.

Collie and Wood by George C. Collie and James F. Wood, III, and Charles M. Welling, Charlotte, for defendant-appellee.

COZORT, Judge.

Plaintiff appeals from a jury verdict finding that plaintiff was not injured by the negligence of defendant. He contends that he was prejudiced by the trial court's refusal to instruct the jury on the "thin-skulled plaintiff" doctrine. We agree and remand for a new trial.

On 3 November 1981, plaintiff, a twenty-four-year-old student at UNC-Asheville, was driving his automobile on U.S. 25A (also called Sweeten Creek Road) in Asheville. Plaintiff was traveling south out of Asheville on his way to his part-time job at United Parcel Service, where his shift was to begin at 3:30 a.m. At approximately 123 Sweeten Creek Road, a short distance beyond a curve in the road, plaintiff's vehicle collided with a tractor-trailer owned by defendant and operated by defendant's employee, David York.

Plaintiff, who was unconscious following the accident, was transported to Memorial Mission Hospital, where he was seen by a neurosurgeon, Dr. Larry Schulhof. Plaintiff was in a coma and his neurological functioning was rapidly deteriorating. A CAT scan revealed a bloodclot or a hemorrhage in the brain, and surgery was performed, during which the hemorrhage was removed. Dr. Schulhof also discovered and removed a blood vessel abnormality, an arteriovenous malformation, which was congenital. As a result of the hemorrhage, plaintiff suffered severe brain damage and significant mental, vocational, and visual impairment. He has no memory of the accident.

Plaintiff's parents were appointed as guardians for plaintiff in 1981. Following the death of plaintiff's father and a move by plaintiff and his mother to Costa Mesa, California, a resident of Buncombe County was appointed guardian ad litem in 1984. Plaintiff, by and through his guardian ad litem and his mother, filed a negligence action in 1984 against defendant Fredrickson Motor Express Corporation and David York. Defendants filed Answer alleging contributory negligence. Plaintiff responded denying contributory negligence and pleading the doctrine of last clear chance. Plaintiff's complaint was subsequently amended to include allegations of negligent entrustment. In March 1988, York was voluntarily dismissed from the action without prejudice.

At trial, plaintiff presented the testimony of Robert Demetrius, a co-worker who was traveling two cars behind plaintiff the morning of the accident. Demetrius testified that, prior to entering the curve at 123 Sweeten Creek Road, plaintiff was traveling in his own lane of traffic and below the posted speed limit. Demetrius did not see the collision take place. He stated that when he rounded the curve he had to slam on brakes and run off the road to a graveled area on his left to avoid the accident. He saw the tractor-trailer across both lanes of traffic with the tractor through the southbound lane, saw plaintiff's vehicle, badly damaged, in the southbound lane but facing north, and most of the debris in the southbound lane. Demetrius identified on a photograph a set of skid marks where he ran off the northbound shoulder to his left. He testified that there was a ten-foot graveled shoulder which continued all along the northbound lane and that he drove around the accident on that graveled area.

Defendant's driver, York, the only witness to the accident, did not take the stand at trial. The Asheville police officer who was called to the scene of the accident testified as to York's statement as follows:

This is in my own words. I don't recall exactly what [York] said. He advised me that he was proceeding north on 25-A. He had just come out of a curve northbound when he observed a white vehicle that was traveling southbound run off the road through his lane at approximately the area of 123 Sweeten Creek Road. He observed this vehicle cross over and turn facing--almost facing him, still facing him somewhat southbound.

According to the officer, York further stated that he tried to swerve to his left to go around the vehicle and, upon seeing that the vehicle was moving back into its own, southbound lane of travel, he tried to go back into his northbound lane but instead collided with plaintiff's vehicle approximately in the center of the road. York showed the officer a set of skid marks where plaintiff allegedly ran off the road. It was the same set of marks identified by Demetrius as having been made by him when he skidded off the road to avoid the accident. Finally, the officer testified that there were approximately one hundred and seven feet of skid marks leading up to the tractor-trailer; almost all of those marks were in the truck's own, northbound lane of travel.

On the issues of the nature of plaintiff's injury and causation, Dr. Schulhof testified that there was no sign of trauma to plaintiff's head, that there were some cuts on his face but no skull fracture. Dr. Schulhof's pre-surgery diagnosis was that the hemorrhage in plaintiff's brain was the result of an abnormality, because its position was not typical for a hemorrhage due to a blow to the head. His post-operative opinion was the same: that the hemorrhage had occurred "spontaneously" and not as a result of a traumatic blow to the head. He testified, "I don't believe I can say with any certainty as to whether the hemorrhage or the blood clot was caused by the effects of the trauma itself. I think the evidence is very strong that it was a result of a hemorrhage from the blood vessel abnormality, if you understand my distinction there." Plaintiff also introduced testimony from a pathologist who testified that he did not think that the hemorrhage resulted from an arteriovenous malformation that ruptured on its own. Defendant introduced expert testimony agreeing with Dr. Schulhof's diagnosis of a spontaneous rupture.

At the charge conference and again at the conclusion of the court's charge to the jury but before the jury began deliberating, plaintiff requested an instruction on proximate cause in accordance with Pattern Jury Instruction 102.20A, "Proximate Cause--Peculiar Susceptibility ('Thin-Skulled' Plaintiff)." The trial court denied the requests. The court also denied plaintiff's requests for an instruction on the doctrine of last clear chance. Over plaintiff's objections, the trial court instructed the jury on the doctrine of sudden emergency.

The jury returned a verdict finding that plaintiff was not injured by the negligence of defendant. Plaintiff appeals, assigning as error the trial court's refusal to instruct the jury on the thin-skulled plaintiff rule and on the doctrine of last clear chance. Plaintiff also assigns error to the trial court's instructing the jury on the doctrine of sudden emergency. We agree that the court's refusal to instruct the jury on the thin skull rule was reversible error.

The thin skull rule is the rule of law that a negligent defendant takes the plaintiff as he finds him and, therefore, is liable for the harmful consequences of his negligent act notwithstanding the fact that the damages were unusually extensive because of the plaintiff's peculiar susceptibility or pre-existing condition. See Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541 (1964). The instruction requested by plaintiff is set forth in North Carolina Pattern Instruction--Civil 102.20(A) as follows:

In this case, the defendant contends, and the plaintiff denies, that plaintiff's injury was not reasonably foreseeable and, that, therefore, the defendant's conduct could not be a proximate cause of plaintiff's injury.

When a defendant's negligent conduct would not have resulted in any injury to a plaintiff of ordinary susceptibility, the defendant would not be liable for the harmful consequences which result from the plaintiff's peculiar susceptibilities, such as a pre-existing disease or an extraordinary condition, unless, under the circumstances, ...