Brubach v. Peterson

Decision Date21 August 2018
Docket NumberNo. COA17-1200,COA17-1200
Citation817 S.E.2d 629 (Table)
Parties Carl Edward BRUBACH, Plaintiff, v. Charles Cody PETERSON, Defendant.
CourtNorth Carolina Court of Appeals

Shipman & Wright, LLP, Wilmington, by Kyle J. Nutt, for plaintiff-appellant.

Simpson Law Firm, PLLC, by George L. Simpson, IV, for defendant-appellee.

HUNTER, JR., Robert N., Judge.

Carl Edward Brubach ("Plaintiff") appeals following a jury verdict finding him contributorily negligent and barring him for recovering from Charles Cody Peterson ("Defendant"). On appeal, Plaintiff contends the trial court committed the following errors: (1) denying his motions for directed verdict and judgment notwithstanding the verdict; (2) instructing the jury on reckless driving; and (3) denying his motion for a new trial. We affirm.

I. Factual and Procedural Background

On 29 January 2016, Plaintiff filed a complaint for negligence, gross negligence, and punitive damages. The complaint alleged the following narrative.

On 27 September 2013, around 2:30 a.m., Plaintiff rode his bicycle westbound on Causeway Drive in Wrightsville Beach, North Carolina. After drinking "multiple alcoholic beverages[,]" Defendant drove his car on the same road, in the same direction. Daniel Johnson rode as a passenger in Defendant’s car. Defendant drove behind Plaintiff and "perceived the Plaintiff riding his bicycle[.]" Plaintiff "did not stray from his direction or path of travel on the bicycle." Defendant "negligently, carelessly and recklessly" hit Plaintiff and his bicycle from behind. The hit caused Plaintiff to be thrown from his bicycle and suffer injuries.

Defendant did not contact law enforcement or medical assistance, check on Plaintiff, or render any aid to Plaintiff. Law enforcement authorities arrested Defendant and charged him with felony hit and run, failure to see safe movement, resisting a public officer, possession of a schedule II substance, and simple possession of a schedule VI substance. Defendant pled guilty to hit and run, failure to see safe movement, and resisting a public officer.

On 4 May 2016, Defendant filed his answer. Defendant raised the affirmative defenses of, inter alia , ordinary and gross contributory negligence. Plaintiff filed a reply to Defendant’s answer on 6 May 2016, denying any contributory negligence or that any alleged contributory negligence proximately caused the accident.

After numerous pre-trial motions, the trial began on 10 April 2017.

Plaintiff first called Andrew Keenan, Plaintiff’s roommate in 2013. The two lived together in an apartment in Wilmington, North Carolina. On 26 September 2013, Plaintiff returned from a surfing trip in California "around 8 or 9" in the evening. The two planned to meet friends at the beach to talk about Plaintiff’s trip.

Plaintiff and Keenan rode their bicycles on a bicycle path and sidewalk to Wrightsville Beach. Keenan remembered Plaintiff’s bicycle having a light on the front and a reflector on the back. After a "relaxed ride[,]" the two arrived at Jerry Allen’s Sports Bar and Grill "20 or 30 minutes" later. Keenan saw Plaintiff drink "three or four" beers at Jerry Allen’s. Around 12:30 the next morning, the group left, went to the ocean, and swam for "30 minutes or so." They then walked back to Jerry Allen’s, and Plaintiff closed his tab at the bar.

Plaintiff seemed "fine to ride his bike home." Had Plaintiff not been "in the right state[,]" Keenan would have stopped Plaintiff from leaving. The two said goodbye and "split up." Later that morning, another friend told Keenan a car hit Plaintiff and Plaintiff was in the hospital.

Plaintiff next called Jacob Laham. On the evening of 26 September 2013, Laham was at Fibbers, a bar off of Wrightsville Beach, with a friend, Evan Barton. Laham did not drink alcohol that evening. Around 2 a.m. on 27 September 2013, Laham and Barton left Fibbers. The two started to walk to Laham’s home, located "half a mile, maybe a mile" away. On the walk home, they crossed over the drawbridge from Eastwood Road to Wrightsville Beach. This area "was pretty well lit[.]"

After Laham and Barton walked over the bridge and were "maybe like a quarter of a mile" past the bridge:

kind of just out of nowhere, like out of like—[he] [did]n’t know if it was [his] peripherals or [his] instinct, or if [he] saw it or heard it, but it was just kind of like a snap, and then [he] just kind of saw—[he] heard a loud noise and [he] just saw kind of like a tumbling object in the street, or like off the side of the road.

The "tumbling object" was Plaintiff. Although Laham stood "maybe 20 feet ... 30 feet" from the accident, he did not actually see the accident occur.

Laham saw a sports car with a bike rack on the back. The driver tapped the car’s brakes, slowed down, but did not fully stop. Laham "started screaming bloody murder," waving his arms, running after the car, and telling the driver to stop. While Laham ran after the car, Barton stayed with Plaintiff. The car still did not stop, so Laham ran after the car, onto the drawbridge. During his chase, Laham called 911 on his cell phone and reported the accident. Based on the manner in which the driver drove the car, it seemed to Laham "[the driver] definitely was getting away."

After the car drove away, Laham went back to Plaintiff and Barton. Laham did not smell "any sign of intoxication" on Plaintiff. Plaintiff "was seriously concussed" and thought Barton and Laham were the ones who hit him.

Officers and an ambulance arrived at the scene. Laham and Barton gave statements of the events to officers. After giving the statements, officers told Laham and Barton they thought they found the car from the accident across town. Laham and Barton rode with officers to a Target store to identify the car. As they arrived at the Target parking lot, Laham "immediately knew it was the car [from the accident]. It was obvious, the bike rack on the sports car."

Plaintiff next called Michael Ryan, an officer with the New Hanover County Sheriff’s Office. On 27 September 2013, Officer Ryan completed an incident report, which Plaintiff admitted into evidence without objection.

On 27 September 2013, police dispatch put out a "BOLO" (be-on-the-lookout) for "a vehicle that’s coming from Wrightsville Beach, and a black BMW with a bicycle rack." As Officer Ryan turned onto Eastwood Road, he saw a black BMW with a bicycle rack drive past him. He began to watch the car and called dispatch to inform other officers he was behind the "suspect vehicle[.]"

Defendant, the driver, turned onto Market Street, toward downtown Wilmington. Officer Ryan did not immediately turn on his lights and siren because he wanted other officers present, just in case Defendant attempted to drive away. The car touched the dividing line "several" times and went across the lane line two times.

Near the intersection of Market Street and New Centre Drive, Defendant "made an abrupt lane change" and "cut across to the turn lane[.]" Officer Ryan continued following and turned on his lights and siren. Defendant turned on the left-turn signal and then drove into the right lane. He drove past two parking lots, turned on his hazard lights, and finally turned into a Target store parking lot. However, the car "coasted around up into the parking lot, headed back towards Market Street, where he stopped his vehicle." By this time, another officer arrived as backup.

Officer Ryan got out of his police car and walked to Defendant’s vehicle. Defendant sat in the driver’s seat, and Daniel Johnson in the passenger seat. Officer Ryan asked Defendant for his license and registration. Defendant gave Officer Ryan his license, but Officer Ryan had to ask "several" times for proof of registration. During this, Officer Ryan noticed "a strong odor of an alcoholic beverage." He also saw Defendant’s "red, glassy eyes." Officer Ryan asked, "Hey, what happened in Wrightsville Beach tonight?" Defendant responded, "Oh, nothing, I was at a couple bars, had a couple drinks."

Based on the following, Officer Ryan thought Defendant’s vehicle was the vehicle from the accident: the description of the car from the BOLO; witnesses’ identification of the car; and "[o]n the front passenger side of the vehicle there was scuff marks up along the fender well of the vehicle that looked very recent. Very recent." Officer Ryan asked Defendant to step out of the car, which Defendant did. Although officers asked Defendant to stay at the back of his car, Defendant repeatedly walked around the car to view the damage. One of the times Defendant tried to walk around the car, Officer Ryan "asked him to step back to the vehicle again." Then Defendant "resist[ed] what [officers] were telling him to do." Consequently, Officer Ryan tried to handcuff Defendant, which Defendant fought. After "taking him down to the ground[,]" officers handcuffed Defendant.

Defendant displayed a "roller coaster" of emotions from the time of the stop to his arrest. Officer Ryan also noticed Defendant "had kind of a sway to him." Based on his observations of Defendant, Officer Ryan "believe[d] he was appreciably impaired by an impairing substance[.]" However, Officer Ryan did not conduct a breathalyzer test.

Plaintiff called Eric Lippert, an officer with the Wilmington Police Department. Plaintiff tendered Officer Lippert as a "drug recognition expert under Rule 702."1 Officer Lippert reviewed the following: "defendant’s deposition, the defendant’s sworn written discovery, the SBI drug test report, the passenger’s deposition, Officer Gowin’s, with Wrightsville Beach’s, police report, and Deputy Ryan’s, with the Sheriff’s Department, his incident report." In Defendant’s deposition and sworn written discovery, he "admit[ted] to taking Klonopin ;2 Vyvanse ;3 alcohol, two to three beers." In Johnson’s deposition, he "state[d] that the defendant smoked marijuana, also took a Vyvanse." Two hours after the collision, another officer, Sergeant Gowin, performed a chemical analysis. At that time, Defendant "had a...

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