Curry v. Baker

• Decision Date: 21 July 1998
• Docket Number: No. COA97-1059.,COA97-1059.
• Citation: 130 NC App. 182,502 S.E.2d 667
• Court: North Carolina Court of Appeals
• Parties: Carlton Blake CURRY, v. Paul Christ BAKER, a citizen and resident of the State of North Carolina, Paul Christ Baker, a Citizen and resident of the State of Georgia, and Express Freight Systems, Incorporated, a Tennessee corporation.

502 S.E.2d 667

130 NC App. 182

Carlton Blake CURRY, v. Paul Christ BAKER, a citizen and resident of the State of North Carolina, Paul Christ Baker, a Citizen and resident of the State of Georgia, and Express Freight Systems, Incorporated, a Tennessee corporation.

No. COA97-1059.

Court of Appeals of North Carolina.

July 21, 1998.

Smith Helms Mulliss & Moore, L.L.P. by James G. Exum, Jr., and Bradley R. Kutrow, Greensboro; and Brown & Montgomery by R. Kent Brown, Charlotte, for plaintiff-appellee.

Cranfill, Sumner & Hartzog, L.L.P. by William C. Robinson, Charlotte, for defendant appellant Express Freight Systems, Inc.

Hartsell, Hartsell, Spainhour, Shelley & White, P.A. by J. Merritt White, III, Concord, for defendant-appellant Paul Christ Baker.

HORTON, Judge.

This action arises out of an automobile accident on 28 August 1990. Plaintiff Carlton Blake Curry, who was 34 years old at the time, was stopped at a red light at the intersection of Sardis Road and East Independence Boulevard in Charlotte. Plaintiff's automobile was in the inside lane of two left turn lanes on Sardis Road. An automobile driven by Julie Helms was in the outside left turn lane next to him. An eighteen-wheel tractor-trailer truck driven by defendant Paul Christ Baker and owned by defendant Express Freight Systems, Inc. (collectively "defendants"), was approaching the intersection along East Independence Boulevard from the left of Helms and plaintiff. When the light governing plaintiff's lane of travel turned green, plaintiff looked left, straight ahead, right, and then straight ahead again. After plaintiff saw Helms proceed into the intersection, he also moved forward into the intersection. Neither plaintiff nor Helms saw anything prior to entering the intersection to indicate that defendants' truck would enter the intersection in violation of the traffic control signal governing its lane of travel. Plaintiff reached a maximum speed of only seven miles per hour and traveled fifty-seven feet into the intersection before striking the trailer of the truck driven by Baker just forward of its rear wheels. Although the traffic control signal governing his direction of travel was emitting a red signal, Baker entered the intersection at a speed of approximately forty to forty-five miles per hour.

Plaintiff suffered numerous injuries as a result of the collision and later filed this action on 13 November 1995. Defendants stipulated prior to trial that their negligence caused the collision, but denied that their negligence proximately caused all of the damages asserted by plaintiff. Defendants also claimed plaintiff was contributorily negligent in that he could or should have seen the truck enter the intersection and in turn avoided the collision. Defendants presented no evidence at trial. A jury determined that plaintiff was injured as a result of defendants' negligence, that plaintiff was not contributorily negligent, and that plaintiff be awarded $900,000.00 in damages. Defendants subsequently filed motions for judgment notwithstanding the verdict JNOV and for a new trial, but the trial court denied these motions. Additional facts necessary to understand the issues will be discussed below.

I.

On appeal, defendants first contend that the trial court abused its discretion by failing to grant their motions for JNOV and for a new trial, on the grounds that insufficient evidence was presented to warrant the submission of plaintiff's claim to the jury that he sustained a traumatic brain injury in the collision.

At trial, the only expert testimony plaintiff presented to support his claim that he sustained a traumatic brain injury in the collision came from Dr. Peter Jeffrey Ewert, a clinical neuropsychologist, and Elaine Parhamovich, a certified vocational evaluator. Dr. Ewert was accepted as an expert in neuropsychology without objection. Dr. Ewert testified that neuropsychology deals with traumatic brain injury, and that a closed head injury is a type of traumatic brain injury where there is no breach of the skull but the brain still suffers damage. Dr. Ewert also testified that neuropsychologists can determine whether a patient has sustained a closed head injury based on various criteria, including a history of trauma of sufficient velocity to cause the brain to become injured, neuropsychological testing, medical records, and reports from treating physicians.

Dr. Ewert testified that for the purpose of assessing plaintiff's condition, he reviewed the emergency medical technician's report made immediately after the collision. According to that report, plaintiff was not fully oriented and had impaired memory after the collision, both signs of a closed head injury. Dr. Ewert also reviewed the report of Dr. Leon Dickerson, an orthopaedic surgeon, which indicated lacerations on plaintiff's scalp and facial area and corroborated that plaintiff hit his head. Dr. Ewert further relied on reports from neurologists Dr. Eugene Benjamin and Dr. Ronald Demas, and neuropsychiatrist Dr. Thomas Gualtieri. On cross-examination, Dr. Ewert was questioned regarding the office notes of Dr. Benjamin, and on redirect examination, Dr. Ewert read to the jury Dr. Benjamin's conclusion that plaintiff's visual problems were due to a closed head injury. Dr. Ewert was also cross-examined regarding the notes of Dr. Ronald Demas, and on redirect examination, Dr. Ewert read those notes to the jury, which indicated that plaintiff had mild post-traumatic head injury syndrome with "`very significant cognitive deficits.'" Dr. Ewert also read the notes of Dr. Gualtieri to the jury. These notes stated that plaintiff was "status post-closed head injury" and that he suffered from persistent neuropsychological difficulties.

Dr. Ewert went on to testify that his neuropsychological testing revealed that plaintiff had attention and memory deficits consistent with an injury to the brain's temporal lobes and that plaintiff exhibited depression consistent with traumatic brain injury. Dr. Ewert later testified that plaintiff's cognitive and memory problems were a direct result of the traumatic brain injury he suffered in the collision and that he did not anticipate any improvement in plaintiff's condition.

Elaine Parhamovich, who was accepted without objection as an expert in vocational evaluation, testified that she administered tests on plaintiff after the collision to determine his academic ability, basic aptitudes, work values and interests. Parhamovich stated that although plaintiff attended college for several years, he was reading on a seventh grade comprehension level after the collision, and that this was consistent with a person who had suffered traumatic brain injury. She further testified that the results of other tests she performed on plaintiff were also consistent with those of a person who had suffered traumatic brain injury. Parhamovich stated that she had studied the relationship of traumatic brain injury to particular test scores as part of her training, and had rendered opinions on this subject on several occasions.

Several lay witnesses also testified regarding plaintiff's cognitive and memory difficulties after the collision. Betty Chatham, who worked with plaintiff both before and after the collision, testified that before the collision, plaintiff was friendly and outgoing, and an energetic "go-getter." After the collision, plaintiff's energy level was low and he frequently came to work late, tired, and disheveled. He forgot appointments, had trouble focusing, and his conversations wandered. Plaintiff took two to three times longer to perform a task after the collision than before, and Chatham spent 40% of her time helping him.

Chuck Lickert, plaintiff's employer, testified that before the collision, plaintiff was an excellent employee who had very good organizational and record-keeping skills. However, Lickert testified that after the collision, plaintiff had trouble focusing and concentrating, and was not the same person he had been before the collision.

Plaintiff testified that as a result of the collision, he suffered lacerations to his face and scalp requiring stapling and stitches, and also suffered injuries to his shoulder and knees. He further testified that, since the collision, he has had frequent headaches and visual problems, and has had difficulty concentrating and remembering new information. He stated that he does not "feel[ ] that there's much of [him] there anymore." However, all objective tests performed on plaintiff, including MRIs and CT scans, returned normal results.

Defendants, citing Martin v. Benson, 125 N.C.App. 330, 481 S.E.2d 292, rev'd and remanded on other grounds, ___ N.C. ___, 500 S.E.2d 664 (1998),

argue to this Court that Dr. Ewert and Parhamovich were incompetent to render opinions regarding the cause or existence of plaintiff's brain injury. Defendants maintain that since plaintiff failed to produce competent expert medical testimony to support his claim that he suffered a traumatic brain injury in the collision, his evidence with respect to the claim was insufficient to warrant the submission of the claim to the jury in light of Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965). For these reasons, defendants claim that the trial court abused its discretion by denying their motions for JNOV and for a new trial.

"[A] motion for judgment notwithstanding the verdict is cautiously and sparingly granted." Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 338 (1985). In considering the motion, the trial court must view all the evidence supporting the nonmovant's claim as true and must consider the evidence in the light most favorable to the nonmovant, giving the nonmovant the benefit of every reasonable inference that may legitimately be drawn therefrom. Id. at 369, 329 S.E.2d at 337-38. Further, the decision to grant or deny a motion for a new trial rests within the trial court's...