Dew v. Hronjak, No. COA05-495 (N.C. App. 7/18/2006)
| Decision Date | 18 July 2006 |
| Docket Number | No. COA05-495,COA05-495 |
| Court | North Carolina Court of Appeals |
| Parties | CLARENCE DEW v. PAUL HRONJAK. |
Newton, Lee & Boyd, by Eldon S. Newton, III and Cyrus F. Lee, for plaintiff-appellee.
Wallace, Morris, Barwick, Landis, Braswell & Stroud, P.A., by Edwin M. Braswell, Jr. and Kimberly A. Connor, for defendant-appellant.
Clarence Dew ("plaintiff") was involved in an automobile accident in which Paul Hronjak ("defendant") collided with the rear of the vehicle that plaintiff was driving. Plaintiff filed a complaint 25 November 2002 alleging that defendant had negligently caused the collision and that defendant's negligence proximately caused him personal injuries and damages in excess of $10,000.00. Defendant filed an answer 10 January 2003 in which he admitted that the collision was proximately caused by his negligence, but denied that his negligence proximately caused plaintiff's injuries. At trial the evidence tended to show that plaintiff had stopped at a stop sign and defendant stopped behind plaintiff in the same lane of travel. Plaintiff began to proceed forward and defendant also began moving forward at about "walking speed." Plaintiff testified that he observed a vehicle approaching the intersection at a high rate of speed from his right. To yield the right of way to the oncoming vehicle, plaintiff stopped again before fully entering the roadway. Defendant, who was looking to his left for oncoming traffic, did not see plaintiff's vehicle stop and bumped the back bumper of plaintiff's vehicle with the front bumper of his vehicle. Plaintiff testified that before the collision he did not know defendant's vehicle was behind him as he had not looked in his rearview mirror upon stopping at the stop sign.
Plaintiff further testified that he was wearing his seat belt and that the collision caused his body to be propelled forward and to the right. Plaintiff immediately felt a sharp pain and vomited after getting out of his vehicle. Plaintiff was transported to the hospital by ambulance complaining of neck and back pain. The physician at the hospital gave plaintiff Motrin, and sent plaintiff home.
The damage to the vehicles was described by defendant and the investigating officer as minor. The rear bumper of plaintiff's vehicle was bent under slightly. The only damage suffered by defendant's vehicle was that the plastic front license plate bracket was knocked off. Plaintiff presented evidence of his subsequent medical treatment by a chiropractor for approximately six weeks and by a physical therapist for approximately four weeks through 3 August 2000. One year later, plaintiff presented to Dr. Kushner at Wilson Orthopedic Surgery and Neurology Center. Plaintiff testified that he did not seek additional treatment during that one year because payment was required before treatment was rendered and he did not have the money to pay the fees up-front. When plaintiff resumed treatment he underwent three back surgeries in October 2001, December 2002 and May 2003. Dr. Kushner testified that it was his opinion that plaintiff was injured in the vehicle accident in question. However, Dr. Kushner also testified that plaintiff had degenerative disk disease, and that plaintiff's injuries could have resulted from other causes such as sneezing or bending the wrong way.
At the close of all evidence defendant made a motion to amend his answer to conform to the evidence by including the defense of contributory negligence. Defendant's motion was denied by the trial court. Plaintiff then moved for directed verdict on the issue of whether plaintiff was injured as a result of defendant's negligence. The trial court granted plaintiff's motion for directed verdict on the grounds that defendant had admitted his negligence and that his negligence was the proximate cause of the accident in his answer. The court also pointed out that defendant had denied that his negligence had proximately caused plaintiff's injuries, however, and, accordingly, only the issue of how much plaintiff was entitled to recover for personal injury would be submitted to the jury. Defendant objected to the issue of causation not being submitted to the jury, but the trial court maintained its position on the issue.
Consequently, the sole issue submitted to the jury was what amount plaintiff was entitled to recover from defendant for his personal injuries. The jury was instructed that plaintiff was entitled to recover nominal damages even without proof of actual damages. The jury was further instructed that to recover actual damages plaintiff had to prove by the greater weight of the evidence that defendant's negligence proximately caused his actual damages. Defendant objected to the jury instructions.
The jury returned a verdict in favor of plaintiff for damages in the amount of $450,000.00. Defendant filed a motion for new trial which was denied. Defendant timely appealed the verdict and award.
Defendant makes thirteen assignments of error in the record on appeal, but presents argument in support of only six. Assignments of error for which no reason or argument is stated in appellant's brief are taken as abandoned. N.C. R. App. P. Rule 28(b)(6) (2006). Accordingly, defendant's seven assignments of error not argued in his brief are deemed abandoned and are not considered on appeal.
Defendant's remaining assignments of error are: (1) the trial court's grant of plaintiff's motion for directed verdict on the issue of whether plaintiff's injuries were caused by defendant's negligence; (2) the trial court's failure to submit the issue of causation to the jury; (3) the trial court's grant of directed verdict in favor of plaintiff on the causation issue, as it denied defendant his right to trial by jury; (4) the trial court's instructions to the jury, as they constituted an expression of the court's opinion as to a material issue in the case; (5) the denial of defendant's motion to amend his answer to conform to the evidence at the close of all evidence; and (6) the denial of admission of evidence of plaintiff's health insurance coverage.
Defendant's initial argument incorporates the first three assignments of error listed above. Defendant contends that the trial court erred by granting plaintiff's motion for directed verdict as to all issues except damages as there were issues of material fact regarding whether defendant's admitted negligence proximately caused plaintiff's injuries. Defendant further argues that this error caused the trial court to fail to submit the issue of causation to the jury which deprived him of his right to a trial by jury.
"The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury." Di Frega v. Pugliese, 164 N.C. App. 499, 505, 596 S.E.2d 456, 461 (2004). "`If there is more than a scintilla of evidence supporting each element of the nonmovant's case, the motion for directed verdict should be denied.'" Whisnant v. Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850 (2004) (quoting Snead v.Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991)). An appellate court reviews a trial court's ruling on a motion for directed verdict de novo. Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 323, 595 S.E.2d 759, 762 (2004).
In the case sub judice, plaintiff's complaint alleged the following facts:
8. The Defendant was negligent in that he:
a. negligently drove a vehicle on a highway or a public vehicular area at a speed greater than was reasonable and prudent under the conditions then existing, in violation of N.C.G.S. § 20-141(a);
b. negligently operating a motor vehicle upon a public street or highway without keeping a proper lookout, without paying proper attention and without keeping the vehicle under proper control;
c. negligently drove the vehicle upon a highway or public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger persons or property, in violation of N.C.G.S. § 20-140(b);
d. negligently drove from a stopped position without first seeing such movement could be made in safety, in violation of N.C.G.S. § 20-154(a); and
e. negligently operated the vehicle in other ways which will be developed during Discovery and proven at trial.
9. The negligence of the Defendant was the proximate cause of the collision.
. . . .
12. The negligence of the Defendant was the sole proximate cause of the Plaintiff's injuries.
To wit, defendant filed the following responses in his answer:
8. Denied. Without admitting, and while denying, the allegations of paragraph 8 including each and every subparagraph, defendant admits that the contact between the front of the vehicle he was driving and the rear of the vehicle driven by Clarence Dew was caused by Defendant's negligence.
9. The contact between the two vehicles was no more than a bump and certainly was not a collision; however, defendant admits that the contact between the two vehicles was proximately caused by his negligence.
. . . .
12. Denied.
At trial, plaintiff moved for a directed verdict on the issue of whether or not plaintiff was injured because of defendant's negligence. The trial court granted plaintiff's motion for directed verdict. The trial court reasoned that defendant admitted the accident was caused by the negligence of defendant, not that his injuries were. Defense counsel properly preserved this issue for appeal because he argued that the jury must find not only that defendant was negligent but that his negligence caused injury to the plaintiff. The trial...
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