Dunn v. Custer

• Decision Date: 20 January 2004
• Docket Number: No. COA02-1672.,COA02-1672.
• Citation: 162 NC App. 259,591 S.E.2d 11
• Parties: Joseph C. DUNN, Plaintiff, v. Jeff Stephen CUSTER and Con-Way Truckload Services, Inc., Defendants.
• Court: North Carolina Court of Appeals

591 S.E.2d 11

162 NC App. 259

Joseph C. DUNN, Plaintiff, v. Jeff Stephen CUSTER and Con-Way Truckload Services, Inc., Defendants.

No. COA02-1672.

Court of Appeals of North Carolina.

January 20, 2004.

Adams, Hendon, Carson, Crow & Saenger, P.A., by George Ward Hendon, Asheville, for plaintiff-appellee.

Cogburn, Goosmann, Brazil & Rose, P.A., by Frank J. Contrivo, Jr. and Andrew J. Santaniello, Asheville, for defendants-appellants.

LEVINSON, Judge.

Defendants appeal from a jury trial held on the issue of damages, contending that the trial court erred in denying their motion for a new trial. We affirm.

I.

On 28 July 2000, Jeff Custer was driving a tractor-trailer owned by Con-Way Truckload Services, Inc. (defendants). Custer was an employee of Con-Way Truckload Services. Custer failed to reduce his speed in an area of traffic congestion caused by road construction, and he crashed into the rear of a sports-utility vehicle driven by Joseph Dunn (plaintiff). Dr. James Teague was riding as a passenger in plaintiff's vehicle at the time of the collision. Defendants admitted liability, and a jury trial was conducted on the issue of damages alone.

At trial, plaintiff presented evidence tending to show the following: Plaintiff was a licensed dentist who owned and operated his own practice from 1973 to 1997. In 1993 he began experiencing pain that radiated throughout his neck and both arms. Plaintiff sought treatment for his condition, and he was ultimately diagnosed as having multi-level degenerative cervical disk disease. Dr. Keith Maxwell, an orthopedic surgeon and plaintiff's treating physician, testified that "all the years that [plaintiff] performed dentistry, bending and stooping and looking in the mouths at awkward angles either precipitated or accelerated his degenerative disk disease in his neck." Plaintiff sold his private practice due to his worsening condition in 1997.

After taking a year off, plaintiff accepted a position as Director of the Buncombe County Health Department Dental Facility in September 1999, which permitted him to work on a part-time basis. In this position, plaintiff controlled his own hours, decided which patients he would treat, and performed all of the clinic's administrative duties. At the time of the accident, plaintiff was still employed by the health department.

In the summer of 2000, plaintiff was offered a part-time position with his friend, Dr. James Teague, a dentist in private practice. The position entailed working approximately two days each week to help reduce Dr. Teague's patient load. Plaintiff and Dr. Teague agreed orally that plaintiff would receive thirty-five percent of what he produced and would not be responsible for any salary or overhead expenses. Prior to the accident, plaintiff had worked at Dr. Teague's office approximately 2-3 times. The day before the accident, plaintiff received his first paycheck for services he had rendered while in Dr. Teague's employ.

After the 28 July 2000 accident, plaintiff began experiencing numbness in his hands and could not hold dental instruments or feel the vibrations of instruments. Plaintiff's physician opined the motor vehicle accident exacerbated his condition and recommended that plaintiff cease working completely. Plaintiff resigned from the health department 7 September 2000 and terminated his employment with Dr. Teague.

During the trial, Dr. Teague testified that he was a passenger in plaintiff's vehicle at the time of the accident. Over defendants' objection, the trial court permitted Dr. Teague to testify about the force of the collision and the extent of the injuries he claimed to have suffered as a result of the accident:

Q: What did it do to you at the moment of impact?

A: Of course the seat back snapped, and obviously there was a lot of disorientation there. It took me some time to find my glasses, and I wasn't quite sure what was going on for a moment. I don't think I lost consciousness. I remember looking over the seats. As the backs of the seats snapped, they kind of rolled toward one another. Joe and I were kind of facing each other, and I remember Joe grabbing his neck and yelling, "Oh, my God; oh, my God." I remember trying to sit up and grabbing the steering wheel to try and keep us from getting into [sic] the car in front of us. As soon as I gathered my senses I remember my left leg, my calf being very sore.

[COUNSEL FOR DEFENDANT]: Object to any alleged injuries that this witness may have sustained.

[COUNSEL FOR PLAINTIFF]: It goes to the force of the impact.

COURT: Overruled. Briefly as it may go to the force of the impact.

A: I remember, of course, pain in my neck and abdomen. I remember when I got out of the car I had some numbness in, I think, my right hand. I guess that's the extent of it.

Plaintiff contended, and the trial court ruled, that Dr. Teague's injuries were relevant as to the force of the impact between defendants' tractor-trailer and plaintiff's vehicle.

Dr. Teague also provided a lay opinion, based on his observations, concerning the amount of pain that plaintiff was experiencing:

A: We were relating symptoms to each other and consoling each other in that hopefully we'll get better. I remember him being in a lot of pain. We both were in a lot of pain. I think his pain was more severe than mine. It was very difficult for me to function, certainly for—

[COUNSEL FOR DEFENDANT]: Objection.

COURT: Overruled.

A:—certainly for a week and into a second week. I felt like [plaintiff] was probably doing worse than I was.

Dr. Teague also indicated that plaintiff had trouble working as a result of his injuries. The trial court permitted Dr. Teague to testify that the income plaintiff would have earned with Dr. Teague had he not been impaired "would really be only limited by what [plaintiff] would like to do[,]" and that plaintiff would have "certainly" made more working for Dr. Teague than for the Health Department.

Plaintiff also presented the testimony of an expert economist, Dr. Shirley Browning, Ph. D., who testified as to plaintiff's projected lost earnings. Dr. Browning testified that he based his analysis on plaintiff's employment with the health department and that he had not based his analysis "in any way" on the impact that working with Dr. Teague would have had on plaintiff's estimated earning potential.

Following the trial, the jury determined that plaintiff was entitled to recover $310,000.00 for his injuries. The trial court entered a judgment in this amount. Defendants filed a motion for a new trial pursuant to N.C.G.S. § 1A-1, Rule 59(a)(6),(7), and (8). The trial court denied defendant's motion.

II.

Defendants appeal the trial court's denial of their motion for a new trial, contending that the trial court abused its discretion by permitting the jury to hear inadmissible, prejudicial evidence. Specifically, defendants argue the following evidence was erroneously admitted: (1) evidence concerning plaintiff's employment with Dr. Teague; (2) Dr. Teague's testimony about his own injuries sustained in the collision which injured plaintiff; and (3) Dr. Teague's opinion regarding the level of pain plaintiff was experiencing.

The relevant portions of N.C.G.S. § 1A-1, Rule 59(a) (2003) provide the following grounds for a new trial:

(6)[e]xcessive or inadequate damages appearing to have been given under the influence of passion or prejudice;

(7) [i]nsufficiency of the evidence to justify the verdict or that the verdict is contrary to law;

(8) [e]rror in law occurring at the trial and objected to by the party making the motion....

"The granting or denial of a motion... for a new trial is within the sound discretion of the trial judge. The ruling by a trial judge on a motion for a new trial is not subject to appellate review absent a `manifest abuse of discretion.'" Coletrane v. Lamb, 42 N.C.App. 654, 656, 257 S.E.2d 445, 447 (1979) (quoting Scott v. Trogdon, 268 N.C. 574, 575, 151 S.E.2d 18, 18 (1966)).

III.

Defendants' first argument on appeal concerns the evidence about plaintiff's "prospective" employment with Dr. Teague. Defendants contend such evidence was impermissibly speculative and was, therefore, (1) impermissibly presented to the jury, and (2) improperly incorporated into the expert opinion testimony of plaintiff's economist. We disagree.

Speculative damages are not properly admissible at trial:

The amount of pecuniary damages is not presumed. The burden of proving such damages is upon the party claiming them to establish by evidence, (1) such facts as will furnish a basis for their assessment according to some definite and legal rule, and (2) that they proximately resulted from the wrongful act. If there is no evidence as to the extent of the pecuniary damage, there can be no recovery of substantial damages, where the elements of damage are susceptible of pecuniary admeasurement.

Short v. Chapman, 261 N.C. 674, 681-82, 136 S.E.2d 40, 46 (1964).

[C]ompensation for lost earning capacity is recoverable when such loss is "the immediate and necessary consequence[] of [an] injury." In determining the appropriate amount of compensation for such loss, "[t]he age and occupation of the injured person, the nature and extent of his employment, the value of his services and the amount of his income at the time, whether from fixed wages or salary, are matters properly to be considered by the jury[,]" and "great latitude" is allowed in the introduction of such evidence. "The right of cross-examination provides the opposing party opportunity to challenge estimates of this nature[.]"

Curry v. Baker, 130 N.C.App. 182, 191-92, 502 S.E.2d 667, 674-75 (1998) (quoting Smith v. Corsat, 260 N.C. 92, 95-96, 131 S.E.2d 894, 897 (1963), and Goble v. Helms, 64 N.C.App. 439, 446, 307 S.E.2d 807, 812 (1983)).

In the present case, plaintiff began his employment with Dr. Teague before the 28 July 2000 accident and received his first paycheck in the amount of $1,200 on 27 July 2000, the...