Everhart v. O'Charley's Inc.

• Decision Date: 06 October 2009
• Docket Number: No. COA08-1454.,COA08-1454.
• Citation: Everhart v. O'Charley's Inc., 683 S.E.2d 728, 200 N.C. App. 142 (N.C. App. 2009)
• Court: North Carolina Court of Appeals
• Parties: Katherine Hanna EVERHART, Plaintiff, v. O'CHARLEY'S INC., Defendant.

683 S.E.2d 728

Katherine Hanna EVERHART, Plaintiff, v. O'CHARLEY'S INC., Defendant.

No. COA08-1454.

Court of Appeals of North Carolina.

October 6, 2009.

Appeal by defendant from judgment entered 15 April 2008 and order entered 3 June 2008 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 23 April 2009.

Morrow Alexander Porter & Whitley, PLLC, by John Carl Vermitsky, Winston-Salem, for plaintiff-appellee.

Robinson, Bradshaw & Hinson, P.A., by D. Blaine Sanders and Andrew W.J. Tarr, Charlotte, for defendant-appellant.

GEER, Judge.

Defendant O'Charley's Inc. appeals from a judgment entered following a bifurcated trial in which plaintiff Katherine Hanna Everhart was awarded $10,000.00 in compensatory damages in the first phase of the trial and $350,000.00 in punitive damages in the second phase. The trial court subsequently reduced the punitive damages award to $250,000.00. On appeal, O'Charley's only challenges the punitive damages award, arguing that the trial court erred in denying its motion for judgment notwithstanding the verdict ("JNOV") and its motion for a new trial as to the punitive damages phase. The primary contention of O'Charley's is that its JNOV motion should have been granted for insufficient evidence that Ms. Everhart's injuries were related to willful or wanton conduct attributable to O'Charley's. Because our review of the record reveals ample evidence to support the jury's verdict, and we find O'Charley's' remaining arguments unpersuasive, we uphold the punitive damages award.

Facts

On 9 September 2006, Ms. Everhart went shopping with her husband and two sons at Hanes Mall in Winston-Salem, North Carolina. After finishing their shopping, the family went to an O'Charley's restaurant near the mall for dinner. Ms. Everhart requested water, immediately drank the entire glass, and asked for a refill. The Everharts' server, Dathan Jones, went to get a water pitcher, but accidentally grabbed a pitcher that had been used to soak soda nozzles in a cleaning solution called Auto-Chlor System Solution-QA Sanitizer ("Auto-Chlor"). As a result, he refilled Ms. Everhart's glass with a mixture of water and Auto-Chlor.

Ms. Everhart took several sips through her straw and immediately noticed an unfamiliar taste and a chemical smell. Although she swallowed some of the liquid, she spit out the rest. Some drops landed on her shirt and immediately began discoloring it. Mr. Everhart asked his wife what was wrong, and she responded: "I've been poisoned." At this point, Mr. Jones came back to the table, grabbed the glass, and left. Ms. Everhart told her husband that she felt sick, "like [she was] going to throw up," and went to the bathroom to try to make herself throw up.

While Ms. Everhart was in the bathroom, Assistant Dining Room Manager Byron Witherspoon came to the table and introduced himself as the manager on duty at O'Charley's. Mr. Everhart told Mr. Witherspoon that "his wife had drunk an unknown substance and she had gotten sick and ran into the restroom." Mr. Witherspoon then left the table, got a "Customer Accident/Incident Report" form from the restaurant office, and went back to the table to obtain information from Mr. Everhart about the incident. While Mr. Witherspoon was asking Mr. Everhart the questions on the incident report form, Mr. Everhart repeatedly asked him, "What was in the pitcher?" Mr. Everhart explained to Mr. Witherspoon that he was taking Ms. Everhart to the emergency room and needed to know what Ms. Everhart had swallowed. Mr. Witherspoon did not answer Mr. Everhart's questions, but instead responded by simply asking the next question on the incident report form.

The container of Auto-Chlor was kept above a sink in the restaurant's kitchen area. Its first aid label stated that if someone swallowed the solution, poison control or a doctor should be called immediately. It also warned that if the solution was ingested, the person should not try to induce vomiting unless directed to do so by poison control or a doctor. According to the label, the person should instead try to sip a glass of water if the person was able to swallow.

After attempting to induce vomiting for roughly five minutes in the bathroom, Ms. Everhart returned to the table where Mr. Witherspoon was still attempting to complete the incident report form by questioning Mr. Everhart. Ms. Everhart was "visibly crying, shaking and extremely upset." Mr. Jones then returned to the table and apologized to Ms. Everhart. Mr. Witherspoon did not, however, ask Mr. Jones any questions about what the substance was that was in Ms. Everhart's glass. In addition, at no time while the Everharts were still at the restaurant did Mr. Witherspoon look for the Auto-Chlor's warning label to give the Everharts the first aid instructions.

The Everharts left O'Charley's to go to Forsyth Medical Center's emergency room. Ms. Everhart testified that on the drive there, she was "distraught" and "petrified" by the fear of not knowing what she had ingested. When she arrived at the hospital, she was unable to tell the medical staff what she drank, but she said she thought it might have been bleach. The doctor treating Ms. Everhart had to call O'Charley's to find out what was in the glass.

Ms. Everhart was discharged after being treated. Beginning the next day and continuing for roughly a week, Ms. Everhart had sores on her lips and in her mouth, had a sore throat, and felt nauseous. Ms. Everhart also experienced painful heartburn, indigestion, and reflux. Two months afterward, Ms. Everhart underwent an endoscopy, which indicated that Ms. Everhart's esophagus, stomach, and duodenum were normal.

Ms. Everhart filed suit against O'Charley's on 12 March 2007, asserting claims for negligence and breach of the implied warranty of merchantability and seeking both compensatory and punitive damages. After the trial court denied O'Charley's' motion for summary judgment, O'Charley's moved pursuant to N.C. Gen.Stat. § 1D-30 (2007) for a bifurcated trial on the issues of compensatory and punitive damages.

Following the compensatory damages phase of the trial, the jury awarded Ms. Everhart $10,000.00. During the punitive damages phase, the trial court denied O'Charley's' motion for a directed verdict at the close of all the evidence. The jury subsequently awarded Ms. Everhart $350,000.00 in punitive damages. The trial court entered judgment on the verdicts on 15 April 2008, but reduced the amount of the punitive damages award to $250,000.00 pursuant to N.C. Gen.Stat. § 1D-25(b) (2007). On 17 April 2008, O'Charley's moved for JNOV, or, alternatively, for a new trial, with both motions only addressing the punitive damages award. In an order entered 3 June 2008, the trial court denied the motions and upheld the punitive damages award. O'Charley's timely appealed to this Court.

I

O'Charley's contends that the trial court erred during the punitive damages phase of the trial by admitting evidence about allegations in a 2004 Florida lawsuit that a customer had been served bleach in another O'Charley's restaurant. Prior to trial, O'Charley's filed a motion in limine to exclude any evidence regarding the Florida lawsuit on the grounds of hearsay, relevance, improper purpose, and unfair prejudice. After considering arguments from counsel, the trial court granted the motion and excluded the evidence.

During the cross-examination of Kevin Alexander, a regional operations director with O'Charley's who was called as an adverse witness by Ms. Everhart, defense counsel asked about the incident report form completed in this case:

Q. After this incident, was it reported to other stores?

A. Yes.

Q. Why was that?

A. I reported it to all of my stores, the incident that had happened, reminded everyone that following the procedures on breaking down the stations, on how we store things. And I again spoke to my boss about it. The following Monday on his conference call he had me to relate what I knew at the time about it to the other operations directors so that it could be—you know, they could talk to their own restaurants about it.

At this point, Ms. Everhart's counsel asked to be heard outside the presence of the jury and argued:

[Defense counsel] just opened the door wide open for me to inquire as to why they inquired with any other restaurants as to this previous incident and gave them any notice of it for future conduct. It's not fair that they get to say, "After this happened I told every other store so this won't happen again," and I can't say, "Well, the first time it happened, you didn't tell anyone."

The trial court ruled that "[t]he jury gets to consider similar past conduct" and allowed Ms. Everhart's counsel to ask Mr. Alexander on re-direct, over O'Charley's' objection, "Mr. Alexander, are you aware of the existence of any similar past conduct of the nature of this lawsuit by O'Charley's in 2002 in Florida?" Mr. Alexander responded that he "became aware of an allegation today . . . I just found out today that there was an allegation of bleach."

O'Charley's first claims that the evidence is inadmissible because Mr. Alexander did not know about the allegations prior to being questioned, and, therefore, could not testify from personal knowledge as required by Rule 602 of the Rules of Evidence. O'Charley's did not, however, assert Rule 602 as a basis for its objection to the question asked Mr. Alexander. Its objection on other bases—hearsay, relevance, and unfair prejudice —were not sufficient to preserve an appeal based on Rule 602. A party may not assert at trial one basis for objection to the admission of evidence, but then rely upon a different basis on appeal. See State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) ("[Appellant] may not swap horses after trial in order to obtain a thoroughbred upon appeal.").

While O'Charley's did rely in part upon Rule 602 in its motion in limine that was granted...