Holland v. French
| Decision Date | 01 September 2020 |
| Docket Number | No. COA19-498,COA19-498 |
| Citation | 848 S.E.2d 274 |
| Parties | Donnie George HOLLAND, Executor of the Estate of Shirley Davis Pendergrass, Plaintiff, v. Richard Allan FRENCH and North Carolina Department of Transportation, Defendants. |
| Court | North Carolina Court of Appeals |
W. Earl Taylor, Jr., Wilson, for plaintiff-appellee.
Attorney General Joshua H. Stein, by Special Deputy Attorneys General Alesia M. Balshakova, Joseph Finarelli, and Alexander G. Walton, for the State.
A professional recommendation concerning a stop sign's placement made in a post-accident report was a subsequent remedial measure typically excluded from evidence under Rule 407. That professional recommendation was appropriately used as impeachment evidence when it was properly admitted under the impeachment exception of Rule 407 and when it was relevant for impeachment under Rule 401. The professional recommendation was relevant evidence for impeachment purposes when it contradicted the witness's perception, memory, or narration, or the veracity of the witness's testimony, on direct examination.
The trial court did not abuse its discretion in concluding the probative value of the professional recommendation was not substantially outweighed by the danger of unfair prejudice when the professional recommendation was highly probative, was prepared by the witness, and was used to contradict the witness on cross-examination.
When the party that called the witness to testify fails to request a limiting instruction in accordance with Rule 105 concerning the witness's recommendation, another party may make arguments concerning that evidence upon its proper admission.
On 4 April 2016, Ms. Shirley Pendergrass ("Decedent") and Richard French ("French") were involved in a motor vehicle crash at the intersection of Castalia Road and Red Road in Nash County. Decedent was driving on Castalia Road in an easterly direction, while French was driving on Red Road in a northerly direction. A stop sign required drivers approaching the intersection in a northerly direction on Red Road to stop and yield to drivers on Castalia Road. Decedent and French arrived at the intersection at the same time, and despite the stop sign, French failed to stop and yield the right of way. The two vehicles collided, and Decedent sustained fatal injuries.
French was charged with the following: misdemeanor death by motor vehicle; failing to stop for a stop sign; and failing to yield the right of way. On 5 August 2016, French pleaded guilty to misdemeanor reckless driving to endanger.
On 31 May 2016, Decedent's Executor, Donnie George Holland ("Plaintiff"), sued French and his wife, who owned the vehicle French was driving, for wrongful death. French's wife was later granted a dismissal from the case. Plaintiff alleged French's failure to stop at the duly erected stop sign at the intersection of State Road 1425 ("Castalia Road") and State Road 1417 ("SR 1417" or "Red Road") in Nash County caused the crash. Plaintiff amended the Complaint to add the North Carolina Department of Transportation ("NCDOT") as a Third-Party Defendant for negligent installation and maintenance of traffic control devices on Red Road.
NCDOT filed a motion in limine seeking to exclude any reference to or any evidence of subsequent remedial measures pursuant to North Carolina Rule of Evidence 407, including "recommendations for subsequent remedial measures." The trial court ruled that Plaintiff was "prohibited from mentioning [subsequent remedial measures] during jury selection or [the] case in chief," but reserved the issue for decision if the "matter [became] a direct issue" upon NCDOT's presentation of evidence.
At trial, NCDOT called Christopher Lewis ("Lewis"), an Assistant Division Traffic Engineer, about the placement of the stop sign. Lewis had visited the intersection where the crash occurred in December 2014, and again to make a 2016 post-accident report.1 In portions of direct examination, Lewis testified as follows:
(Emphasis added).
When direct examination of Lewis concluded, Plaintiff requested, out of the presence of the jury, to be allowed to question Lewis with respect to Exhibit 37, which comported with the trial court's ruling regarding subsequent remedial measures evidence. Lewis prepared Exhibit 37 after the accident, and the report stated that the stop sign was "too far out" and needed to be "move[d] in closer" to the road "for better sight distance." Plaintiff sought to use that report to impeach Lewis's testimony on direct examination. After hearing arguments on the issue, the trial court allowed Plaintiff to proceed with cross-examination of Lewis, and to use Exhibit 37 in doing so, while noting and overruling NCDOT's standing objection.
On cross-examination, Lewis further testified as follows:
Plaintiff then questioned Lewis regarding Exhibit 37. Lewis acknowledged Exhibit 37 referred to the stop sign at issue, he made the handwritten notations on Exhibit 37, and those notations were made after he went to the scene of the accident. According to Lewis, he wrote the following on Exhibit 37: "northbound stop sign too far out [on Red Road]"2 (the commonly used name for the road); an underlined "Yes!" next to that first opinion; and "move in closer to State Road 1417 for better sight distance." In addition, Lewis testified he believed the stop sign was "too far out to the right." Lewis also acknowledged he knew about the handwritten notations on Exhibit 37 when he testified during his direct examination testimony.
The jury found both French and NCDOT negligent and awarded Plaintiff $800,000.00 in damages....
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Hill v. Boone
...also analyze whether it should have been excluded under Rule 403, which would be reviewed for abuse of discretion. See Holland , 273 N.C. App. at 266, 848 S.E.2d at 284. However, Plaintiff did not address Rule 403 in her brief, and has abandoned this argument on appeal. N.C. R. App. P. 28(a......