Lindsey v. Boddie-Noell Enterprises, Inc.
| Decision Date | 20 November 2001 |
| Docket Number | No. COA00-1420.,COA00-1420. |
| Citation | 147 NC App. 166,555 S.E.2d 369 |
| Court | North Carolina Court of Appeals |
| Parties | Ralph LINDSEY, Jr., Plaintiff, v. BODDIE-NOELL ENTERPRISES, INC., d/b/a Hardee's Skat-Thru, Defendant. |
Brooks, Pierce, McLendon, Humphrey, & Leonard, L.L.P., by L.P. McLendon, Jr. and John W. Ormand III, Greensboro, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by H. Lee Evans, Jr. and Jaye E. Bingham, Raleigh, for defendant-appellee.
Ralph Lindsey, Jr. ("plaintiff") appeals the trial court's entry of judgment awarding plaintiff compensatory damages but no punitive damages. Plaintiff also appeals the trial court's order denying his motion for judgment notwithstanding the verdict ("JNOV") or, in the alternative, for a new trial. We remand for a new trial on all issues.
The evidence at trial tended to establish the following facts. On 13 December 1996, plaintiff entered the drive-thru window of the Skat-Thru owned by Boddie-Noell Enterprises, Inc., d/b/a Hardee's ("defendant") in Reidsville, North Carolina. Plaintiff ordered breakfast and a cup of water, and observed the drive-thru employee, Frankie Settle ("Settle"), pour water into a cup from a pitcher. Settle then handed plaintiff his food and water. After plaintiff received his food, he pulled into the parking lot to eat his breakfast. Plaintiff ate all of his food before taking a drink of water. As plaintiff started to drive away, he removed the top to the cup of water and took a large drink. Plaintiff did not notice anything out of the ordinary about the look or smell of the water, and he did not feel any burning to his tongue as he drank the water. After drinking the water, plaintiff's throat began to burn and he vomited several times. Plaintiff returned to the restaurant and informed the manager, Martha Settle, that something was wrong with the water. The manager drew water from the faucet and tasted it, informing plaintiff that nothing was wrong with the water.
Plaintiff presented evidence showing that the water had contained a chlorine concentration of more than two-hundred parts per million. Plaintiff asserted at trial that the cup of water which he drank contained a sanitizing solution known as Q-25 Alkaline Sanitizer ("sanitizer"). The evidence at trial showed that the sanitizer was usually mixed at the restaurant in water to clean and sanitize the dishes and counters. The water pitchers were cleaned with the sanitizer each night and air dried. The morning shift employees would fill the pitchers with water from the faucet in the morning.
After drinking the water and confronting the manager, plaintiff drove himself to Annie Penn Hospital, taking the partially filled cup with him. Plaintiff left the hospital but returned later that day complaining of throat pain, stomach pain, and shortness of breath. Three days later, on 16 December 1996, plaintiff reported to Urgent Medical Center where it was noted that plaintiff had no sense of taste, was dehydrated, disoriented and that his veins were collapsed. In June of 1997, plaintiff was examined by Dr. Susan Schiffman, a professor at Duke University Medical School. Dr. Schiffman testified that plaintiff suffered a total and permanent loss of his sense of taste. In October of 1998, plaintiff submitted to a taste test by Dr. Beverly Cowart, a research psychologist at Monell Chemical Senses Center in Philadelphia. Dr. Cowart testified by video deposition at trial that plaintiff did not have a complete loss of taste and that her testing could not confirm that plaintiff had a partial loss of taste. Plaintiff filed suit against defendant on 28 August 1997. The compensatory and punitive damages phases were bifurcated upon defendant's motion. The jury found that defendant was negligent and awarded plaintiff $32,500.00 in compensatory damages. Evidence was then heard in the punitive damages phase of the trial by the same jury. The trial court's charge included the definitions of "willful" and "wanton" as set forth in N.C.P.I., Civ. 810.05, and each juror was provided a copy of the jury instructions. During the jury's deliberations, a note from a juror was delivered to the trial court. The note stated:
Your Honor:
In response to the note, the trial court stated to the jury, "[y]'all have the charge, and the definition is in that charge of what willful and wanton means, so, that's all I can tell you on that, and there's no other option that I can—you know, that's what the law is, so, you have to go by what's in that charge." At that time, plaintiff's counsel requested that the court instruct the jurors on the definitions of "willful" and "wanton" as set forth in N.C.P.I., Civ. 102.86. The trial court denied the request. The jury returned and awarded no punitive damages to plaintiff.
After the trial, plaintiff filed a motion for JNOV or, in the alternative, a new trial, accompanied by affidavits from four jurors. The affidavits indicated that during deliberations, Juror Couch brought definitions of the words "willful" and "wanton" into the jury room which he had obtained from a dictionary through a computer. The trial court received the affidavits and considered them, and subsequently denied plaintiff's motion. Plaintiff appeals.
Plaintiff has entered eight assignments of error in the record, but has abandoned two of these by failing to raise them in his appellate brief. See N.C.R.App. P. 28(b)(5). The remaining assignments of error have been condensed into four arguments for our review: (1) that the trial court erred in denying plaintiff's motion to compel discovery; (2) that the trial court erred in denying plaintiff's motion for JNOV or, in the alternative, a new trial; (3) that the trial court erred by refusing to charge the jury using N.C.P.I., Civ. 102.86; and (4) that the trial court erred by refusing to admit polygraph evidence.
Plaintiff first argues that the trial court erred in denying his motion to compel discovery. Plaintiff filed his complaint on 28 August 1997. Between that time and the commencement of trial on 7 June 1999, plaintiff apparently filed four separate requests for production of documents, although only two have been included in the record. In his fourth request for production of documents, filed 5 May 1999 (approximately twenty months after the complaint was filed and one month before trial), plaintiff requested that defendant produce all documents generated between 1 January 1986 and May of 1999 relating to any incident in which a customer or employee of any Hardee's restaurant owned or operated by defendant claimed to have been served a beverage containing sanitizer. As far as we are able to discern from the record, this fourth request for production was the first time plaintiff specifically requested the production of such documents from this time period.
At the time of this fourth request for production, defendant had already produced documents identifying claims involving beverages containing sanitizer between 1992 and 1997. By response filed 4 June 1999, defendant objected to the request for documents from 1986 through 1999. Three days later, on the day trial was scheduled to commence, 7 June 1999, plaintiff filed a motion to compel defendant to produce additional documents generated from 1990 to 1992, and from 1997 through 1999. The motion was heard by the trial court on 7 June 1999, immediately prior to trial, and the trial court denied the motion. Having reviewed the record on appeal, we are unable to conclude that the trial court abused its discretion in this matter.
"Under the rules governing discovery, a party may obtain discovery concerning any unprivileged matter as long as relevant to the pending action and reasonably calculated to lead to the discovery of admissible evidence." Wagoner v. Elkin City Schools' Bd. of Education, 113 N.C.App. 579, 585, 440 S.E.2d 119, 123 (citing N.C. Gen.Stat. § 1A-1, Rule 26(b)(1) (1999) ("Rule 26(b)(1)")), disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). "Whether or not [a] party's motion to compel discovery should be granted or denied is within the trial court's sound discretion and will not be reversed absent an abuse of discretion." Id.
Plaintiff argues that the trial court erred in denying his motion to compel discovery because the documents which he sought to have defendant produce were relevant to establishing that defendant's conduct was willful and wanton and warranted an award of punitive damages. We agree with plaintiff that the documents sought were relevant to the punitive damages issue. Our General Statutes provide that, in determining the amount of punitive damages, the jury may consider evidence that relates to:
N.C. Gen.Stat. § 1D-35(2)(c), (d), (g) (1999). The evidence sought by plaintiff in his motion to compel was relevant to these issues and, therefore, relevant to the issue of punitive damages and reasonably calculated to lead to the discovery of evidence that would have been admissible during the punitive damages phase of the trial.
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