Mitchum v. Gaskill, No. COA04-977 (NC 8/2/2005)
| Decision Date | 02 August 2005 |
| Docket Number | No. COA04-977,COA04-977 |
| Court | North Carolina Supreme Court |
| Parties | LESTER R. MITCHUM, Plaintiff, v. TIMOTHY GLENN GASKILL, Defendant. |
Newton Law Firm, by J. Jefferson Newton and Emanuel & Dunn, by Raymond E. Dunn, Jr., for plaintiff-appellee.
Wallace, Morris, Barwick, Landis, Braswell & Stroud, P.A., by Edwin M. Braswell, Jr., for defendant-appellant.
Defendant Timothy Glenn Gaskill ("Gaskill") appeals from entry of judgment after a jury found he negligently injured plaintiff Lester R. Mitchum ("Mitchum") and order denying Gaskill's motions to set aside the verdict, for judgment notwithstanding the verdict, and for a new trial. We find no error.
Gaskill and Mitchum grew up together in Carteret County and were lifelong friends. As both grew older, Mitchum became the captain of a commercial fishing boat and Gaskill became a welder. As adults, the two remained close friends. Their relationship strengthened after Mitchum hired Gaskill's son and brother-in-law to work on his boat. In addition to Mitchum and Gaskill spending time together, their families also began sharing free time and holidays.
On 8 March 2001, Gaskill hosted a party at his home. Mitchum was an invited guest. Both Mitchum and Gaskill drank alcohol throughout the course of the evening. The party lasted into the early morning until Mitchum remained as the last guest. An argument ensued over an alleged telephone call from a female. The argument became heated and escalated into a fight. Gaskill walked to a closet and armed himself with a shotgun.
When Gaskill confronted Mitchum with the shotgun, it discharged and wounded Mitchum in his right side. Mitchum testified that the shotgun blast was unintentional and due to Gaskill's carelessness and negligence. Gaskill argues he intentionally shot Mitchum in self-defense in the course of the fight. Mitchum was taken to East Carolina University School of Medicine for treatment.
Gaskill was arrested for shooting Mitchum and later pled guilty to assault inflicting serious bodily injury. Gaskill was convicted on 5 June 2002 and sentenced to a minimum active term of twenty-one months and a maximum term of twenty-six months.
One year after the event, Mitchum filed a complaint against Gaskill on 8 March 2002 alleging: (1) Gaskill negligently injured Mitchum by unintentionally shooting him with the shotgun; and in the alternative (2) that if Gaskill's conduct was intentional, it was an assault against Mitchum. Gaskill answered on 7 May 2002 claiming: (1) if he was negligent, Mitchum was contributorily negligent and barred from recovery; and (2) he acted in self-defense against Mitchum, who had allegedly initially attacked him.
In response to a court order dated 24 February 2003, Gaskill filed an amended answer on 4 March 2003. This answer alleged: (1) Gaskill acted in self-defense in shooting Mitchum; and (2) Mitchum's violent behavior contributed to any negligent behavior by Gaskill. On 15 December 2003, Mitchum voluntarily dismissed his claim alleging Gaskill intentionally assaulted him.
The case was tried by a jury, which found: (1) Gaskill negligently injured Mitchum; and (2) Mitchum was not contributorily negligent. Gaskill was not found to have acted in self-defense. Mitchum suffered damages and was awarded $772,700.00. On 5 January 2004, Gaskill filed motions: (1) to set aside the verdict; (2) for judgment notwithstanding the verdict; and (3) for a new trial. Gaskill's motions were denied on 29 February 2004.
On 18 February 2004, Gaskill petitioned for writ of habeas corpus and alleged the jury's finding of negligence precluded his guilt to the criminal charge of assault inflicting serious bodily injury. The trial court considered Gaskill's petition and determined there was "no arguable legal basis" for issuance of the writ and it was denied on 22 March 2004.
Gaskill appeals from: (1) judgment finding he negligently injured Mitchum and Mitchum was not contributorily negligent; and (2) the trial court's order denying his motions to set aside the verdict, for judgment notwithstanding the verdict, and for a new trial.
The issues on appeal are whether the trial court erred in: (1) denying Gaskill's motion for a directed verdict; (2) permitting a police officer's opinion testimony; (3) instructing the jury during admission of evidence; and (4) its charge to the jury.
Gaskill does not assign error to or present arguments in his brief regarding the trial court's denial of his motions to set aside the verdict, for judgment notwithstanding the verdict, and for a new trial. This assignment of error is abandoned. See N.C.R. App. P. 28(b)(6) (2004) ()
Gaskill argues the trial court erred in denying his motion for directed verdict because he intentionally, not negligently, shot Mitchum. We disagree.
In Davis v. Dennis Lilly Co., our Supreme Court stated the appellate standard of review for a directed verdict:
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. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, Smith v. Voncannon, 283 N.C. 656, 197 S.E.2d 524 (1973), or to present a question for the jury. In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500 (1952).
330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991). "As a general rule, a directed verdict motion should not be granted in a negligence action." Alston v. Monk, 92 N.C. App. 59, 62, 373 S.E.2d 463, 465 (1988) (citing Alva v. Cloninger, 51 N.C. App. 602, 277 S.E.2d 535 (1981)), disc. rev. denied, 324 N.C. 246, 378 S.E.2d 420 (1989). However, the plaintiff must introduce proof of each element of negligence to survive defendant's motion. Everhart v. LeBrun, 52 N.C. App. 139, 141, 277 S.E.2d 816, 818 (1981). "If there is such relevant evidence as a reasonable mind might accept as adequate to support the elements of negligence, the trial court must deny defendant's motion and allow the case to go to the jury." Cobb v. Reitter, 105 N.C. App. 218, 220-21, 412 S.E.2d 110, 111 (1992).
A plaintiff alleging common law negligence "must offer evidence of four essential elements in order to prevail: duty, breach of duty, proximate cause, and damages." Estate of Mullis v. Monroe Oil Co., 349 N.C. 196, 201, 505 S.E.2d 131, 135 (1998) (citations omitted).
Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent person would exercise under similar conditions. A defendant is liable for his negligence if the negligence is the proximate cause of injury to a person to whom the defendant is under a duty to use reasonable care.
Id. (quotation omitted).
Prior cases have stated the degree of care required of a person handling firearms.
The utmost caution must be used in their care and custody, to the end that harm may not come to others from coming in contact with them. The degree of care must be commensurate with the dangerous character of the article. The same degree of care is, no doubt, expressed by saying that the care which persons using firearms are bound to take in order to avoid injury to others is a care proportionate to the probability of injuries to others . . . . One who handles a loaded gun is charged with the knowledge that it is a dangerous instrumentality which, if accidentally discharged, might cause injury to others. If one is injured from the discharge of firearms negligently used or handled by another, the person causing the injury is civilly liable even though the discharge was not intended.
Any loaded firearm . . . is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, any person having it in his possession or using it is bound to exercise extraordinary care. A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable.
Edwards v. Johnson, 269 N.C. 30, 35-36, 152 S.E.2d 122, 126-27 (1967) (internal citations and quotations omitted) (emphasis supplied).
Mitchum's evidence tended to show that he and Gaskill were lifelong friends. Gaskill invited Mitchum to a party at Gaskill's home with other guests. An argument ensued and Gaskill armed himself with his shotgun. The gun discharged and Mitchum was wounded in his right side. The following exchanges and admissions were offered into evidence by Mitchum:
Question: So your intent when you got that shotgun was to shoot Les Mitchum, is that correct?
Gaskill: I didn't even know the gun was loaded.
. . . .
Question: You remember pointing the gun at him, don't ya?
Gaskill: No, Sir.
. . . .
Question: You pulled the trigger, didn't you?
Gaskill: I don't never actually remember pulling the trigger. She fired.
The above evidence sufficiently shows that Gaskill owed a duty to Mitchum, he breached that duty, and that breach proximately caused severe injuries to Mitchum. Estate of Mullis, 349 N.C. at 201, 505 S.E.2d at 135. Gaskill contends that he either intentionally shot Mitchum, or, in the alternative, Mitchum was contributorily...
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