Pope v. Bridge Broom, Inc.

• Decision Date: 07 April 2015
• Docket Number: No. COA14–221.,COA14–221.
• Parties: Tony Harold POPE, Administrator of the Estate of Susan Lanier Fries, Plaintiff, v. BRIDGE BROOM, INC., Defendant.
• Court: North Carolina Court of Appeals

240 N.C.App. 365

770 S.E.2d 702

Tony Harold POPE, Administrator of the Estate of Susan Lanier Fries, Plaintiff,

v.BRIDGE BROOM, INC., Defendant.

No. COA14–221.

Court of Appeals of North Carolina.

April 7, 2015.

DeVore Acton & Stafford, PA, Charlotte, by Derek P. Adler and Fred W. DeVore, III, for plaintiff-appellant.

McAngus, Goudelock & Courie, P.L.L.C., Charlotte, by Colin E. Scott, for defendant-appellee.

GEER, Judge.

Plaintiff Tony Harold Pope, as administrator of decedent Susan Lanier Fries' estate, appeals from a judgment entered on a jury verdict in defendant's favor, finding defendant was not liable in negligence. Mrs. Fries, who was riding on a motorcycle with her husband, was thrown from the motorcycle and died after her husband tried to avoid one of defendant's trucks that was at the rear of a street-sweeping operation. On appeal, plaintiff primarily argues that the trial court erred in denying his motion for a directed verdict against defendant on the grounds that the evidence was undisputed that defendant's negligence was at least a proximate cause of Mrs. Fries' death. However, defendant presented evidence materially indistinguishable from the undisputed facts of Pintacuda v. Zuckeberg, 159 N.C.App. 617, 624–26, 583 S.E.2d 348, 353–54 (2003) (Timmons–Goodson, J., dissenting), rev'd for reasons stated in dissent, 358 N.C. 211, 593 S.E.2d 776 (2004), in which our Supreme Court upheld entry of a directed verdict in the defendant's favor because the evidence established intervening negligence by the plaintiff motorcycle driver. Since the undisputed evidence in Pintacuda was sufficient to establish intervening negligence as a matter of law, defendant's evidence in this case, if believed by the jury, was sufficient to allow the jury to find that the negligence of Mrs. Fries' husband constituted intervening negligence warranting a verdict in defendant's favor. Consequently, the trial court, in this case, properly denied plaintiff's motion for a directed verdict.

Facts

This case arose out of an accident on Independence Boulevard in Charlotte, North Carolina. In the area around where the accident occurred, there are three northbound lanes and three southbound lanes that are divided by a median. Traveling southbound, the highway curves to the southwest, and there are trees abutting the right shoulder of the highway. The speed limit is 55 m.p.h., and lanes are about 12 feet wide.

On the evening of 10 September 2011, defendant was performing a street sweeping operation that involved four of defendant's vehicles traveling southbound on the left hand side of Independence Boulevard. Michael Marshall, then employed by defendant, was at the tail of the operation, driving a pickup truck designed to absorb substantial rear end impact. Mounted on the bed of Mr. Marshall's truck was a tall advanced warning sign bearing a large flashing arrow or message indicating to drivers approaching from behind the street sweeping operation that they would have to move over one lane to the right. About 150 feet in front of Mr. Marshall, there was another attenuator truck with a similar mounted sign ("the front attenuator truck"), and in front of that second truck was a sweeping and vacuuming vehicle. There was also a vehicle in front of the sweeping vehicle that was picking up larger debris.

The weather was clear that evening, and sometime after 9:30 p.m. the sweeping operation had crested a hill on Independence Boulevard just south of a bridge over Pecan Avenue, and was moving between five and 20 m.p.h. Mr. Marshall's truck was either partially or completely in the left lane of travel, even though the left shoulder was wide enough for Mr. Marshall to be traveling completely on the shoulder. The other Bridge Broom vehicles were traveling either on the left shoulder or in the left lane.

Yawo Sedjro was also traveling in his car, a green van, southbound in the left lane. As he came up the hill just after the Pecan Avenue bridge, Mr. Sedjro came quickly upon Mr. Marshall's vehicle obstructing the left lane of travel and slammed on his brakes. Mr. Sedjro first slowed to about 20 to 25 m.p.h. and then came to a complete stop, becoming trapped behind Mr. Marshall's truck. He signaled and waited for an opportunity to safely move over to the center lane. Samuel Flores was traveling southbound in his vehicle when he came upon Mr. Sedjro and defendant's sweeping operation. Mr. Flores also slammed on his brakes to let Mr. Sedjro move over and in case Mr. Flores needed to move over into the right lane.

Darrell Fries was also driving southbound on Independence Boulevard on his motorcycle with Mrs. Fries riding on the back. Mr. and Mrs. Fries were traveling in the left lane when Mr. Fries saw brake lights up ahead and the flashing sign from one of the attenuator trucks. Mr. Fries "wasn't sure what was happening in the left lane," but he believed he "had to move over" and "started making adjustments." After moving over to the center lane, he began to brake, but his motorcycle started sliding. The motorcycle skidded for 195 feet before it fell over. Mrs. Fries was thrown about 30 feet from where the motorcycle fell over, she slammed into the back of Mr. Flores' car, and she died. Mr. Fries suffered serious injury. There were no other injuries or accidents.

At trial, plaintiff offered testimony from, among others, Daren Marceau, who testified as an expert in "traffic engineering and crash investigation, motorcycle operations and human factors with respect to driving in motorway environments." Mr. Marceau testified that "the mobile sweeping operation being conducted by Bridge Broom's employees at the time of the crash was in violation of state and federal standards" as promulgated in the Manual for Uniform Traffic Control Devices ("MUTCD"), primarily because "Mr. Marshall failed to properly position his truck on the shoulder[,] ... [the driver of the front attenuator truck] failed to properly space the two [attenuator] trucks along the roadway[, and] ... Bridge Broom failed to place advanced warning signs or changeable message signs before the work zone." He concluded that "the failure of Bridge Broom to do the[se] things ... was at least a cause of the crash that killed Susan Fries." Plaintiff introduced into evidence relevant portions of the MUTCD. However, plaintiff did not offer the testimony of an accident reconstruction expert.

Plaintiff filed a motion in limine to exclude the testimony of defendant's expert in accident reconstruction, Timothy Cheek. The trial court denied the motion and allowed Mr. Cheek to testify regarding his analysis of the accident. Mr. Cheek did not disagree with Mr. Marceau's opinions regarding the location of defendant's vehicles at the time of the accident. However, Mr. Cheek testified that in his opinion, based in large part upon his measurements and calculations at the location of the accident, that the reason for Mrs. Fries' death was Mr. Fries' inadequate braking of the motorcycle. Plaintiff cross-examined Mr. Cheek about the accuracy of these measurements and calculations.

At the close of all the evidence, plaintiff made a motion for a directed verdict in his favor. The trial court denied the directed verdict motion and also denied a request by plaintiff for a jury instruction on negligence per se. However, the trial court granted defendant's request for an instruction on intervening negligence.

The trial court submitted two issues to the jury: (1) "Was the negligence of Bridge Broom a proximate cause of the death of Susan Fries?" and (2) if so, "What amount of damages is the Estate of Susan Fries entitled to recovery [sic] for her wrongful death?" The jury answered the first question in the negative. After the verdict was read, plaintiff made a motion for judgment notwithstanding the verdict ("JNOV") on the grounds that the "overwhelming weight of the evidence" supported the conclusions (1) that defendant should be liable based on negligence per se and (2) that Mr. Fries' actions were reasonably foreseeable. After the trial court denied the JNOV motion, plaintiff moved the trial court for "essentially a mistrial" on the same bases as the JNOV. The trial court also denied that motion. Plaintiff timely appealed to this Court.

I

Plaintiff first challenges the trial court's admission of Mr. Cheek's accident reconstruction testimony, arguing that his opinions were inadmissible under Rule 702 of the Rules of Evidence. Mr. Cheek testified that, in his expert opinion, Mr. Fries was "the cause of this accident." According to Mr. Cheek, the accident occurred, and Mrs. Fries was killed, because Mr. Fries only used his rear brake-if he had used both his front and rear brakes, Mr. Fries would have been able to safely stop.

We review a trial court's ruling regarding the admission of expert testimony for abuse of discretion. State v. McGrady, –––N.C.App. ––––, ––––, 753 S.E.2d 361, 365, disc. review allowed, 367 N.C. 505, 758 S.E.2d 864 (2014). A trial court abuses its discretion if its decision is " ‘manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ " Id. at ––––, 753 S.E.2d at 365 (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) ).

The legislature's 2011 amendment to Rule 702(a) of the Rules of Evidence provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles and methods.

(3) The witness has applied the principles and methods reliably to the facts of the case.

Our Rule 702 was amended to mirror the Federal Rule 702, which itself " ‘was amended ... to conform to...