Springs v. City of Charlotte

• Decision Date: 18 January 2011
• Docket Number: No. COA09–839.,COA09–839.
• Citation: 704 S.E.2d 319
• Court: North Carolina Court of Appeals
• Parties: Lynda SPRINGS, Plaintiff,v.CITY OF CHARLOTTE, Transit Management of Charlotte, Inc., and Dennis Wayne Napier, Defendants.

704 S.E.2d 319

Lynda SPRINGS, Plaintiff,

v.CITY OF CHARLOTTE, Transit Management of Charlotte, Inc., and Dennis Wayne Napier, Defendants.

No. COA09–839.

Court of Appeals of North Carolina.

Jan. 18, 2011.

OPINION TEXT STARTS HERE

Appeal by defendants from judgment entered 15 August 2008 and orders entered 6 November 2008 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 January 2010.

The Odom Firm, PLLC, Charlotte, by T. LaFontine Odom, Sr., Thomas L. Odom, Jr., and David W. Murray, for plaintiff-appellee.

Robert D. McDonnell, Charlotte, for defendants-appellants Transit Management of Charlotte, Inc. and the City of Charlotte; and Frank B. Aycock, II, Charlotte, for defendant-appellant Dennis Wayne Napier.

GEER, Judge.

Defendants City of Charlotte (“the City”), Transit Management of Charlotte (“TMOC”), and Dennis Wayne Napier appeal from a judgment entered in a negligence action brought by plaintiff Lynda Springs following a motor vehicle accident. We uphold the trial court's denial of the motion for a directed verdict and judgment notwithstanding the verdict (“JNOV”) on the issue of permanent injuries, but we agree with defendants that the trial court erred in not providing a written opinion setting out its reasons for denying the JNOV motion with respect to the award of punitive damages as required by N.C. Gen.Stat. § 1D–50 (2009) and Hudgins v. Wagoner, ––– N.C.App. ––––, ––––, 694 S.E.2d 436, 447–48 (2010). We also hold that the trial court did not fully comply with the statutes governing awards of costs, and, therefore, on remand, the court must reconsider its costs decision in addition to providing a written opinion setting out its reasons for upholding the punitive damages award.

Facts

TMOC is a company that employs and manages bus drivers for the City. On 16 June 2004, Mr. Napier, an employee of TMOC, was operating a City bus within the course and scope of his employment when the bus rear-ended a van stopped at a red light at an intersection. Earl Springs, the driver of the rear-ended van, had been driving his wife, Mrs. Springs, home from a medical appointment. Mrs. Springs cannot walk and is wheelchair-bound due to Multiple Sclerosis (“MS”). Mrs. Springs was secured in her wheelchair beside her husband in the van.

Several seconds after Mr. and Mrs. Springs stopped at the intersection, the bus driven by Mr. Napier slammed into the back of the van at a rate of speed somewhere between 25 and 45 miles per hour. After the impact, the van traveled about 342 feet, with the bus leaving 70 feet of skid marks and traveling 25 feet after impact.

The impact broke the back of Mrs. Springs' wheelchair, causing her to be catapulted into the back of the van, striking multiple parts of her body. Mrs. Springs was transported to Presbyterian Hospital, where she was examined by Dr. John Clark. Dr. Clark observed multiple lacerations caused by flying glass. He diagnosed Mrs. Springs with an acute cervical strain, a sprained dorsal spine, and contusions to the right shoulder and elbow.

Five months later, in November 2004, Mrs. Springs was diagnosed with avascular necrosis in her right shoulder—a lack of blood supply to the bone resulting in a dying of the bone. She continues to have right shoulder and bilateral shoulder pain and limited range of motion. Prior to the collision, she was able to transfer herself to and from her wheelchair, cook, clean, assist in her bathing, change her catheter, and drive a motor vehicle unassisted. Since the collision, she has not been able to do these tasks because of the injuries and pain in her shoulders.

On 14 June 2007, Mrs. Springs filed suit against defendants, alleging negligence by defendants and negligent entrustment, hiring, and retention by TMOC and the City. At trial, defendants stipulated that Mr. Napier was negligent, that he collided with the Springs van, and that the collision caused injuries to Mrs. Springs. Defendants disputed, however, that any permanent conditions suffered by Mrs. Springs were caused by the accident. On 8 August 2008, the jury returned a verdict for Mrs. Springs against all defendants, awarding her $800,000.00 in compensatory damages. The jury also found that Mrs. Springs was injured by TMOC's willful or wanton conduct and was entitled to recover $250,000.00 from TMOC in punitive damages.

The trial court entered judgment on the verdict on 15 August 2008. On 21 August 2008, defendants filed a motion for JNOV and a motion for a new trial. Mrs. Springs filed a motion to tax costs against defendants on 21 August 2008 and an amended motion to tax costs on 25 August 2008. On 6 November 2008, the trial court entered an order granting Mrs. Springs costs in the amount of $58,034.17. The trial court also entered an order denying defendants' motions for JNOV and for a new trial. Defendants timely appealed to this Court.

I

Defendants first argue that the court erred in sending the issue of permanent injuries to the jury because Mrs. Springs failed to present sufficient evidence of causation of her injuries.¹ This Court has explained:

With respect to the evidence sufficient to warrant an instruction as to permanency, our Supreme Court has made the following remarks:

To warrant an instruction permitting an award for permanent injuries, the evidence must show the permanency of the injury and that it proximately resulted from the wrongful act with reasonable certainty. While absolute certainty of the permanency of the injury and that it proximately resulted from the wrongful act need not be shown to support an instruction thereon, no such instruction should be given where the evidence respecting permanency and that it proximately resulted from the wrongful act is purely speculative or conjectural.

Short v. Chapman, 261 N.C. 674, 682, 136 S.E.2d 40, 46–47 (1964). Thus, a permanency instruction is proper if there is sufficient evidence both as to (1) proximate cause and (2) the permanent nature of any injuries.

Matthews v. Food Lion, Inc., 135 N.C.App. 784, 785, 522 S.E.2d 587, 588 (1999).

In this case, the issue is the sufficiency of Mrs. Springs' evidence of proximate causation of her injuries. Defendants argue that the evidence presented by Mrs. Springs regarding causation through Dr. David Kingery, a board-certified expert in orthopedics and one of Mrs. Springs' treating physicians, was merely “speculative.” They contend that their expert evidence showed that the real causes of Mrs. Springs' shoulder condition were preexisting, progressive problems and that she would have been in the same condition even if the accident had never occurred. According to defendants, the trial court, therefore, erred in denying their motion for a directed verdict and their motion for JNOV on the issue of permanent injuries.

“The standard of review of the denial of a motion for a directed verdict and of the denial of a motion for JNOV are identical. We must determine ‘whether, upon examination of all the evidence in the light most favorable to the non-moving party, and that party being given the benefit of every reasonable inference drawn therefrom and resolving all conflicts of any evidence in favor of the non-movant, the evidence is sufficient to be submitted to the jury.’ ” Shelton v. Steelcase, Inc., 197 N.C.App. 404, 410, 677 S.E.2d 485, 491 (internal citation omitted) (quoting Denson v. Richmond County, 159 N.C.App. 408, 411, 583 S.E.2d 318, 320 (2003)), disc. review denied, 363 N.C. 583, 682 S.E.2d 389 (2009).

“A motion for either a directed verdict or JNOV ‘should be denied if there is more than a scintilla of evidence supporting each element of the non-movant's claim.’ ” Id. (quoting Branch v. High Rock Realty, Inc., 151 N.C.App. 244, 250, 565 S.E.2d 248, 252 (2002), disc. review denied, 356 N.C. 667, 576 S.E.2d 330 (2003)). “A ‘scintilla of evidence’ is defined as ‘very slight evidence.’ ” Everhart v. O'Charley's Inc., 200 N.C.App. 142, ––––, 683 S.E.2d 728, 735 (2009) (quoting Scarborough v. Dillard's Inc., 188 N.C.App. 430, 434, 655 S.E.2d 875, 878 (2008), rev'd on other grounds, 363 N.C. 715, 693 S.E.2d 640 (2009)).

At trial, Mrs. Springs presented sufficient evidence to permit a jury to attribute her avascular necrosis and right shoulder pain to the accident. Dr. Clark, who treated Mrs. Springs in the emergency room immediately after the accident, testified that he saw no indication of advanced avascular necrosis or arthritis in Mrs. Springs' right shoulder. He diagnosed Mrs. Springs as suffering a contusion of the right shoulder, as well as a contusion of her right elbow, an acute cervical strain, and a sprained dorsal spine. Photographs taken after the accident showed extensive bruising of both of Mrs. Springs' shoulders and arms.

Dr. Kingery saw Mrs. Springs on referral from her primary care physician for treatment of the pain in her right shoulder and right elbow. X-rays of her elbow were negative, causing him to conclude that her elbow pain was the result of a contusion. The x-rays of her shoulder, however, “showed arthritis, but showed a condition called avascular necrosis as a cause for that arthritis.” He gave Mrs. Springs a “diagnosis [of] progressive arthritis due to avascular necrosis of the right shoulder.”

Dr. Kingery saw no reference in Mrs. Springs' records, radiographs, or MRIs indicating that Mrs. Springs had been diagnosed with avascular necrosis of the right shoulder prior to the accident on 16 June 2004. Dr. Kingery acknowledged that avascular necrosis can have different causes, but identified two possible causes for Mrs. Springs' avascular necrosis: “Trauma and in all likelihood, although I have not seen all of the evidence, prednisone usage for her MS or multiple sclerosis.” Dr. Kingery was then asked, based on the facts of the collision and the examination by Dr. Clark in the emergency room, whether he had “a medical opinion [he could] state with reasonable certainty as to whether or not the collision,...