Taylor v. Ellerby

• Decision Date: 04 September 2001
• Docket Number: No. COA00-975.,COA00-975.
• Citation: 146 NC App. 56,552 S.E.2d 667
• Parties: Ethel Lee Allen TAYLOR, Plaintiff, v. Annie Mae ELLERBY, Defendant.
• Court: North Carolina Court of Appeals

552 S.E.2d 667

146 NC App. 56

Ethel Lee Allen TAYLOR, Plaintiff, v. Annie Mae ELLERBY, Defendant.

No. COA00-975.

Court of Appeals of North Carolina.

September 4, 2001.

Poisson, Poisson, Bower & Clodfelter, by Fred D. Poisson, Jr., Wadesboro, for plaintiff-appellant.

The Robinson Law Firm, PLLC, by William C. Robinson, Charlotte, for defendant-appellee.

HUNTER, Judge.

Ethel Lee Allen Taylor ("plaintiff") appeals from a judgment entered following a jury trial in which plaintiff alleged she had suffered injuries in an automobile collision caused by the negligence of Annie Mae Ellerby ("defendant"). We find no error.

Plaintiff sets forth three assignments of error, accompanied by three corresponding arguments. First, plaintiff argues that the verdict returned by the jury was against the greater weight of the evidence presented at trial and should be set aside. After the judgment in favor of defendant was entered, plaintiff filed a "Motion for a New Trial" on 21 December 1998, requesting a new trial pursuant to N.C.R. Civ. P. 59 ("Rule 59"). This motion was eventually denied by order entered 9 September 1999 (approximately nine months later). Plaintiff requests that this Court reverse the trial court's order denying her motion for a new trial. It is well-established that a

trial court's decision to exercise its discretion to grant or deny a Rule 59(a)(7) motion for a new trial for insufficiency of the evidence must be based on the greater weight of the evidence as observed firsthand only by the trial court. The test for appellate review of a trial court's granting of a motion for a new trial due to insufficiency of the evidence continues to be simply whether the record affirmatively demonstrates an abuse of discretion by the trial court in doing so....

In re Buck, 350 N.C. 621, 629, 516 S.E.2d 858, 863 (1999) (emphasis omitted). "[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice," Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982), and a "manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof." Id. at 484-85, 290 S.E.2d at 604. Here, plaintiff bears the "heavy burden" of proving that the trial court abused its discretion by denying plaintiff's motion for a new trial.

Plaintiff specifically argues that in failing to find that plaintiff suffered any injury, the jury returned a verdict that was contrary to all the evidence. We first note that, in fact, the jury did not return a verdict finding "no injury." Rather, the jury found that plaintiff was not injured "as a result of the negligence of the defendant." Thus, even if the evidence overwhelmingly established that plaintiff suffered from some injury, the jury's verdict would not necessarily be contrary to that evidence, since the jury could have concluded that plaintiff suffered injuries that were not caused by defendant's negligence. The issue, then, is whether the trial court's refusal to set aside the jury's verdict amounts to a substantial miscarriage of justice. We believe it does not.

At trial, plaintiff argued that she suffered from neck, back, and knee injuries as a result of the collision. While defendant admitted that she caused the accident by negligently pulling out in front of plaintiff, she specifically denied the existence of proximate cause of plaintiff's injuries and the existence of damages. The evidence presented at trial tended to show that Dr. Victoria Rommel first saw plaintiff as a patient on 12 January 1995, at which time she found that plaintiff was having some lower back pain with some tenderness to the sacroiliac joint. Dr. Rommel also noted that plaintiff, who weighed 246 pounds at the time, had gained 66 pounds over the course of two years. Dr. Rommel prescribed Zoloft for plaintiff because of her back pain, her premenstrual pain, her weight gain, and because she showed symptoms of depression.

On 16 February 1995, plaintiff and defendant had a "T-bone" collision on Highway 74 in Wadesboro, North Carolina, after defendant suddenly pulled out in front of plaintiff. Two police officers, Officers Pratt and Little, arrived on the scene after the collision to investigate. Officer Pratt testified at trial that plaintiff had a noticeable limp after the collision, and that she had told him that she hurt her leg. However, plaintiff refused Officer Pratt's offer to call an ambulance, and Officer Pratt failed to list any injuries sustained by plaintiff on the accident report filled out on the day of the collision.

On the day of the collision, plaintiff went to Anson County Hospital. The records from Anson County Hospital indicate that plaintiff complained primarily of sharp back pain radiating into the hip, beginning one hour after the car collision. Plaintiff did not report any knee pain or neck pain at the hospital, and there is no indication that a knee exam was performed. The doctors at the hospital performed a lumbar sacral spine film (an x-ray), and that test did not show any "disease." Plaintiff was diagnosed at the hospital as suffering from a lumbosacral sprain.

Plaintiff then visited Dr. Rommel on 21 February 1995, five days after the collision. During this visit, plaintiff complained of head, neck, shoulder and back pain and soreness. Plaintiff did not indicate that she suffered from any knee pain. Dr. Rommel found that plaintiff had a very limited range of motion in her neck, and that she was tender along the right side of her back and in her hips and legs. Dr. Rommel treated plaintiff for muscle or skeletal injuries by prescribing Flexeril, Percocet and Darvocet. Dr. Rommel also prescribed physical therapy. Dr. Rommel did not indicate any injury to plaintiff's knee.

Dr. Rommel saw plaintiff again on 24 February 1995, during which visit Dr. Rommel diagnosed plaintiff as suffering from a "hyperextension" to her neck. Dr. Rommel did not diagnosis plaintiff as having any knee injury during this visit. Dr. Rommel saw plaintiff again on 3 March 1995. Plaintiff complained at that time of headaches and neck pain. There is no indication that plaintiff complained of knee pain at this time. Dr. Rommel concluded that plaintiff had not shown significant improvement by 3 March 1995 and that her muscular-skeletal injury was severe enough to require the help of a specialist. Dr. Rommel referred plaintiff to Carolina Bone and Joint for hyperextension of the neck.

Plaintiff was then treated by Dr. King at Carolina Bone and Joint on 7 March 1995. When plaintiff first visited the clinic, she was asked to report all the problems she had, and she indicated only pain in her neck and back, and not in her knee. Dr. King's notes of the initial visit did not indicate any complaints regarding a knee injury. In fact, during this first visit, Dr. King performed a reflex test on plaintiff's knees to check for back injury. This test involved the tapping of each knee on the patella with a rubber mallet in the area of the knee where surgery was subsequently performed. Dr. King did not note any knee pain during this test.

On 9 March 1995, plaintiff again visited Dr. Rommel's office and complained that her knee had been hurting since the accident, but had not become stiff and swollen until the previous day, 8 March 1995. Plaintiff was diagnosed by Dr. Rommel's assistant as suffering from right knee pain with swelling, and hyperextension injury of the neck. Plaintiff was then referred back to Carolina Bone and Joint, where she was treated by Dr. Meade. Thereafter, on 24 March 1995, plaintiff underwent arthroscopic surgery on her knee which revealed a "divot" injury in the articular cartilage under the kneecap. Dr. Rommel next saw plaintiff on 4 April 1995, after her surgery. At that time Dr. Rommel noticed that plaintiff had "much improvement" in her neck and a much better range of motion in her neck. On 24 May 1995, Dr. Rommel again saw plaintiff and made notes regarding her neck injury, but did not make notes regarding her knee.

As to the issue of causation, Dr. Rommel opined that plaintiff's knee injury and her hyperextension of the neck injury were caused by the collision. Dr. Rommel testified that, in cases of neck injuries resulting from car accidents, victims often feel fine immediately after the accident and believe there is no reason to seek medical help. Subsequently, it is not uncommon for the victim to begin to feel pain a day or two later when the muscles begin to tighten up and the injury becomes more apparent. Dr. Rommel also testified that a twenty-day period is a reasonable period of time for an inflammation to take place following a trauma.

Dr. Meade, who performed the arthroscopic surgery, testified that he found three things wrong with plaintiff's knee. First, plaintiff had a "fresh injury underneath her patella," and, in Dr. Meade's opinion, this injury was consistent with a dashboard injury, because it would require a direct blow with some great force. However, Dr. Meade conceded that he had no way to know what type of trauma had, in fact, caused the injury to plaintiff's knee and that typically such an injury would cause a patient immediate pain. Second, Dr. Meade testified that plaintiff showed some "wear and tear" to her knee that was somewhat greater than the average person, and that this "wear and tear" could have been caused by plaintiff's excessive weight. Finally, Dr. Meade acknowledged that plaintiff was born with a subluxed knee and admitted that this pre-existing condition could, on its own, cause a patient pain, restriction in motion, and loss of function.

In sum, the evidence tended to show that plaintiff suffered some back and neck pain immediately following the collision, but that plaintiff also suffered some...