Tedder v. CSX Transp. Inc.
| Decision Date | 04 October 2011 |
| Docket Number | NO. COA10-1497,COA10-1497 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | JOEY TEDDER, Plaintiff, v. CSX TRANSPORTATION, INC., AND SIDNEY EARL WILLIAMS, III, Defendants. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Edgecombe County No. 08 CVS 1522
Appeal by plaintiff from order entered 11 May 2010 by Judge W. Russell Duke, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 9 June 2011.
John J. Korzen and Rachel Scott Decker, attorneys for plaintiff.
John C. Millberg and Meredith Woods, attorneys for defendants.
Joey Tedder (plaintiff) appeals from an order entered 11 May 2010 granting a directed verdict in favor of CSX Transportation, Inc. (defendant CSX). After careful consideration, we affirm the decision of the trial court.
On 16 August 2006, plaintiff, a signal inspector employed at defendant CSX, was performing a test at a railroad crossing near the ramp from U.S. 64 West to Western Boulevard, a four-lane highway in Tarboro. Plaintiff began his work on the crossing around 9:00 AM. It was raining that day. Plaintiff parked the van he was driving four to five feet off the road. After plaintiff finished his work at the crossing, he returned to the van and began writing in a log book. After a few minutes, another vehicle driven by Sidney Earl Williams, III (defendant Williams), struck the van from behind. The collision caused the rear doors of the van to cave in, to the extent that they could not be opened. The van's rear bumper was also bent inward. The collision totaled defendant Williams's vehicle. Almost immediately following the collision, plaintiff began noticing pain in his neck. Later that day, the pain in plaintiff's neck began to increase, and his back began to hurt. Plaintiff sought treatment from Dr. Hal Woodall for his injuries.
Following the accident, plaintiff completed a two-page accident report given to him by defendant CSX. One question asked, "Did employee have a safe place in which to work?" Plaintiff checked "no" and commented, "no adequate parking anddangerous intersection." On 1 December 2008, plaintiff filed suit against defendant CSX for negligence under the Federal Employer's Liability Act (FELA) and against defendant Williams for negligence.
During discovery, plaintiff identified Kelly Adamson, a civil engineer who worked in the field of traffic accident reconstruction, highway design maintenance, and construction, as an expert witness. Plaintiff then produced a copy of a report written by Adamson regarding the accident. The report stated that in Adamson's opinion, "CSX failed to provide a safe location for Mr. Tedder to park his vehicle while performing his job duties." Adamson was then deposed by videotape on 26 January 2010 by defendant CSX pursuant to North Carolina Rules of Civil Procedure 30 and 32.
At the beginning of the trial, defendant CSX made a motion in limine to exclude the videotaped deposition testimony of Adamson. Plaintiff argued that Rule 32 allowed for expert testimony to be offered by videotape. Defendant CSX argued that Adamson should not be considered an expert witness, because Adamson was unfamiliar with railroad practices and procedures, and because he had never dealt with an accident involving cars parked on the side of a railroad crossing. The trial courtgranted the motion to exclude Adamson's videotaped deposition testimony. However, the trial court declined to rule on whether Adamson qualified as an expert, reserving the right to make that determination after voir dire examination of Adamson. Plaintiff did not produce Adamson as a witness at trial.
During trial, plaintiff testified that he did not drive the van up to the signal box because he was afraid the van would get stuck. Plaintiff also stated that he did not park the van across the street because "there are big ditches over there." Furthermore, when addressing where he parked, plaintiff stated "I thought it was the best place to park at the time." When asked whether the place he parked was a reasonably safe place to park, he responded "I don't think so." Plaintiff also testified that defendant CSX equipped the van with 1) a small red reflector beside the taillight on the driver's side, 2) a small white reflector beside the taillight on the passenger side, 3) a small yellow strobe light on the front, and 4) hazard lights. Plaintiff also testified that defendant CSX supplied him with an orange cone to be used when parking the van. Plaintiff further testified that during the last full year before the accident, he was paid an hourly wage of $26.82, which correlated to an estimated yearly earning of $56,000.00.
Next, plaintiff submitted the deposition testimony of Dr. Woodall. Dr. Woodall testified that plaintiff had on-going problems with his neck and lower back. He stated that plaintiff had "not been able to do any heavy work" and that "I do not think he can do heavy physical labor anymore." He also testified that "the pain will bother him the rest of his life."
Plaintiff then asked the trial court to take judicial notice of the Federal Reserve five-year and ten-year treasury rates, in order to use this information for a present value argument to the jury. The trial court declined to take judicial notice of the rates stating, "[y]ou haven't introduced any kind of economist or anything else that would give you any kind of basis to argue that to the jury." The trial court also noted that "those Federal Reserve rates[,] or whatever they were[,] five or ten year rates[,] those had never [been] produced, never been identified as exhibits."
At the close of plaintiff's evidence, defendant CSX and defendant Williams both made motions for a directed verdict. The trial court denied defendant Williams' motion. Plaintiff later settled with defendant Williams. But, the trial court granted the motion for directed verdict in favor of defendant CSX on grounds that 1) plaintiff failed to introduce evidencesufficient to establish that defendant CSX negligently caused the accident and 2) plaintiff failed to introduce evidence sufficient to prove future medical expenses or future loss of earning capacity. Plaintiff now appeals.
Plaintiff first argues that the trial court erred in excluding the videotaped deposition testimony of Kelly Adamson under Rule 32 of the North Carolina Rules of Civil Procedure. We disagree.
"The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds . . . the witness is an expert witness whose testimony has been procured by videotape as provided for under Rule 30(b)(4)." N.C. Gen. Stat. § 1A-1, Rule 32(a)(4) (2011). In order to be considered an expert:
[T]he witness must be qualified by knowledge, skill, experience, training, or education. North Carolina case law requires only that the expert be better qualified than the jury as to the subject at hand, with the testimony being helpful to the jury. Whether the witness qualifies as an expert is exclusively within the trial judge's discretion, and is not to be reversed on appeal absent a complete lack of evidence to support his ruling.
State v. Davis, 106 N.C. App. 596, 601, 418 S.E.2d 263, 267 (1992) (quotations and citations omitted).
Here, plaintiff identified Adamson as an expert witness. Prior to trial, defendant argued that Adamson should not be considered an expert witness. The trial court declined to rule, at that time, on whether Adamson qualified as an expert. Instead, the trial court decided to make that determination after voir dire examination of Adamson. However, plaintiff 1) did not produce Adamson as a live witness at trial, 2) did not otherwise produce Adamson for voir dire examination, or 3) make any request of the trial court to rule on defendant CSX's objection to Adamson's qualifications as an expert witness. In short, plaintiff failed to properly submit Adamson for qualification as an expert. Therefore, we conclude that Rule 32 of the North Carolina Rules of Civil Procedure did not apply to the videotaped deposition testimony of Adamson.
Plaintiff next argues that the trial court erred in granting directed verdict in favor of defendant CSX for failure to submit sufficient evidence to prove that defendant CSX negligently caused the accident. We disagree.
"The standard of review of directed verdict is 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." Scarborough v. Dillard's, Inc., 363 N.C. 715, 720, 693S.E.2d 640, 643 (2009) (quotation and citation omitted). "Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury[.]" Wilkins v. CSX Transp., Inc., 194 N.C. App. 338, 340, 669 S.E.2d 784, 786 (2008) (quotation omitted) (alteration in original). However, the primary issue to determine under FELA is whether defendant exercised reasonable care, and not whether defendant could have employed safer methods. See Stillman v. Norfolk & W. R. Co., 811 F.2d 834, 838 (4th Cir. 1987) (). McKeithan v. CSX Transp., 113 N.C. App. 818, 820-21, 440 S.E.2d 312, 314 (1994) (quotations and citations omitted).
Plaintiff first asserts that the videotaped deposition testimony of...
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