Opinion
No. COA10-859
Filed 1 February 2011 This case not for publication
Appeal by plaintiff from order entered 28 December 2009 and orders entered 3 March 2010 by Judge Robert B. Rader in Wake County District Court. Heard in the Court of Appeals 15 December 2010.
E. Gregory Stott, for plaintiff-appellant. Burton Sue, L.L.P., by Gary K. Sue and Stephanie W. Anderson, for defendants-appellees Katay Logistics, LLC, and Alberto Barreto.
Wake County No. 09 CVD 5845.
Frances Christmas ("plaintiff") appeals an order entered upon a jury verdict finding that plaintiff was not injured by the negligence of Alberto Barreto ("Barreto"), and orders entered 3 March 2010 denying plaintiff's motions for judgment notwithstanding the verdict ("JNOV") and a new trial, and granting Barreto's and Katay Logistics, LLC's ("Katay") (collectively "defendants"), motion to tax costs. We affirm.
I. BACKGROUND
At 8:30 a.m. on 6 January 2009, plaintiff rode as a "passenger for hire" in a commercial bus operated by Shields Candido Jones ("Jones") and owned by Greyhound Lines, Inc. ("Greyhound"). While Jones drove the bus on the westbound side of U.S. Highway 64 Bypass in Wake County, North Carolina, Barreto hit the bus while he operated a tractor-trailer owned by Katay. Plaintiff was injured as a result of the accident.
On 24 March 2009, plaintiff filed a complaint in Wake County District Court against defendants, Greyhound, and Jones, alleging negligence, and seeking, inter alia, in excess of $10,000.00 for personal injuries and attorney's fees. On 28 April 2009, Greyhound and Jones answered, denied negligence and asserted crossclaims of indemnity and contribution against defendants. On 28 May 2009, defendants answered, denied negligence and asserted crossclaims of indemnity and contribution against Greyhound and Jones.
The case was heard before the 16 November 2009 civil session of Wake County District Court. At the close of plaintiff's evidence, plaintiff moved for a directed verdict on the issue of defendants' negligence and the issue of proximate cause. The trial court denied the motion. At the close of all the evidence, Jones and Greyhound moved for a directed verdict on the issue of their negligence against plaintiff. The trial court granted Jones' and Greyhound's motion.
Plaintiff does not appeal the order granting Jones' and Greyhound's motion for a directed verdict, and neither Greyhound nor Jones have filed a brief in the instant appeal. Therefore, they are not parties to this appeal. Furthermore, plaintiff moved for a directed verdict on the issue of defendants' negligence. The trial court denied the motion.
On 18 November 2009, the jury returned a verdict finding that plaintiff was not injured by Barreto's negligence. On 28 December 2009, the trial court filed an order memorializing the verdict ("the 2009 order"). On 8 January 2010, plaintiff moved for a JNOV pursuant to Rule 50 and a new trial pursuant to Rule 59. On 1 February 2010, defendants moved to tax the costs of the case to plaintiff.
On 3 March 2010, the trial court denied plaintiff's motions for JNOV and a new trial, and granted defendants' motion to tax costs to plaintiff ("the 2010 orders"). Plaintiff appeals the 2009 order and the 2010 orders (collectively "the orders").
II. DIRECTED VERDICT
Plaintiff argues that the trial court erred in denying her motions for directed verdict on the issue of defendants' negligence. We disagree.
"Our Court reviews a trial court's ruling on a motion for directed verdict de novo." Stark v. Ford Motor Co., ___ N.C. App. ___, ___, 693 S.E.2d 253, 257 (2010).
"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. When determining the correctness of the denial for directed verdict . . ., the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, or to present a question for the jury."
Id. (quoting Davis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991) (internal citations omitted)).
Directed verdicts for the party with the burden of proof are rarely granted. Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979). "This is so because, even though proponent succeeds in the difficult task of establishing a clear and uncontradicted prima facie case, there will ordinarily remain in issue the credibility of the evidence adduced by proponent." Id. Nonetheless, "where credibility is manifest as a matter of law," a directed verdict for the party with the burden of proof is proper "if the evidence so clearly establishes the fact[s] in issue that no reasonable inferences to the contrary can be drawn." Id.
O'Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 313, 511 S.E.2d 313, 318 (1999). "[A]s the finder of fact, the jury is `entitled to draw its own conclusions about the credibility of the witnesses and the weight to accord the evidence.'" Horne v. Vassey, 157 N.C. App. 681, 687, 579 S.E.2d 924, 928 (2003) (quoting Smith v. Price, 315 N.C. 523, 530-31, 340 S.E.2d 408, 413 (1986)).
"[A] directed verdict . . . may be entered in favor of the party with the burden of proof `where credibility is manifest as a matter of law.'" Smith, 315 N.C. at 527, 340 S.E.2d at 411 (quoting Burnette, 297 N.C. at 536, 256 S.E.2d at 395). "However, in order to justify granting a motion for a directed verdict in favor of the party with the burden of proof, the evidence must so clearly establish the fact in issue that no reasonable inferences to the contrary can be drawn." Murdock v. Ratliff, 310 N.C. 652, 659, 314 S.E.2d 518, 522 (1984) (citing Burnette, 297 N.C. at 536, 256 S.E.2d at 395.). "[I]f there is conflicting testimony that permits different inferences, one of which is favorable to the non-moving party, a directed verdict in favor of the party with the burden of proof is improper." United Lab. v. Kuykendall, 322 N.C. 643, 662, 370 S.E.2d 375, 387 (1988).
In the instant case, Jones testified on direct examination that on 6 January 2009, he was operating the bus in the right-hand lane of U.S. Highway 64, traveling approximately 62 to 65 miles per hour, when he saw the tractor-trailer in his mirror. Jones observed the tractor-trailer approaching in the left-hand lane, so Jones steered the bus into an "extra lane to the right" because under Greyhound's standard, drivers are "always supposed to drive in the right lane." As Jones steered the bus into the "extra lane," he felt the tractor-trailer hit the bus. He then moved over to the "extra lane" and tried to stop the bus. Jones denied swerving out of his lane and into the tractor-trailer's lane, and stated the tractor-trailer swerved into his lane.
While defendants offered no evidence, on cross-examination, Jones testified that he started driving on the evening of 4-5 January 2009. By the morning of the accident, he had driven the bus for nine-and-a-half hours, from New York City to North Carolina. Jones explained that the bus was 11.5 feet wide with tinted windows. Jones also testified that it was raining, the traffic was heavy, and a blind spot impaired his ability to see out of his side mirrors on the bus. Jones further testified that when he first saw the tractor-trailer in his rear-view mirror, it was not speeding, and that he did not see the impact between the tractor-trailer and the bus.
Jones' statements on cross-examination show that there is an issue of credibility regarding his testimony and whether he actually knew how the accident happened. Therefore, the jury was entitled to draw its own conclusion about Jones' credibility and the weight to accord his testimony. Furthermore, according to the evidence, this appeared to be a "side-swipe" accident across two lanes of travel going in the same direction. The jury could have chosen to believe that either Jones or Barreto crossed into the other lane before the side-swipe occurred. Thus, there was conflicting testimony which permitted the jury to draw one of two inferences, one of which was favorable to defendants as the non-moving parties. When there is conflicting testimony that permits different inferences, one of which is favorable to the non-moving party, the trial court must deny the moving party's motion for a directed verdict. United Lab., 322 N.C. at 662, 370 S.E.2d at 387. Therefore, in the instant case, the trial court properly denied plaintiff's motions for a directed verdict.
III. JURY INSTRUCTIONS
Plaintiff argues that the trial court erred in its instructions of law to the jury. We disagree.
"In reviewing the trial court's decision to give or not give a jury instruction, the preliminary inquiry is whether, in the light most favorable to the proponent, the evidence presented is sufficient to support a reasonable inference of the elements of the claim asserted." Blum v. Worley, 121 N.C. App. 166, 168, 465 S.E.2d 16, 18 (1995). Should the trial court choose to charge the jury with regard to the claim, the court will consider the charge "contextually and in its entirety." Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002). "The charge will be held to be sufficient if `it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]'" Hughes v. Webster, 175 N.C. App. 726, 730, 625 S.E.2d 177, 180-81 (quoting Jones v. Development Co., 16 N.C. App. 80, 86-87, 191 S.E.2d 435, 440, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)), disc. review denied, 360 N.C. 533, 633 S.E.2d 816 (2006).
Jackson v. Carland, 192 N.C. App. 432, 441, 665 S.E.2d 553, 559 (2008).
"The burden of proof in a civil action is not shifted when the plaintiff makes out a prima facie case, nor is the defendant required to offer evidence to rebut a prima facie showing, or to escape liability on such a showing. A prima facie case means, and means no more, than evidence sufficient to justify, but not to compel, an inference of liability, if the jury so find. It furnishes evidence to be weighed, but not necessarily to be accepted, by the jury. It simply carries the case to the jury for determination, and no more."
Fleming v. R. R., 236 N.C. 568, 575, 73 S.E.2d 544, 549 (1952) (quoting McDaniel v. R. R., 190 N.C. 474, 130 S.E. 208 (1925)).
In the instant case, the trial court instructed, over plaintiff's objection, in pertinent part:
As I have already indicated, your verdict will take the form of answers to certain question[s], also referred to as issues. The issues in this case are as follows: Issue 1. Was the Plaintiff Frances Christmas injured by the negligence of the Defendant Alberto Barreto? Issue 2. What amount is the Plaintiff Frances Christmas entitled to recover from the Defendants Katay Logistics and Alberto Barreto for her personal injuries?
The trial court further instructed, over plaintiff's objection, in pertinent part:
The first issue in this case reads: Was the Plaintiff Frances Christmas injured by the negligence of the Defendant Alberto Barreto? On [t]his issue, the burden of proof is on the Plaintiff. This means that the Plaintiff must prove by the great[er] weight of the evidence that the Defendant was negligent and that such negligence was [the] proximate cause of the Plaintiff's injury.
As an initial matter, we note that the trial court's instructions in the instant case substantially follow N.C.P.I.-Civ. §§ 101.6 and 102.10 (2006). Furthermore, the trial court's instructions correctly placed the burden of proof on plaintiff to show by the greater weight of the evidence that defendants were negligent and that their negligence caused plaintiff's injury. Plaintiff presented sufficient evidence to make out a prima facie case, i.e., her evidence was sufficient to justify, but not to compel, an inference of liability, if the jury so found. Jones testified on direct that on 6 January 2009, he was operating the bus in the right-hand lane of U.S. Highway 64, traveling approximately 62 to 65 miles per hour, when he saw the tractor-trailer in his mirror. Jones denied swerving out of his lane and into the tractor-trailer's lane, and stated the tractor-trailer swerved into his lane and hit the bus.
Even though defendants did not present evidence, they were not required to rebut plaintiff's evidence. Plaintiff was the only party who presented evidence, and her evidence was sufficient to make out a prima facie case for negligence. However, this meant that plaintiff's evidence was sufficient to carry her case to the jury, not that the jury was required to believe her evidence. It was for the jury to decide if plaintiff's evidence was sufficient to carry her burden of proof to show by the greater weight of the evidence that defendants were negligent and that such negligence was the proximate cause of plaintiff's injury. The jury in the instant case decided that plaintiff was injured by the negligence of Barreto.
In addition, plaintiff argues that the jury's verdict was not determinative of whether defendants were not negligent, plaintiff was not injured, or defendants' negligence was not a proximate cause of plaintiff's injuries. However, at the trial conference, plaintiff objected to the inclusion of N.C.P.I. — Civ. §§ 101.6 and 102.10 because the trial court denied her motion for directed verdict on the issue of negligence. Plaintiff did not object to the inclusion of the instructions on the basis that the instructions had the capacity to render a verdict that was not determinative. Therefore, plaintiff did not properly preserve this portion of her argument for appeal, and we do not consider it.
[T]his Court has held that "the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions." In re Will of Leonard, 71 N.C. App. 714, 717, 323 S.E.2d 377, 379 (1984) (citation omitted). "Jury instructions in accord with a previously approved pattern jury instruction provide the jury with an understandable explanation of the law." Carrington v. Emory, 179 N.C. App. 827, 829, 635 S.E.2d 532, 534 (2006) (citation omitted).
Henry v. Knudsen, ___ N.C. App. ___, ___, 692 S.E.2d 878, 884 (2010). A thorough review of the trial transcript reveals that the trial court accurately instructed the jury on the relevant law of negligence, including the burden of proof. See Id. at ___, 692 S.E.2d at 884. Plaintiff's issue on appeal is overruled.
IV. JNOV AND NEW TRIAL
Plaintiff argues that the trial court erred in entering judgment and denying her motions for JNOV and a new trial because the judgment was contrary to the evidence and based upon erroneous and improper rulings by the trial court and erroneous and improper instructions of law. We disagree.
A. JNOV
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., ___ N.C. App. ___, ___, 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)).
"A motion for judgment notwithstanding the verdict is essentially a renewal of an earlier motion for directed verdict." Hodgson Constr., Inc. v. Howard, 187 N.C. App. 408, 411, 654 S.E.2d 7, 10 (2007) (citation and quotation marks omitted), disc. review denied, 362 N.C. 509, 668 S.E.2d 28 (2008). "When a judge decides that a directed verdict [or JNOV] is appropriate, actually he is deciding that the question has become one exclusively of law and that the jury has no function to serve."
Henry, ___ N.C. App. at ___, 692 S.E.2d at 884.
In the instant case, plaintiff argues that the jury's verdict was "clearly erroneous and contrary to the evidence" because the trial court "should not allow a jury to ignore all of the competent and credible evidence and render a Verdict that defies reason and good common sense." However, we have stated that the credibility of the evidence and the weight to be accorded to it is for the jury to determine. Horne, 157 N.C. App. at 687, 579 S.E.2d at 928. See, e.g., Williams v. Power Light Co., 296 N.C. 400, 403, 250 S.E.2d 255, 258 (1979) ("`Proximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.'") (quoting William L. Prosser, Torts § 45 (4th ed. 1971)). Furthermore, our appellate courts "presume[] that jurors follow the trial court's instructions." State v. Cummings, 352 N.C. 600, 623, 536 S.E.2d 36, 53 (2001). In addition, the trial court instructed the jury, without objection, as follows, "You may believe all or any part or none of that testimony." Therefore, we presume that in the instant case, the jury followed the trial court's instructions and determined that the evidence presented as to defendants' negligence was not credible and therefore chose to ignore it.
Furthermore, we have determined that the trial court properly denied plaintiff's motions for a directed verdict. Therefore, since "[a] motion for judgment notwithstanding the verdict is essentially a renewal of an earlier motion for directed verdict," Hodgson Constr., Inc., 187 N.C. App. at 411, 654 S.E.2d at 10, the trial court properly denied plaintiff's motion for JNOV.
B. New Trial
This Court applies an abuse of discretion standard of review when reviewing the denial of a motion for new trial. Garrison v. Garrison, 87 N.C. App. 591, 594, 361 S.E.2d 921, 923 (1987). A trial court's discretionary decision to deny or grant a new trial may be reversed on appeal "only when the record affirmatively demonstrates a manifest abuse of discretion." Id. This Court must determine whether the verdict represents an injustice and is against the greater weight of the evidence. See In re Will of Buck, 350 N.C. 621, 516 S.E.2d 858 (1999). Because "the trial court has directly observed the evidence as it was presented and the attendant circumstances, as well as the demeanor and characteristics of the witnesses," a trial court's ruling on a motion for new trial is given great deference. Id. at 628, 516 S.E.2d at 863.
Kummer v. Lowry, 165 N.C. App. 261, 263, 598 S.E.2d 223, 225 (2004). "`When rulings are committed to the sound discretion of the trial court[,] they will be accorded great deference and will not be set aside unless it can be shown that they were arbitrary and not the result of a reasoned decision.'" Overton v. Purvis, 162 N.C. App. 241, 245, 591 S.E.2d 18, 22 (2004) (quoting Albritton v. Albritton, 109 N.C. App. 36, 42, 426 S.E.2d 80, 84 (1993)).
In the instant case, plaintiff does not present any facts or evidence in her brief to show that the trial court abused its discretion in denying her motion for a new trial. Plaintiff merely states that "[g]iven the testimony, the evidence and the facts of this case, that [v]erdict cannot be supported." Plaintiff does not point to any particular portions of testimony, any particular evidence, or any specific facts of this case which would support a ruling by this Court that the trial court abused its discretion in denying plaintiff's motion for a new trial. Therefore, plaintiff has not met her burden of showing that the trial court's ruling was arbitrary and not the result of a reasoned decision. Plaintiff's issue on appeal is overruled.
V. COSTS
Plaintiff argues that the trial court erred in taxing costs to her. We disagree.
N.C. Gen. Stat. § 6-1 (2005) provides: "To the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this Chapter." N.C. Gen. Stat. § 7A-305 (2005), in turn, governs costs assessable in civil actions. With respect to negligence actions, costs "may be allowed or not, in the discretion of the court, unless otherwise provided by law." N.C. Gen. Stat. § 6-20 (2005).
Hoffman v. Oakley, 184 N.C. App. 677, 685, 647 S.E.2d 117, 123 (2007). "An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).
In the instant case, in support of plaintiff's position that the trial court abused its discretion in taxing the costs of the action to her, she merely "restates and incorporates" her arguments regarding the trial court's denial of her motions for directed verdict, JNOV, and new trial. However, we have held that the trial court properly denied plaintiff's motions for directed verdict, JNOV, and a new trial. In addition, the record shows that the trial court considered the items addressed in defendants' motions for costs and determined they were "well-taken" and should be allowed. Further, plaintiff does not point to any specific evidence that the trial court abused its discretion in allowing defendants' motion for costs. Therefore, plaintiff has not met her burden of showing that the trial court's ruling was arbitrary and not the result of a reasoned decision. Plaintiff's issue on appeal is overruled.
VI. CONCLUSION
The trial court properly denied plaintiff's motions for directed verdict, JNOV, and a new trial, and properly granted defendants' motion taxing costs to plaintiff. The trial court's orders are affirmed.
Affirmed.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).