Carrington v Depaoli, et al

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA11-1566 NORTH CAROLINA COURT OF APPEALS Filed: 18 September 2012 VICTOR LEE CARRINGTON, Plaintiff, v. Wake County No. 09 CVS 12130 JANET THERESA DEPAOLI and CHRISTOPHER FREDERICK DUNN, Defendants.1 Appeal by Plaintiff from judgment entered 16 August 2010 and orders filed 5 October 2010 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 15 August 2012. Ingram Law Plaintiff. Office, by John Randolph Ingram II, for Hall, Rodgers, Gaylord & Millikan, PLLC, by Jonathan E. Hall and Kathleen M. Millikan, for Defendant. STEPHENS, Judge. 1 The captions of the appealed-from judgment and orders list only Janet Theresa Depaoli as a defendant. However, the complaint was filed against both Janet Theresa Depaoli and Christopher Frederick Dunn and, along with various other documents in the record on appeal, including post-trial documents, has a caption reflecting such. Because there is no indication in the record before this Court that Christopher Frederick Dunn is no longer a party to the action, we include his name in the caption. -2Plaintiff Victor Lee Carrington commenced the present action by filing a complaint against Defendants Janet Theresa Depaoli and Christopher Frederick Dunn, alleging Depaoli was negligent in her operation of a vehicle owned by Dunn when she rear-ended Carrington s stopped vehicle. At trial, Depaoli stipulated operation that she was negligent in her of the vehicle, but denied that her negligence was a proximate cause of Carrington s injury. The case was tried before a jury on 27 and 28 July 2010 in Wake County Superior Court, the Honorable Paul G. Gessner presiding. The evidence presented at trial tended to show that on 19 April 2008, Carrington was stopped at a stoplight when Depaoli, operating Dunn s vehicle, rear-ended Carrington s vehicle. Shortly after, Carrington, complaining of lower back and left leg pain, went to the emergency room, where he was diagnosed with [b]ack [p]ain, [m]otor [v]ehicle [c]rash and prescribed medication for pain. On 21 April 2008, Carrington, complaining of neck and back pain and tingling and soreness in his left thigh, visited a chiropractor and was diagnosed with lower back spasm and tenderness. Symptoms unimproved, Carrington began visiting his personal physician in June 2008 and continued until August 2008, -3at which time an MRI revealed a herniated disc. Carrington was then referred to Dr. Joseph Minchew, an orthopedic surgeon, for evaluation. According to Dr. Minchew, Carrington s August MRI revealed some spinal canal narrowing conditions that were both congenital and degenerative in nature. Carrington underwent surgery on 18 December 2008 for his herniated disc. Following surgery, Carrington experienced lower back pain, which became progressively worse. An MRI performed on 17 March 2009 revealed a cyst at the surgery site. Minchew, Dr. Michael Haglund evaluated Upon referral by Dr. Carrington s performed removal surgery on 10 August 2009. cyst and As of 20 January 2010, Carrington was experiencing a significant improvement in symptoms and a return to moderate physical activity. The evidence further showed that, prior to the accident at bar, Carrington was involved in a rear-end collision in April 2002, after which he experienced back and neck pain. testified that he fully recovered from that Carrington collision by September 2002 and participated in several physical activities including running, tennis, and softball, symptom-free, in the approximately six years between recovery and the 2008 accident. Additionally, on 10 March 2008, Carrington fell down the stairs and hit his head on the sidewalk at his residence. Carrington -4testified to no back or leg injuries as a result, but did testimony of Dr. receive stitches on his forehead. Of primary interest on appeal is the Minchew, which tended to show that Carrington had certain preexisting back conditions at the time of the accident at issue. Carrington s counsel attempted to show that, despite these back conditions, Carrington was in ordinary physical condition before the 2008 accident, showing no signs or symptoms of back pain. Conversely, Defendants counsel contested the issue of proximate cause, attempting to show that Carrington s pre-existing conditions, even in the absence of the accident, could have caused his injury. Following presentation of the evidence, the jury returned a verdict in favor of Defendants, finding Depaoli s negligence was not a proximate cause of Carrington s injury. On 18 August 2010, Carrington filed a motion for a new trial, contending, inter alia, that the trial court improperly instructed the jury on Carrington s peculiar susceptibility on the issue of proximate cause. motion for costs. trial court denied Thereafter, Defendants filed a In separate orders filed 5 October 2010, the Carrington s motion granted Defendants motion for costs. for a new trial and Carrington appeals from -5those orders, as well as the trial court s judgment entered upon the jury s verdict.2 On appeal, Carrington first argues that the trial court erred by instructing the jury on peculiar susceptibility. The pertinent portion of the challenged instruction is as follows: In deciding [whether] the injury to [Carrington] was a reasonably foreseeable consequence of [Depaoli s] negligence you must determine whether such negligent conduct under the same or similar circumstances could reasonably have been expected to injure a person of ordinary physical condition. If so, the harmful consequences resulting from [Depaoli s] negligence would be reasonably foreseeable, and therefore would be a proximate cause of [Carrington s] injury. If not, the harmful consequences resulting from [Depoali s] negligence would not be reasonably foreseeable, and therefore would not be a proximate cause of [Carrington s] injury. Carrington contends that this instruction was erroneous because it was not supported by the evidence. A trial court s instruction on We disagree. the issue of peculiar susceptibility is not erroneous if the evidence, when viewed in the light most favorable to the proponent, supports a reasonable inference of the existence of peculiar susceptibility. Wooten v. Warren, 117 N.C. App. 350, 358, 451 S.E.2d 342, 347 (1994). 2 Dunn did not file a brief on appeal. -6Further, this peculiar susceptibility condition Court aggravates has held is an that a warranted injury jury where suffered instruction on pre-existing the by a plaintiff. Hughes v. Webster, 175 N.C. App. 726, 730, 625 S.E.2d 177, 181 (citation S.E.2d omitted), 816 (2006). disc. review [W]here denied, a 360 N.C. pre-existing [] 533, 633 physical condition is aggravated or enhanced by a defendant s negligence, the defendant is liable only to the extent that the underlying condition is enhanced and not for damages attributable to the original condition. Holtman v. Reese, 119 N.C. App. 747, 74950, 460 S.E.2d 338, 341 (1995) (citation omitted). In this case, regarding Carrington s pre-existing back conditions stenosis, facet athrosis, and canal narrowing Dr. Minchew testified, in pertinent part: [Defendants counsel:] And all these conditions were present prior to this motor vehicle accident in April of 2008? [Dr. Minchew:] Almost assuredly, yes. [Defendants counsel:] They re all either age-related or congenital? [Dr. Minchew:] Correct. [Defendants counsel:] And each of them taken alone can lead to pain symptoms similar to those [] Carrington experienced? [Dr. Minchew:] Correct. [Defendants counsel:] And certainly a combination of them could, as well? [Dr. Minchew:] Correct. [Defendants counsel:] And according to -7your prior testimony in this case, it would not surprise you, would it, if someone with the same combination of underlying congenital and age-related issues experienced pain symptoms similar to those [] Carrington complained of regardless of whether or not they ever had a motor vehicle accident? [Dr. Minchew:] Correct. [Defendants counsel:] And in [] Carrington s case in particular, putting aside any motor vehicle accidents or falls that he may have had, and just looking at his underlying age-related and congenital issues, . . . you can t predict one way or the other if he would have ultimately have had the exact same complaints . . . or ultimately w[ound] up having the same type of surgery; is that correct? [Dr. Minchew:] [Y]ou re absolutely--you re absolute correct. As Carrington s back conditions pre-existed the accident, and raised an issue regarding the proximate cause of Carrington s injury, the warranted. instruction on peculiar susceptibility was Dr. Minchew stated that Carrington s injury could occur acutely after his prior collision in 2002 or his fall in 2008. Additionally, even if those prior incidents did not cause the injury, either or both could contribute to an acute injury years later. Similar to the case at bar, in Taylor v. Ellerby, 146 N.C. App. 56, 552 S.E.2d 667 (2001), an instruction on peculiar susceptibility was warranted after the presentation of evidence -8contesting proximate cause of the plaintiff s knee injury following an automobile collision. Id. at 66, 552 S.E.2d at 673. The plaintiff s physician testified that (1) an injury of her sort would typically cause immediate pain, (2) the wear and tear to her knee was somewhat greater than average, and (3) she was born with a pre-existing knee condition which could, on its own, cause the pain reported. Taylor, 146 N.C. App. at 61, 522 S.E.2d at 670-71. In this case, Dr. Minchew noted that disc herniation the actual tearing of the disc fibers is an acute and severely painful event in most cases, but age-related changes occurring over many years can lead to an acute herniation. As such, Dr. Minchew was not certain whether the herniation occurred abruptly due to trauma or due to years of age-related changes that slowly weakened the Carrington s accident disc back which fibers. suffered could be Dr. wear Minchew and tear categorized as also stated that pre-existing the unhealthy, and Carrington s pre-existing back conditions, absent trauma, could have caused Carrington s injury. Nevertheless, Carrington contends the instruction was not warranted because (1) Carrington s condition was not peculiar or abnormal and (2) Carrington did not suffer any pain or -9injury related accident. to his pre-existing conditions prior to the However, neither of these circumstances is required to warrant the instruction given. First, Carrington s argument incorrectly interprets the use of peculiar susceptibility as rather indicating than a merely plaintiff a has a peculiar condition pre-existing condition. Carrington tried to demonstrate that his conditions were not abnormal or peculiar, but never contested their preexisting nature. plaintiff have As stated, the requirement is only that a a pre-existing condition, not necessarily an abnormal or peculiar one. See Hughes, 175 N.C. App. at 730, 625 S.E.2d at 181. Second, Carrington incorrectly contends that to warrant the peculiar susceptibility instruction, he must have suffered some pain or injury related to the pre-existing condition prior to the 2008 accident. for Proximate Carolina However, in footnote 1 to the instruction Cause-Peculiar Pattern Jury Susceptibility, Instructions for Civil the Cases North defines injury as including all legally recognized forms of personal harm, including aggravation of activation an existing or reactivation condition. (gen. civ. vol. 1998) (emphasis added). of a disease N.C.P.I. Civ. or 102.20 Thus, to warrant the -10instruction, the plaintiff need not have a condition that was re-activated or aggravated. Instead, that simply have been activated for the first time. no need for evidence showing that condition could Thus, there was Carrington s pre-existing condition had caused him pain prior to the 2008 accident. In sum, the evidence, viewed in the light most favorable to Defendants, sufficiently shows have been caused by a that Carrington s injury could pre-existing physical therefore, the jury instruction was warranted. condition and, The trial court did not err, and Carrington s argument is overruled. Carrington next argues that the trial court erred in denying his motion for a new trial on grounds that the jury manifestly disregarded the instructions of the trial court and the jury s award of no damages was a manifest injustice. A motion for a new trial is addressed to the sound discretion of the trial judge, whose ruling, absent abuse of discretion, shall not be disturbed on appeal. Yeargin v. Spurr, 78 N.C. App. 243, 246, 336 S.E.2d 680, 681 (1985). For each argument, Carrington similarly contends that because (1) Depaoli stipulated she was negligent, (2) Carrington was not contributorily negligent, and (3) Carrington was of -11ordinary physical condition, the jury s award of no damages and the trial court s denial of a new trial was error. We disagree. As discussed supra, given the evidence of Carrington s preexisting physical condition, which contested the issue of proximate cause, the jury instruction on peculiar susceptibility was warranted. Depaoli s As such, the jury was justified in finding that negligence was not a proximate cause despite her stipulation that she was negligent and absent evidence of any negligence on Carrington s part. See Smith v. Price, 315 N.C. 523, 530-31, 340 S.E.2d 408, 413 (1986) (holding that a jury is free to draw its own conclusions about the credibility of the witnesses and the weight to accord the evidence ); see also Taylor, 146 N.C. App. at 61-62, 552 S.E.2d at 671 (upholding the trial court s ruling in favor of the jury s verdict for the defendant [d]ue to the conflicting nature of the evidence on causation ). Nevertheless, Carrington argues that because he suffered injury and incurred medical expenses, the jury s verdict and the trial court s denial of his motion for a new trial were contrary to all evidence. Carrington incorrectly jury s verdict said no injury. verdict finding no injury. contends that the The jury did not return a Rather, the jury found that -12Carrington was not injured as a result of Depaoli s negligence. Cf. Taylor, 146 N.C. App. at 58, 552 S.E.2d at 669 (noting that the jury s verdict did not find no injury, only that the plaintiff was not injured by the defendant s negligence). Due to the contested nature of proximate cause, the evidence did support the jury s verdict and award of no damages. the trial court did not abuse its discretion As such, in denying Carrington s motion for a new trial. Carrington denying his also motion argues that the trial for new trial on a court the erred ground in that Defendants counsel improperly told the jury in closing argument that it could consider which Carrington their deliberations. combined with Carrington s contends meant Carrington previous alternative his homosexual argues arguments on that lifestyle, lifestyle, this Carrington s in statement, ordinary physical condition, shows the jury s award of no damages was actuated by bias or prejudice against homosexuals. The alleged improper statements, if true, are certainly irrelevant to the issues raised by this case and are highly inappropriate. However, because the closing arguments were not transcribed and included in the record, this Court is precluded from addressing Carrington s contention. Heatherly v. Indus. -13Health Council, 130 N.C. App. 616, 624, 504 S.E.2d 102, 108 (1998); see also N.C. R. App. P. 9(a) ( In appeals . . . review is solely upon the record on appeal, the verbatim transcript of the proceedings . . . and any other items filed . . . . ). This Court cannot assume or speculate that there was prejudicial error when none appears on the record before it. State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (1985), disc. review denied, 315 N.C. 188, 337 S.E.2d that, because 862 (1985). Carrington s argument is overruled. Finally, Carrington contends the jury was improperly instructed, acted in disregard of the trial court s instructions, against and returned homosexuality, the a verdict trial that court s reflected award of a bias costs to Defendants was improper. This Court reviews the reasonableness and for necessity of costs abuse of discretion. Peters v. Pennington, __ N.C. App. __, __, 707 S.E.2d 724, 741 (2011). Section 6-1 of the North Carolina General Statutes states that [t]o the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this Chapter. Stat. § 6-1 recoverable (2011). costs: The witness following, fees, among counsel fees, N.C. Gen. others, expense are of service of process, mediator fees, deposition fees, and fees -14covering the time of expert witnesses. N.C. Gen. Stat. § 7A305(d) (2011). Defendants submitted a verified motion documenting recoverable costs incurred. Nothing in the record indicates the trial court abused its discretion in granting Defendants motion for costs. supported by the foregoing conclusion that the This is trial court properly instructed the jury on peculiar susceptibility due to Carrington s pre-existing back conditions proximate cause of Carrington s injury. and the contested Therefore, the jury was free to decide Depaoli s negligence was not a proximate cause of Carrington s injury. Because the verdict in favor of Defendants was permissible, so too was the award of costs to Defendants pursuant to N.C. Gen. Stat. § 6-1. Carrington s argument is overruled. Based on the foregoing, we find no error at trial or in the trial court s orders denying Carrington s motion for a new trial and awarding costs to Defendants. NO ERROR at trial; post trial orders AFFIRMED. Judges BRYANT and THIGPEN concur. Report per Rule 30(e).

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