Filed March 4, 2008.
Montgomery County No. 01CVS274.
Appeal by plaintiff from judgment entered 19 February 2005, and order entered 18 July 2005, by Judge Edwin G. Wilson, Jr., in Montgomery County Superior Court. Heard in the Court of Appeals 29 October 2007.
Poisson, Poisson Bower, PLLC, by E. Stewart Poisson and Fred D. Poisson, Jr., for plaintiff. Paul B. Hlad for defendants.
Jilinda H. Freeman (plaintiff) appeals a judgment entered 19 February 2005 after a jury trial. The jury found that plaintiff was injured by the negligence of Keith Bullard (defendant Bullard), Underground Utility Locating, Inc., and Central Locating Service, Ltd. (collectively, defendants). The judgment dismissed plaintiff's negligence claim after the jury found that she contributed to her injury by her own negligence.
Plaintiff also appeals an order entered 18 July 2005 denying her motion for a new trial. For the reasons stated below, we affirm the judgment and order of the trial court.
On 22 July 1998, plaintiff was driving north on a two-lane stretch of Highway 52. Plaintiff noticed a white pick-up truck traveling in the southbound lane. Suddenly, the white truck veered off the side of the road, nearly going over a steep embankment on the shoulder of the road. The driver of the white truck, defendant Bullard, jumped out of the truck. Plaintiff and the driver of another vehicle pulled over to the side of the road and exited their vehicles to check on defendant Bullard. Defendant Bullard was fine, but the front of his truck was at the edge of the embankment. Defendant Bullard estimated that the embankment was a forty-foot drop at an angle of eighty to eight-five degrees. He said that he skidded on a patch of sand on the road, causing his truck to slide off the side of the road. The left rear wheel was off the ground. Somebody — neither plaintiff nor defendant Bullard remembers who — suggested putting weight on the back of the truck to push the wheel to the ground. Plaintiff and the third driver climbed into the back of the truck, and defendant Bullard entered the cab and tried to back up the truck. The third driver was standing on the rear bumper, and plaintiff was standing in the bed of the truck over the left wheel well.
Defendant Bullard stated during his deposition that he did not ask plaintiff to climb into the truck bed and that she did so on her own. Plaintiff stated during her deposition that defendant Bullard jumped out, and just I don't remember exactly what he said but I know he scared me and told me to jump in some way, and so I did what he told me to do, I jumped. The next thing I know I'm on the ground with a lot of pain.
Plaintiff landed on her feet, but apparently locked her knees, causing them to shatter. She underwent seven corrective surgeries and ultimately had both knees replaced. She was thirty-one years old at the time of the accident.
According to defendant Bullard, he approached plaintiff, reached up his hands, and said, "How about getting out of the back of the truck and step down to the tire and get on the ground." He stated that he did not raise his voice when he spoke to plaintiff, and that she grabbed his hands and jumped out of the truck bed directly to the ground.
At trial, plaintiff asked for a jury instruction on "Reactive Response Avoiding Contributory Negligence." The requested instruction states:
If the Plaintiff spontaneously or automatically reacts by being scared by Defendant Bullard where a reasonable person under similar circumstances would have responded in a similar way, the reaction of the Plaintiff is not the result of a considered choice. This applies where Defendant Bullard knew or should have known that his conduct could or might so scare Plaintiff into making a spontaneous or instinctive reaction. See Williamson v. Bennett, 251 N.C. 498, 504, 112 S.E.2d 48, 52 (1960) [sic].
The trial judge did not give the requested instruction, and instead gave the following Pattern Jury Instruction for the "Doctrine of Sudden Emergency":
In this case, the Defendant contends and the Plaintiff denies that the Plaintiff was negligent in one or more of the following ways. That she failed to exercise reasonable care to act in a manner so as to ensure her own safety. That she failed to exercise reasonable care to remove herself from a perilous situation when it was known to her or with the exercise of reasonable care should have been known to her that such perilous condition existed and that she was otherwise careless and negligent.
Plaintiff first argues that the trial court erred by failing to read her proffered jury instruction. We disagree.
We review a trial court's decision not to give a requested jury instruction for abuse of discretion. State v. Gladden, 168 N.C. App. 548, 554, 608 S.E.2d 93, 97 (2005). "[P]laintiff must demonstrate that (1) the requested instruction was a correct statement of law and (2) was supported by the evidence, and that (3) the instruction given, considered in its entirety, failed to encompass the substance of the law requested and (4) such failure likely misled the jury." Liborio v. King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274 (2002) (citation omitted).
Plaintiff argues that her proposed instruction "correctly states the law on physical injury resulting from fright caused by a defendant's negligent conduct in North Carolina." She states that the instruction's first sentence "addresses the concept of automatic reactive response. Fainting is an example of an automatic reactive response." She then cites to Williamson v. Bennett, 251 N.C. 498, 504, 112 S.E.2d 48, 52 (1960), in support of her contention. Williamson does not address this issue, and certainly does not support plaintiff's claim that her proposed instruction offers a correct statement of law. In Williamson, a woman was involved in a car collision, but walked away without physical injury. Id. at 502, 112 S.E.2d at 51. However, she suffered an intense fright during the accident because she feared that she had killed a child riding a bicycle, rather than collided with another car (the other driver also walked away unscathed). Id. Over time, she developed emotional difficulties and physical symptoms, which a psychotherapist attributed to a "conversion reaction." Id. She sought damages from the other driver for these injuries resulting from her "conversion reaction." Id. at 503, 112 S.E.2d at 51. Our Supreme Court determined
A search for the term "automatic reactive response" provided no results, even when the search was expanded beyond North Carolina cases to every federal and state case. Plaintiff offers no authority for this term.
The defendant was under no duty to anticipate or to take precautions against a mere possibility that plaintiff or other persons might imagine a state of facts that did not exist. The thing that plaintiff feared might have happened on this occasion is entirely remote from what actually did happen. And it was the imaginary thing, not the real occurrence, that caused the fright, neurosis and conversion reaction. Defendant is responsible only for the proximate result of her conduct, that is, for the damage caused by what actually did happen. Id. at 507, 112 S.E.2d at 55. Our Supreme Court has questioned Williamson, see Johnson v. Ruark Obstetrics, 327 N.C. 283, 299-300, 395 S.E.2d 85, 94-95 (1990) (disapproving a reading of Williamson requiring physical injury, in addition to mental or emotional injury, to sustain a claim for negligent infliction of emotional distress) but its concerns are irrelevant to this case because nothing in Williamson suggests, much less supports, fright as a complete defense to contributory negligence.
The other cases offered by plaintiff in support of this argument are likewise inapplicable to the case at hand. In Slaughter v. Slaughter, 264 N.C. 732, 736, 142 S.E.2d 683, 686-87 (1965), our Supreme Court upheld a jury verdict that a man was negligent for setting off firecrackers by the window of his elderly mother with the express intention of frightening children in his mother's care. He intended his actions as a practical joke, but his mother heard the firecrackers as gunshots and fell to the ground attempting to avoid them, thereby breaking her hip. Id. at 734, 736, 142 S.E.2d at 685, 687. There was no question of contributory negligence by the mother. In Kirby v. Stores Corp., 210 N.C. 808, 188 S.E. 625 (1936), our Supreme Court upheld a jury verdict in favor of a pregnant woman who gave birth to a premature stillborn baby after being frightened by an aggressive debt collector. Id. at 809, 813, 188 S.E. at 625, 628. The jury found that the debt collector had been negligent in his actions and proximately caused the stillborn birth. Id. at 809, 188 S.E. at 625-26. There was no question of contributory negligence by the pregnant woman. In Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778 (1906), rev'd on other grounds, Johnson, 327 N.C. at 295, 395 S.E.2d at 92, the defendant was negligently blasting rock with dynamite on the outskirts of Asheville, approximately 175 yards from the plaintiff's house. 143 N.C. at 401, 55 S.E. at 779. A piece of rock from one of the blasts crashed through the roof of the pregnant plaintiff's home, and although it did not strike her, it frightened her and she nearly miscarried. Id. at 403, 55 S.E. at 780. The Supreme Court determined that the injury was foreseeable, even though the defendant did not know that the home's inhabitant was pregnant, because "he or his agents knew it was a dwelling-house and that in well-regulated families such conditions occasionally exist." Id. at 402, 55 S.E. at 780. Again, there was no question of contributory negligence.
Plaintiff has not shown that the requested jury instruction was a correct statement of law, and, therefore, we hold that it was not an abuse of discretion for the trial court to deny plaintiff's request.
Plaintiff next argues that the trial court erred by failing to grant her motion for new trial. She reasons that the trial court committed prejudicial error by not reading her proposed jury instruction on "Reactive Response Avoiding Contributory Negligence," and that the prejudicial error is grounds for a new trial. Having just determined that the trial court did not err by denying plaintiff's request for the proposed jury instruction, it follows that the trial court did not abuse its discretion by failing to grant plaintiff's motion for a new trial.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
Report per Rule 30(e).