Trivett
v.
Stine

Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of North Carolina.May 1, 2012
725 S.E.2d 473 (N.C. Ct. App. 2012)

No. COA11–1339.

2012-05-1

Heidi Dawn TRIVETT, Plaintiff, v. Ruby W. STINE, Administratrix of the Estate of Lorrie Ann Zook, and Christine Owen, Administratrix of the Estate of Christopher W. Rawlings, Jr., Defendants.

The Law Office of Colon & Associates, PLLC, by Arlene L. Velasquez–Colon, for Plaintiff–Appellant. Haywood, Denny & Miller, L.L.P., by George W. Miller, III, for Defendants–Appellees.


Appeal by Plaintiff from orders entered 17 February 2011 and 1 March 2011 by Judge Henry W. Hight, Jr. in Granville County Superior Court. Heard in the Court of Appeals 21 March 2012. The Law Office of Colon & Associates, PLLC, by Arlene L. Velasquez–Colon, for Plaintiff–Appellant. Haywood, Denny & Miller, L.L.P., by George W. Miller, III, for Defendants–Appellees.
BEASLEY, Judge.


Heidi Dawn Trivett (Plaintiff) appeals from a 17 February 2011 order finding her contributorily negligent and a 1 March 2011 order denying her motion for judgment notwithstanding the verdict or a new trial. For the following reasons, we affirm the trial court's orders.

This action originates out of a car accident that occurred on or about 25 April 2009. Plaintiff was a passenger in a car that was driven by Christopher W. Rawlings, Jr. (Rawlings). The car Rawlings drove was owned by Lorrie Ann Zook (Zook), who was also riding in the car as a passenger. The car ran off the right side of the road and collided into a ditch, flipping over several times. Rawlings and Zook were thrown from the car and pronounced dead at the scene, while Plaintiff survived but sustained severe bodily injuries. Prior to the accident, Plaintiff and the decedents had spent the evening together at the home of Plaintiff's ex-sister-in-law, Kelly Trivett (Kelly), and later at the Granville County drag strip watching drag races. During the evening, Plaintiff, Zook, and Kelly all had several drinks and Plaintiff admits that she was under the influence of intoxicating substances. After deciding to leave the drag strip, the group planned to return to Kelly's. Plaintiff got into Zook's car with Rawlings and Zook, and it was during this car ride that the accident occurred.

On 23 October 2009, Plaintiff filed a complaint, naming Ruby W. Stine, Administratrix of the Estate of Zook as Defendant, and alleging that her injuries were the result of Rawlings' negligent driving imputed to Zook as owner and occupant of the vehicle at the time of the accident. On 13 May 2010, Plaintiff amended her complaint to add Christine Owen, Administratrix of the Estate of Rawlings, as an additional defendant (Defendant Stine and Defendant Owen will collectively be referred to as Defendants). Defendants, in their respective answers, both asserted the affirmative defense of contributory negligence on the part of Plaintiff. A Granville County jury returned a verdict finding, inter alia, that Plaintiff was contributorily negligent. An order reflecting that verdict and dismissing the case was entered on 17 February 2011 by the Honorable Henry W. Hight, Jr. Plaintiff filed a motion for judgment notwithstanding the verdict and in the alternative for a new trial on 22 February 2011 and that motion was denied on 1 March 2011. On 30 March 2011, Plaintiff filed notice of appeal.

I.

Plaintiff first argues that the trial court erred by denying her motion for a directed verdict on the issue of her contributory negligence. We disagree.

“A motion for a directed verdict tests the legal sufficiency of the evidence to take the case to the jury and supports a verdict for the plaintiff.” Osetek v. Jeremiah, 174 N.C.App. 438, 443, 621 S.E.2d 202, 206 (2000). “In the case of an affirmative defense, such as contributory negligence, a motion for directed verdict is properly granted against the defendant where the defendant fails to present more than a scintilla of evidence in support of each element of his defense.” Snead v. Holloman, 101 N.C.App. 462, 464, 400 S.E.2d 91, 92 (1991). While evaluating a motion for a directed verdict, “the evidence should be considered in the light most favorable to the nonmoving party, and such party should be given the benefit of all reasonable inferences.” Id. It is important to note that “since negligence usually involves issues of due care and reasonableness of actions under the circumstances, it is especially appropriate for determination by the jury. In ‘borderline cases,’ fairness and judicial economy suggest that courts should decide in favor of submitting issues to the jury.” Radford v. Norris, 74 N.C.App. 87, 88–89, 327 S.E.2d 620, 621–22 (1985) (citations omitted).

In order for a defendant to succeed in the affirmative defense of contributory negligence against a passenger in cases such as this, three elements must be shown:

(1) the driver was under the influence of an intoxicating beverage; (2) the passenger knew or should have known that the driver was under the influence of an intoxicating beverage; and (3) the passenger voluntarily rode with the driver even though the passenger knew or should have known that the driver was under the influence of an intoxicating beverage.
Watkins v. Hellings,
321 N.C. 78, 80, 361 S.E.2d 568, 569 (1987). Plaintiff does not contest that Rawlings was under the influence of an intoxicating beverage-indeed his blood alcohol level was found to be 0.11 and the legal limit is 0.08. Plaintiff's argument instead focuses on the second and third prongs of this defense.


In order to establish the second prong of contributory negligence, Defendants offered evidence that when Rawlings arrived at Kelly's house, he asked if she had any beer, when she did not, he asked another member of the group, Daniel Newton, to take him to buy some, and he left with Newton and returned with a case of beer. Defendants further showed that Rawlings drank a beer at Kelly's in the presence of everyone else at the gathering, including Plaintiff, and that Rawlings drank three or four additional beers at the racetrack in front of the group. In support of the third prong, that Plaintiff voluntarily rode with Rawlings despite knowledge that he was under the influence, Defendants emphasize Plaintiff's own testimony that she could have ridden home from the racetrack with either Newtown or her sister Crystal, both of whom were sober, but instead chose to ride with Rawlings. Additionally, Defendants point to Crystal's testimony that when she spoke to Plaintiff on the ride home twice via phone, Plaintiff was not passed out or unconscious, but was laughing and talking.

Although Plaintiff contends that Rawlings was not appreciably impaired or under the influence and that she spent very little time in Rawlings' presence that evening and thus did not see him drink beer, that argument is unavailing. In determining whether a direct verdict is appropriate here, “we must ... disregard the evidence of the plaintiff except insofar as it tends to show negligence by the plaintiff as alleged in the answer.” Jones v. Elwood, 268 N.C. 381, 384, 150 S.E.2d 759, 762 (1966).

Plaintiff also alleges that Defendants' evidence amounts to “mere conjecture” and thus cannot support denial of a directed verdict. This argument is also without merit. In order to show the required “scintilla” of evidence to send the issue to the jury, Defendants must produce “evidence from which the inference of contributory negligence may be drawn by men of ordinary reason....” Id. The foregoing evidence, construed in the light most favorable to Defendants, amounts to more than a “scintilla” of proof of each element of contributory negligence, and supports an inference of contributory negligence on the part of Plaintiff. That fact, coupled with courts disfavoring directed verdicts in negligence cases, makes it clear that the trial court's denial of Plaintiff's motion was not in error and accordingly should be affirmed.

II.

Plaintiff next argues that the trial court erred in denying her motion in limine to exclude evidence that she smoked marijuana on the evening of the accident. We disagree.

“A motion in limine seeks pretrial determination of the admissibility of evidence proposed to be introduced at trial, and is recognized in both civil and criminal trials. The trial court has wide discretion in making this advance ruling and will not be reversed absent an abuse of discretion.” Heatherly v. Industrial Health Council, 130 N.C.App. 616, 619, 504 S.E.2d 102, 105 (1998) (internal quotation marks and citations omitted). “An abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Peterson, 361 N.C. 587, 602, 652 S.E.2d 216, 227 (2007) (internal quotation marks, brackets, and citations omitted).

The parties disagree as to whether this issue was properly preserved for appeal, but assuming arguendo that it was preserved, we find Plaintiff's argument without merit. Plaintiff argued that evidence that she smoked an illegal marijuana cigarette would have a prejudicial effect on the jury, but the trial court denied the motion stating: “If she did this within a reasonable time before this—before the wreck occurred this impacts on her ability to recall and relate the facts of the wreck. That motion is denied.” The trial court's articulated reason for denying the motion is reasonable and thus the trial court did not abuse its discretion.

III.

Plaintiff also argues that the trial court erred in not allowing her to amend her complaint to include an allegation of Christopher Rawlings Jr.'s gross negligence. We disagree.

Pursuant to N.C. Gen.Stat. § 1A–1, Rule 15(a) (2011), a party may amend his pleading after a responsive pleading has been served “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” This Court has stated that “proper reasons for denying a motion to amend include undue delay by the moving party and unfair prejudice to the nonmoving party.” Delta Env. Consultants of N.C. v. Wysong & Miles Co., 132 N.C.App. 160, 166, 510 S.E.2d 690, 694 (1999). A motion to amend “is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent proof that the judge manifestly abused that discretion. Where the court's reason for denying leave to amend is not stated in the record, this Court may examine any apparent reasons for such denial.” Walker v. Sloan, 137 N.C.App. 387, 402, 529 S.E.2d 236, 247 (2000) (internal quotation marks and citations omitted).

Here, Defendants argued that Plaintiff's attempt to amend her complaint on Friday, 4 February 2011, when the trial began on Monday, 7 February 2011, constituted “unfair surprise.” The trial court denied Plaintiff's motion without stating a specific reason for the denial. Given that Defendants' argument is premised on Plaintiff waiting until three days prior to trial to amend, we must determine if the trial court's denial is justified by “undue delay.” Plaintiff filed her original complaint, which named only Defendant Stine, on 23 October 2009. Defendant Stine filed an answer on 30 December 2009. Plaintiff's amended motion, which named all present Defendants, was filed on 13 May 2010. Defendant Owen filed an answer to the amended complaint on 14 July 2010. The contested motion to amend was filed on 4 February 2011, approximately seven months after Defendant Owen's answer was filed.

This Court has previously found that a trial court's denial of a motion to amend was not an abuse of discretion where the plaintiff waited approximately three months to seek to amend a complaint without explaining the reason for the delay. See id. (upholding a court's order denying plaintiff's motion to amend where defendants answer was filed 28 February 1998 and plaintiffs moved to amend their complaint on 14 May 1998). In the case sub judice, Plaintiff waited more than twice the number of months than the Walker plaintiff and similarly did not offer a reason for the delay. Therefore, we affirm the trial court's denial of Plaintiff's motion to amend.

IV.

Finally, Plaintiff argues that the trial court erred in denying her motion for judgment notwithstanding the verdict and, in the alternative, a new trial. Again, we disagree.

N.C. Gen.Stat. § 1A–1, Rule 50(b)(1) (2011) provides the procedure for a motion for judgment notwithstanding the verdict (JNOV):

Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.... A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
Because “[a] motion for judgment notwithstanding the verdict is technically a renewal of a motion for a directed verdict” it follows that “[t]he test for determining the sufficiency of the evidence when ruling on a motion for judgment notwithstanding the verdict is the same as that applied when ruling on a motion for directed verdict.” Northern Nat'l Life Ins. v. Miller Machine Co ., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984). As set forth in Section I, infra, there was sufficient evidence before the trial court to establish Plaintiff was contributorily negligent. Thus, the trial court did not err in denying Plaintiff's motion for a JNOV.


Plaintiff's motion for JNOV also included an alternative motion for a new trial under N.C. Gen.Stat. § 1A–1, Rule 59 (2011). Our Supreme Court has stated that “a trial judge's discretionary order pursuant to G.S. 1A–1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.” Worthington v. Bynum, 305 N.C. 478, 484, 290 S.E.2d 599, 603 (1982). As stated above, there was sufficient evidence to support a finding that Plaintiff was contributorily negligent and therefore the trial court did not abuse its discretion in denying Plaintiff's motion for a new trial.

Affirmed. Judges BRYANT and HUNTER, JR. concur.


Report per Rule 30(e).