{ "id": 8524377, "name": "ERVIN JAY GOODMAN, Plaintiff v. CARL JOSEPH CONNOR, JR. and MELISSA A. McNEILL, Defendants", "name_abbreviation": "Goodman v. Connor", "decision_date": "1994-11-15", "docket_number": "No. 9313SC1297", "first_page": "113", "last_page": "118", "citations": [ { "type": "official", "cite": "117 N.C. App. 113" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "44 ALR2d 1342", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "15 ALR2d 1165", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "349 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739979, 4732816, 4733875, 4737621, 4732215 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0416-02", "/nc/318/0416-03", "/nc/318/0416-01", "/nc/318/0416-04", "/nc/318/0416-05" ] }, { "cite": "345 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "444" }, { "page": "443-44", "parenthetical": "directed verdict inappropriate where contradictory evidence over whether odor of alcohol or appearance of intoxication at time of accident" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358386 ], "weight": 2, "pin_cites": [ { "page": "130-31" }, { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0126-01" ] }, { "cite": "219 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "219", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "288 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569639 ], "year": 1975, "pin_cites": [ { "page": "455", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0447-01" ] }, { "cite": "254 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547937 ], "year": 1979, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0107-01" ] }, { "cite": "435 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520691 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0181-01" ] }, { "cite": "361 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "569" } ], "opinion_index": 0 }, { "cite": "321 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572852 ], "year": 1987, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0078-01" ] }, { "cite": "285 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568730, 8568807, 8568767 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0393-01", "/nc/304/0393-03", "/nc/304/0393-02" ] }, { "cite": "280 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520085 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0147-01" ] } ], "analysis": { "cardinality": 585, "char_count": 10570, "ocr_confidence": 0.75, "pagerank": { "raw": 2.770098376565909e-07, "percentile": 0.8342669784995187 }, "sha256": "7b0e8f49cc58784f78eea6a97f6fbbfcc65cc1d902cb258a18f7b62f71737f10", "simhash": "1:2b4ee916766d845b", "word_count": 1679 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and GREENE concur." ], "parties": [ "ERVIN JAY GOODMAN, Plaintiff v. CARL JOSEPH CONNOR, JR. and MELISSA A. McNEILL, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nOn 18 February 1992, plaintiff was injured while riding as a passenger in a truck driven by defendant Connor and owned by defendant McNeill. Plaintiff filed this action seeking money damages for his injuries. The trial court granted summary judgment for defendants on 30 August 1993.\nThe evidence reveals that plaintiff and defendant had been drinking together on the afternoon of 18 February 1992 when they decided to drive to South Carolina. Plaintiff and defendant disagree as to how much they drank that afternoon. According to plaintiff, they purchased a fifth of bourbon and each had two bourbons and Coke containing one ounce of alcohol each. Defendant, on the other hand, contends that they drank a pint of liquor and then bought a fifth of bourbon and drank it. Plaintiff and defendant then decided to drive to South Carolina to visit two sisters. Defendant lost control when the truck hit water in the road, skidded, and ran into some trees.\nOn appeal, plaintiff contends genuine issues of material fact exist regarding plaintiffs alleged contributory negligence. Plaintiff also contends the court erred in denying the admission of three affidavits into evidence. We will address the second issue first.\nPlaintiff contends the court erred in sustaining defendant\u2019s objection to three affidavits submitted by plaintiff: the affidavits of plaintiff, Trooper Jimmy Ray Williams, and Linda Proctor, the clerk of superior court. The trial court upheld defendant\u2019s objections to the affidavits on the basis of untimely service. We find it unnecessary to resolve the issue of whether the affidavits were timely served, because we find that their exclusion was not prejudicial to plaintiff\u2019s case. The exclusion of affidavits is not prejudicial if they could have no material bearing on any issues or if they could not alter the rights of the parties or affect the result of the proceedings. See Ziglar v. E.I. DuPont de Nemours & Co., 53 N.C. App. 147, 280 S.E.2d 510, disc. review denied, 304 N.C. 393, 285 S.E.2d 838 (1981).\nPlaintiff himself concedes in his brief to this Court that his own affidavit was merely cumulative and added nothing to the record. The affidavits of Trooper Williams and Linda Proctor only state that defendant was convicted of careless and reckless driving. We believe that the offense of which defendant was eventually convicted has no bearing on the issue of plaintiff\u2019s contributory negligence at the time of the accident. We conclude that the exclusion of the affidavits was not prejudicial.\nIn his other assignment of error plaintiff contends that there are genuine issues of material fact regarding the allegations of his contributory negligence. In cases involving the issue of the contributory negligence of a passenger for agreeing to ride in an automobile operated by an intoxicated person, the elements to be proved are: \u201c(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 . . .; 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.\u201d Watkins v. Hellings, 321 N.C. 78, 80, 361 S.E.2d 568, 569 (1987). Plaintiff argues that the question of his contributory negligence should have gone to the jury, because factual issues exist as to the condition of defendant Connor at the time of the accident and whether or not plaintiff knew or should have known of Connor\u2019s condition.\nOn a motion for summary judgment we must view the evidence in the light most favorable to the nonmovant. Marlowe v. Clark, 112 N.C. App. 181, 435 S.E.2d 354 (1993).\n[O]nce the defending party forecasts evidence which will be available to him at trial and which tends to establish his right to judgment as a matter of law, the claimant must present a forecast of the evidence which will be available for presentation at trial and which will tend to support his claim for relief.\nBest v. Perry, 41 N.C. App. 107, 110, 254 S.E.2d 281, 284 (1979). The claimant\u2019s evidence must \u201cdo more than raise a suspicion, conjecture, guess, possibility or chance; it must reasonably tend to prove the fact in issue, or reasonably conduce to its conclusion as a fairly logical and legitimate deduction.\u201d Dendy v. Watkins, 288 N.C. 447, 455, 219 S.E.2d 214, 219 (1975) (citation omitted).\nIn support of his motion, defendant presented the affidavits of the State Trooper who arrived at the scene of the accident, Jimmy Ray Williams, and a certified toxicological chemist, Dr. Arthur J. McBay. Trooper Williams stated that he \u201cbelieved immediately\u201d that defendant was drinking and noticed an \u201cobvious\u201d odor of alcohol on defendant\u2019s person. He stated that defendant\u2019s eyes were red and glassy and his speech was slurred and mumbled. Trooper Williams concluded that \u201c[b]ased on his observation of [defendant] at the accident scene, it was obvious to him that [defendant] was under the influence of alcohol at the time of the accident.\u201d\nFour hours after the accident, Connor\u2019s breathalyzer test registered between .10 and .11. Dr. McBay stated that Connor\u2019s blood-alcohol concentration at the time of the accident would have been between .16 and .17. Based on his experience and expertise, Dr. McBay concluded that \u201ceven if [defendant] had been an experienced drinker, with a blood alcohol concentration of 0.16 and 0.17, he would have obviously appeared to be under the influence of alcohol to anyone who observed him.\u201d Cf. Kinney v. Baker, 82 N.C. App. 126, 130-31, 345 S.E.2d 441, 444 (mere evidence of driver\u2019s blood-alcohol level does not establish passenger\u2019s knowledge of intoxication), cert. denied, 318 N.C. 416, 349 S.E.2d 597 (1986). In addition to evidence of defendant\u2019s blood-alcohol level, a toxicological chemist testified that defendant would have appeared drunk to anyone who observed him at the time of the accident and a trooper testified that he did appear intoxicated.\nWe find that plaintiff has failed to come forward with evidence to support his claim. Plaintiff\u2019s own version of the facts clearly shows his contributory negligence. According to plaintiff, he met defendant about 4:30 or 5:00 on the afternoon of 18 February. Neither had had anything to drink before they met that day. They went to the liquor store, purchased a fifth of bourbon, and drove to defendant\u2019s house. While at defendant\u2019s house they had two drinks each of bourbon and coke; each drink contained about one ounce of liquor. Both plaintiff and defendant had the same amount to drink. After these two drinks, plaintiff and defendant started their drive to South Carolina. In his deposition, plaintiff stated that he was mildly intoxicated when they left for South Carolina. Plaintiff testified that neither he nor defendant had eaten since lunch that day and that he weighed more than defendant.\nPlaintiff has not disputed or contradicted either the testimony of Trooper Williams or of Dr. McBay regarding defendant\u2019s condition at the time of the accident. Cf. Kinney, 82 N.C. App. at 130, 345 S.E.2d at 443-44 (directed verdict inappropriate where contradictory evidence over whether odor of alcohol or appearance of intoxication at time of accident). Plaintiff has come forward with no evidence or testimony indicating that defendant was not intoxicated at the time of the accident. Plaintiff merely argues in his brief that they had consumed an insufficient amount of alcohol to be intoxicated. This contention does not refute the clear evidence of intoxication from Trooper Williams and Dr. McBay. We conclude, therefore, that there is no genuine issue of material fact as to defendant\u2019s condition.\nWe find that the evidence also shows that plaintiff knew or should have known of defendant\u2019s condition. Defendant\u2019s outward appear-anee, as described by Trooper Williams, clearly indicated that he was appreciably under the influence of some intoxicant. We note, again, that plaintiff has not contradicted this evidence. Regardless of how much alcohol plaintiff and defendant actually drank, the evidence shows obvious intoxication of the defendant at the scene.\nWe find no genuine issues of material fact as to plaintiffs contributory negligence, and no prejudicial error in the exclusion of plaintiffs affidavits. We therefore .affirm summary judgment in favor of defendant.\nAffirmed.\nJudges JOHNSON and GREENE concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Williamson and Walton, by Benton H. Walton, III, for plaintiff - appellant.", "Bailey & Dixon, by Gary S. Parsons and Kenyann G. Brown, for defendants-appellees, and Marshall, Williams, & Gorham, by William Robert Cherry, Jr., for State Farm Mutual Automobile Insurance Company, appearing in the name of defendants-appellees." ], "corrections": "", "head_matter": "ERVIN JAY GOODMAN, Plaintiff v. CARL JOSEPH CONNOR, JR. and MELISSA A. McNEILL, Defendants\nNo. 9313SC1297\n(Filed 15 November 1994)\n1. Evidence and Witnesses \u00a7 1981 (NCI4th)\u2014 affidavits excluded \u2014 information cumulative or irrelevant \u2014 exclusion proper\nThe trial court in a personal injury action did not err in excluding affidavits by plaintiff, the investigating officer, and the clerk of court, since plaintiff\u2019s affidavit was merely cumulative; the other two affidavits simply stated the offense of which defendant was convicted; and the offense of which defendant was eventually convicted had no bearing on the issue of plaintiff\u2019s contributory negligence at the time of the accident.\nAm Jur 2d, Evidence \u00a7\u00a7 1324 et seq.\n2. Automobiles and Other Vehicles \u00a7 651 (NCI4th)\u2014 intoxicated driver \u2014 contributory negligence of plaintiff in riding with defendant\nEvidence in a personal injury action was sufficient to show plaintiffs contributory negligence where it tended to show that plaintiff and defendant were drinking together on the afternoon of the accident; defendant driver\u2019s outward appearance clearly indicated that he was appreciably under the influence of some intoxicant; and plaintiff nevertheless choose to ride in the car driven by defendant.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 606.\nGuest\u2019s knowledge that automobile driver has been drinking as precluding recovery, under guest statutes or equivalent common-law rule. 15 ALR2d 1165.\nComment Note. \u2014 Contributory negligence, assumption of risk or related defenses as available in action based on automobile guest statute or similar common-law rule. 44 ALR2d 1342.\nAppeal by plaintiff from orders entered 30 August and 7 September 1993 by Judge Orlando F. Hudson, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 14 September 1994.\nWilliamson and Walton, by Benton H. Walton, III, for plaintiff - appellant.\nBailey & Dixon, by Gary S. Parsons and Kenyann G. Brown, for defendants-appellees, and Marshall, Williams, & Gorham, by William Robert Cherry, Jr., for State Farm Mutual Automobile Insurance Company, appearing in the name of defendants-appellees." }, "file_name": "0113-01", "first_page_order": 145, "last_page_order": 150 }