{ "id": 11916101, "name": "DEBRA L. CHILTOSKI and ALVIN CHILTOSKI, Plaintiffs v. DAVID FLAKE DRUM, Defendant", "name_abbreviation": "Chiltoski v. Drum", "decision_date": "1995-12-19", "docket_number": "No. COA95-198", "first_page": "161", "last_page": "165", "citations": [ { "type": "official", "cite": "121 N.C. App. 161" } ], "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": "342 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "nominal damages \"recoverable in negligence actions,\" in this instance for negligent repairs" } ], "opinion_index": 0 }, { "cite": "316 N.C. 385", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694592, 4698401, 4700193, 4704758, 4701983 ], "year": 1986, "pin_cites": [ { "parenthetical": "nominal damages \"recoverable in negligence actions,\" in this instance for negligent repairs" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0385-02", "/nc/316/0385-05", "/nc/316/0385-04", "/nc/316/0385-03", "/nc/316/0385-01" ] }, { "cite": "337 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522959 ], "year": 1985, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0594-01" ] }, { "cite": "411 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "653", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521196 ], "year": 1992, "pin_cites": [ { "page": "67", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0064-01" ] }, { "cite": "277 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "121", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646421 ], "year": 1981, "pin_cites": [ { "page": "505", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0500-01" ] }, { "cite": "361 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "923", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 591", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358787 ], "year": 1987, "pin_cites": [ { "page": "594", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0591-01" ] }, { "cite": "198 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1973, "pin_cites": [ { "page": "748", "parenthetical": "citations omitted" }, { "page": "740" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553344 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "360", "parenthetical": "citations omitted" }, { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0357-01" ] }, { "cite": "133 F.2d 350", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3647998 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/f2d/133/0350-01" ] }, { "cite": "176 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "853" } ], "opinion_index": 1 }, { "cite": "9 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552786 ], "year": 1970, "pin_cites": [ { "page": "589" } ], "opinion_index": 1, "case_paths": [ "/nc-app/9/0587-01" ] } ], "analysis": { "cardinality": 582, "char_count": 10771, "ocr_confidence": 0.755, "pagerank": { "raw": 3.292236703572907e-07, "percentile": 0.87139752163157 }, "sha256": "9eb2bfe14af549541b2d1943fd84133cf064dd294f92e0ce33d2195e286b0796", "simhash": "1:bdf0ac2cdc441c76", "word_count": 1801 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEWIS concurs.", "Judge WYNN concurs with separate opinion." ], "parties": [ "DEBRA L. CHILTOSKI and ALVIN CHILTOSKI, Plaintiffs v. DAVID FLAKE DRUM, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals the award to plaintiff of a new trial pursuant to N.C.R. Civ. P. 59 (Rule 59). We reverse the trial court.\nOn 10 August 1992, plaintiff commenced a personal injury action against defendant. In his answer, defendant admitted that operating his automobile in such a manner as to collide with the rear of plaintiff\u2019s vehicle constituted a breach of the duty of care owed plaintiff. However, defendant specifically denied that his negligence proximately caused any bodily injury to plaintiff.\nAt trial, the court combined the issues of causation and damages into a single question submitted to the jury as follows: \u201cWhat amount is the plaintiff entitled to recover for personal injuries?\u201d The jury was instructed that plaintiff was required to prove she suffered damages proximately caused by the negligence of defendant as well as the amount of such damages. The jury responded with a verdict of \u201cnone.\u201d\nUpon its own initiative, the trial court thereafter entered an order 25 October 1994 providing:\nThe Court in its discretion, enters the following Order,\nIt is ordered, in the discretion of the Court, that the verdict of the jury is hereby set aside, and a new trial is awarded to the plaintiff.\nDefendant filed notice of appeal to this Court 14 November 1994, assigning error to the court\u2019s order.\nWe first consider whether the court\u2019s order was violative of the procedural mandate of Rule 59(d) which reads:\nNot later than 10 days after entry of judgment the court of its own initiative, on notice to the parties and hearing, may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.\n(emphasis added). The rationale for requiring specification of grounds has been explained as follows:\nWhen the new trial is granted upon motion of a party, the grounds appear in the motion, as the reasons assigned by the movant in compliance with the requirements of Rule 59(a). When the judge acts of his own initiative he must set out the grounds in his order. Otherwise, the purpose of the Rule will not be accomplished; the record will not reveal the basis upon which the order is made or permit intelligent review by an appellate court.\nW. Brian Howell, Shuford North Carolina Civil Practice and Procedure \u00a7 59-15 (4th ed. 1992) (quoting Fried v. McCroth, 133 F.2d 350 (D.C. Cir. 1942)); see also In re Will of Herring, 19 N.C. App. 357, 360, 198 S.E.2d 737, 748 (1973) (citations omitted) (trial court erred in setting aside verdict and ordering new trial for \u201cerrors of law committed at trial\u201d on its own initiative without specifying the errors upon which order was based; without specificity, \u201cappellate court would be forced to embark on a voyage of discovery through an uncharted record to find the errors of law referred to in the order.\u201d).\nSignificantly, the order at issue contains neither findings nor explication reflecting the grounds for the court\u2019s action. The trial court\u2019s order therefore lacks any basis upon which to conduct appellate review and must be reversed. See id. Moreover, unlike the separate concurrence, we do not read Rule 59(d) to require that sua sponte action by the trial court be accompanied by a statement of the reasons therefor only \u201cafter entry of judgment,\u201d but rather as setting forth the maximum time, i. e., up to 10 days following entry of judgment, within which the court is statutorily authorized to act upon its own initiative.\nIn addition, we note while \u201cvoyaging through the record\u201d that immediately following the jury verdict, the trial court excused the jury and then stated: \u201cThe verdict is zero. That is not an appropriate verdict \u2014 or legal verdict under the evidence in the case.\u201d The court also informed counsel at the jury charge conference that it would not submit an instruction on nominal damages because there had been an \u201cadmission of liability\u201d by defendant. The court further indicated its opinion that defendant, in consequence of having conceded fault in the collision, had admitted plaintiff sustained some injury as a proximate result of defendant\u2019s negligence. According to the trial court, by admitting fault, defendant admitted plaintiff \u201chas suffered at least some pain and suffering as a proximate result of the accident.\u201d Therefore, the court announced, \u201c [i]f the jury comes back with zero it will be set aside. That is not a possible verdict in this case.\u201d Finally, the trial court observed:\nIn a PI case the only formula is \u2014 if the case is worth trying there\u2019s going to be evidence of pain and suffering .... I say that every chance I get. I said it at a conference for Superior Court judges without any effect; so now I\u2019m saying it to the Appellate Courts.\nThe trial court\u2019s pronouncement that the jury verdict of \u201cnone\u201d was not a \u201clegal verdict,\u201d when read in conjunction with the court\u2019s statements noted above, indicates that the court\u2019s apparent basis for granting a new trial on its own initiative was its belief that by admitting fault, defendant had necessarily admitted plaintiff suffered damages which were the proximate result of defendant\u2019s fault. Even considering arguendo the foregoing as specification of the trial court\u2019s grounds in satisfaction of the requirement of Rule 59(d), the court acted under a misapprehension of law and its order constituted reversible error.\nWhile an order for new trial pursuant to Rule 59 which satisfies the procedural requirements of the Rule may ordinarily be reversed on appeal only in the event of \u201ca manifest abuse of discretion,\u201d when the trial court grants or denies a new trial \u201cdue to some error of law,\u201d then its decision is fully reviewable. Garrison v. Garrison, 87 N.C. App. 591, 594, 361 S.E.2d 921, 923 (1987) (citation omitted). Appellate courts thus must utilize the \u201cabuse of discretion\u201d standard only in those instances where there is no question of \u201claw or legal inference.\u201d Seaman v. McQueen, 51 N.C. App. 500, 505, 277 S.E.2d 118, 121 (1981) (citation omitted).\nIn order to establish a claim for negligence, a plaintiff must prove that:\n(1) defendant owed a duty to plaintiff, (2) defendant failed to exercise proper care in the performance of that duty, and (3) the breach of that duty was the proximate cause of plaintiffs injury, which a person of ordinary prudence should have foreseen as probable under the conditions as they existed.\nWestbrook v. Cobb, 105 N.C. App. 64, 67, 411 S.E.2d 651, 653 (1992) (citations omitted).\nWhile defendant\u2019s admissions herein relieved plaintiff of the burden of proving the first two of the foregoing elements, defendant at no point conceded that his negligence proximately caused plaintiff\u2019s injuries or that she was entitled to \u201csome damage[s]\u201d based solely upon his admission of fault in the collision. Even assuming arguendo without deciding that the trial court\u2019s \u201c[statement] to the Appellate Courts\u201d \u2014 nominal damages are not appropriate in personal injury cases, but cf. The Asheville School v. Ward Construction, Inc., 78 N.C. App. 594, 599, 337 S.E.2d 659, 662 (1985), disc. review denied, 316 N.C. 385, 342 S.E.2d 890 (1986) (nominal damages \u201crecoverable in negligence actions,\u201d in this instance for negligent repairs) \u2014 might have applicability to the circumstance where a defendant stipulates to both fault and proximate cause or where the jury resolves the causation issue in favor of the plaintiff prior to reaching the separately submitted issue of damages, neither instance was present in the case sub judice.\nIn sum, the trial court\u2019s order of a new trial contravened Rule 59(d) by failing to specify the grounds therefor within the order. In addition, the trial court\u2019s apparent reasons for issuance of the order, as indicated in the record, were grounded upon a misapprehension of law. The order of the trial court is therefore reversed and the case remanded for entry of judgment upon the jury verdict rendered. See In re Will of Herring, 19 N.C. App. at 360, 198 S.E.2d at 740.\nReversed.\nJudge LEWIS concurs.\nJudge WYNN concurs with separate opinion.", "type": "majority", "author": "JOHN, Judge." }, { "text": "Judge Wynn\nconcurring in alternate reasoning,\nI agree with the alternate reasoning offered by the majority that the trial judge\u2019s decision to award a new trial was grounded in a misapprehension of law. A verdict of zero damages is not appropriate in an instance where a defendant concedes a breach of the standard of care and that such breach caused the plaintiff an injury. In this case, however, the record indicates that the defendant did not concede causation. In fact, the trial judge instructed the jury that the plaintiff had to prove causation and the amount of the damages. While such an instruction should have lead to the submission of two issues \u2014 one on causation and a second dependent issue on the amount of damages\u2014 the trial court\u2019s instruction to the jury allowed the jury to determine that the defendant\u2019s breach was not a cause of plaintiff\u2019s injury. Therefore, a verdict of zero is a \u201clegal verdict.\u201d\nI do not agree with the majority\u2019s holding that the trial judge in this case was required to make findings of facts to support the award of a new trial. A new trial awarded under Rule 59(d) requires findings only in the instance where the trial court has made an entry of judgment and thereafter within 10 days of having done so, the court on its own initiative orders a new trial. See Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 589, 176 S.E.2d 851, 853 (1970). In this case, the trial judge had not entered judgment and therefore could in its discretion award a new trial without making findings of fact.", "type": "concurrence", "author": "Judge Wynn" } ], "attorneys": [ "Mraz & Dungan, by John A. Mraz, for plaintiff-appellee.", "Roberts Stevens & Gogbum, P.A., by Steven D. Cogbum and Wyatt S. Stevens, defendant-appellant." ], "corrections": "", "head_matter": "DEBRA L. CHILTOSKI and ALVIN CHILTOSKI, Plaintiffs v. DAVID FLAKE DRUM, Defendant\nNo. COA95-198\n(Filed 19 December 1995)\nTrial \u00a7 545 (NCI4th); Negligence \u00a7 16 (NCI4th)\u2014 automobile accident \u2014 admission of fault by defendant \u2014 no admission as to damages \u2014 award of new trial \u2014 failure to state grounds \u2014 error\nThe trial court\u2019s order of a new trial after the jury awarded zero damages contravened N.C.G.S. \u00a7 1A-1, Rule 59(d) by failing to specify the grounds therefor within the order; furthermore, the court\u2019s apparent reason for issuance of the order \u2014 that defendant, by admitting fault, had necessarily admitted plaintiff suffered damages which were the proximate result of defendant\u2019s fault\u2014 was grounded upon a misapprehension of law.\nAm Jur 2d, Negligence \u00a7\u00a7 33, 424 et seq.; New Trial \u00a7\u00a7 557-563.\nJudge Wynn concurring in alternate reasoning.\nAppeal by defendant from order entered 25 October 1994 by Judge John M. Gardner in Swain County Superior Court. Heard in the Court of Appeals 15 November 1995.\nMraz & Dungan, by John A. Mraz, for plaintiff-appellee.\nRoberts Stevens & Gogbum, P.A., by Steven D. Cogbum and Wyatt S. Stevens, defendant-appellant." }, "file_name": "0161-01", "first_page_order": 195, "last_page_order": 199 }