{
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  "name": "FRANK P. COOKE, JR., as Administrator of the Estate of Dorothy Cooke, and FRANK P. COOKE, Individually, Plaintiffs v. JEFFREY TIM GRIGG and JEANNIE LYNN BEAVER, Defendants",
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    "judges": [
      "Judges WALKER and MARTIN, Mark D. concur."
    ],
    "parties": [
      "FRANK P. COOKE, JR., as Administrator of the Estate of Dorothy Cooke, and FRANK P. COOKE, Individually, Plaintiffs v. JEFFREY TIM GRIGG and JEANNIE LYNN BEAVER, Defendants"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nOn 5 July 1994, Dorothy Cooke was fatally injured in an automobile accident with defendant Jeffrey Tim Grigg when Grigg\u2019s vehicle suddenly crossed a median and struck Cooke\u2019s vehicle. The evidence showed that, at the time of the accident, Grigg \u201cblacked out\u201d and lost control of his vehicle.\nOn 23 November 1994, plaintiffs filed this wrongful death action against Grigg and Jeannie Lynn Beaver, the vehicle owner. The case was tried with a jury at the 18 July 1995 Civil Session of Gaston County Superior Court, Judge Raymond A. Warren presiding. During the trial, plaintiffs took a voluntary dismissal of their claims against defendant Beaver. The jury found that Dorothy Cooke\u2019s death was not caused by the negligence of defendant Grigg. On 21 July 1995, the court entered judgment in favor of defendant Grigg. Plaintiffs appeal from the judgment.\nFirst, plaintiffs contend that the trial court erred by admitting and publishing to the jury the highway patrol officer\u2019s accident report without striking out that portion of the report entitled \u201ccircumstances contributing to the collision.\u201d In this portion of the report, the patrolman checked a box marked \u201cunable to determine\u201d as to defendant Grigg. Plaintiffs assert that this was inadmissible opinion testimony.\nBoth of the cases cited by plaintiffs, Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, disc. review denied, 322 N.C. 610, 370 S.E.2d 257 (1988), and Keith v. Polier, 109 N.C. App. 94, 425 S.E.2d 723 (1993), dealt with hearsay objections to police accident reports. Here, plaintiffs did not object on a hearsay ground and this ground was not apparent from the context. Thus, the hearsay issue has not been preserved for our review. See N.C.R. App. P. 10(b)(1) (1996); State v. Howell, 335 N.C. 457, 471, 439 S.E.2d 116, 124 (1994).\nHowever, Wentz also deals with the admissibility of a patrolman\u2019s opinion in his accident reports, see Wentz, 89 N.C. App. at 39, 365 S.E.2d at 201, an issue properly preserved by plaintiffs. In Wentz, the Court concluded that the patrolman did not express an opinion as to how the collision occurred either in the reports or in his testimony and that he actually disavowed any assessment of the plaintiff\u2019s fault. Id. at 40, 365 S.E.2d at 201-202. For this reason, the court held that the plaintiff was not prejudiced by the reports. Id.\nHere, we find the response \u201cunable to determine\u201d also is not an expression of an opinion by the patrolman. At most, this response only indicates the patrolman\u2019s lack of an opinion as to defendant Grigg\u2019s role. Plaintiffs\u2019 first assignment of error is without merit.\nPlaintiffs also contend that the court failed to give \u201cequal stress\u201d to the parties\u2019 contentions as required by N.C.R. Civ. P. 51(a). We disagree.\nThe court instructed the jury that plaintiffs contended that defendant was negligent by failing to use ordinary care by failing to keep his vehicle under proper control. Plaintiffs also asked the trial judge to state their contention that defendant Grigg operated his vehicle after suffering from blackout and dizzy spells in the past without regard to the consequences a potential blackout would have on his driving. He refused ruling that his statement of plaintiffs\u2019 contention regarding defendant Grigg\u2019s failure to keep his vehicle under proper control was adequate because it was inclusive of the other requested contention. We agree.\nFurthermore, in the cases relied upon by plaintiffs, Dobson v. Honeycutt, 78 N.C. App. 709, 338 S.E.2d 605 (1986), and Daniels v. Jones, 42 N.C. App. 555, 257 S.E.2d 120, disc. review denied, 298 N.C. 567, 261 S.E.2d 120 (1979), the trial court failed to summarize the plaintiffs\u2019 contentions as to vital and decisive issues in the case. See Dobson, 78 N.C. App. at 713-14, 338 S.E.2d at 607-608; Daniels, 42 N.C. App. at 559, 257 S.E.2d at 122-23. This type of omission did not occur here. Plaintiffs\u2019 second assignment of error is without merit.\nIn their third assignment of error, plaintiffs contend that defendant produced insufficient evidence that the sudden incapacitation experienced by defendant Grigg was unforeseeable and that, therefore, the defense of sudden incapacitation should not have been submitted to the jury. We disagree.\nA party asserting the defense of sudden incapacitation has the burden to produce evidence showing that the incapacitation was unforeseeable. Mobley v. Estate of Johnson, 111 N.C. App. 422, 424-25, 432 S.E.2d 425, 427 (1993). At trial, defendant Grigg presented evidence which tended to show that, although he had experienced \u201cblackouts\u201d over six years prior to the accident, none of these occurred while he was driving a car but under very different circumstances. In addition, since these \u201cblackouts\u201d occurred over six years prior to the accident, there was evidence to support the conclusion that it was not foreseeable that defendant Grigg would experience a blackout on the day of the accident.\nThere was also medical testimony to support the conclusion that the symptoms defendant Grigg experienced just prior to \u201cblacking out\u201d that day were too vague and nonspecific to put him on immediate notice that he was going to lose consciousness. Several of the symptoms he experienced prior to blacking out were different from those he had experienced prior to the blackouts over six years earlier. In addition, his doctor testified that defendant Grigg passed out as the result of a \u201csyncopal spell\u201d and that, prior to the accident, there was no reason to believe that defendant Grigg was predisposed to have recurrent blackout episodes without warning.\nAs there was sufficient evidence that defendant Grigg\u2019s sudden incapacitation was unforeseeable, plaintiffs\u2019 third assignment of error is without merit.\nNo error.\nJudges WALKER and MARTIN, Mark D. concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Alala Mullen Holland & Cooper, P.A., by H. Randolph Sumner and Jesse V. Bone, Jr., for plaintiffs-appellants.",
      "Burton & Sue, L.L.R, by Walter K. Burton and James D. Secor, III, for defendant-appellee Grigg."
    ],
    "corrections": "",
    "head_matter": "FRANK P. COOKE, JR., as Administrator of the Estate of Dorothy Cooke, and FRANK P. COOKE, Individually, Plaintiffs v. JEFFREY TIM GRIGG and JEANNIE LYNN BEAVER, Defendants\nNo. COA96-125\n(Filed 17 December 1996)\n1. Evidence and Witnesses \u00a7 1974 (NCI4th)\u2014 report contained circumstances contributing to collision \u2014 no objection on hearsay grounds \u2014 plaintiff not prejudiced\nThe trial court did not err by admitting and publishing to the jury the highway patrol officer\u2019s accident report without striking out that portion of the report entitled \u201ccircumstances contributing to the collision\u201d in which the patrolman checked a box marked \u201cunable to determine\u201d as to defendant driver where (a) the plaintiffs did not object on a hearsay ground and this ground was not apparent from the context; and (2) the patrolman did not express an opinion as to how the collision occurred but actually disavowed any assessment of the defendant\u2019s fault.\nAm Jur 2d, Evidence \u00a7 1359.\n2. Automobiles and Other Vehicles \u00a7 721 (NCI4th)\u2014 plaintiffs\u2019 contentions not vital and decisive \u2014 no error\nThe court did not fail to give \u201cequal stress\u201d to the parties\u2019 contentions as required by N.C. R. Civ. R 51(a) by its refusal to state plaintiffs\u2019 contention that defendant operated his vehicle after suffering from blackout and dizzy spells in the past without regard to the consequences a potential blackout would have on his driving because the court\u2019s instruction on plaintiffs\u2019 contention about defendant\u2019s failure to keep his vehicle under proper control was inclusive of the refused instruction.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 1120.\n3. Automobiles and Other Vehicles \u00a7 536 (NCI4th)\u2014 driver\u2019s incapacities unforeseeable \u2014 defendant not predisposed to blackouts\nThere was sufficient evidence that the defendant driver\u2019s sudden incapacitation was unforeseeable so that this issue was properly submitted to the jury where the defendant presented evidence which tended to show that, although he had experienced \u201cblackouts\u201d over six years prior to the accident, none of these occurred while he was driving a car. Further, there was medical testimony that the defendant passed out as the result of a \u201csyncopal spell\u201d and that, prior to the accident, there was no reason to believe that defendant was predisposed to have recurrent blackout episodes without warning.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 773.\nAppeal by plaintiffs from judgment entered 21 July 1995 by Judge Raymond A. Warren in Gaston County Superior Court. Heard in the Court of Appeals 9 October 1996.\nAlala Mullen Holland & Cooper, P.A., by H. Randolph Sumner and Jesse V. Bone, Jr., for plaintiffs-appellants.\nBurton & Sue, L.L.R, by Walter K. Burton and James D. Secor, III, for defendant-appellee Grigg."
  },
  "file_name": "0770-01",
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