{ "id": 11711448, "name": "JOHN T. LASSITER, Plaintiff v. KAREN MICHELLE ENGLISH, Defendant", "name_abbreviation": "Lassiter v. English", "decision_date": "1997-06-17", "docket_number": "No. COA96-1304", "first_page": "489", "last_page": "495", "citations": [ { "type": "official", "cite": "126 N.C. App. 489" } ], "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": "69 ALR2d 449", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "610 F.2d 360", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11226 ], "year": 1980, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/f2d/610/0360-01" ] }, { "cite": "868 F.2d 786", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10530295 ], "year": 1989, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/f2d/868/0786-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "140 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "357", "parenthetical": "to be actionable negligence has to be the proximate cause of the injury" } ], "opinion_index": 0 }, { "cite": "263 N.C. 769", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573007 ], "year": 1965, "pin_cites": [ { "page": "772", "parenthetical": "to be actionable negligence has to be the proximate cause of the injury" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0769-01" ] }, { "cite": "256 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "year": 1979, "pin_cites": [ { "page": "536-37" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0524-01" ] }, { "cite": "429 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548849, 2548625, 2547510, 2549370, 2548670 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0574-02", "/nc/333/0574-01", "/nc/333/0574-05", "/nc/333/0574-03", "/nc/333/0574-04" ] }, { "cite": "423 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "507" }, { "page": "507" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523627 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "245" }, { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0241-01" ] }, { "cite": "361 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "924-25" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 591", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358787 ], "year": 1987, "pin_cites": [ { "page": "595-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0591-01" ] } ], "analysis": { "cardinality": 607, "char_count": 13529, "ocr_confidence": 0.756, "pagerank": { "raw": 2.8528885539716397e-07, "percentile": 0.8408042322158551 }, "sha256": "f524531699fa52b98634814346b031a2f6154135d15994c6880c3daca08cc1fe", "simhash": "1:d3ec346f1fbc38f5", "word_count": 2254 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN concurs with separate opinion.", "Judge TIMMONS-GOODSON concurs." ], "parties": [ "JOHN T. LASSITER, Plaintiff v. KAREN MICHELLE ENGLISH, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nKaren Michelle English (defendant) appeals from an order granting a judgment notwithstanding the verdict (JNOV) for John T. Lassiter (plaintiff) and in the alternative seeks a new trial.\nThe plaintiff claims that he was injured in an automobile collision occurring on 28 February 1991 that was caused by the defendant\u2019s negligence. The evidence at trial shows the plaintiff did not seek immediate medical treatment and in fact drove away from the accident scene. In his complaint, plaintiff alleges that \u201c[a]s a result of the collision . .. [he] suffered injuries to his neck, head, arm, back, elbow and hip\u201d and \u201csuffered great pain of mind and body.\u201d At the time of this accident, the plaintiff was receiving treatment for injuries he sustained in an earlier automobile accident which had occurred on 10 April 1990.\nAlthough at trial plaintiff testified that \u201call of [his] disability and injuries and inability to work are because of . . . [the 28 February 1991] accident,\u201d Dr. Fred Douglas McQueen (McQueen), a physician specializing in family practice, testified that in 1988 he had written two letters regarding the plaintiffs medical condition in relation to a claim the plaintiff was making that he was disabled: the first \u201cstating that [plaintiff] was totally infirm and disabled of gainful employment\u201d because of severe gouty arthritis, hypertension, and severe depression. McQueen further testified that in 1989 he treated the plaintiff for a \u201cright elbow problem\u201d and plaintiff had symptoms of shortness of breath and asthma and McQueen \u201cwould definitely say he was disabled at that time.\u201d In January 1990 McQueen found him to have tendonitis, osteoarthritis, and other disorders relating to his nervous system which caused him severe pain. After the 10 April 1990 automobile accident the plaintiff was treated by McQueen for severe pain between his shoulder blades but McQueen did not assess him with a permanent partial disability and plaintiff did return to \u201clight duty\u201d work. McQueen testified that the plaintiff has a \u201cchronic problem\u201d with arthritis and would have \u201cpain as long as he lives.\u201d He further testified that he could not \u201cdifferentiate what pain\u201d was caused by the 28 February 1991 accident from the pain resulting from his arthritis and that although he did not \u201cfeel that [the 28 February 1991] wreck . . . caused the arthritis ... [he does] think it aggravated the underlying arthritis that was present\u201d before the accident because prior to the accident he was working and \u201cgetting better.\u201d McQueen further testified that \u201c[a]s a result\u201d of the 28 February 1991 accident the plaintiff \u201cwas unable to continue to perform his duties that he had before, and he then became disabled.\u201d\nDr. Theodore Y. Rogers (Rogers), an orthopaedic surgeon, testified that he first treated the plaintiff after the 10 April 1990 accident for lower back pain on his left side and neck. After the 28 February 1991 accident Rogers testified that the plaintiff had \u201cdeveloped pain on the right side of his neck.\u201d Rogers diagnosed him with \u201ca lum-bosacral strain of a chronic nature and a myositis.\u201d Rogers testified that these injuries were caused by the 28 February 1991 accident.\nAt the close of' all the evidence the plaintiff made a motion \u201cfor [a] directed verdict on the issue of negligence\u201d on the grounds that the defendant admitted that she did not see the vehicle even though her view was clearly unobstructed. No other motions for directed verdict were made. The trial court allowed the motion \u201cfor negligence\u201d and noted that the issue of proximate cause would be submitted to the jury. In its instructions, the trial court informed the jury that it had already been determined that \u201cthe [defendant was at fault in causing this collision\u201d and the jury was only to determine whether this negligence did \u201ccause injury to the [p]laintiff.\u201d The trial judge then presented two issues, without objection, to the jury. The first issue stated: \u201cWas the [plaintiff] . . . injured as a proximate result of the negligence of the [defendant] . . . ?\u201d The jury answered \u201cNo\u201d to this question, and thus did not reach the second issue regarding damages. After the verdict the plaintiff moved for a JNOV and in the alternative for a new trial. The asserted grounds for the motion were Rules 59(a)(1), (2), (5), (6), (8), and (9) of the North Carolina Rules of Civil Procedure. The trial court set aside the verdict and granted a JNOV (for the plaintiff) as to the first issue on the grounds that the jury\u2019s answer to the first issue was \u201ccontrary to the greater weight of the evidence.\u201d The trial court then ordered that the plaintiff was entitled to a new trial on damages. In the alternative, the trial court ordered that the plaintiff was entitled to a new trial on both liability and damages if the JNOV was reversed.\nThe issues are (I) whether entry of JNOV for the plaintiff on the issue of negligence and proximate cause was proper, and if not; (II) whether the trial court\u2019s alternative grant of a new trial was proper.\nI\nTo have standing after the verdict to move for JNOV, a party must have made a directed verdict motion at trial on the specific issue which is the basis of the JNOV. See Garrison v. Garrison, 87 N.C. App. 591, 595-96, 361 S.E.2d 921, 924-25 (1987). The directed verdict motion \u201cshall state the specific grounds\u201d upon which the motion lies. N.C.G.S. \u00a7 1A-1, Rule 50(a) (1990). This Court\u2019s review of the grant of a JNOV is the same as our review of the grant of a motion for directed verdict. Ace, Inc. v. Maynard, 108 N.C. App. 241, 245, 423 S.E.2d 504, 507 (1992), cert. denied, 333 N.C. 574, 429 S.E.2d 567 (1993). If the party with the burden of proof has received the benefit of a directed verdict or a JNOV, this Court will sustain that ruling if \u201cthe evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn\u201d and if the credibility of the movant\u2019s evidence is manifest as a matter of law. North Carolina Nat\u2019l Bank v. Burnette, 297 N.C. 524, 536-37, 256 S.E.2d 388, 395 (1979).\nIn this case the basis of the plaintiff\u2019s motion for JNOV was that the evidence clearly established that the defendant\u2019s negligence was the proximate cause of his injuries. Although the plaintiff\u2019s earlier motion (made at the close of all the evidence) was \u201cfor directed verdict on the issue of negligence,\u201d the plaintiff\u2019s argument in support of his motion related only to how the accident occurred and there was no argument he was entitled to a directed verdict on the issue of proximate cause. Because negligence is a broad term encompassing breach of duty and proximate cause, McGaha v. Smoky Mountain Stages, Inc., 263 N.C. 769, 772, 140 S.E.2d 355, 357 (1965) (to be actionable negligence has to be the proximate cause of the injury), a motion for directed verdict'\u201con the issue of negligence\u201d can support a subsequent JNOV motion on proximate cause but only if proximate cause was argued in support of the directed verdict motion. Because proximate cause was not specifically raised by the plaintiff to support his directed verdict motion, the motion cannot, therefore, support entry of JNOV for the plaintiff on the basis of proximate cause.\nIn any event, the JNOV was not proper for an additional reason. The evidence in this case does not clearly establish that the plaintiff\u2019s injuries were proximately caused by the defendant\u2019s negligence to the extent \u201cthat no reasonable inferences to the contrary can be drawn.\u201d The eyidence can support several reasonable inferences, one of which is that the plaintiff\u2019s injuries were the result of his involvement in the 10 April 1990 automobile accident and/or his pre-existing conditions. For example, prior to the 28 February 1991 accident the plaintiff had complained of back and neck pain for which he was undergoing current medical treatment and which are the same types of pain he also alleges arose from the 28 February 1991 accident. Thus, the trial judge erred in granting the plaintiff\u2019s motion for JNOV on the issue of proximate cause.\nII\nA party moving for JNOV may alternatively motion for a new trial, N.C.G.S. \u00a7 1A-1, Rule 50(c)(1) (1990), and in the event the JNOV is reversed on appeal \u201cthe new trial shall proceed unless the appellate [court] has otherwise ordered.\u201d Commentary to N.C.G.S. \u00a7 1A-1 Rule 50 (quoting N.C.G.S. \u00a7 1A-1, Rule 50(c)(1)). The trial court\u2019s determination on the grant or denial of an alternative new trial is reversible only for an abuse of discretion. Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). A \u201cgreater degree of scrutiny,\u201d however, must be given to the grant of a new trial on the ground that the evidence is insufficient to justify the verdict. 12 James W. Moore et al., Moore\u2019s Federal Practice \u00a7 59.26[1] (3d ed. 1997) [hereinafter Moore\u2019s Federal Practice]-, N.C.G.S. \u00a7 1A-1, Rule 59(a)(7) (allowing new trial on \u201c[i]ns\u00fafficiency of the evidence to justify the verdict\u201d). In order to sustain the granting of a new trial pursuant to Rule 59(a)(7) \u201cthe jury\u2019s verdict must be \u2018against the great \u2014 not merely the greater \u2014 weight of the evidence.\u2019 \u201d Moore\u2019s Federal Practice \u00a7 59.26[1]; see Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989). This standard assures \u201cthat the [trial] judge does not simply substitute his judgment for that of the jury, thus depriving the litigants of their right to trial by jury.\u201d Conway v. Chemical Leaman Tank Lines, 610 F.2d 360, 362 (5th Cir. 1980); see Moore\u2019s Federal Practice \u00a7 59.26[1]. In this case, the alternative order for a new trial was based on N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a)(7) and the evidence does not reveal that the jury\u2019s verdict is against the great weight of the evidence. The evidence on the proximate cause issue was highly controverted and neither party\u2019s position was supported by the great weight of the evidence. Therefore the trial court abused its discretion in granting the motion for a new trial.\nIn summary the JNOV and the alternative new trial are reversed and the jury verdict is reinstated.\nReversed.\nJudges WYNN concurs with separate opinion.\nJudge TIMMONS-GOODSON concurs.\n. We do not hold that in every case that a party moving for directed verdict must argue in support of that motion to preserve his right to make a JUDGMENT NOTWITHSTANDING THE VERDICT motion. It is only when the motion itself does not state with particularity the basis of the motion that argument is necessary.\n. Great weight of the evidence must be distinguished from \u201csubstantial\u201d evidence which is that amount of evidence necessary to carry a case to the jury. See Ace, 108 N.C. App. at 245, 423 S.E.2d at 507.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Wynn\nconcurring.\nIn my opinion, the directed verdict motion made by the plaintiff at trial sufficiently covered the issue that formed the basis for the JUDGMENT NOTWITHSTANDING THE VERDICT motion. Nonetheless, I concur in that part of the majority\u2019s opinion holding that the JUDGMENT NOTWITHSTANDING THE VERDICT was not proper for the reason that the evidence in this case does not clearly establish that the plaintiff\u2019s injuries were proximately caused by the defendant\u2019s negligence.", "type": "concurrence", "author": "Judge Wynn" } ], "attorneys": [ "Kitchin, Neal, Webb & Futrell, P.A., by Stephan R Futrell, for plaintiff-appellee.", "Caudle & Spears, P.A., by Nancy E. Walker, for defendant-appellant." ], "corrections": "", "head_matter": "JOHN T. LASSITER, Plaintiff v. KAREN MICHELLE ENGLISH, Defendant\nNo. COA96-1304\n(Filed 17 June 1997)\n1. Trial \u00a7 264 (NCI4th)\u2014 directed verdict issue \u2014 judgment n.o.v. \u2014 same specific issues\nIn a negligence action resulting from an automobile collision, the trial court erred in granting plaintiff\u2019s motion for judgment n.o.v. on the issue of proximate cause where plaintiff did not specifically raise the issue of proximate cause to support his motion for directed verdict \u201con the issue of negligence.\u201d In order to sustain a judgment n.o.v., plaintiff\u2019s motions for directed verdict and judgment n.o.v. must be on the same specific issue.\nAm Jur 2d, Trial \u00a7\u00a7 862, 863.\nPractice and procedure with respect to motions for judgment notwithstanding or in default of verdict under Federal Civil Procedure Rule 50(b) or like state provisions. 69 ALR2d 449.\n2. Trial \u00a7 491 (NCI4th)\u2014 proximate cause \u2014 judgment n.o.v.\u2014 error\nAssuming, arguendo, that plaintiff\u2019s motion for judgment n.o.v. was properly before the trial court, the court erred in granting plaintiff\u2019s motion where the evidence at trial did not establish that plaintiff\u2019s injuries were proximately caused by defendant\u2019s negligence and there was evidence which supported the inference that plaintiff\u2019s injuries resulted from a preexisting condition.\nAm Jur 2d, Negligence \u00a7 500; Trial \u00a7\u00a7 862, 863.\n3. Trial \u00a7 505 (NCI4th)\u2014 jury verdict \u2014 proximate cause\u2014 alternative grant of new trial \u2014 abuse of discretion\nIn this case involving an automobile collision, the evidence did not reveal that the jury\u2019s verdict finding that defendant\u2019s negligence was not the proximate cause of plaintiff\u2019s injuries was against the great weight of the evidence where the proximate cause evidence was highly controverted and neither party\u2019s position was supported by the great weight of the evidence; therefore, the trial court abused its discretion in granting plaintiff\u2019s alternative motion for an new trial pursuant to N.C.G.S. \u00a7 1A-1, Rule 59(a)(7).\nAm Jur 2d, Judgments \u00a7 327; New Trial \u00a7 29.\nJudge WYNN concurring.\nAppeal by defendant from order dated 17 January 1996 by Judge William H. Helms in Richmond County Superior Court. Heard in the Court of Appeals 1 May 1997.\nKitchin, Neal, Webb & Futrell, P.A., by Stephan R Futrell, for plaintiff-appellee.\nCaudle & Spears, P.A., by Nancy E. Walker, for defendant-appellant." }, "file_name": "0489-01", "first_page_order": 527, "last_page_order": 533 }