{ "id": 11465487, "name": "WILLIE ELAINE SPIVERY WORD, Administrator CTA of the Estate of BERTHA C. SPIVERY, Plaintiff v. DOROTHY GALLOWAY JONES, by and through her Guardian, HARRIET B. MOORE, Defendant", "name_abbreviation": "Word v. Jones ex rel. Moore", "decision_date": "1998-07-07", "docket_number": "No. COA97-1483", "first_page": "100", "last_page": "106", "citations": [ { "type": "official", "cite": "130 N.C. App. 100" } ], "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": "432 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 422", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522348 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/111/0422-01" ] }, { "cite": "183 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569058, 8568932, 8568969, 8569105, 8569144, 8569019 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0397-04", "/nc/279/0397-01", "/nc/279/0397-02", "/nc/279/0397-05", "/nc/279/0397-06", "/nc/279/0397-03" ] }, { "cite": "182 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1971, "pin_cites": [ { "page": "194" }, { "page": "195" }, { "page": "195" }, { "page": "194", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556574 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "705" }, { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0703-01" ] }, { "cite": "275 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "302 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565508 ], "year": 1981, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0332-01" ] } ], "analysis": { "cardinality": 599, "char_count": 15371, "ocr_confidence": 0.758, "pagerank": { "raw": 7.578924433977877e-08, "percentile": 0.4490485738743842 }, "sha256": "5e9b668e2aa5e6733aa94a916f297ca5830956bafa04110924179e9d15a0c81d", "simhash": "1:8fe441aa7f2ed8df", "word_count": 2374 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HORTON concur." ], "parties": [ "WILLIE ELAINE SPIVERY WORD, Administrator CTA of the Estate of BERTHA C. SPIVERY, Plaintiff v. DOROTHY GALLOWAY JONES, by and through her Guardian, HARRIET B. MOORE, Defendant" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nWe first consider whether the trial court erred in allowing the jury to consider defendant\u2019s incipient affliction with Alzheimer\u2019s disease as a defense and whether there was sufficient evidence to support the defense that plaintiff suffered a sudden medical incapacitation resulting from transient ischemic attack or cardiac arrhythmia.\nThe plaintiff argues that \u201cthe trial court improperly extended the doctrine of sudden medical incapacitation to excuse the conduct of a driver who may have been confused because of her \u2018early Alzheimer\u2019s disease.\u2019 \u201d Plaintiff first argues that allowance of the defense was error because the defense has never been extended to the effects of Alzheimer\u2019s disease or other mental illnesses in North Carolina, and has been limited to instances where the defendant was rendered unconscious by a medical event. Second, plaintiff argues that sudden unconsciousness is an element, and the Alzheimer\u2019s defense must fail here because its assertion was not based on defendant\u2019s loss of consciousness. Third, plaintiff asserts that early Alzheimer\u2019s disease cannot support a defense of sudden incapacitation because the effects of the disease are neither sudden nor unforseen. Fourth, plaintiff argues that the trial court erred because the contention that Alzheimer\u2019s disease caused defendant\u2019s negligent driving is not supported by the evidence and is entirely speculative.\nPlaintiff also argues that there was insufficient evidence to support the defense that defendant became incapacitated as a result of either a transient ischemic attack (\u201cTIA\u201d) or cardiac arrhythmia. The doctors found no evidence that she lost consciousness, witnesses saw defendant driving the car into oncoming traffic, and defendant told paramedics and others at the accident scene that she did not lose consciousness. Additionally, plaintiff asserts that \u201c[t]he medical support for the TLA defense is simply that she had medical conditions common to people her age.\u201d Accordingly, plaintiff argues that the defense of sudden medical incapacitation was not supported by the evidence and that she is entitled to a new trial.\nDefendant argues that the trial court correctly submitted the defense of sudden medical incapacitation to the jury for two reasons. First, defendant contends that plaintiff waived her right to object to the submission of the defense by failing to move for a directed verdict at the close of defendant\u2019s case-in-chief. Defendant contends that a motion for directed verdict under Rule 50 is \u201cthe only method for challenging the sufficiency of the evidence to take the case to the jury.\u201d G. Gray Wilson, North Carolina Civil Procedure \u00a7 50-1, at 153 (2d ed. 1995). Second, plaintiff maintains that even if plaintiff had properly challenged the sufficiency of defendant\u2019s evidence, there was more than ample evidence to submit the issue of sudden incapacitation to the jury. Defendant maintains that there was evidence that defendant had \u201cblacked out\u201d and was not conscious as she operated her car, and it was the duty of the jury to resolve the conflict in the evidence. Accordingly, defendant argues that the judgment should be affirmed.\nThe plaintiff challenges on appeal the sufficiency of defendant\u2019s evidence of sudden incapacitation. However, we note that defendant is correct that plaintiff failed to move for directed verdict at the close of defendant\u2019s evidence. By failing to challenge the sufficiency of defendant\u2019s evidence by a motion for directed verdict at the end of defendant\u2019s case-in-chief, plaintiff could not properly challenge the sufficiency of the evidence by a motion for judgment notwithstanding the verdict. See Graves v. Walston, 302 N.C. 332, 338, 275 S.E.2d 485, 488 (1981). Accordingly, the sufficiency of defendant\u2019s evidence was never properly raised at trial and the issue was not properly preserved for appellate review. The assignment of error is overruled.\nWe next consider whether the trial court erred in its instructions to the jury on the affirmative defense of sudden incapacitation. The trial court instructed the jury that defendant must show by the greater weight of the evidence:\nFirst, that she was stricken by a sudden medically caused incapacitation. Two, that this medically caused incapacitation was unforeseeable to the defendant, Dorothy Galloway Jones. And three, that the defendant, Dorothy Jones, was unable to control her automobile because of this medically caused incapacitation. No. Let me repeat three. That the defendant, Dorothy Jones was either unable to control her automobile because of this medically caused incapacitation, or that she was not capable of sense perception or judgment necessary for proper operation of her vehicle due to the medically caused incapacitation. And four, that this medically caused incapacitation caused the motor vehicle accident in question. Those are the four things that the defendant must prove by the greater weight of the evidence. If she has proven this to you, all of this, then she would not be negligent.\nPlaintiff argues that the trial court erred in rejecting its proposed charge dealing with sudden medical incapacitation. Plaintiff argues that the trial court in its instruction impermissibly lightened the burden on defendant by instructing in part three of the trial court\u2019s instruction in the disjunctive rather than the conjunctive, and by allowing the jury to consider \u201csense perception\u201d and \u201cjudgment\u201d alternatively. Plaintiff argues that this instruction eliminated an essential element of the defense which required a medical condition to render defendant unable to control the vehicle. Instead, plaintiff contends that, as instructed, the jury could have rested its decision on a determination that her sense perception was impaired but not to the extent of unconsciousness.\nPlaintiff additionally argues that the court erred in refusing to instruct \u201c[t]hat the Defendant had no time to stop or cease the operation of her vehicle before hand [sic] because of the sudden incapacitation.\u201d Plaintiff contends that she was entitled to this instruction which would focus on the defendant\u2019s failure to stop the vehicle as she drove into oncoming traffic for three-tenths of a mile before the collision. Plaintiff also contends the trial court erred in refusing to instruct \u201cthat she [the Defendant] was not consciously aware of her actions.\u201d Plaintiff contends that this was an essential element of the defense of sudden incapacitation. See Wallace v. Johnson, 11 N.C. App. 703, 705, 182 S.E.2d 193, 194, cert. denied, 279 N.C. 397, 183 S.E.2d 247 (1971).\nPlaintiff asserts that the defendant\u2019s unconsciousness is crucial to defendant being able to assert the sudden medical incapacitation defense. Plaintiff maintains that \u201cAlzheimer\u2019s-induced confusion\u201d is insufficient to support defendant\u2019s defense, and defendant should have been required to prove that she was unconscious of her actions. Plaintiff argues that since there was evidence that defendant was conscious at the time of the collision, it was error not to give plaintiffs requested instructions.\nDefendant maintains that the jury charge was consistent with this court\u2019s recent opinion in Mobley v. Estate of Johnson, 111 N.C. App. 422, 432 S.E.2d 425 (1993). Defendant contends that the only difference was the trial court\u2019s explanation of the third element of the defense, which defendant asserts was approved by this Court in Wallace. Additionally, defendant contends that Alzheimer\u2019s disease is a medical condition, and that the condition produced an unexpected \u201csensory overload\u201d which caused the incapacitation. Defendant argues that this type of condition can be the basis of a sudden incapacitation defense. See Wallace, 11 N.C. App. at 707, 182 S.E.2d at 195. Accordingly, the defendant asks the court to affirm the judgment of the trial court.\nAfter careful review of the record, excellent briefs and arguments, and contentions of the parties, we reverse. Our Court announced the elements of sudden medical incapacitation in Mobley. To prevail on the defense of sudden medical incapacitation, defendant must show \u201c(1) that [she] was stricken by a . . . sudden incapacitation, (2) that this incapacitation was unforeseeable to [defendant], (3) that [defendant] was unable to control [her] vehicle because of this incapacitation, and (4) that this sudden incapacitation caused the accident. . . .\u201d Id. at 425, 432 S.E.2d at 427. The issue here is what is meant by the third element, \u201cunable to control [her] vehicle because of this incapacitation.\u201d Id. The trial court instructed the jury that defendant must be unable to control the vehicle because of the sudden incapacitation, \u201cor that she was not capable of sense perception or judgment necessary for proper operation of her vehicle due to the medically caused incapacitation.\u201d (Emphasis added). This instruction was in error.\nIn Wallace, the trial court\u2019s instructions explained this third element as:\nincapacitation which deprived [defendant] of the ability to act as a reasonable and prudent person would act in the operation of his automobile, and that he had no time to stop or cease the operation of his vehicle beforehand because of said condition, and that his mental or physical condition was such that he was not capable of sense perception and judgment, and that he was not consciously aware of his actions and had no reason to anticipate such attack upon him because of such sudden seizure or incapacitation, that he was rendered unable to control the operation of his car....\nId. at 707, 182 S.E.2d at 195. The trial court\u2019s additional instruction in the disjunctive, plus the failure to include as explanation that defendant \u201chad no time to stop or cease the operation of the vehicle beforehand because of said condition\u201d and defendant \u201cwas not consciously aware of her actions\u201d constituted reversible error because his instruction improperly expanded the scope of the sudden incapacitation defense. In Wallace, we stated that:\nBy the great weight of authority the operator of a motor vehicle who becomes suddenly stricken by a fainting spell or other sudden and unforeseeable incapacitation, and is, by reason of such unforeseen disability, unable to control the vehicle, is not chargeable with negligence. \u2018But one who relies upon such a sudden unconsciousness to relieve him from liability must show that the accident was caused by reason of this sudden incapacity.\u2019\nId. at 705, 182 S.E.2d at 194 (emphasis added) (citations omitted). The trial court\u2019s charge would permit the incapacitation defense to apply to incapacity without loss of consciousness. Instead, a verdict could stand upon the jury\u2019s determination that defendant\u2019s senses or judgment was impaired, although the defendant was not unconscious, and that the impairment rendered her unable to control her vehicle.\nPractical considerations also support a requirement of loss of consciousness as an element of the sudden medical incapacitation defense. \u201cConfusion\u201d and \u201cdisorientation\u201d are somewhat vague, imprecise, and subjective terms. They present the potential to foster fraud and abuse of the sudden medical incapacitation defense. \u201cUnconsciousness\u201d is a workable, objective test that is more easily understood and applied to measure sudden medical incapacitation.\nAccordingly, the judgment of the trial court is reversed and remanded for new trial.\nReversed and remanded.\nJudges WALKER and HORTON concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by Adam Stein, for plaintiff-appellant.", "Cranfill, Sumner & Hartzog, L.L.P., by Robert W. Sumner and Edward C. LeCarpentier III, and the Law Offices of H. Spencer Barrow, by H. Spencer Barrow, for defendant-appellee." ], "corrections": "", "head_matter": "WILLIE ELAINE SPIVERY WORD, Administrator CTA of the Estate of BERTHA C. SPIVERY, Plaintiff v. DOROTHY GALLOWAY JONES, by and through her Guardian, HARRIET B. MOORE, Defendant\nNo. COA97-1483\n(Filed 7 July 1998)\n1. Trials\u2014 failure to move for directed verdict \u2014 sufficiency of evidence waived\nIn an action arising from an automobile acccident, the sufficiency of defendant\u2019s evidence of sudden emergency was not properly preserved for appellate review where plaintiff failed to move for a directed verdict at the close of defendant\u2019s evidence.\n2. Negligence\u2014 sudden incapacitation \u2014 instructions\nThe trial court erred in its instructions on sudden incapacitation in an action arising from an automobile accident where defendant suffered from Alzheimer\u2019s. The court instructed the jury that defendant must be unable to control the vehicle because of the sudden incapacitation \u201cor that she was not capable of sense perception or judgment necessary for proper operation of her vehicle due to medically caused incapacitation\u201d; this charge would permit the incapacitation defense to apply without loss of consciousness.\nAppeal by plaintiff from judgment entered 19 May 1997 by Judge Henry V. Barnette, Jr. in Wake County Superior Court. Heard in the Court of Appeals 2 June 1998.\nThis is a negligence action arising out of an automobile collision on 14 October 1993. The undisputed facts are that the defendant, Dorothy Galloway Jones, was driving her 1988 Buick automobile east in the right westbound lane of travel on New Bern Avenue, i.e. against traffic and in the wrong direction, when she collided with a 1982 Mazda automobile driven by Denise Holder. Plaintiff Bertha C. Spivery was a passenger in the front seat of the Mazda. Plaintiff suffered permanent injuries as a result of the accident.\nOn 4 December 1995, plaintiff filed this action against the defendant seeking compensatory damages for injuries suffered in the accident. On 10 January 1996, defendant answered denying all material allegations of negligence and specifically pleading as an affirmative defense that the accident \u201cwas caused by a sudden and unexpected medical emergency which caused defendant to black out and lose consciousness prior to the occurrence of the accident.\u201d Plaintiff died in August 1996, and Willie Elaine Spivery Word, Administrator CTA of the Estate of Bertha C. Spivery, was substituted as plaintiff on 9 December 1996.\nTrial commenced 12 May 1997. At the close of all the evidence, the parties submitted proposed jury instructions. During the charge conference, plaintiff objected to a jury instruction on the issue of sudden medical incapacitation because plaintiff argued there was insufficient evidence to have the affirmative defense submitted to the jury. The objection was overruled and the trial court charged the jury including an instruction on sudden medical incapacitation. Following the jury charge, plaintiff renewed their objection to the instruction on sudden medical incapacitation, and adding that the jury charge should have included instructions that the defendant had to prove that she had no time to stop or cease the operation of her vehicle before the collision because of the sudden incapacitation, and that the defendant was not consciously aware of her actions. The trial court overruled the objection. On 16 May 1997 the jury returned a verdict for defendant. The trial court entered judgment on 19 May 1997. The plaintiff moved for judgment notwithstanding the verdict, which the trial court denied, and for a new trial. The plaintiffs motion for a new trial was denied 13 June 1997. Plaintiff appeals.\nFerguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by Adam Stein, for plaintiff-appellant.\nCranfill, Sumner & Hartzog, L.L.P., by Robert W. Sumner and Edward C. LeCarpentier III, and the Law Offices of H. Spencer Barrow, by H. Spencer Barrow, for defendant-appellee." }, "file_name": "0100-01", "first_page_order": 132, "last_page_order": 138 }