{ "id": 8958513, "name": "LAURA J. SMITH, Plaintiff v. DONNIE LYNN HAMRICK, Defendant", "name_abbreviation": "Smith v. Hamrick", "decision_date": "2003-08-05", "docket_number": "No. COA02-1004", "first_page": "696", "last_page": "701", "citations": [ { "type": "official", "cite": "159 N.C. App. 696" } ], "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": "361 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "87 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358525 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0438-01" ] }, { "cite": "458 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915110 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0343-01" ] }, { "cite": "92 S.E. 355", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "opinion_index": 0 }, { "cite": "173 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270703 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nc/173/0496-01" ] }, { "cite": "515 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "133 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216753 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/133/0093-01" ] }, { "cite": "376 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527788 ], "year": 1989, "pin_cites": [ { "page": "48-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0042-01" ] }, { "cite": "316 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "636" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525774 ], "year": 1984, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0089-01" ] }, { "cite": "259 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "201 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "857", "parenthetical": "citations omitted" }, { "page": "857", "parenthetical": "citation omitted" }, { "page": "857" } ], "opinion_index": 0 }, { "cite": "284 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563323 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "572", "parenthetical": "citations omitted" }, { "page": "572" }, { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0568-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0959-02", "/us/484/0959-01" ] }, { "cite": "357 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "911" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "463 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "762", "parenthetical": "quoting State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987)" } ], "opinion_index": 0 }, { "cite": "342 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796135 ], "year": 1995, "pin_cites": [ { "page": "48", "parenthetical": "quoting State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0001-01" ] } ], "analysis": { "cardinality": 631, "char_count": 11632, "ocr_confidence": 0.759, "pagerank": { "raw": 6.49376633290881e-08, "percentile": 0.3995310151286812 }, "sha256": "7403c74e16e8931d47df87a43e05cdc1bb5cb49f45b6462c35252237f76a60e1", "simhash": "1:b6c3141b24eeaa92", "word_count": 1852 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and GEER concur." ], "parties": [ "LAURA J. SMITH, Plaintiff v. DONNIE LYNN HAMRICK, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nLaura J. Smith (\u201cplaintiff\u2019) appeals a judgment whereby a jury awarded her one dollar in nominal damages due to personal injuries she incurred in an automobile accident. For the reasons stated herein, we find no error.\nOn 25 May 1998, Donnie Lynn Hamrick (\u201cdefendant\u201d) was towing a trailer behind his truck on Interstate 1-85 in Rowan County when the trailer\u2019s rear wheel assembly suddenly detached. The assembly struck and shattered plaintiff\u2019s windshield. Plaintiff sustained injuries.\nPlaintiff instituted a negligence action against defendant on 26 January 2001, which was subsequently tried on 25 February 2002. During the trial, plaintiff testified that she could not have prevented the accident because the assembly came towards her suddenly and without warning. She further testified that the broken glass from the windshield primarily injured her foot, causing severe pain and discomfort to her leg and hip. With respect to that injury, plaintiff testified on cross-examination that her shoe apparently came off during the accident and, since the shoe was covered in broken glass fragments, she left it off and walked barefoot on the broken glass around the accident scene. Plaintiff ultimately sought treatment for the cuts on her foot and other injuries from a chiropractic physician, Dr. Richard Berkowitz, who testified that he diagnosed plaintiff with \u201ccervical somatic dysfunction, lumber somatic dysfunction, sprain/strain of the neck, a sprain/strain of the lower back and cephalalgia.\u201d Defendant neither testified nor offered any evidence.\nFollowing the closing arguments and the jury instructions, the jury unanimously determined that plaintiff was entitled to only one dollar in nominal damages from defendant, and judgment was entered accordingly. Plaintiff requested a new trial and was denied. Plaintiff appeals the judgment. Additional facts regarding this appeal will be discussed as relevant to plaintiff\u2019s arguments.\nI.\nFirst, plaintiff argues the court committed reversible error by denying her motion for a mistrial due to the defense attorneys making intentionally prejudicial opening and closing arguments.\nThe facts relevant to this argument are as follows: Defense attorney Steven Colombo (\u201cAttorney Columbo\u201d) began his opening argument by stating, \u201cLadies and Gentleman, this is nonsense; it\u2019s absolute nonsense, and we\u2019ll prove it to you.\u201d Plaintiff objected to Attorney Columbo\u2019s characterization of her case, and the objection was sustained with no curative instruction requested by plaintiff or ' given to the jury. Attorney Columbo subsequently became ill and another attorney from his firm, Charles Collins (\u201cAttorney Collins\u201d), replaced him as defense attorney for the remainder of the trial. Thereafter, when the time came for closing arguments, Attorney Collins began his closing argument by stating: \u201cLadies and Gentlemen, this case is \u2014 it\u2019s nonsense, and we\u2019ve showed [sic] you that.\u201d Plaintiff objected again. That objection was sustained once again without a curative instruction being requested by plaintiff or given to the jury. Thereafter, Attorney Collins continued his closing argument by stating that plaintiff\u2019s case was \u201cnot about pain; it\u2019s about profit. And it\u2019s not about injury; it\u2019s about money.\u201d Plaintiff did ndt object to the additional argument. On appeal, plaintiff contends that each of these statements was made solely to prejudice the jury and represented the personal opinions of the defense attorneys.\nAs a general rule, attorneys \u201c \u2018are granted wide latitude in the scope of their arguments].\u2019 \u201d State v. Walls, 342 N.C. 1, 48, 463 S.E.2d 738, 762 (1995) (quoting State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987)). Specifically, an attorney has latitude to argue \u201call the evidence to the jury, with such inferences as may be drawn therefrom; but he may not \u2018travel outside the record\u2019 and inject into his argument facts of his own knowledge or other facts not included in the evidence.\u201d Crutcher v. Noel, 284 N.C. 568, 572, 201 S.E.2d 855, 857 (1974) (citations omitted). Ensuring that counsel\u2019s arguments adhere to this rule is left largely to the discretion of the trial court. See State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979). \u201cWhen counsel makes an improper argument, it is the duty of the trial judge, upon objection, or ex mero motu, to correct the transgression by clear instructions. If timely done, such action will often remove the prejudicial effect of improper argument.\u201d Crutcher, 284 N.C. at 572, 201 S.E.2d at 857 (citation omitted). An appellate court will not review the exercise of the trial court\u2019s discretion unless the impropriety of the argument made is extreme and clearly calculated to prejudice the jury in its deliberations. See Johnson, 298 N.C. at 369, 259 S.E.2d at 761.\nIn the instant case, defendant contends that her attorneys\u2019 \u201cnonsense\u201d statements merely asserted that plaintiff\u2019s decision to walk barefoot on broken glass was contrary to good sense, i.e., nonsense. However, the transcript indicates that defendant\u2019s attorneys stated in opening and closing arguments that plaintiff\u2019s case was nonsense. Rule 3.4(e) of the Revised Rules of Professional Conduct of the North Carolina State Bar provides that an attorney, in trial, shall not \u201cstate a personal opinion as to the justness of a cause [or] culpability of a civil litigant[.]\u201d Rev. R. Prof. Conduct N.C. St. B. 3.4(e), 2003 Ann. R. (N.C.) 593, 664. Such statements, especially when they are not further tied into any aspect of the evidence, exceed the scope of what is permissible under Rule 3.4(e). Moreover, assuming that characterization was permissible in the closing argument, it was wholly inappropriate in the context of the opening argument. This Court recognizes that the purpose of an opening argument is not to act as \u201can argument on the case or an instruction as to the law of the case[,]\u201d but to \u201callow the party to inform the court and jury of the nature of his case and the evidence he plans to offer in support of it.\u201d State v. Elliott, 69 N.C. App. 89, 93, 316 S.E.2d 632, 636 (1984). Describing plaintiff\u2019s case as \u201cnonsense\u201d unquestionably constituted argument.\nNevertheless, we do not believe the \u201cnonsense\u201d statements were so prejudicial as to entitle plaintiff to a new trial. In front of the jury, the trial court sustained plaintiff\u2019s objections to defense counsels\u2019 improper statements and commented on why those statements were improper. On appeal, plaintiff contends the trial court should have intervened beyond sustaining the objections and admonishing defendant\u2019s attorneys. Yet, this Court has held that when an objection is made to an improper argument of counsel and the court sustains the objection, that court does not err by failing to give a curative instruction if one is not requested. See State v. Barber, 93 N.C. App. 42, 48-49, 376 S.E.2d 497, 501 (1989). Plaintiff clearly did not request a curative instruction after the court sustained either of the objections to the defense attorneys\u2019 characterization of her case as \u201cnonsense\u201d and, given the nature of the statements, it was unnecessary for the court to give such an instruction ex mero mo tu because the impropriety of the statements was not extreme. See Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 515 S.E.2d 30 (1999). Finally, with respect to the additional disputed statements, those statements were proper in the context of Attorney Collins\u2019 closing argument as an attempt to draw what he deemed were reasonable inferences from the law and facts offered into evidence. See generally Crutcher, 284 N.C. at 572, 201 S.E.2d at 857. Thus, the trial court did not abuse its discretion in denying plaintiff a mistrial based on statements made by the defense attorneys in their opening and closing arguments.\nII.\nPlaintiff also argues the trial court committed reversible error when it denied plaintiffs motion to strike the use of North Carolina Pattern Jury Instructions regarding nominal damages. Specifically, Instruction 106.00 states, inter alia, that \u201c[njominal damages consist of some trivial amount such as one dollar in recognition of a technical injury to the plaintiff.\u201d N.C.P.I. \u2014 Civ. 106.00 (motor veh. vol. 2000). Further, Instruction 106.20 states, inter alia, that if the jury fails to find, by the greater weight of the evidence, the amount of damages proximately caused by the negligence of the defendant, \u201cit would be [the jury\u2019s] duty to write a nominal sum such as \u2018One Dollar\u2019 in the blank space provided.\u201d N.C.P.I. \u2014 Civ. 106.20 (motor veh. vol. 2000). Defendant contends these two instructions on their face prevented an impartial determination by a jury because they required the instructing judge to suggest that plaintiff\u2019s nominal damages were only worth one dollar. We disagree.\nNominal damages are awarded based upon a finding that there has been an invasion of a party\u2019s rights. Hutton v. Cook, 173 N.C. 496, 92 S.E. 355 (1917). Such an award is recoverable in actions based on negligence. Porter v. Leneave, 119 N.C. App. 343, 458 S.E.2d 513 (1995). Here, the nominal damages instructions with which plaintiff takes issue were created and approved by a committee of the North Carolina Conference of Superior Court Judges over twenty-five years ago. During that time these instructions have served as a way of explaining nominal damages, and it was the duty of the trial court to instruct the jury upon the law with respect to the awarding of nominal damages due to the possibility of them being awarded in this case. See Mosley & Mosley Builders v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608 (1987). Plaintiff does not cite, nor has this Court found, any North Carolina case law where giving these instructions to a jury was ever questioned by an appellate court much less deemed prejudicial to the parties. Further, plaintiff has not argued that submission of the nominal damages instructions were improper in light of the evidence. Therefore, the court committed no reversible error in denying plaintiffs motion to strike the use of the pattern jury instructions on nominal damages.\nNo error.\nJudges MARTIN and GEER concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Law Offices of Michael J. BednarikRA., by Michael J. Bednarik and Brian R. Hochman, for plaintiff-appellant.", "Colombo & Gondek, P.A., by Steven J. Colombo, JohnP. Schifano and David M. Harmon, for defendant-appellee." ], "corrections": "", "head_matter": "LAURA J. SMITH, Plaintiff v. DONNIE LYNN HAMRICK, Defendant\nNo. COA02-1004\n(Filed 5 August 2003)\n1. Trials\u2014 opening and closing arguments \u2014 characterization of opponent\u2019s case\nThe trial court did not abuse its discretion by denying plaintiff a mistrial in an automobile accident case where the defense attorneys argued that plaintiffs case was \u201cnonsense\u201d in their opening and closing arguments. The court sustained plaintiffs objections, but plaintiff did not request a curative instruction and the impropriety of the statements was not so extreme as to require an instruction ex mero motu.\n2. Trials\u2014 use of Pattern Jury Instruction \u2014 not prejudicial\nThe trial court did not err in an automobile negligence case when it denied plaintiffs motion to strike the use of the North Carolina Pattern Jury Instruction on nominal damages. Plaintiff did not argue that submission of nominal damages was improper, and there is no case law in which an appellate court questioned the use of these instructions or deemed their use prejudicial.\nAppeal by plaintiff from judgment entered 14 March 2002 by Judge Charles A. Home, Sr. in Cleveland County District Court. Heard in the Court of Appeals 14 May 2003.\nLaw Offices of Michael J. BednarikRA., by Michael J. Bednarik and Brian R. Hochman, for plaintiff-appellant.\nColombo & Gondek, P.A., by Steven J. Colombo, JohnP. Schifano and David M. Harmon, for defendant-appellee." }, "file_name": "0696-01", "first_page_order": 726, "last_page_order": 731 }