{ "id": 8187365, "name": "PAULA ANN HOFFMAN, Plaintiff v. SHAWN CHERRI OAKLEY and DAVID READE OAKLEY, Defendants and Third-Party Plaintiffs v. CATHERINE MICHELLE HOFFMAN, Third-Party Defendant", "name_abbreviation": "Hoffman v. Oakley", "decision_date": "2007-07-17", "docket_number": "No. COA06-932", "first_page": "677", "last_page": "688", "citations": [ { "type": "official", "cite": "184 N.C. App. 677" } ], "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": "620 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634162 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "48", "parenthetical": "\"[T]here [i]s no statutory authority for the award of deposition costs.\"" }, { "page": "49", "parenthetical": "finding no abuse of discretion when trial court awarded expert witness fee in part for time spent on preparation" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0039-01" ] }, { "cite": "632 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636288 ], "year": 2006, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0206-01" ] }, { "cite": "310 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395334, 2397161, 2398953, 2402010, 2396379 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0477-04", "/nc/310/0477-01", "/nc/310/0477-05", "/nc/310/0477-03", "/nc/310/0477-02" ] }, { "cite": "637 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637289, 12637290 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/637/0536-01", "/se2d/637/0536-02" ] }, { "cite": "624 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634839 ], "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0401-01" ] }, { "cite": "618 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633894 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "843" }, { "page": "843" }, { "page": "843" }, { "page": "843" }, { "page": "843" }, { "page": "843" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0838-01" ] }, { "cite": "548 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "752", "parenthetical": "looking to \"plain language\" of statute in case of first impression" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436537 ], "year": 2001, "pin_cites": [ { "page": "606", "parenthetical": "looking to \"plain language\" of statute in case of first impression" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0601-01" ] }, { "cite": "148 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "37", "parenthetical": "holding that extent of damage, along with other evidence, was sufficient to support inference that car was being operated at dangerous and unlawful rate of speed" } ], "opinion_index": 0 }, { "cite": "267 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558905 ], "year": 1966, "pin_cites": [ { "page": "227", "parenthetical": "holding that extent of damage, along with other evidence, was sufficient to support inference that car was being operated at dangerous and unlawful rate of speed" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0221-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "362 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569131 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0260-01" ] }, { "cite": "352 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168487 ], "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0314-01" ] }, { "cite": "537 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "507", "parenthetical": "allowing taxation of expert witness fee for review of medical records" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130703 ], "year": 2000, "pin_cites": [ { "page": "539", "parenthetical": "allowing taxation of expert witness fee for review of medical records" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0536-01" ] }, { "cite": "296 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526257 ], "year": 1982, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0280-01" ] }, { "cite": "533 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "269", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497023 ], "year": 2000, "pin_cites": [ { "page": "447", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0446-01" ] }, { "cite": "173 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353899 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "519", "parenthetical": "\"[T]here [i]s no statutory authority for the award of deposition costs.\"" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0506-01" ] }, { "cite": "564 So. 2d 1081", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11977191 ], "year": 1990, "pin_cites": [ { "page": "1083", "parenthetical": "approving Hough" } ], "opinion_index": 0, "case_paths": [ "/so2d/564/1081-01" ] }, { "cite": "555 So. 2d 942", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7530736, 7530653 ], "year": 1990, "pin_cites": [ { "page": "943-44", "parenthetical": "despite insurer's payment of prevailing party's costs, prevailing party could still receive costs under statutory provision granting costs to \"party recovering judgment\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/555/0942-02", "/so2d/555/0942-01" ] }, { "cite": "178 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378624 ], "year": 2006, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0519-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2005, "opinion_index": 0 }, { "cite": "480 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "345 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53986 ], "year": 1997, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0488-01" ] }, { "cite": "576 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "196" }, { "page": "141", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190111 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/156/0192-01" ] }, { "cite": "113 S.E. 672", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "673", "parenthetical": "emphasis original" } ], "opinion_index": 0 }, { "cite": "184 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269625 ], "year": 1922, "pin_cites": [ { "page": "180", "parenthetical": "emphasis original" } ], "opinion_index": 0, "case_paths": [ "/nc/184/0179-01" ] }, { "cite": "424 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "333 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544890 ], "year": 1993, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0209-01" ] }, { "cite": "603 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "850", "parenthetical": "evidence that plaintiff was \"exceed[ing] the speed limit\" justified submission of issue of plaintiffs contributory negligence to the jury" }, { "page": "850" }, { "page": "851", "parenthetical": "distinguishing Ellis and concluding that defendant demonstrated real causal connection between collision and plaintiff's speed when evidence showed plaintiff was speeding while approaching defendant's vehicle and, by the time plaintiff saw defendant, plaintiff was unable to stop" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413630 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "723", "parenthetical": "evidence that plaintiff was \"exceed[ing] the speed limit\" justified submission of issue of plaintiffs contributory negligence to the jury" }, { "page": "722" }, { "page": "723-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0719-01" ] }, { "cite": "400 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. 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App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521795 ], "year": 1989, "pin_cites": [ { "page": "308-09" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0306-01" ] }, { "cite": "309 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "580" }, { "page": "580-81" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525303 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "610" }, { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0609-01" ] }, { "cite": "479 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "345 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54050, 53956, 53868, 53842, 54108 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0179-04", "/nc/345/0179-05", "/nc/345/0179-02", "/nc/345/0179-01", "/nc/345/0179-03" ] }, { "cite": "471 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "90-92" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918682 ], "pin_cites": [ { "page": "571-73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0569-01" ] }, { "cite": "312 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "304 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "786-87", "parenthetical": "holding admissible expert testimony that applied the law of physics to post-collision movement of two cars" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525087 ], "year": 1983, "pin_cites": [ { "page": "353", "parenthetical": "holding admissible expert testimony that applied the law of physics to post-collision movement of two cars" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0349-01" ] }, { "cite": "377 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. 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App. 535", "category": "reporters:state", "reporter": "N.C. 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App. 385", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353587 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "391" }, { "page": "391" }, { "page": "391" }, { "page": "391" }, { "page": "391" }, { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0385-01" ] }, { "cite": "2006 N.C. Sess. Laws 253", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 } ], "analysis": { "cardinality": 1135, "char_count": 27760, "ocr_confidence": 0.759, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.3028027888884642 }, "sha256": "c681c2b3fb7b5dd87c0005e94a884d3b78ea1a4f3fa16310e03404ec89fd68db", "simhash": "1:1b6b5c326eafd6d2", "word_count": 4521 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and ELMORE concur." ], "parties": [ "PAULA ANN HOFFMAN, Plaintiff v. SHAWN CHERRI OAKLEY and DAVID READE OAKLEY, Defendants and Third-Party Plaintiffs v. CATHERINE MICHELLE HOFFMAN, Third-Party Defendant" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Paula Ann Hoffman and her daughter, third-party defendant Catherine Michelle Hoffman (the \u201cHoffmans\u201d), appeal from a judgment in favor of defendants/third-party plaintiffs, Shawn Cherri Oakley and David Reade Oakley, entered in accordance with a jury verdict, concluding that Catherine Michelle Hoffman had been con-tributorily negligent in an automobile collision. The primary issue on appeal is whether the trial court erred by admitting the testimony of the defendant/third-party plaintiffs\u2019 accident reconstruction expert, which, the Hoffmans contend, constituted improper expert testimony regarding the speed Catherine was traveling.\nIt has long been the law, in North Carolina, that an expert witness may not testify regarding the speed of a vehicle unless he or she personally observed the vehicle. See 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 183, at 37-38 n.166 (6th ed. 2004) (urging elimination of limitations on accident reconstruction expert testimony). Although our legislature has recently amended Rule 702 to overturn this doctrine, the amendment applies only to \u201coffenses\u201d committed on or after 1 December 2006. 2006 N.C. Sess. Laws 253, sec. 33. Since the automobile collision in this case occurred on 13 March 2003, we must apply the former law. Nevertheless, we hold that the expert\u2019s testimony did not amount to an opinion on Catherine Hoffman\u2019s speed, but rather was the type of testimony admissible even under the previously existing law.\nIn addition, the Hoffmans challenge the trial court\u2019s award of costs. We believe the trial court properly determined costs in accordance with Miller v. Forsyth Mem\u2019l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838 (2005). The amounts awarded either fell within N.C. Gen. Stat. \u00a7 7A-305(d) (2005) or constituted a \u201ccommon law cost.\u201d As to the latter costs, we find no abuse of discretion.\nFacts\n\u2022 At approximately 7:30 a.m. on 13 March 2003, Catherine Hoffman was driving her mother\u2019s 1996 Honda Civic on Brooks Avenue in Raleigh, North Carolina. As Catherine approached the defendant Oakleys\u2019 home on Brooks Avenue, Shawn Oakley was backing David Oakley\u2019s mini-van out of their driveway when the two cars collided.\nOn 28 April 2003, Paula Hoffman filed suit against the Oakleys, in Wake County District Court, for losses resulting from the property damage to her car. She alleged that Shawn Oakley had been negligent in backing the mini-van out of her driveway and had caused the collision. The Oakleys filed an answer denying the relevant allegations of Paula Hoffman\u2019s complaint and, subsequently, filed an amended answer and a third-party complaint against Catherine Hoffman. The Oakleys\u2019 third-party complaint alleged that Catherine\u2019s negligence had been the sole cause of the collision or, alternatively, that her contributory negligence precluded her mother\u2019s recovery.\nThe case was tried before a jury on 8 and 9 August 2005 in Wake County District Court, with the parties stipulating that any negligence by Catherine Hoffman was to be imputed to Paula Hoffman. After hearing testimony from the Hoffmans, Shawn Oakley, the police officers who arrived on the scene after the collision, and an expert in accident reconstruction, the jury determined that although Paula Hoffman\u2019s vehicle was damaged by Shawn Oakley\u2019s negligence, Catherine Hoffman \u2014 and, therefore, Paula Hoffman \u2014 was contribu-torily negligent. Accordingly, the trial court entered judgment ordering that the Hoffmans recover nothing from the Oakleys.\nThe Hoffmans\u2019 subsequent motions for a new trial or judgment notwithstanding the verdict were denied, and the trial court awarded the Oakleys certain specified \u201creasonable costs and expenses.\u201d The Hoffmans filed a timely appeal to this Court.\nI\nThe Hoffmans first argue that the trial court erred in admitting the testimony of the Oakleys\u2019 expert on accident reconstruction. They contend that the witness gave impermissible opinion testimony regarding the speed Catherine Hoffman was traveling. We disagree.\nTypically, an expert witness may testify in the form of an opinion if that expert\u2019s \u201cscientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . . N.C.R. Evid. 702(a). \u201c[E]xpert testimony in the field of accident reconstruction has been widely accepted as reliable by the courts of this State.\u201d State v. Holland, 150 N.C. App. 457, 463, 566 S.E.2d 90, 94 (2002), cert. denied, 356 N.C. 685, 578 S.E.2d 316 (2003).\nNevertheless, our appellate courts held, prior to the amendment to add Rule 702(i), \u201cthat \u2018with respect to the speed of a vehicle, the opinion of a[n] . . . expert witness will not be admitted where he did not observe the accident, but bases his opinion on the physical evidence at the scene.\u2019 \u201d Marshall v. Williams, 153 N.C. App. 128, 135, 574 S.E.2d 1, 5 (quoting Hicks v. Reavis, 78 N.C. App. 315, 323, 337 S.E.2d 121, 126 (1985), cert. denied, 316 N.C. 553, 344 S.E.2d 7 (1986)), appeal dismissed and disc. review denied, 356 N.C. 614, 574 S.E.2d 683 (2002). Accordingly, unless an accident reconstruction expert actually observed the accident, the expert may not testify as to the speed a vehicle was traveling. See Van Reypen Assocs., Inc. v. Teeter, 175 N.C. App. 535, 542, 624 S.E.2d 401, 405 (noting that, under this rule, \u201cour trial courts are forced to exclude accident reconstruction testimony regarding speed\u201d), disc. review improvidently allowed, 361 N.C. 107, 637 S.E.2d 536 (2006).\nHere, the Oakleys\u2019 expert, Sean Dennis, testified that he had performed several \u201cskid test[s]\u201d at the accident scene using a 1997 two-door Honda Civic that Mr. Dennis considered to be a \u201csister or clone\u201d of the 1996 four-door Honda Civic that Catherine Hoffman was driving at the time of the accident. Because the speed limit at the scene of the accident was 35 miles per hour, Mr. Dennis\u2019 skid tests included \u201cfull, panic-stop application of the brake pedal\u201d at 33, 34.2, 40, 46, and 50 miles per hour. According to Mr. Dennis, his test results indicated that if a vehicle like the one driven by Catherine Hoffman was traveling at 35 miles per hour, it would be able to stop \u201cin just under 54 feet.\u201d The Hoffmans argue that this testimony, when viewed in conjunction with that of \u00e1 responding police officer who found skid marks at the scene measuring 80 feet in length, was merely \u201cevidence of speed through the \u2018back door.\u2019 \u201d\nOur Supreme Court has, however, specifically held that such testimony about stopping distances is admissible. See State v. Gray, 180 N.C. 697, 702, 104 S.E. 647, 650 (1920) (\u201cAdmitting, then, that each of the particular witnesses was an expert in regard to the matter about which he was examined, testimony as to the distance within which such a truck, as [the] truck [at issue,] could be stopped when going at a rate of speed 20 to 25 miles an hour was plainly admissible.\u201d). See also Draper v. Atl. Coast Line R.R. Co., 161 N.C. 308, 312, 77 S.E. 231, 232-33 (1913) (holding that testimony was competent when witness testified that train traveling at particular speed could have stopped within 200 yards). Under Gray and Draper, Mr. Dennis\u2019 testimony about stopping distances at various speeds was admissible.\nThese decisions are consistent with subsequent Supreme Court decisions holding that expert testimony about speed is inadmissible. In Shaw v. Sylvester, 253 N.C. 176, 180, 116 S.E.2d 351, 355 (1960), the Court held that \u201c[a] witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require.\u201d The Court stressed, however, that \u201c[t]he qualified expert, the nonobserver, may give an opinion in answer to a proper hypothetical question in matters involving science, art, skill and the like. ... An automobile, like any other moving object, follows the laws of physics . ...\u201d Id.\nThis Court has held that the restriction on expert testimony set out in Shaw \u201cis limited to opinions regarding speed,-, it does not apply to opinions concerning other elements of an accident.\u201d State v. Purdie, 93 N.C. App. 269, 276, 377 S.E.2d 789, 793 (1989). Thus, an expert\u2019s testimony is properly admitted when he gives no opinion as to the actual speed of a vehicle. Id. See also McKay v. Parham, 63 N.C. App. 349, 353, 304 S.E.2d 784, 786-87 (1983) (holding admissible expert testimony that applied the law of physics to post-collision movement of two cars), disc. review denied, 310 N.C. 477, 312 S.E.2d 885 (1984).\nHere, Mr. Dennis never gave an opinion as to the speed that Catherine Hoffman was traveling. He used his scientific expertise to perform an experiment that demonstrated stopping distances at various speeds. See, e.g., Addison v. Moss, 122 N.C. App. 569, 571-73, 471 S.E.2d 89, 90-92 (holding result of experiment involving vehicle admissible on question of contributory negligence), disc. review denied, 345 N.C. 179, 479 S.E.2d 203 (1996). It was left up to the jury to determine Catherine Hoffman\u2019s stopping distance \u2014 which was a subject of dispute at trial \u2014 and make the ultimate determination of the speed of her car, precisely as required by Shaw. The trial court, therefore, did not err in admitting Mr. Dennis\u2019 testimony.\nII\nThe Hoffmans next argue that the trial court erred by denying their motions for a directed verdict on the issue of contributory negligence and for judgment notwithstanding the verdict (\u201cJNOV\u201d). When considering a motion for a directed verdict, a trial court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable inference arising from the evidence. Clark v. Moore, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580 (1983). Any conflicts and inconsistencies in the evidence must be resolved in favor of the non-moving party. Davis & Davis Realty Co. v. Rodgers, 96 N.C. App. 306, 308-09, 385 S.E.2d 539, 541 (1989), disc. review denied, 326 N.C. 263, 389 S.E.2d 112 (1990). If there is more than a scintilla of evidence supporting each element of the non-moving party\u2019s claim, the motion for a directed verdict should be denied. Clark, 65 N.C. App. at 610, 309 S.E.2d at 580-81. The same standard applies to motions for JNOV. Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986).\nBecause contributory negligence is an affirmative defense, the burden was on the Oakleys to prove that there was more than a scintilla of evidence supporting each element of contributory negligence. Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991). Evidence that a party was exceeding the posted speed limit is sufficient to send the issue of contributory negligence to the jury. See, e.g., Whisnant v. Herrera, 166 N.C. App. 719, 723, 603 S.E.2d 847, 850 (2004) (evidence that plaintiff was \u201cexceed[ing] the speed limit\u201d justified submission of issue of plaintiffs contributory negligence to the jury).\nIn the present case, the parties stipulated at trial that any negligence by Catherine Hoffman was to be imputed to Paula Hoffman. The speed limit on Brooks Avenue was 35 miles per hour. Shawn Oakley testified that Catherine Hoffman told her that she was traveling \u201cabout\u201d 40 miles per hour. In addition, as discussed in the prior section, the Oakleys\u2019 evidence included expert testimony that a car like the one driven by Catherine Hoffman would be able to stop \u201cin just under 54 feet\u201d if it was traveling at 35 miles per hour, the road\u2019s speed limit. Some of the measurements taken at the scene of the accident indicated that the skid marks from the Hoffman car measured 80 feet in length. If the jury accepted the accuracy of those measurements, then the jury could draw the inference, based on the accident reconstruction expert\u2019s testimony, that Catherine Hoffman was exceeding the speed limit. The issue of her contributory negligence was, therefore, properly submitted to the jury.\nThe Hoffmans nevertheless argue that Catherine Hoffman\u2019s speed was not a proximate cause of the collision. \u201cIn order for a contributory negligence issue to be presented to the jury, the defendant must show that plaintiff\u2019s injuries were proximately caused by his own negligence.\u201d McGill v. French, 333 N.C. 209, 217, 424 S.E.2d 108, 113 (1993). In other words, \u201c \u2018[t]here must be not only negligence on the part of the plaintiff, but contributory negligence, a real causal connection between the plaintiff\u2019s negligent act and the injury, or it is no defense to the action.\u2019 \u201d Whisnant, 166 N.C. App. at 722, 603 S.E.2d at 850 (quoting West Constr. Co. v. Atl. Coast Line R.R. Co., 184 N.C. 179, 180, 113 S.E. 672, 673 (1922) (emphasis original)).\nAccording to the Hoffmans, because the jury found that Shawn Oakley had been negligent, and Shawn herself testified that she did not see the Hoffmans\u2019 car before the collision, she must have backed into the roadway without looking. Therefore, the Hoffmans argue, regardless of Catherine Hoffman\u2019s speed, Shawn Oakley\u2019s negligence must have been the sole proximate cause of the collision. In support of their argument, the Hoffmans point to Ellis v. Whitaker, 156 N.C. App. 192, 576 S.E.2d 138 (2003), in which this Court noted that a plaintiff is not required to anticipate a defendant\u2019s negligence and \u201c \u2018has a right to assume that any motorist approaching from his left on the intersecting street will stop in obedience to the red light [or a stop sign] facing him unless and until something occurs that is reasonably calculated to put him on notice that such motorist will unlawfully enter the intersection.\u2019 \u201d Id. at 196, 576 S.E.2d at 141 (alteration in original) (quoting Cicogna v. Holder, 345 N.C. 488, 490, 480 S.E.2d 636, 637 (1997)). The Ellis Court concluded that, although the evidence suggested that the plaintiff may have been speeding, the defendant had failed to show a \u201creal causal connection\u201d between the plaintiffs speed and the accident, and, therefore, the plaintiff\u2019s speed was not a proximate cause of the collision. Id.\nUnlike Ellis, however, in which no evidence was presented indicating that the collision could have been avoided had the plaintiff been traveling the posted speed limit, the evidence in the present case was sufficient to allow a jury to find that had Catherine Hoffman not been speeding, she would have been able to stop in less than 54 feet, which would have brought her vehicle to a halt prior to any impact. This is sufficient to demonstrate a causal connection between Catherine Hoffman\u2019s excessive speed and the resulting accident. See Whisnant, 166 N.C. App. at 723-24, 603 S.E.2d at 851 (distinguishing Ellis and concluding that defendant demonstrated real causal connection between collision and plaintiff\u2019s speed when evidence showed plaintiff was speeding while approaching defendant\u2019s vehicle and, by the time plaintiff saw defendant, plaintiff was unable to stop). The trial court, therefore, properly denied the Hoffmans\u2019 motion for a directed verdict and motion for JNOV.\nIll\nFinally, the Hoffmans challenge the trial court\u2019s award of costs to the Oakleys on various grounds. N.C. Gen. Stat. \u00a7 6-1 (2005) provides: \u201cTo the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this Chapter.\u201d N.C. Gen. Stat. \u00a7 7A-305 (2005), in turn, governs costs assessable in civil actions. With respect to negligence actions,' costs \u201cmay be allowed or not, in the discretion of the court, unless otherwise provided by law.\u201d N.C. Gen. Stat. \u00a7 6-20 (2005). \u201cThe costs referred to in section 6-20 are the items enumerated in section 7A-305(d).\u201d Smith v. Cregan, 178 N.C. App. 519, 525, 632 S.E.2d 206, 210 (2006).\nAfter trial, the Oakleys stipulated that State Farm Mutual Automobile Insurance Company had paid all of their costs in accordance with an automobile insurance policy, and, as a result, they had \u201cnot personally paid any court costs as a result of the filing, hearing and trial of this case.\u201d According to the Hoffmans, because N.C. Gen. Stat. \u00a7 6-1 provides that costs shall be allowed \u201c[t\\o the party for whom judgment is given,\u201d the trial court erred by taxing as costs expenses actually paid by the Oakleys\u2019 insurer. (Emphasis added.)\nThis issue has not been specifically addressed by North Carolina courts. The Hoffmans have cited no authority suggesting that costs are unavailable when paid for by the insurance carrier pursuant to the insurance policy. At least one other jurisdiction has, however, rejected this argument. See Hough v. Huffman, 555 So. 2d 942, 943-44 (Fla. Dist. Ct. App. 1990) (despite insurer\u2019s payment of prevailing party\u2019s costs, prevailing party could still receive costs under statutory provision granting costs to \u201cparty recovering judgment\u201d). See also Aspen v. Bayless, 564 So. 2d 1081, 1083 (Fla. 1990) (approving Hough).\nBased on the plain language of the statute, we do not believe N.C. Gen. Stat. \u00a7 6-1 should be construed as precluding a recovery of costs under these circumstances. By its express terms, N.C. Gen. Stat. \u00a7 6-1 identifies to whom costs may be awarded, but does not limit recovery to unreimbursed costs. As the trial court awarded costs to the Oakleys \u2014 who are the parties \u201cfor whom judgment [was] given\u201d- \u2014 we conclude that the court\u2019s award complies with N.C. Gen. Stat. \u00a7 6-1.\nThe Hoffmans point to N.C. Gen. Stat. \u00a7 7A-305(d), which provides that certain specified expenses \u201cwhen incurred\u201d are recoverable as costs. The Oakleys, however, did incur the expenses \u2014 the Hoffmans do not suggest that the Oakleys would not have been liable for the expenses had the carrier not paid them.\nThe Hoffmans alternatively contend that the trial court erred by awarding the Oakleys their arbitration fee, deposition fee, and expert witness fees as \u201ccosts.\u201d In analyzing whether the trial court properly assessed costs we must undertake a three-step analysis. Miller, 173 N.C. App. at 391, 618 S.E.2d at 843. First, we must determine whether the cost sought is one enumerated in N.C. Gen. Stat. \u00a7 7A-305(d); if so, the trial court is required to assess the item as a cost. Miller, 173 N.C. App. at 391, 618 S.E.2d at 843. Second, if the cost is not an item listed under N.C. Gen. Stat. \u00a7 7A-305(d), we must determine if it is a \u201ccommon law cost.\u201d Miller, 173 N.C. App. at 391, 618 S.E.2d at 843. Third, if the cost sought to be recovered is a \u201ccommon law cost,\u201d we must determine whether the trial court abused its discretion in awarding or denying the cost under N.C. Gen. Stat. \u00a7 6-20. Miller, 173 N.C. App. at 391, 618 S.E.2d at 843.\nWith respect to the arbitration fee, N.C. Gen. Stat. \u00a7 7A-305(d)(7) designates as costs \u201c[f]ees of guardians ad litem, referees, receivers, commissioners, surveyors, arbitrators, appraisers, and other similar court appointees, as provided by law.\u201d (Emphasis added.) As the Oakleys\u2019 arbitration fee is specifically enumerated in N.C. Gen. Stat. \u00a7 7A-305(d), the trial court properly assessed the fee as a cost. Miller, 173 N.C. App. at 391, 618 S.E.2d at 843.\nAs for the deposition fee, the Oakleys concede there is no statutory authority for awarding deposition fees as costs. See also Oakes v. Wooten, 173 N.C. App. 506, 519, 620 S.E.2d 39, 48 (2005) (\u201c[T]here [i]s no statutory authority for the award of deposition costs.\u201d). \u201c[T]his Court [has] held that \u2018[ejven though deposition expenses do not appear expressly in the statutes they may be considered as part of \u2018costs\u2019 and taxed in the trial court\u2019s discretion.\u2019 \u201d Muse v. Eckberg, 139 N.C. App. 446, 447, 533 S.E.2d 268, 269 (2000) (alteration in original) (quoting Dixon, Odom & Co. v. Sledge, 59 N.C. App. 280, 286, 296 S.E.2d 512, 516 (1982)). Consequently, as deposition fees have been allowed as common law costs, we may overturn the trial court\u2019s award only upon a showing of abuse of discretion. Miller, 173 N.C. App. at 391, 618 S.E.2d at 843. We discern no abuse of discretion by the trial court, and the Hoffmans have made no showing of an abuse of discretion. Accordingly, we hold the trial court did not err by awarding the Oakleys their deposition fee.\nFinally, with respect to expert witness fees, the Hoffmans purport to contest awards of $1,060.00 and $625.00, both for Mr. Dennis\u2019 fees. The trial court, however, actually denied the Oakleys\u2019 motion for Mr. Dennis\u2019 $625.00 fee. The sole issue before this Court is the propriety of the trial court\u2019s award of the $1,060.00 fee. This fee included Mr. Dennis\u2019 time spent reviewing the case materials, talking with the investigating police officer, and conducting the stopping-distance experiment.\nOur appellate courts have previously upheld the award of an expert witness fee for time spent outside of testifying. See, e.g., Oakes, 173 N.C. App. at 520, 620 S.E.2d at 49 (finding no abuse of discretion when trial court awarded expert witness fee in part for time spent on preparation); Lewis v. Setty, 140 N.C. App. 536, 539, 537 S.E.2d 505, 507 (2000) (allowing taxation of expert witness fee for review of medical records); Campbell v. Pitt County Mem\u2019l Hosp., Inc., 84 N.C. App. 314, 328, 352 S.E.2d 902, 910 (allowing recovery as cost time spent by expert witnesses outside of trial), aff\u2019d in part and disc, review improvidently allowed in part, 321 N.C. 260, 362 S.E.2d 273 (1987), overruled on other grounds by Johnson v. Ruark Obstetrics & Gynecology Assocs., 327 N.C. 283, 395 S.E.2d 85 (1990). We are bound by these prior decisions, and, therefore, uphold the trial court\u2019s award of a $1,060.00 expert witness fee. Consequently, we hold that the trial court did not err in awarding costs.\nNo error.\nJudges TYSON and ELMORE concur.\n. \u201cA witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash, or has reviewed the report of investigation, with proper foundation may give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving.\u201d N.C.R. Evid. 702(i).\n. The Hoffmans also argue that the trial court erred by refusing to instruct the Oakleys\u2019 attorney not to argue the issue of speed in his closing argument. Because Mr. Dennis\u2019 testimony was properly admitted, and the jury could infer from that testimony and evidence of the skid marks that Catherine Hoffman was exceeding the speed limit, the trial court properly denied the Hoffmans\u2019 request. The Hoffmans further contend that counsel\u2019s actual argument \u2014 that the amount of damage to the car suggested Catherine was speeding \u2014 was improper. Shaw, however, indicates that a jury may draw inferences regarding speed from \u201cthe signs, marks, and conditions\u201d at the scene \u201cincluding damage to the vehicle involved.\u201d 253 N.C. at 180, 116 S.E.2d at 355. See also King v. Bonardi, 267 N.C. 221, 227, 148 S.E.2d 32, 37 (1966) (holding that extent of damage, along with other evidence, was sufficient to support inference that car was being operated at dangerous and unlawful rate of speed). Under the circumstances of this case, counsel\u2019s argument was not improper.\n. For these reasons, we also reject plaintiffs contention that the trial court erred in instructing the jury on contributory negligence and on speed as a basis for finding contributory negligence.\n. See In re Brooks, 143 N.C. App. 601, 606, 548 S.E.2d 748, 752 (2001) (looking to \u201cplain language\u201d of statute in case of first impression).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "E. Gregory Stott for plaintiff-appellant and third-party defendant-appellant.", "Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Kathrine Downing Fisher and Heather R. Wilson, for defendants-appellees and third-party plaintiffs-appellees." ], "corrections": "", "head_matter": "PAULA ANN HOFFMAN, Plaintiff v. SHAWN CHERRI OAKLEY and DAVID READE OAKLEY, Defendants and Third-Party Plaintiffs v. CATHERINE MICHELLE HOFFMAN, Third-Party Defendant\nNo. COA06-932\n(Filed 17 July 2007)\n1. Motor Vehicles\u2014 automobile accident \u2014 expert testimony\u2014 speed \u2014 stopping distance\nThe trial court did not err in a negligence case arising out of an automobile accident by admitting the testimony of the defendants\u2019 accident reconstruction expert even though plaintiff contends it constituted improper expert testimony regarding the speed third-party defendant driver was traveling, because: (1) although our legislature has recently amended N.C.G.S. \u00a7 8C-1, Rule 702 to overturn the doctrine that an expert witness may not testify regarding the speed of a vehicle unless he personally observed the vehicle, the amendment applies only to offenses committed on or after 1 December 2006, and the automobile collision in this case occurred on 13 March 2003; and (2) the expert\u2019s testimony did not amount to an opinion on third-party defendant\u2019s speed, but rather was the type of testimony admissible even under the previously existing law when he used his scientific expertise to perform an experiment that demonstrated stopping distances at various speeds.\n2. Motor Vehicles\u2014 contributory negligence \u2014 speeding\u2014sufficiency of evidence\nThe trial court did not err by denying motions by plaintiff and third-party defendant for a directed verdict on the issue of contributory negligence in a case arising out of an automobile accident, because: (1) evidence that a party was exceeding the posted speed limit is sufficient to send the issue of contributory negligence to the jury, and the jury could have drawn this inference based on an accident reconstruction expert\u2019s testimony as to stopping distances at various speeds; and (2) the evidence was sufficient to allow a jury to find that had third-party defendant not been speeding, she would have been able to stop in less than 54 feet which would have brought her vehicle to a halt prior to any impact, thus demonstrating a causal connection between her excessive speed and the resulting accident.\n3. Costs\u2014 arbitration fee \u2014 deposition fee \u2014 expert witness fee\nThe trial court did not abuse its discretion in a negligence case arising out of an automobile accident by awarding costs to third-party plaintiffs on various grounds, because: (1) plaintiff and third-party defendant have not cited any authority suggesting that costs are unavailable when paid for by defendants\u2019 insurance carrier under the insurance policy, and at least one other jurisdiction has rejected this argument; (2) N.C.G.S. \u00a7 6-1 should not preclude a recovery of costs under these circumstances when it identifies to whom costs may be awarded, but does not limit recovery to unreimbursed costs; (3) although plaintiff and third-party defendant point to N.C.G.S. \u00a7 7A-305(d) for the notion that certain specified expenses when incurred are recoverable as costs, they do not suggest defendants would not have been liable for the expenses had the carrier not paid them; (4) the arbitration fee was recoverable as it is specifically enumerated in N.C.G.S. \u00a7 7A-305(d); (5) although there is no statutory authority for awarding deposition fees as costs, these fees have been allowed as common law costs, and there has been no showing of an abuse of discretion; and (6) although plaintiff and third-party defendant contest the expert witness fee of $1,060 including the expert\u2019s time spent reviewing the case materials, talking with the investigating police officer, and conducting the stopping-distance experiment, our appellate courts have previously upheld the award of an expert witness fee for time spent outside of testifying.\nAppeal by plaintiff and third-party defendant from judgment entered 19 September 2005 and orders entered 5 January 2006 by Judge James R. Fullwood in Wake County District Court. Heard in the Court of Appeals 21 February 2007.\nE. Gregory Stott for plaintiff-appellant and third-party defendant-appellant.\nPatterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Kathrine Downing Fisher and Heather R. Wilson, for defendants-appellees and third-party plaintiffs-appellees." }, "file_name": "0677-01", "first_page_order": 709, "last_page_order": 720 }