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    "judges": [
      "Judges GEER and ERVIN concur."
    ],
    "parties": [
      "JULIANNA SIMMONS HENRY, Plaintiff v. PETER AXEL KNUDSEN, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nJulianna Simmons Henry (\u201cplaintiff\u201d) appeals from the trial court\u2019s judgment entered consistent with the jury\u2019s verdict that plaintiff was not injured by the negligence of Peter Axel Knudsen (\u201cdefendant\u201d) and order entered denying her motions for directed verdict, judgment notwithstanding the verdict and a new trial. For the following reasons, we affirm.\nI. Background\nPlaintiff\u2019s claim arose from an automobile accident which occurred on 9 February 2007. The facts regarding the accident are not in dispute. Plaintiff was driving her 2004 Mazda automobile north on Wilmington Street in Raleigh, North Carolina, and defendant was driving his 2004 Pontiac automobile east on Morgan Street. Defendant\u2019s automobile collided with plaintiff\u2019s automobile at the intersection of Wilmington Street and Morgan Street. Plaintiff was injured as a result of the accident.\nPlaintiff filed a complaint on 2 March 2007 alleging that defendant was negligently operating his automobile when he collided with plaintiff\u2019s automobile, and that his negligence was the proximate cause of plaintiff\u2019s injuries. On 2 May 2007, defendant filed an answer denying negligence and asserting the defense of \u201csudden incapacitation[,] . . . which was unforeseeable and theretofore unknown to the defendant and as a result the defendant was unable to control the motor vehicle he was operating.\u201d Plaintiff subsequently served requests for admission on defendant. On 20 February 2008, defendant filed responses to plaintiff\u2019s request for admissions.\nThe case was tried before a jury in District Court, Wake County on 14 July 2008. At the close of plaintiff\u2019s evidence and at the close of all evidence, plaintiff made motions for directed verdicts on the issue of defendant\u2019s negligence and proximate causation. The trial court denied both motions. On 15 July 2008, a jury found that plaintiff was not injured by the negligence of defendant. On 1 August 2008, the trial court entered judgment consistent with the jury\u2019s verdict. On 15 August 2008, plaintiff filed a motion for judgment notwithstanding the verdict and for a new trial. By order dated 14 November 2008, the trial court denied plaintiff\u2019s motion for judgment notwithstanding the verdict and a new trial. On 17 November 2008, plaintiff filed timely notice of appeal to this Court.\nII. Plaintiff\u2019s Motions for Directed Verdict\nPlaintiff first contends that \u201cdefendant through his responses to the plaintiff\u2019s Requests For Admissions established that he was negligent as a matter of law, that the plaintiff was injured and that the automobile accident caused those injuries.\u201d Plaintiff argues that since these admissions were admitted into evidence and establish the negligence of defendant, the trial court erred in denying plaintiff\u2019s motion for directed verdict.\nThe standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party\u2019s favor, or to present a question for the jury.\nDavis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991) (citations omitted). \u201c[A] directed verdict... may be entered in favor of the party with the burden of proof \u2018where credibility is manifest as a matter of law.\u2019 \u201d Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986) (quoting Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979)). \u201cHowever, in order to justify granting a motion for a directed verdict in favor of the party with the burden of proof, the evidence must so clearly establish the fact in issue that no reasonable inferences to the contrary can be drawn.\u201d Murdock v. Ratliff, 310 N.C. 652, 659, 314 S.E.2d 518, 522 (1984) (citing Burnette, 297 N.C. at 536, 256 S.E.2d at 395.). In Burnette, our Supreme Court listed three recurrent situations where credibility of a movant\u2019s evidence is \u201cmanifest\u201d as a matter of law:\n(1) Where [a] non-movant establishes proponent\u2019s case by admitting the truth of the basic facts upon which the claim of proponent rests.\n(2) Where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents.\n(3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has failed to point to specific areas of impeachment and contradiction.\n[W]hile credibility is generally for the jury, courts set the outer limits of it by preliminarily determining whether the jury is at liberty to disbelieve the evidence presented by movant. Needless to say, the instances where credibility is manifest will be rare, and courts should exercise restraint in removing the issue of credibility from the jury.\n297 N.C. at 537-38, 256 S.E.2d at 396 (citations and quotation marks omitted). \u201c [I]f there is conflicting testimony that permits different inferences, one of which is favorable to the non-moving party, a directed verdict in favor of the party with the burden of proof is improper.\u201d United Lab. v. Kuykendall, 322 N.C. 643, 662, 370 S.E.2d 375, 387 (1988). To establish a prima facie case for negligence, a plaintiff must show the following essential elements: \u201c(1) defendant owed plaintiff a duty of reasonable care; (2) defendant breached that duty; (3) defendant\u2019s breach was an actual and proximate cause of plaintiff\u2019s injury; and (4) plaintiff suffered damages as the result of defendant\u2019s breach.\u201d Winters v. Lee, 115 N.C. App. 692, 694, 446 S.E.2d 123, 124 (citation omitted), disc. review denied, 338 N.C. 671, 453 S.E.2d 186 (1994).\nAt trial, plaintiff made a motion for directed verdict at the close of plaintiff\u2019s evidence, arguing that defendant\u2019s admissions established that plaintiff was negligent. In her brief, plaintiff contends that the following admissions by defendant establish negligence on the part of defendant:\n3. The plaintiff was operating her vehicle in a careful and prudent manner and at a reasonable rate of speed for the conditions then and there existing.\nRESPONSE: Admitted.\n4. That as the plaintiff drove the vehicle, which she was operating, into the intersection of Wilmington Street and Morgan Street, the defendant, Peter Axel Knudsen, failed to stop his vehicle for a traffic signal, which was emitting a steady red light in his direction of travel, and thereafter drove his vehicle into the side of the plaintiff\u2019s vehicle.\nRESPONSE: Admitted.\n7. That the plaintiff, Julianna Simmons Henry, was injured in the aforesaid automobile accident on February 9th, 2007.\nRESPONSE: It is admitted that Plaintiff suffered some degree of injury.\n16. That as a proximate cause of the aforedescribed accident the plaintiff was required to obtain ambulance service from Wake County E.M.S.\nRESPONSE: Admitted.\na) That Exhibit A attached hereto is an accurate copy of the ambulance call report prepared by the ambulance service.\nRESPONSE: Admitted.\nb) That Exhibit B attached hereto is an accurate copy of the bill submitted to plaintiff for the aforesaid ambulance service.\nRESPONSE: Admitted.\nc) That the aforesaid ambulance bill was incurred as a result of the aforedescribed collision.\nRESPONSE: Admitted.\nd) That the aforesaid collision was a proximate cause of plaintiff incurring the aforesaid ambulance bill.\nRESPONSE: Admitted.\n17. That as a proximate cause of the aforedescribed accident the plaintiff was required to seek medical attention at WakeMed Emergency Room in order to obtain treatment of the injuries sustained.\nRESPONSE: Admitted.\n19. That a copy of the bill from WakeMed, which is attach (sic) hereto as Exhibit C, is a true and accurate copy of the bill received by the plaintiff from the said hospital on or about the date of the accident.\nRESPONSE: Admitted.\n20. That the bill, which is attached hereto as Exhibit D from Wake Emergency Physicians, is a true and accurate copy of the bill received by the plaintiff from the emergency room doctor on or about the date of the accident.\nRESPONSE: Admitted.\n21. That the bill, which is attached hereto as Exhibit E from Wake Radiology, is a true and accurate copy of the bill received by the plaintiff from the said radiologist on or about the date of the accident.\nRESPONSE: Admitted.\n22. That Exhibits C, D and E are true and accurate copies of bills received by the plaintiff which bills were incurred as a result of the aforedescribed collision.\nRESPONSE: Admitted.\n24. That these costs were incurred as a proximate cause of the collision between the plaintiff, Julianna Simmons Henry, and the defendant Peter Axel Knudsen.\nRESPONSE: Admitted.\n25. That the aforesaid bills (Exhibits C, D and E) may be admitted into evidence without the necessity of subpoening witnesses from the hospital and radiologist.\nRESPONSE: Admitted.\nViewing defendant\u2019s responses to plaintiff\u2019s request for admissions in the light most favorable to defendant, Davis, 330 N.C. at 322, 411 S.E.2d at 138, defendant makes no admission of negligence. Defendant\u2019s admissions establish that: 1. there was an collision between plaintiff\u2019s and defendant\u2019s automobiles; 2. plaintiff was not driving in a negligent manner; 3. plaintiff was injured in the collision; 4. plaintiff received medical treatment and incurred medical bills as a result of that treatment. See Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 68, 414 S.E.2d 339, 345 (1992) (\u201c[NJegligence is not presumed from the mere fact of injury.\u201d). Although Admission No. 24 states that the medical costs were proximately caused by the collision, defendant did not admit his negligence was a proximate cause of the collision or of plaintiff\u2019s injuries. See Winters, 115 N.C. App. at 694, 446 S.E.2d at 124. Actually, defendant repeatedly denied that he was negligent in his responses to the request for admissions:\n8. That the defendant\u2019s, Peter Axel Knudsen, negligence on such occasion was the proximate cause of plaintiffs injuries.\nRESPONSE: Denied.\n9. That the defendant\u2019s negligence on such occasion was [the] proximate cause of the plaintiff\u2019s injuries and damages.\nRESPONSE: Denied.\n18. That the negligence of the said defendant at the aforesaid time and place was a proximate cause of plaintiff having to seek the medical attention referred to in request for admission number 17.\nRESPONSE: Denied.\n23. That the aforesaid bills were incurred as a result of the negligence of the defendant.\nRESPONSE: Denied.\nThese responses to the requests for admissions by defendant clearly contradict plaintiff\u2019s assertion that defendant admitted that his negligence proximately caused plaintiff\u2019s injuries.\nDefendant\u2019s responses to plaintiff\u2019s request for admissions further show that defendant never denied the existence of facts supporting his affirmative defense of sudden incapacition and never made an admission that all the facts alleged in plaintiff\u2019s complaint were true:\n27. That there are no facts upon which the defendant, Peter Axel Knudsen, relies as a basis for any defense as to plaintiff\u2019s allegations of negligence in this action.\nRESPONSE: Denied.\n28. That there are no documents, writings, letters, records or papers of any sort upon which the defendant, Peter Axel Knudsen, intends to utilize as evidence of or a basis for any defense in this action.\nRESPONSE: Denied.\n29. That there are no facts upon which the defendant, Peter Axel Knudsen, relies as a basis for his allegations that he was stricken with a \u201csudden incapacitation and a sudden emergency\u201d.\nRESPONSE: Denied.\n30. That there are no documents, writings, letters, records or papers of any sort upon which the defendant, Peter Axel Knudsen, intends to utilize as evidence of or a basis upon which the defendant, Peter Axel Knudsen, relies to support his allegations that he was stricken with a \u201csudden incapacitation and a sudden emergency\u201d.\nRESPONSE: Denied.\n31. Every statement or allegation contained in the plaintiff\u2019s Complaint is true and correct.\nRESPONSE: Denied.\nAs defendant\u2019s responses did not admit negligence or proximate causation, he did not admit \u201cthe truth of the basic facts upon which the claim of [plaintiff] rests\u201d and, thus, the credibility of plaintiff\u2019s evidence is not established as a matter of law. Burnette, 297 N.C. at 537-38, 256 S.E.2d at 396. As to the other methods enumerated in Burnette for plaintiff to establish the credibility of her evidence as a matter of law, plaintiff fails to point us to any \u201ccontrolling\u201d documentary evidence that defendant did not challenge or instances where defendant failed to contradict oral testimony offered by plaintiff\u2019s witnesses. Id. In addition, it would have been inappropriate for the trial court to grant plaintiff\u2019s motion for a directed verdict at the close of plaintiff\u2019s evidence where the defendant had raised an affirmative defense of sudden incapacitation without giving the defendant an opportunity to present evidence supporting his affirmative defense. Therefore, we are not persuaded by plaintiff\u2019s argument.\nPlaintiff also made a motion for directed verdict at the close of all evidence. When a defendant raises an affirmative defense, such as sudden incapacitation, \u201ca motion for directed verdict is properly granted against the defendant where the defendant fails to present more than a scintilla of evidence in support of each element of his defense.\u201d Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991).\nThe elements of the affirmative defense of sudden incapacitation are \u201cas follows: (i) the defendant was stricken by a sudden incapacitation, (ii) this incapacitation was unforeseeable to the defendant, (iii) the defendant was unable to control the vehicle as a result of this incapacitation, and (iv) this sudden incapacitation caused the accident.\u201d Word v. Jones ex rel. Moore, 350 N.C. 557, 562, 516 S.E.2d 144, 147 (1999) (citation omitted).\nHere the record shows that defendant presented evidence to support the elements of sudden incapacitation. Defendant testified that in 1989 he had a massive heart attack and underwent bypass surgery. About 2000 or 2001, defendant had another heart attack and had four stents put into his heart by his treating physician. In 2005, because of problems with his heart, defendant had open heart surgery and was given a mechanical heart valve and a pacemaker. Defendant testified that these treatments left him with congestive heart failure. Despite his heart problems, defendant was given the authority to operate a motor vehicle by the Division of Motor Vehicles based upon a recommendation by his treating physician. Defendant testified that prior to 9 February 2007, he had not had any episodes of sudden onset of chest pain like the one he experienced that day or any loss of consciousness while driving.\nOn the day of the accident, defendant testified that moments before the collision he had an \u201cunbelievable\u201d and \u201cawful pain\u201d in his chest, but before he could reach his nitroglycerin tablets he \u201cblacked out.\u201d Defendant testified that the next thing he remembered was \u201ca bang.\u201d Defendant testified that he regained consciousness, was able to place a nitroglycerin tablet under his tongue, and \u201cin about a minute the [chest] pain started to subside [.]\u201d Plaintiff argues that defendant\u2019s claim of sudden onset of pain and loss of consciousness is not credible, based upon his failure to report these problems to emergency medical personnel who responded to the accident. However, defendant\u2019s credibility was for the jury to decide. See Burris v. Shumate, 77 N.C. App. 209, 212, 334 S.E.2d 514, 516 (1985) (\u201c[Credibility of the testimony is for the jury to decide.\u201d). Taken in the light most favorable to defendant, the above evidence establishes \u201cmore than a scintilla of evidence in support of each element of his defense[,]\u201d Snead, 101 N.C. App. at 464, 400 S.E.2d at 92, and the trial court properly denied plaintiff\u2019s motion for a directed verdict at the end of all evidence.\nIII. Jury Instructions\nNext plaintiff contends that the \u201cinstructions of law given by the trial court were erroneous and contrary to the law and the evidence.\u201d In the record on appeal, the parties stipulated that plaintiff objected to the trial court\u2019s jury instructions. Despite this stipulation, the portions of the trial transcript included in the record on appeal does not show any objection by plaintiff to the jury instructions. Because the objection is not included in the transcript, and because the stipulation in the record does not specify the content of plaintiff\u2019s objection, we are unable to determine the nature of plaintiff\u2019s objection at trial or what alternative instructions, if any, plaintiff requested that the trial court give to the jury. \u201cA party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection[.]\u201d N.C.R. App. P. 10(b)(2). Plaintiff argues in her brief that at trial she specifically objected to defendant\u2019s request for N.C.P.I. Civil \u2014 102.10, 102.11, 102.12 and 102.19, and that she renewed her objections after the trial court concluded giving instructions to the jury. Even if we assume that plaintiff did make these specific objections, the record does not contain any request by plaintiff for alternative instructions or any indication of the argument plaintiff made, if any, as to why these pattern instructions are in error or should not be used in this case. See State v. Hood, 332 N.C. 611, 617, 422 S.E.2d 679, 682 (1992) (holding that a party\u2019s request for a jury instruction at the charge conference is sufficient compliance with N.C.R. App. P. 10(b)(2) to warrant full review on appeal). Further, this Court has held that \u201cthe preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions.\u201d In re Will of Leonard, 71 N.C. App. 714, 717, 323 S.E.2d 377, 379 (1984) (citation omitted). \u201cJury instructions in accord with a previously approved pattern jury instruction provide the jury with an understandable explanation of the law.\u201d Carrington v. Emory, 179 N.C. App. 827, 829, 635 S.E.2d 532, 534 (2006) (citation omitted). A thorough review of the trial transcript reveals that the trial court accurately instructed the jury on the relevant law of negligence, sudden incapacitation, and proximate causation pursuant to the pattern jury instructions. Therefore, we are not persuaded by plaintiff\u2019s argument.\nIV. Entry of Judgment, Judgment Notwithstanding the Verdict and New Trial\nFinally plaintiff contends that the trial court erred in its entry of judgment for defendant and in denying plaintiff\u2019s motion for judgment notwithstanding the verdict and a new trial. Plaintiff further contends that \u201c [i]t was an abuse of discretion on the part of the trial judge not to set aside the jury\u2019s verdict.\u201d\nThe power of the court to set aside the verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice. The trial judge is vested with the discretionary authority to set aside a verdict and order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony. Since such a motion requires his appraisal of the testimony, it necessarily invokes the exercise of his discretion. It raises no question of law, and his ruling thereon is irreviewable in the absence of manifest abuse of discretion.\nBritt v. Allen, 291 N.C. 630, 634-35, 231 S.E.2d 607, 611 (1977) (citation and quotation marks omitted).\n\u201cA motion for judgment notwithstanding the verdict is essentially a renewal of an earlier motion for directed verdict.\u201d Hodgson Constr., Inc. v. Howard, 187 N.C. App. 408, 411, 654 S.E.2d 7, 10 (2007) (citation and quotation marks omitted), disc. review denied, 362 N.C. 509, 668 S.E.2d 28 (2008).\n\u2018When a judge decides that a directed verdict [or JNOV] is appropriate, actually he is deciding that the question has become one exclusively of law and that the jury has no function to serve.\u2019 However, \u2018a genuine issue of fact must be tried by a jury unless this right is waived.\u2019\nId. at 411, 654 S.E.2d at 10-11 (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 50, (comments) and In re Will of Jarvis, 334 N.C. 140, 143, 430 S.E.2d 922, 923 (1993)).\nHere, in support of plaintiff\u2019s argument that the trial court erred in denying her motion for judgment notwithstanding the verdict, not setting aside the jury\u2019s verdict, and not granting her a new trial, plaintiff again argues that defendant\u2019s testimony at trial was not credible. Our appellant courts have consistently held that \u201c [i]t is the jury\u2019s \u25a0function to weigh the evidence and to determine the credibility of witnesses.\u201d Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 664 (1997); see Horne v. Vassey, 157 N.C. App. 681, 687, 579 S.E.2d 924, 928 (2003) (\u201c[A]s the finder of fact, the jury is entitled to draw its own conclusions about the credibility of the witnesses and the weight to accord the evidence.\u201d (quotation marks omitted)). As plaintiff points out, the trial court was not presented with a question \u201cexclusively of law [so] that the jury [had] no function to serve[;]\u201d there were genuine issues of material fact, primarily the credibility of the witnesses\u2019 oral testimony, that justify the trial court\u2019s decision to send this case to the jury. Howard, 187 N.C. App. at 411, 654 S.E.2d at 10-11. Further, a thorough review of the evidence presented at trial by both plaintiff and defendant shows that there was sufficient evidence to justify the jury\u2019s verdict. Therefore, we are not persuaded by plaintiff\u2019s argument and hold that the trial court did not err in its entry of judgment and denial of plaintiff\u2019s motion for judgment notwithstanding the verdict and a new trial.\nV. Conclusion\nFor the foregoing reasons, we affirm the trial court\u2019s judgment in favor of defendant and denial of plaintiff\u2019s motions for directed verdict, judgment notwithstanding the verdict and for a new trial.\nAFFIRM.\nJudges GEER and ERVIN concur.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "E. Gregory Stott, for plaintiff-appellant.",
      "Larcade & Heiskell, PLLC, by Christopher N. Heiskell, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "JULIANNA SIMMONS HENRY, Plaintiff v. PETER AXEL KNUDSEN, Defendant\nNo. COA09-381\n(Filed 20 April 2010)\n1. Negligence\u2014 admissions \u2014 affirmative defense\nThe trial court did not err by denying plaintiffs motion for a directed verdict in a traffic accident case where plaintiff contended that defendant\u2019s admissions established defendant\u2019s negligence.\n2. Negligence\u2014 sudden incapacitation \u2014 evidence sufficient\nThe trial court did not err by denying plaintiff\u2019s motion for a directed verdict at the close of all of the evidence in a car accident case in which defendant raised the affirmative defense of sudden incapacitation. Defendant\u2019s credibility was for the jury to decide.\n3. Negligence\u2014 instructions \u2014 objections not specific\nThere was no error in the jury instructions given in an automobile accident case when the parties stipulated in the record that plaintiff objected to the instructions, but the transcript did not show an objection by plaintiff and the stipulation did not specify the content of the objection. Even so, the record does not contain any request for alternative instructions and the court accurately instructed the jury on the relevant law.\n4. Negligence\u2014 sudden incapacitation \u2014 defendant\u2019s credibility\nThe trial court did not err by denying plaintiff\u2019s motion for judgment not withstanding the verdict and a new trial in a case arising from an automobile accident in which plaintiff raised the affirmative defense of sudden incapacitation.\nAppeal by plaintiff from judgment entered 1 August 2008 and by order entered 14 November 2008 by Judge Jane P. Gray in District Court, Wake County. Heard in the Court of Appeals 30 September 2009.\nE. Gregory Stott, for plaintiff-appellant.\nLarcade & Heiskell, PLLC, by Christopher N. Heiskell, for defendant-appellee."
  },
  "file_name": "0510-01",
  "first_page_order": 538,
  "last_page_order": 549
}
