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McNeill v. Holloway12/19/2000
Appeal by plaintiff from judgment entered 10 September 1999 by Judge James F. Ammons, Jr. in Harnett County Superior Court. Heard in the Court of Appeals 8 November 2000.
Plaintiff appeals the refusal of the trial court to submit to the jury an issue of punitive damages in an automobile collision negligence case. For the reasons stated below, we affirm the judgment of the trial court.
Plaintiff's automobile and defendant's pickup truck collided at the intersection of West Trade Street and Montgomery Avenue in Charlotte, North Carolina at 8:50 p.m. on the rainy night of 17 February 1995. Plaintiff filed this action seeking compensatory damages and punitive damages on 23 January 1998.
This case was tried before a jury on 9 and 10 August 1999. Plaintiff testified at trial that immediately after the collision, defendant approached plaintiff's vehicle. Plaintiff rolled down his window and spoke with defendant. Plaintiff stated that he smelled alcohol on defendant's breath and noticed that defendant's speech was slurred.
Plaintiff also introduced evidence at trial in the form of portions of a deposition of the police officer who investigated the collision on the night of 17 February 1995. The officer testified that after reviewing the accident report he prepared following the collision, the only specific recollections he had of defendant were that defendant had alcohol on his breath, and that defendant was cooperative and performed certain psycho-physical tests used to gauge his level of intoxication. However, the officer did not recall which tests defendant performed, nor the results of those tests except that they "would have been performed unsatisfactorily." The officer testified that he formed an opinion that defendant "consumed a sufficient amount of alcohol that his physical abilities may be appreciably impaired[,]" and that his opinion was based on " he odor of alcohol on [defendant's] breath, and . . . most likely with his psycho physical tests."
The trial court granted plaintiff's motion for a directed verdict on the issue of negligence and granted defendant's motion for a directed verdict on the issue of punitive damages. The jury awarded plaintiff $1,000.00 in compensation for his injuries. Plaintiff appeals the trial court's directed verdict on the issue of punitive damages. Plaintiff argues that he presented sufficient evidence of defendant's wanton behavior due to defendant's driving while intoxicated to require the trial court to submit an issue of punitive damages to the jury.
Defendant asserts that plaintiff failed to properly preserve the punitive damages issue for appellate review in that plaintiff did not assign error to the trial court's granting of defendant's motion for directed verdict. The record shows that plaintiff instead assigned error to the trial court's refusal to submit an issue of punitive damages to the jury. Defendant argues that once the motion for a directed verdict was granted, submission to the jury of the issue of punitive damages became moot.
We disagree with defendant's argument and find that plaintiff adequately preserved the issue of punitive damages for review. A motion for a directed verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50(a) "presents the question of whether plaintiff's evidence is sufficient to submit to the jury." Tin Originals, Inc. v. Colonial Tin Works, Inc., 98 N.C. App. 663, 665, 391 S.E.2d 831, 832 (1990) (citations omitted). We therefore find that plaintiff's assignment of error to the trial court's refusal to submit an issue of punitive damages to the jury encompasses the trial court's grant, during the jury charge conference, of plaintiff's motion for a direct
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