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Berrier v. Thrift9/1/1992
PARKER, Judge.
This wrongful death action arising out of a single car collision was brought pursuant to N.C.G.S. § 28A-18-2 by the administrator of decedent Christy Paige Berrier's estate. The jury found that defendant was negligent, decedent was contributorily negligent but
defendant was grossly negligent. The estate was awarded $50,000.00 in compensatory damages and $250,000.00 in punitive damages. Defendant appeals the punitive damage award on three grounds: (i) trial and submission to the jury of the issue of wilful, wanton or gross negligence, making it error as well for the trial court to have submitted the issue of punitive damages to the jury; (ii) failure of the trial court, in the alternative, to submit the issue of gross contributory negligence to the jury, in that decedent was allegedly negligent to the same degree as defendant; and (iii) abuse of discretion in the Judge's denial of defendant's motion for new trial based on juror affidavits about what occurred in the jury room during deliberations. Finding no error, we affirm the judgment of the trial court.
At trial the evidence showed that the Volkswagen Super Beetle involved in the accident was owned by decedent's father, but was being driven by defendant at the time of the collision. Defendant was negotiating a curve on a country road at night when he lost control of the car which ran off the road and rolled down a steep embankment. Decedent was thrown from the front passenger seat of the car and died at the scene. Defendant and the three passengers in the rear seat of the vehicle survived without permanent physical injury. Tests showed that defendant's blood alcohol level two hours after the accident was 0.184. Decedent's blood alcohol level was 0.04.
Among plaintiff's six witnesses were two of the rear-seat passengers. The witnesses for the defense were defendant, the third surviving passenger and a State trooper who had investigated the accident scene. All the passengers testified that they noticed nothing unusual about defendant or his driving up to the time of the accident.
Defendant testified he volunteered to drive decedent's car because she did not ordinarily drink and he "didn't want her to get in any trouble" for violating her parent's rules against drinking. Decedent had had no more than one or two glasses of wine and seemed her normal self, according to the testimony of other witnesses. Decedent's initial response to defendant's offer to drive was to remind him she was not supposed to let anyone else drive her car. The evidence was in conflict, however, over whether defendant continued to pressure decedent to let him drive or whether, instead, she failed to make any further protest after informing
him she did not want him to drive. Unknown to decedent and the other passengers, defendant had had eight cans of beer within two hours of dropping in on decedent and her friends at a cookout and had also had "some" alcohol while hunting earlier that day. Those at the supper only saw defendant finish a beer he brought with him and then drink a second.
Defendant also testified that he volunteered to drive because "I was basically used to drinking. Most weekends I drink a lot and I didn't feel like [decedent] was used to drinking much." Defendant testified that he knew he had been drinking and felt the effects of the alcohol but still did not feel he should not drive. He conceded, though, that he lost control of decedent's car and that alcohol impairment contributed to the accident in that his "reactions were probably slow, slower than usual."
Defendant testified he had pled guilty to driving while impaired, pur
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