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Young v. Warren9/19/1989
ourt erred in denying his in limine motion seeking to prevent the admission of testimony concerning Young's possession of a firearm and his blood/alcohol level. We agree. An autopsy report indicated Young's blood/alcohol level at the time of his death was .23 and that a detective removed a .22 caliber pistol from plaintiff's pocket after his death. However, no testimony exists on record that the defendant knew Young had a handgun in his possession or that he was aware that Young had consumed any alcohol. Accordingly, we determine this evidence was not relevant as it had no tendency to "make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence." N.C.G.S. Sec. 8C-1, Rule 401 (1988). Therefore, the evidence was not admissible, and the motion in limine should have been allowed. N.C.G.S. Sec. 8C-1, Rule 402 (1988).
B
The plaintiff next argues the trial court incorrectly instructed the jury as follows:
The defendant's plea of "guilty" in the criminal case may be considered by you on the issue of the defendant's potential liability in this civil case. However, I instruct you that this conviction is not conclusive of the defendant's civil liability because this case involves different parties . . . .
We find no error in this part of the trial court's instructions. Evidence of a plea of guilty to a criminal charge is generally admissible in a civil case, but it is not conclusive evidence of defendant's culpable negligence. Grant v. Shadrick, 260 N.C. 674, 133 S.E.2d 457 (1963).
C
Plaintiff next argues that his motion for directed verdict on the issue of the defendant's negligence should have been allowed since defendant had pled guilty to manslaughter. Again, the evidence of the plea of guilty to manslaughter is only some evidence in the civil proceeding and does not justify a directed verdict for the plaintiff on the issue.
D
Plaintiff finally argued in his motion for directed verdict that, as a matter of law, Young was not contributorily negligent. Again we disagree. Whether Young's actions amounted to contributory negligence in this case is a question for the jury. See Taylor v. Walker, 320 N.C. 729, 734-35, 360 S.E.2d 796, 800 (1987). We do note, if on retrial the jury determines the defendant's negligence amounted to a willful or wanton injury, the defense of contributory negligence would not be available. Pearce v. Barham, 271 N.C. 285, 289, 156 S.E.2d 290, 294 (1967).
As the other assignments of error raised by the plaintiff are not likely to recur at trial, we do not address them.
New trial.
Disposition
New trial.
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