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Watkins v. Hellings11/5/1987
This case comes before us on appeal on two issues: whether the trial judge committed reversible error (1) in his instruction to the jury on contributory negligence and (2) in imposing discovery sanctions on the plaintiff. For the reasons explained below, we reverse the Court of Appeals and reinstate and affirm the order of the trial court imposing sanctions.
Lisa Hellings and Melissa Watkins were freshmen roommates at The University of North Carolina at Wilmington. On the night of 9 April 1983, Melissa (plaintiff's decedent) asked Lisa (defendant) to go with her to a nightclub in Raleigh. Because Melissa had been drinking wine and Lisa cola, Lisa agreed to drive Melissa's car, and each took her glass of wine or cola with her.
At Melissa's request, Lisa bought a bottle of wine when they stopped for gas en route. Melissa poured wine for both of them as they drove. After they reached Clinton, Melissa had to direct Lisa, who had never before driven from Clinton to Raleigh. By the time they reached Clinton, it was raining very hard. They continued to drink and drive until, at about 10:30 p.m., they had finished the wine. Lisa drank half the bottle, about two or three glasses. Lisa handed her empty glass to Melissa, who tossed it into the back of the car where it struck the wine bottle and broke. This startled Lisa, who groped for the overhead light in order to determine whether the glass had indeed been broken. At this point she misjudged a curve, jerked the wheel to get back on the road, and skidded across the slippery road into the opposite ditch. Melissa was fatally injured. Both girls were taken to a Dunn hospital. A blood test taken soon after her arrival at the hospital showed that Lisa had a blood alcohol level of .10 percent.
The plaintiff, father of Melissa Watkins and administrator of her estate, filed a wrongful death action against Lisa Hellings on 26 June 1984, alleging negligence. At trial, the jury found that the defendant was negligent but that Melissa Watkins was contributorily negligent. Judgment was therefore entered dismissing plaintiff's action. Subsequent to the trial, Judge Barnette heard arguments on defendant's motion for discovery sanctions. He ordered plaintiff to pay sanctions in the amount of $5,316.28 to defendant for expenses incurred in proving the truth of matters set forth in requests for admissions. On 2 December 1986 the Court of Appeals filed an opinion which granted plaintiff a new trial and also vacated and remanded the order allowing discovery sanctions on the grounds that it did not contain findings of fact. Defendant's petition for discretionary review to the Supreme Court was allowed on 8 April 1987.
Plaintiff contends that the trial court erroneously instructed the jury on contributory negligence and that he is therefore entitled
to a new trial. This Court has determined in cases such as this that three elements must be proved by a defendant to establish contributory negligence against a passenger. The defendant must prove that (1) the driver was under the influence of an intoxicating beverage; (2) the passenger knew or should have known that the driver was under the influence of an intoxicating beverage; and (3) the passenger voluntarily rode with the driver even though the passenger knew or should have known that the driver was under the influence of an intoxicating beverage. See Davis v. Rigsby, 261 N.C. 684, 686-87, 136 S.E.2d 33, 34-35 (1964); Dinkins v. Carlton and Williams v. Carlton, 255 N.C. 137, 140, 120 S.E.2d 543, 544-45 (1961); Samuels v. Bowers, 232 N.C. 149, 153, 59 S.E.2d 787,<
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