Lloyd v. Norfolk S. Ry. Co
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NO. COA13-379 NORTH CAROLINA COURT OF APPEALS Filed: 17 December 2013 JAMES C. LLOYD, III, Plaintiff, v. Mecklenburg County No. 11 CVS 11868 NORFOLK SOUTHERN RAILWAY COMPANY, ERGON TRUCKING, INC. AND JEREMY RYAN TUCKER, Defendants. Appeal by defendants Ergon Trucking, Inc., and Jeremy Ryan Tucker from judgment entered 19 April 2012 and orders entered 11 June 2012 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals on 26 September 2013. Twiggs, Strickland & Rabenau, P.A., by Jerome P. Trehy, Jr., for plaintiff-appellee. Millberg Gordon Stewart PLLC, by Frank J. Gordon and B. Tyler Brooks, for defendant-appellee. Parker Poe Adams & Bernstein LLP, by Jason R. Benton, for defendant-appellants. STEELMAN, Judge. Where defendants Ergon and Tucker failed to show that plaintiff unreasonably failed to mitigate his damages, the trial court correctly decided their motion for judgment -2notwithstanding the verdict. Where Ergon and Tucker failed to make a timely objection to the evidence now complained of, and based upon the evidence presented, the damages awarded by the jury to the plaintiff were not excessive; the correctly denied their motion for a new trial. the jury found Ergon and Tucker to be trial court Finally, where negligent, and that Norfolk Southern was not negligent, Ergon and Tucker s appeal of the trial court s ruling granting directed verdicts for Norfolk Southern is moot. I. Factual and Procedural History On 11 July 2008, James C. Lloyd (Lloyd) was an engineer on a Norfolk Southern Railroad Company (Norfolk Southern) train traveling from Greenville, South Carolina to the Linwood Yard near Salisbury, North Carolina. operating (Ergon). a truck for his Jeremy Ryan Tucker (Tucker) was employer, Ergon Trucking, Inc. This truck was towing a tanker filled with mineral oil to the Duke Energy substation in Charlotte, North Carolina. Tucker drove his tractor and tanker onto a private road owned by Duke Energy. This road crossed railroad tracks owned, constructed, and maintained by Norfolk Southern. While Tucker s vehicle was crossing the railroad tracks, the vehicle ran off of the paved portion of the road and became -3stuck on the railroad track. After attempting for several minutes to get the vehicle free, Tucker heard the whistle of an oncoming train. He tried frantically to free his tractor from the tracks, but was unsuccessful. He was still in the tractor when it was struck by the train. Lloyd attempted to stop the train but was unable to do so because Tucker s vehicle was not visible from a distance that would have collision allowed caused him an to stop explosion and the a train. large The fire. resulting The eventually came to a stop one mile beyond the crossing. train Lloyd suffered serious injuries from the collision. On 27 June 2011, Lloyd filed a complaint against Norfolk Southern, Tucker, injuries. He and also Ergon sued seeking Norfolk damages Southern, for personal pursuant to the Federal Employers Liability Act, 45 U.S.C. § 51 et seq, for not providing a safe place to work. Lloyd also alleged that he was injured as a result of the negligence of Tucker, which was imputed to Ergon. Norfolk Southern filed a crossclaim against Ergon and Tucker seeking monetary compensation for damage to its equipment and tracks, and for indemnity or claims. contribution as to Lloyd s Ergon and Tucker crossclaimed against Norfolk Southern -4seeking damages for the loss of Ergon s vehicle as well as for indemnity or contribution as to Lloyd s claim. The case was tried before Judge Caldwell and a jury in the Superior Court of Mecklenburg County from 9 April 2012 through 19 April 2012. The motions of Ergon and Tucker to dismiss at the close of plaintiff s evidence and the close of all of the evidence were denied. The trial court granted Norfolk Southern s motions for a directed verdict as to: (1) crossclaims of Ergon and Tucker for indemnity and contribution against Norfolk Southern, and 2) Norfolk Southern s claim for indemnity against Ergon and Tucker. On 19 April 2012, the jury returned the following verdict: (1) Lloyd was injured by the negligence of Ergon and Tucker; (2) Lloyd was not injured by the negligence of Norfolk Southern; (3) Lloyd was entitled to recover $865,175 for personal injury; (4) Norfolk Southern was damaged by the negligence of Ergon and Tucker; (5) Norfolk Southern was entitled to recover $177,600 in damages; (6) Ergon was not damaged by the negligence of Norfolk Southern. On 30 April 2012, Ergon and Tucker filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and a motion for a new trial. On 11 June 2012, the trial court denied both of -5these motions. II. Denial of Motion for Judgment Notwithstanding the Verdict In their first argument, Ergon and Tucker contend that the trial court erred in denying notwithstanding the verdict. their motion for judgment We disagree. A. Standard of Review The standard of review in North Carolina on motions for JNOV is de novo. See Hodgson Constr., Inc. v. Howard, 187 N.C. App. 408, 412, 654 S.E.2d 7, 11 (2007). On appeal the standard of review for a JNOV is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000). B. Analysis Ergon and Tucker s main argument is that Lloyd failed to adequately prove his damages and failed to mitigate his damages following the accident. Ergon and Tucker argue that Lloyd, at the time of trial, had not gone back to work since the accident even though he had been given the opportunity. that Norfolk vocational Southern had rehabilitation offered in order to assist to help They contend Lloyd with his find him new -6employment. Ergon and Tucker assert that because Lloyd had not taken reasonable steps to mitigate his damages, the trial court improperly denied its JNOV motion. Under the law in North Carolina, an injured plaintiff must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant's wrong. If plaintiff fails to mitigate his damages, for any part of the loss incident to such failure, no recovery can be had. 228, 239, 160 S.E.2d 65, 73-74 Miller v. Miller, 273 N.C. (1968); see also Snead Hollman, 101 N.C. App. 462, 466, 400 S.E.2d 91, 94 (1991). burden was on Ergon and Tucker to demonstrate breached his duty to mitigate his damages. that v. The Lloyd See First Nat l Pictures Distrib. Corp. v Sewell, 205 N.C. 359, 360, 171 S.E. 354, 355 (1933); Thermal Design, Inc. v M&M Builders, Inc., 207 N.C. App. 79, 89, 698 S.E.2d 516, 523 24 (2010). Ergon and Tucker were required to demonstrate that Lloyd unreasonably failed to mitigate his damages. Ergon and Tucker have contended that Lloyd refused to consider educational or employment opportunities offered by Norfolk Southern that were not in his current line of work, and that he did not attempt to find any work after the accident. However, as of the time of trial, Lloyd had not been -7medically cleared to return to work because he was suffering from posttraumatic accident. stress disorder (PTSD) caused by the At trial, Lloyd testified that he had not pursued other employment opportunities because he had not been medically cleared to including return Ergon and to work. Tucker s All expert of the medical witness, experts, acknowledged at trial that Lloyd may never be able to return to work because of his injuries. The evidence at trial showed that Lloyd was participating in his prescribed rehabilitation and had followed all of his personal doctors orders in an effort to expedite his recovery. The evidence shows that plaintiff acted concerning the medical advice that he was given. reasonably See Radford v. Norris, 63 N.C. App. 501, 502 03, 305 S.E.2d 64, 65 (1983), disc. rev. denied, 314 N.C. 117, 332 S.E.2d 483 (1985); see also Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991). There was evidence that Lloyd took reasonable steps to return to work presented at trial. Ergon and Tucker s expert witness acknowledged that Lloyd had done everything that he was asked to do by his doctors. their burden Therefore, Ergon and Tucker have not met demonstrating mitigating his damages. that Lloyd acted unreasonably in The evidence presented at trial shows -8that the issue of mitigation was properly left for the jury. This argument is without merit. III. Denial of Motion for a New Trial On their second argument, Ergon and Tucker contend that the trial court erred in denying their motion for a new trial. We disagree. A. Standard of Review [A]n appellate court s review of a trial judge s discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge. Worthington Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). v. [A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge s miscarriage of S.E.2d at 605. ruling probably justice. amounted Worthington, 305 to N.C. a substantial at 487, 290 We review this issue for abuse of discretion. B. Analysis Ergon and Tucker moved for a new trial on the ground that the damages awarded were excessive pursuant to N.C. R. Civ. P. 59(a)(6), and on the ground that they were prejudiced by the -9improper admission of evidence pursuant to N.C. R. Civ. P. 59(a)(8). Ergon and Tucker contend that the trial court improperly admitted into evidence an investigative report concerning the accident that was prepared by Crawford and Company for either Ergon or Michael Ergon s Andrew reconstruction. liability Sutton On insurance as an carrier. expert cross-examination, Ergon witness in counsel for Southern questioned Sutton as follows: Q: Let me ask you about Norfolk Southern Exhibit 18-1. It s a page out of the investigator s report. You relied on his report in doing your work in this case; right? A: Yes, I did review it.... Q: Let me direct you to another page in his report.... Norfolk Southern Exhibit 182, where he states plainly in his report based on his investigation on behalf of Ergon Trucking-Mr. Wettermark (counsel for Lloyd): If I may interpose-The Court: Yes, sir. Mr. Wettermark: -- an objection. The Court: objection? What s the basis for your Mr. Wettermark: It contains hearsay opinions by a third party that haven t been called accident Norfolk -10qualified. The Court: Do you want to be heard? Mr. Gordon (Counsel for Norfolk Southern): He relied on this man s report for his opinions in this case. The Court: Your objection is overruled. Q: This man says right there in his report, This is the investigator for Ergon Trucking. Based on our investigation to date, we find no negligence on the part of Norfolk Southern. That s what he wrote; right? A: Yes, that was the conclusion or that s what he wrote in his report based on his investigation. The two exhibits were not offered as evidence at this time. On the next day of trial, counsel for Ergon and Tucker objected to the admission of these exhibits into evidence. The basis of this objection by Ergon was that under Rule 403 of the North Carolina Rules of Evidence, the prejudicial qualities of the two documents far exceeds any probative value. In arguing this objection, counsel noted that certainly Mr. Sutton said that they were not the basis for the action, the claims towards Ergon in this case nor of the plaintiff in this case. for plaintiff objected under Rule 702. Counsel The trial court held that Sutton considered it in formulating his opinion and that the probative value of this evidence is not substantially -11outweighed by prejudice and overruled the objection of Ergon, Tucker, and Lloyd. Norfolk Southern s Exhibits 18-1 and 18-2 were subsequently received into evidence. On appeal, Ergon and Tucker couch their argument in terms of the their alleged only statement erroneous complaint involving admission about the the lack negligence of Norfolk Southern. elicited Southern. during the of the report of reports. is evidence limited However, to the concerning the This testimony was originally cross-examination of Sutton by Norfolk While Lloyd objected to this testimony, Ergon and Tucker did not. Where one party objects to testimony at trial, that objection does not inure to the benefit of another party for purposes of preserving that objection for appellate review. State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004), cert. denied 544 U.S. 1052, 125 S. Ct. 2299, 161 L. Ed. 2d 1094 (2005). In Bell, the defendant was tried capitally for murder, along with his codefendant, Sims. certain evidence, but Bell did not. At trial, Sims objected to On appeal, Bell sought to assign error to the admission of this evidence. The Supreme Court cited Rule 10(b)(1) of the Rule of Appellate Procedure: in order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the -12specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.1 Bell at 27, 603 S.E.2d at 111, citing N.C. R. App. P. 10(b)(1). Bell held that: Codefendant Sims made an objection to the testimony, arguing that it was repetitive and noncorroborative. Defendant never separately objected or joined in codefendant Sims' objection, thereby waiving his right to appellate review. Bell at 27, 603 S.E.2d at 111. We hold that Ergon and Tucker waived any objection to Sutton s testimony by failing to raise their own objection, or not joining in Lloyd s objection. This appeal holding of the is also dispositive overruling of of their Ergon and Tucker s to Norfolk objection Southern s Exhibits 18-1 and 18-2. Their sole complaint on appeal during is the language examination. [I]t admission evidence of is elicited the Sutton s well-established without objection rule waives cross- that any the prior or subsequent objection to the admission of evidence of a similar character. 1 J.T. Russell & Sons, Inc. v. Silver Birch Pond We note that effective 1 October 2009, Rule 10 was amended, making the former section (b)(1), now (a)(1) and substituting an issue for a question in section (a)(1). Neither of these changes affects our analysis. -13L.L.C., __ N.C. App. __, __, 721 S.E.2d 699, 702 (2011) (quoting Venters v. Albritton, 184 N.C. App. 230, 240, 645 S.E.2d 839, 846 (2007); see also Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 22 (7th ed. 2011). We further note that even assuming Ergon and Lloyd preserved this issue for appellate review, we discern no abuse of discretion in the trial court s overruling of the objections under either Rule 403 or 702. As to Ergon and Tucker s argument that the damages awarded by the jury to Lloyd were excessive, we find no merit in that argument. The total $765,206. This figure economic loss consisted of claimed the by amount Lloyd of was damages sustained by Lloyd from the date of the accident through the date of trial ($224,410) which consisted of medical bills and lost wages, as well as the amount of Lloyd's projected future lost wages ($99,153). ($441,643) and future lost The jury awarded Lloyd $865,175. health insurance We have already held that Lloyd did not fail to mitigate his damages. was thus not obliged to reduce Lloyd s damages. The jury The jury s award of damages was not excessive and does not warrant a new trial. The trial court did not abuse its discretion in denying the motion of Ergon and Tucker for a new trial based upon the -14amount of damages awarded. IV. Directed Verdict Issues as to Crossclaims On their third argument on appeal, Ergon and Tucker argue that the trial court improperly dismissed Ergon and Tucker s claims for indemnity and contribution against Norfolk Southern, and improperly granted Norfolk Southern s claim for indemnity as to Ergon and Tucker. We disagree. A. Standard of Review The standard of review for a directed verdict is de novo. See Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citing Kelly v. Int l Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971))( The 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. ). B. Analysis Ergon and Tucker argue that the trial court erroneously ruled that any negligence of Norfolk Southern was passive and that Ergon and Tucker s negligence was active. Ergon and Tucker intend that this issue should have been decided by the jury and not by the trial court. Because of the verdicts returned by the jury, this question -15is moot. The jury found that Ergon and Tucker were negligent, and Norfolk that Southern was not negligent. Thus, authority for prorating the issue of negligence is moot. the See Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 62, 159 S.E.2d 362, 365 (1968) (holding that primary and secondary liability between defendants exists only when: (1) they are jointly and severally liable to passively the plaintiff; negligent but and is (2) exposed either to (a) one liability has through been the active negligence of the other or (b) one alone has done the act which produced the injury but the other is derivatively liable for the negligence of the former); see also Simpson v. Hatteras Island Gallery Restaurant, Inc., 109 N.C. App. 314, 322, 427 S.E.2d 131, 136 (1993). The jury determined Norfolk Southern was not negligent which eliminates any issue concerning passive or active negligence. This issue is without merit, and the trial court s decision is affirmed. NO ERROR. Judges HUNTER, ROBERT C., and BRYANT concur.
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