DEBRA L. CHILTOSKI AND ALVIN CHILTOSKI, PLAINTIFFS V. DAVID FLAKE DRUM, DEFENDANT
No. COA95-198
IN THE COURT OF APPEALS
19 December 1995
121 N.C. App. 161 (1995)
The trial court‘s order of a new trial after the jury awarded zero damages contravened
Am Jur 2d, Negligence §§ 33, 424 et seq.; New Trial §§ 557-563.
Judge WYNN concurring in alternate reasoning.
Appeal by defendant from order entered 25 October 1994 by Judge John M. Gardner in Swain County Superior Court. Heard in the Court of Appeals 15 November 1995.
Mraz & Dungan, by John A. Mraz, for plaintiff-appellee.
Roberts Stevens & Cogburn, P.A., by Steven D. Cogburn and Wyatt S. Stevens, defendant-appellant.
JOHN, Judge.
Defendant appeals the award to plaintiff of a new trial pursuant to
On 10 August 1992, plaintiff commenced a personal injury аction against defendant. In his answer, defendant admitted that operating his automobile in such a manner as to collide with the rear of plaintiff‘s vehicle constituted a breach of the duty of care owed plaintiff. However, defendant specifically denied that his negligence proximately caused any bodily injury to plaintiff.
Upоn its own initiative, the trial court thereafter entered an order 25 October 1994 providing:
The Court in its discretion, enters the following Order,
IT IS ORDERED, in the discretion of the Court, that the verdict of the jury is hereby set aside, and a new trial is awarded to thе plaintiff.
Defendant filed notice of appeal to this Court 14 November 1994, assigning error to the court‘s order.
We first consider whether the court‘s order was violative of the procedural mandate of
Not later than 10 days after entry of judgment the court of its own initiative, on notice to the parties and hearing, may order a new trial for any reason for which it might hаve granted a new trial on motion of a party, and in the order shall specify the grounds therefor.
(emphasis added). The rationale for requiring specification of grounds has been explained as follows:
When the new trial is grаnted upon motion of a party, the grounds appear in the motion, as the reasons assigned by the movant in compliance with the requirements of
Rule 59(a) . When the judge acts of his own initiative he must set out the grounds in his order. Otherwise, the purpose of the Rule will not be accomplished; the record will not reveal the basis upon which the order is made or permit intelligent rеview by an appellate court.
W. Brian Howell, Shuford North Carolina Civil Practice and Procedure § 59-15 (4th ed. 1992) (quoting Fried v. McCroth, 133 F.2d 350 (D.C. Cir. 1942)); see also In re Will of Herring, 19 N.C. App. 357, 360, 198 S.E.2d 737, 748 (1973) (citations omitted) (trial court erred in setting aside verdict and ordering new trial for “errors of law committed at trial” on its own initiative without specifying the errors
Significantly, the order at issue contains neither findings nor explication reflecting the grounds for the court‘s action. The trial court‘s order therefore lacks any basis upon which to conduct appellate review and must be reversed. See id. Moreover, unlike the separate concurrence, we do not read
In addition, we nоte while “voyaging through the record” that immediately following the jury verdict, the trial court excused the jury and then stated: “The verdict is zero. That is not an appropriate verdict—or lеgal verdict under the evidence in the case.” The court also informed counsel at the jury charge conference that it would not submit an instruction on nominal damages becаuse there had been an “admission of liability” by defendant. The court further indicated its opinion that defendant, in consequence of having conceded fault in the collision, had admittеd plaintiff sustained some injury as a proximate result of defendant‘s negligence. According to the trial court, by admitting fault, defendant admitted plaintiff “has suffered at least some pain аnd suffering as a proximate result of the accident.” Therefore, the court announced, “[i]f the jury comes back with zero it will be set aside. That is not a possible verdict in this case.” Finally, the trial court observed:
In a PI case the only formula is—if the case is worth trying there‘s going to be evidence of pain and suffering . . . . I say that every chance I get. I said it at a confеrence for Superior Court judges without any effect; so now I‘m saying it to the Appellate Courts.
The trial court‘s pronouncement that the jury verdict of “none” was not a “legal verdiсt,” when read in conjunction with the court‘s statements noted above, indicates that the court‘s apparent basis for granting a new trial on its own initiative was its belief that by admitting fault, defendаnt had necessarily admitted plaintiff suffered damages which were the proximate result of defendant‘s fault. Even considering arguendo the foregoing as specification of the trial court‘s grоunds in satisfaction of the requirement of
While an order for new trial pursuant to Rule 59 which satisfies thе procedural requirements of the Rule may ordinarily be reversed on appeal only in the event of “a manifest abuse of discretion,” when the trial court grants or denies a new trial “due to some error of law,” then its decision is fully reviewable. Garrison v. Garrison, 87 N.C. App. 591, 594, 361 S.E.2d 921, 923 (1987) (citation omitted). Appellate courts thus must utilize the “abuse of discretion” standard only in those instances where there is no question of “law or legal inference.” Seaman v. McQueen, 51 N.C. App. 500, 505, 277 S.E.2d 118, 121 (1981) (citation omitted).
In order to establish a claim for negligence, a plaintiff must prove that:
(1) defendant owed a duty to plaintiff, (2) defendant failed to exеrcise proper care in the performance of that duty, and (3) the breach of that duty was the proximate cause of plaintiff‘s injury, which a person of ordinary prudence should have foreseen as probable under the conditions as they existed.
Westbrook v. Cobb, 105 N.C. App. 64, 67, 411 S.E.2d 651, 653 (1992) (citations omitted).
While defendant‘s admissions herein relieved plaintiff of the burden of proving the first two of the foregoing elements, defendant at no point conceded that his negligence proximately caused plaintiff‘s injuries or that she was entitled to “some damage[s]” based solely upon his admission of fault in the collision. Even assuming arguendo without deciding that the trial court‘s “[statement] to the Appellate Courts“—nominal damages are not appropriate in personal injury cases, but cf. The Asheville School v. Ward Construction, Inc., 78 N.C. App. 594, 599, 337 S.E.2d 659, 662 (1985), disc. review denied, 316 N.C. 385, 342 S.E.2d 890 (1986) (nоminal damages “recoverable in negligence actions,” in this instance for negligent repairs)—might have applicability to the circumstance where a defendant stipulatеs to both fault and proximate cause or where the jury resolves the causation issue in favor of the plaintiff prior to reaching the separately submitted issue of damages, neither instance was present in the case sub judice.
In sum, the trial court‘s order of a new trial contravened
Reversed.
Judge LEWIS concurs.
Judge WYNN concurs with separate opinion.
Judge WYNN concurring in alternate reasoning,
I agree with the alternate reasoning offered by the majority that the trial judge‘s decision to award a new trial was grounded in a misapprehension of law. A verdict of zero damages is not appropriate in an instance where a defendant concedes a breach of the standard of care and that such breach caused the plaintiff an injury. In this case, however, the record indicates that the defendant did not concede causation. In fact, the trial judge instructed the jury that the plaintiff had to prove causation and the amount of the damages. While such an instruction should have lead to the submission of two issues—one on causation and a second depеndent issue on the amount of damages—the trial court‘s instruction to the jury allowed the jury to determine that the defendant‘s breach was not a cause of plaintiff‘s injury. Therefore, a verdict of zero is a “legal verdict.”
I do not agree with the majority‘s holding that the trial judge in this case was required to make findings of facts to support the award of a new trial. A new trial awаrded under