JOHN E. JOHNSON v. JOANN M. SKINNER, ADMINISTRATRIX OF THE ESTATE OF THOMAS E. CUMBERWORTH SKINNER, JOHN RAPHAEL GREEN, AND P. M. CONCEPTS, INC., D/B/A TOYOTA SANFORD
No. 8911SC684
COURT OF APPEALS OF NORTH CAROLINA AT RALEIGH
(Filed 19 June 1990)
99 N.C. App. 1 (1990)
Am Jur 2d, Automobiles and Highway Traffic §§ 28, 153, 427, 994.
Am Jur 2d, Automobiles and Highway Traffic §§ 28, 153, 427, 994.
3. Automobiles and Other Vehicles § 90.1 (NCI3d) - dealer tags - statute prohibiting attachment to personal vehicle - violation of statute proximate cause of accident-instruction proper
In an action to recover for personal injuries sustained in an automobile accident, it was proper for the trial court to instruct the jury that the violation оf
Am Jur 2d, Automobiles and Highway Traffic §§ 28, 153, 427, 994.
4. Automobiles and Other Vehicles § 87.8 (NCI3d) - negligence of car dealership and car owner-negligence not insulated by negligence of driver
Negligence of defendant car dealership and defendant employee and car owner was not superseded by the negligence of the driver, since the area of risk created by defendant dealership and defendant employee and car owner in allowing the attachment of dealer tags to a personal use vehicle included the subsequent accident and injuries suffered by plaintiff.
5. Negligence § 27.1 (NCI3d) - auto accident – evidence of uninsured status of vehicle owner-admissibility
In an action to recover for injuries sustained in an automobile accident, the trial court did not err in allowing evidence concerning the uninsured status of defendant car owner, since the evidence was admitted to show defendant‘s motive for using his employer‘s dealer tags, to show that defendant dealership had knowledge that defendant owner wanted to use the tags so his vehicle could be driven on the highway by himself and others after his insurance had lapsed, and to allow the jury to assess the foreseeability of an accident when dealer tags are loaned to a member of the class of persons who have not complied with North Carolina‘s Financial Responsibility Act, and the jury could not have decided the issue of foreseeability without knowing that defendant‘s automobile was uninsured.
Am Jur 2d, Automobiles and Highway Traffic §§ 28, 153, 427, 994.
6. Evidence § 49.2 (NCI3d) - past and present earnings of auto accident victim-expert opinion-basis of opinion questioned
In an action to recover for injuries sustained in an automobile accident, the testimony of an economist as to the past and future economic earnings of plaintiff was not inadmissible because his opinion was based on the assumptions of medical experts and plaintiff‘s attorney; rather, defendants’ complaint went to the weight of the expert evidence underlying the economist‘s testimony, and it was the function of cross-examination to expose such weaknesses.
Am Jur 2d, Expert and Opinion Evidence § 75.
Judge WELLS dissenting.
APPEAL by defendants from judgment entered by Judge Coy E. Brewer, Jr., in LEE County Superior Court. Heard in the Court of Appeals on 10 January 1990.
Plaintiff John E. Johnson instituted this action against defendants for personal injury damages stemming from an automobile
The record reveals the following facts: at the time of the accident, Toyota operated an automobile dealership in Sanford, North Carolina, where Green worked as a mechanic. Green and the decedent Skinner lived together with a third person, Jinene Pierce.
At least one month, but perhaps as long as several months before the accident, Green obtained a set of dealer license plates from Toyota and placed them on his 1977 Pontiac Grand Prix. Before he placed the dealer tags on his automobile, Green turned in his personal motor vehicle plates to the Department of Motor Vehicles and canceled his insurance on the vehicle. Green testified that he believed when he put the dealer tags on his Grand Prix the automobile would be covered by Toyota‘s liability insurance. Green‘s possession and use of the dealer tags were known to the president, general manager and service manager of Toyota.
Green was attempting to sell his automobile at the time of the accident and borrowed the dealer tags primarily for the purpose of allowing prospective purchasers to test drive the automobile. However, he also allowed Skinner and Pierce to have free access to the vehicle and to use it for personal trips. Both Skinner and Pierce often drove the automobile with the plates attached, and on several occasions they drove the car onto the premises of the Toyota dealership where they were observed by employees аnd officers of the corporation.
On 10 May 1987, the decedent Skinner borrowed Green‘s Pontiac to go on a social outing with Pierce and other friends. Plaintiff elicited testimony from Pierce tending to show that Green knew of the trip and that Skinner and Pierce had permission to use the automobile. Green was not in the automobile at the time of the accident, and Toyota had no knowledge of the trip. On the return drive home from the lake, Skinner negligently collided with Johnson, causing his injuries.
Johnson offered evidence tending to show that on the day after the accident Green was instructed by the president of Toyota to say that his car had been stolen, that the dealer tags had been loaned to Green on the Friday before the accident, not that he had had the tags for weeks, and that Toyota had told Green to return the tags on the following Monday. Over objection of all defendants, plaintiff also elicited testimony from Green that he had no liability insurance on the automobile at the time of the accident.
Plaintiff also presented testimony of four expert witnesses. Dr. David Ciliberto, a medical expert specializing in orthopedics, testified that Johnson sustained multiple fractures, and life-threatening injuries to his head. Dr. Ciliberto expressed the opinion that plaintiff “has permanent injury.” Dr. Charles Matthews, a neurologist, testified that plaintiff suffered from a pain syndrome known as reflex sympathetic dystrophy in which patients often experience “agonizing pain.” He testified that therapy might or might not benefit plaintiff. Katherine Currie, a vocational evaluator, testified with respect to Johnson‘s ability to return to gainful employment. She stated that plaintiff showed low or below average performance on tests for dexterity, size discrimination, sorting, color discrimination and assembly. Ms. Currie did not feel that plaintiff would be able to return to competitive employment. Dr. Finley Lee, Jr., an economist and professor of business administration, testified concerning Johnson‘s past and future economic losses. Dr. Lee based his economic determinations on the assumption that Johnson was totally disabled. This assumption, in turn, was based on information provided by plaintiff‘s attorney.
Love & Wicker, by Dennis A. Wicker, for plaintiff appellee.
Robert C. Bryan for defendant appellant P. M. Concepts, Inc., d/b/a Toyota Sanford.
Van Camp, West, Webb & Hayes, by Stanley W. West and W. Carole Holloway, for defendant appellants Joann M. Skinner and John Raphael Green.
Defendants’ first two assignments оf error concern the liability of Green and Toyota based on their violation of a statute. The parties stipulated that defendant Skinner had been negligent in his operation of the automobile. Concerning the liability of Green and Toyota, the case went to the jury based on an alleged violation of
No manufacturer or dealer in motor vehicles, trailers or semitrailers shall cause or permit any such vehicle owned by such person or by any person in his employ, which is in the personal use of such person or employee, to be operated or moved upon a public highway with a “dealer” plate attached to such vehicle.
Id. (A 1989 amendment, effective 1 October 1989, rewrote subsection (d). The amendment is not applicable to this litigation. See
[1] First, Green argues that
[2] All defendants next argue that
Many jurisdictions, including North Carolina and now Massachusetts, have safety statutes which make it unlawful for a dealer to permit any person or employee to operate a vehicle for personal use with a “dealer” tag plate attached.
Kraemer at 508, 313 S.E.2d at 612-613. This language is clear and unambiguous and not an inadvertent use of the term “safety” as defendants suggest.
[3] Defendants’ next assignment of error presents the main and very difficult issue in this case-the proximate cause of the accident. They contend that illegally lending a dealer tag to an employee which facilitates the use of an automobile cannot be the proximate cause of a subsequent accident. They urge, as a matter of law, that the violation of the dealer tag statute cannot be the proximate cause of plaintiff‘s injuries. In determining whether there was sufficient evidence for the trial court to find defendants negligent, the question is whether the evidence when taken in the light most favorable to the plaintiff either failed to establish a prima facie case of negligence on the part of Green and Toyota, or whether the evidence established beyond questiоn that the negligence of Green or Toyota was insulated as a matter of law by the intervening negligence of Skinner.
It is the jury‘s domain, under appropriate instructions from the court, to apply the standard of the reasonable person to the facts in order to determine what was the proximate cause of the aggrieved party‘s injuries. Williams v. Smith, 68 N.C. App. 71, 314 S.E.2d 279, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984). “It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not. But that is rarely the case.” Conley v. Pearce-Young-Angel Co.; Rutherford v. Pearce-Young-Angel Co., 224 N.C. 211, 214, 29 S.E.2d 740, 742 (1944). “Proximate cause is a cause which in natural and continuous sequence, unbroken by any new or indeрendent cause, produced the plaintiff‘s injuries, and without which the injuries would not have occurred,
The test of foreseeability does not require that defendant must foresee the injury in the precise form in which it occurred. All that the plaintiff is required to prove in establishing proximate cause is that in “the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.” Hairston at 234, 311 S.E.2d at 565 (citations omitted); see, generally, Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L. Rev. 951 (1973).
In Hairston, a deceased motorist‘s wife brought a wrongful death action against an automobile dealership and the driver of a flatbed truck. The truck driver had negligently struck a van that was parked on the edge of the interstate behind the decedent‘s vehicle. The decedent was standing between the van and his own automobile when the collision occurred, and he was crushed to death between the two vehicles. Hairston at 231, 311 S.E.2d аt 564. Just prior to the accident, the decedent had purchased his automobile from the dealership. Before leaving the sales lot, the dealer had changed the wheels on decedent‘s new vehicle, but the dealer‘s mechanic had failed to tighten the lug nuts on one wheel. Id. at 230, 311 S.E.2d at 563. The decedent traveled several miles from the dealership when the left rear wheel came off. He pulled over to the edge of the interstate and moments later the accident occurred. Id. at 231, 311 S.E.2d at 564.
The jury in Hairston found the driver who operated the flatbed truck and the automobile dealership liable, but the trial judge allowed the dealer‘s motion for judgment notwithstanding thе verdict. We upheld the ruling, finding that although the dealership was negligent in failing to tighten the lug bolts on the wheel, the acts of negligence were not the proximate cause of the death of the plaintiff‘s intestate, and that such negligent acts of the dealership were insulated by the subsequent negligent acts of the truck
The law requires only reasonable prevision. A defendant is not required to foresee events which are merely possible but only those which are reasonably foreseeable.
We note, however, that the law of proximate cause does not always support the generalization that the misсonduct of others is unforeseeable. The intervention of wrongful conduct of others may be the very risk that defendant‘s conduct creates. In the absence of anything which should alert him to the danger, the law does not require a defendant to anticipate specific acts of negligence of another. It does, however, fix him with notice of the exigencies of traffic, and he must take into account the prevalence of that “occasional negligence which is one of the incidents of human life.”
Hairston at 234, 311 S.E.2d at 565 (citations omitted and emphases added). In the case sub judice, the jury was asked to decide whether plaintiff was injured or damagеd as a proximate result of defendants’ negligence. The court instructed that to hold that the violation of the dealer tag statute was a proximate cause of plaintiff‘s injury, the jury must find that plaintiff‘s injury, or at least some similar injurious result, was foreseeable, and that by facilitating the use of the Pontiac by placing dealer tags on it, defendants created a safety risk to the public, greater than would exist otherwise, from the fact that the vehicle had dealer plates on it.
Defendants argue that Kraemer v. Moore, 67 N.C. App. 505, 313 S.E.2d 610 (1984), controls here. In Kraemer, an automobile dealership‘s employee placed a dealer tag on his personal vehicle. Plaintiff was injured when a ladder the employee had attached to his vehicle came unfastened, flew off and struck plaintiff as he walked along the road. Id. at 506, 313 S.E.2d at 611. Plaintiff obtained a judgment against the employee and then brought an action against the dealer, but this Court refused to hold the company liable. Nevertheless, proximate cause, was not the question before us in Kraemer; instead, the issue was one of insurance. Id. We did not rule there that the improper use of dealer tags could never be the proximate cause of an accident; rather, we found that plaintiff‘s evidence also “fails to show that the use of the dealer tag was a proximate cause of his injuries.” Id. at 509, 313 S.E.2d at 613.
Even though Kraemer is distinguishable, we note that courts in other jurisdictions have refused to hold automobile dealers liable in situations similar to the one here. Some courts have determined that no causal connection exists between the violation of a dealer tag statute and the accident causing injuries. Cambron, 116 Ga. App. 373, 157 S.E.2d 534; Burke, 37 N.J. Super. 451, 117 A.2d 624; see Annotation, License Plates-Improper Use, 99 A.L.R.2d 904 (1965). However, many of these cases turned on other issues such as agency or ownership, or involved statutes not applicable here or ones not interpreted as safety statutes. See also Pray v. Narragansett Improv. Co., 434 A.2d 923 (1981). Several jurisdictions, however, have upheld claims based on the premise that the misuse of dealer or personal plates was a proximate cause of an accident. In Barnett v. Rosenthal, 40 Conn. Supp. 149, 483 A.2d 1111 (1984), defendant was found negligent because he violated a statute by failing to turn in to the motor vehicle commissioner license plates that had been attached to an automobile that he sold. Whether leaving the license plates in the automobile after the sale, which had facilitated the vehicle‘s use, could be the proximate cause of the injuries was a question for the jury, the court said. Id.
In the only case we uncovered where, as here, the dealer tags were loaned illegally to an employee for a significant period of time, the court ruled that the misuse of the tags could constitute the proximate cause of an accident. Wieland v. Kenny, 385 Mich. 654, 189 N.W.2d 257 (1971). While test driving a personal vehicle
Defendants argue that even if violation of
The crucial question here is whеther Toyota and Green should have foreseen a danger to other motorists when for several months
We also base our decision on certain policy considerations, which are always inherent in a case of this nature. Toyota‘s officers and agеnts knew that by permitting Green to use the dealer tag they were encouraging the operation of a vehicle by someone who had not complied with North Carolina‘s Financial Responsibility Act. See
At the time of plaintiff‘s accident, Toyota had roughly 150 dealer tags аnd, according to the president of the company, no written policy to govern their use. The company‘s service manager testified that no one ever inventoried the dealer tags assigned to his department to determine who was using the tags, nor was he ever instructed concerning any restrictions on the use of the tags. It would be contrary to the public policy inherent in
[4] Defendants make a related argument that even if the combined negligence of Green and Toyota was a proximate cause of plaintiff‘s injuries, their negligence was superseded by the negligence of Skinner. However, it is clear that in North Carolina there may be two or more proximate causes of an injury, and even where those causes originate from separate and distinct sources or agencies operating independently of each other, if they join together producing injury, each may be liable. McEachern v. Miller, 268 N.C. 591, 151 S.E.2d 209 (1966). Furthermore, where defendant‘s conduct helps precipitate an intervening event, he may still be held liable if the second event is reasonably regarded as part of the risk of his original conduct. See Byrd, supra, at 966. In other words, a defendant may be liable despite the negligent act of another if at the time of his act he is on notice of circumstances that make the intervention of others likely. For example, reasonable people are required in many situations to anticipate the intermeddling of children; likewise, in some situations, reasonable people must anticipate the “exigencies of traffic,” and that “‘occasional negligence which is one of the incidents of human life.‘” Hairston, 310 N.C. at 234, 311 S.E.2d at 565 (citations omitted).
Nevertheless, we still must decidе if the evidence in this case is susceptible to the single inference that the defendants’ negligence ceased to be the proximate cause and was superseded and insulated by the subsequent negligence of Skinner. From our Supreme Court we learn the following:
An efficient intervening cause is a new proximate cause which breaks the connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote. It is immaterial how many new elements or forces have been introduced, if the оriginal cause remains active, the liability for its result is not shifted.
Harton v. Telephone Co., 141 N.C. 455, 462-63, 54 S.E. 299, 301-02 (1906). Again, whether the intervening act of a third person is the proximate cause of an injury and sufficient to excuse the defendant‘s lack of care depends on foreseeability. Tyndall v. United States, 295 F.Supp. 448 (1969). Unless only one inference may be
[5] Defendants next assign error to the admission of evidence concerning the insured status of Green. Counsel for both Green and Toyota objected to this line of questioning and were granted a continuing objection to specific questions relating to insurance in general and whether a particular vehicle was insured. Defendants’ earlier motion in limine as to evidence of insurance had also been denied.
Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Rule 411 enumerates several examples for which evidence of insurance is admissible, but it does not by its terms limit admissibility to those examples alone. 1 L. Brandis, Brandis on North Carolina Evidence § 88 (1988). In the case sub judice, evidence that Green‘s automobile was uninsured was nоt offered to demonstrate the cause of the accident or to suggest the relative wealth of the defendants. Instead, the evidence was offered for the following purposes: (1) to show Green‘s motive for using the dealer tags; (2) to show that Toyota had knowledge that Green wanted to use the tags so his Pontiac could be driven on the highway by himself and others after Green‘s insurance had lapsed; and (3) to allow the jury to assess the foreseeability of an accident when dealer tags are loaned to a member of the class of persons who have not complied with North Carolina‘s Financial Responsibility Act. The jury could not have decided the issue of foreseeability without knowing that Green‘s
[6] Defendants also assign error to the testimony of Dr. Finley Lee, Jr., an economist who testified to the past and future economic earnings of the plaintiff. Dr. Lee testified that plaintiff‘s future loss of income would be $442,134.00, and that he based this calculation on several things, including information provided by plaintiff‘s counsel and on the assumption that plaintiff was totally and permanently disabled. Defendants argue that Dr. Lee‘s testimony was inadmissible because his opinion was based on the assumptions of other experts, not еxclusively on assumptions of his own, and that his use of a questionnaire that he sent to plaintiff‘s counsel was improper. In effect, defendants contend that plaintiff‘s attorney and the opinions of medical experts are not sources of information reasonably relied upon by economists who testify as experts. See
Coincidentally, Dr. Lee also testified in Hairston and the Supreme Court upheld his testimony there. “We find equally untenable the argument that the expert‘s opinion testimony lacks a proper foundation based as it was on information gleaned from ‘statistics that have been prepared by other people’ and from the plaintiff or her lawyer.” Hairston, 310 N.C. at 244, 311 S.E.2d at 571. Defendants’ complaint here goes to the weight of the expert evidence underlying Dr. Lee‘s testimony rather than the admissibility itself of Dr. Lee‘s testimony. In this regard, defendants’ argument is fundamentally flawed. It is the function of cross-examination to expose the weaknesses in the assumptions underlying an expert‘s testimony, which defendants’ counsel undertook to do in sixty-five pages of the transcript. See id. at 244, 311 S.E.2d at 571. Defendants’ objection to the testimony of Dr. Lee is untenable.
Finally, we have examined defendants’ other assignments of error and found them to be without merit. We find no error in the trial below.
No error.
Chief Judge HEDRICK concurs.
Judge WELLS dissents.
I cannot agree that the lending of defendant Toyota‘s dealer tag to defendant Green was a proximate cause of plaintiff‘s injury. See Federated Mutual Insurance Co. v. Hardin, 67 N.C. App. 487, 313 S.E.2d 801 (1984). I also perceive that Kraemer v. Moore, discussed by the majority, supports my position. I therefore must respectfully dissent.