Porter v. Leneave

GREENE, Judge. Barbara Porter (plaintiff) appeals the trial court’s judgment awarding her neither damages nor attorney fees. On 5 November 1990, Marcia Atkinson, plaintiffs fifteen year old daughter, was riding her bicycle in an easterly direction on RPR 1541 near La Grange, North Carolina, when she was struck and killed by a truck operated by Charles Leneave (defendant). Plaintiff, as administrator of her daughter’s estate, brought the instant wrongful death action alleging defendant negligently drove his vehicle into the rear of [344] the child’s bicycle. Plaintiff sought to recover damages for medical and funeral expenses, pain and suffering of the deceased, net income of the deceased, “services, protection, care and assistance of the deceased, whether voluntary or nonvoluntary, . . . [and] society, companionship, comfort, guidance, kindly offices and advice of the deceased to the persons entitled to the damages recovered.” On 25 February 1991, defendant answered disavowing any negligence and affirmatively defending on the grounds of contributory negligence and sudden emergency. Plaintiff replied 4 March 1991 denying her daughter was contributorily negligent and further alleging last clear chance. Trial was held at the 11 January 1993 session of Lenoir County Superior Court before a jury. Defendant’s evidence tended to show inter alia that Ms. Mattie Taylor had cared for plaintiff’s intestate since the child was two years old and that the last time plaintiff had visited the child was six years before the accident in question. The jury initially answered the issues submitted as follows: 1. Was the plaintiff, Barbara Porter, Administratrix of the Estate of Marsha Atkinson, damaged by the negligence of the defendant, Charles E. Leneave, III? Answer: Yes. 2. Did the plaintiff’s intestate by her own negligence contribute to plaintiff’s damages? Answer: No. 3. What amount, if any, is plaintiff, Barbara Porter, Administratrix of the Estate of Marsha Atkinson, entitled to recover for damages? Answer: $0.00 to Barbara Porter, only funeral and ambulance to be paid in the amount of $2550.00 The presiding judge then instructed the jury to resume deliberations for purposes of clarifying their response to the third issue. When the jury returned, the portion of the answer to issue III on the verdict form reading “$0.00 to Barbara Porter” had been circled. In response to the court’s inquiry, the jury indicated (through its foreperson with the other members assenting) that the circled portion was the jury’s “verdict in answer to that issue” and that the remaining language “was not part of [their] answer to the issue as such,” but rather [345] was reflective of the jury’s concern about payment of the funeral and ambulance bills to the providers. The trial court thereafter signed the judgment complained of which provided that “plaintiff [was to] take nothing” and “that each party [was to] bear its own costs.” Plaintiff gave notice of appeal to this Court 1 February 1993. The dispositive issue presented is whether the plaintiff is entitled to an award of nominal damages. Our Supreme Court recently held that “[o]nce a cause of action is established, plaintiff is entitled to recover, as a matter of law, nominal damages.” Hawkins v. Hawkins, 331 N.C. 743, 745, 417 S.E.2d 447, 449 (1992). Pecuniary loss is not an element in North Carolina of a cause of action for wrongful death, see N.C.G.S. § 28A-18-2(b) (permitting recovery of nominal damages); thus, this cause of action is established upon a showing that the decedent was killed as a proximate cause of the negligence of the defendant. See 1 Dan B. Dobbs, Dobbs Law of Remedies § 3.3(2) (2d ed. 1993) (noting that some causes of action require proof of actual damages) (hereinafter Dobbs'). In this case, the jury found that plaintiff had been “damaged by the negligence of the defendant” and that the plaintiffs intestate did not contribute to her own injuries. Thus, plaintiff established her cause of action for wrongful death, and the trial court erred in refusing to enter an award of nominal damages. The language of N.C. Gen. Stat. § 28A-18-2(b)(6), which states that nominal damages are recoverable “when the jury so finds,” does not require a different result. The statute simply means that “when the evidence adduced does not establish . . . facts which will reasonably support an assessment” of damages and “when the jury so finds,” there shall be an award of nominal damages. Brown v. Moore, 286 N.C. 664, 673, 213 S.E.2d 342, 349 (1975); see Armentrout v. Hughes, 247 N.C. 631, 633-34, 101 S.E.2d 793, 795 (1958) (construing an earlier version of the wrongful death statute, which did not include the nominal damage language, as prohibiting an award of nominal damages when a jury determined there was no pecuniary loss). The phrase “when the jury so finds” does not therefore mean when the jury finds nominal damages but means when “the jury finds that the decedent’s death was caused by the defendant’s wrongful act but fails to find that such death caused pecuniary loss.” Bowen v. Rental Co., 283 N.C. 395, 418, 196 S.E.2d 789, 804 (1973). Thus, the jury does not have the [346] option, after it has determined that there are no pecuniary losses, of choosing whether to award or not to award nominal damages. If the jury so determines, the party is entitled to an award of nominal damages and cost. In this case the jury, when it set the plaintiffs damages at “$0.00,” found that the evidence did not support an assessment of damages. At that point, the plaintiff was entitled to an award of nominal damages, and the order of the trial court must be reversed and the case is remanded for an award of nominal damages. In so holding, we reject the argument of the plaintiff that the award must also be amended to include the funeral and ambulance bills in the amount of $2550.00. The jury, after instructions from the trial judge, indicated that the language regarding the $2550.00 was not part of their answer to issue III; therefore, the trial court correctly refused to enter judgment for the plaintiff in this amount. See Kim v. Professional Brokers, 74 N.C. App. 48, 52, 328 S.E.2d 296, 299 (1985) (similar notation by jury treated as surplusage and properly disregarded by trial judge). Reversed and remanded. Judge JOHNSON concurs with separate opinion. Judge JOHN dissents.