Verdicts and Rulings

NCADA members Luke Sbarra and Lucas Garber from Hedrick Gardner Kincheloe & Garofalo, LLP tried a negligence and breach of contract case to a defense verdict during the March 7, 2016, civil term of court in Iredell County Superior Court. The lawsuit arose out of a fire to an upfitted PGA tour bus that Luke and Lucas' client contracted to provide to the plaintiff. The fire occurred in Georgia after a temporary repair to the engine en route to delivery of the bus to Florida. Luke and Lucas tried the jury case over three days, and Judge Lynn Gullett presided.

submitted by Nick Ellis, Poyner Spruill

Caleb Wardrett v. City of Rocky Mount Police Department, Det. Clifton and Det. Denotter ( United States District Court for the Eastern District of North Carolina, 2016) 

The federal court granted summary judgment for the City of Rocky Mount, its Police Department and detectives in a case brought against them under 42 USC §1983 where claims were asserted for malicious prosecution and false arrest. The police detectives conducted interviews of witnesses who had information concerning an attempted homicide that took place in Rocky Mount. As a result of that investigation, the plaintiff was charged with attempted murder. The detectives believed they had probable cause to have an arrest warrant issued. This belief was supported by the fact that the local magistrate found probable cause existed and issued the warrant. However, at a subsequent state court probable cause hearing, several witnesses failed to appear or changed their accounts of what happened, which led to the charges being dismissed.  

Plaintiff then filed his civil suit in the United States District Court claiming violations under 42 USC §1983. Claims were made against the detectives in their official and individual capacities. The court analyzed these claims and determined the plaintiffs Fourth Amendment rights had not been violated. The court noted that a finding of probable cause defeats a false arrest/malicious prosecution claim. Probable cause is based on a practical assessment of the totality of the circumstances and the court found that the detectives had probable cause to seek the issuance of the arrest warrant based on the information they uncovered. In its analysis, the court focused on the critical point in time and looked at what the officers reasonably believed when the charges were issued-and not what occurred through later developments. 

Plaintiff also stated a Monell claim against Rocky Mount under §1983. But, no claim can be recognized for respondeat superior liability under §1983. The trial court concluded there was no evidence of a policy in the Rocky Mount Police Department that was the basis of the constitutional violation in addition to its initial finding, which was no constitutional violation occurred. Based on the failure to demonstrate that his constitutional rights of been violated, the trial court dismissed plaintiffs case.

On December 17, 2015, Jason Benton, a partner in Parker Poe Adams & Bernstein LLP’s Charlotte office, won a defense verdict in a Mecklenburg County jury trial involving breach of contract and unfair and deceptive trade practices claims against a gas utility company. The dispute arose out of an easement obtained by the gas company to install a pipeline needed to deliver clean-burning natural gas to a power plant to replace the plant’s use of coal. The gas company entered into a contract with the plaintiff-landowner in which the gas company agreed to “minimize” the cutting of trees. The landowner alleged that the gas company’s agent told him that it would only cut trees in a specific, narrow area. The agent denied making that representation. The week before trial, Jason learned that his key fact witness, the agent who denied making representations to the land owner about the limits of clearing, was in the hospital for medical treatment and unavailable for trial. Jason had to rely on that witness’ deposition testimony. (The witness died during trial.) During the 2-week trial, the plaintiff called 9 witnesses, 4 of whom were tendered as experts in real estate appraisal, site planning, surveying and forestry. Plaintiff asked the jury to award $159,000 for the alleged diminution in value of its property due to the tree removal and for the court to treble that number for a total recovery of a little under $500,000. After deliberating for only 45 minutes, the jury returned a complete defense verdict, finding no breach of contract and no unfair/deceptive acts on the part of the defendant-gas company. Since the Plaintiff recovered no damages in the trial, the gas company is entitled to recover its costs due to an offer of judgment made over a year ago.

The North Carolina Supreme Court has held that purchasers of real property may not bring claims against appraisers retained by their lenders where the purchasers did not request or receive the appraisal reports, and where they did not interact with the appraisers. The opinion, Arnesen et al. v. Rivers Edge Golf Club & Plantation, Inc. et al., No. 375A14, rejects the notion that purchasers may simply rely on the appraisers’ work “by proxy” where the lender relies on the appraisal in making an underwriting decision.  Instead, the opinion holds that appraisers do not owe unlimited duties to borrowers, who must actually and directly rely on the appraisal itself to be permitted to assert a claim.  The appraisers in Arnesen were represented by Jacob H. Wellman and Natalia K. Isenberg of Teague, Campbell, Dennis & Gorham, LLP of Raleigh, North Carolina.

Action to Set Aside Form 60 - Hardison v. Goodyear Tire & Rubber Co., 776 S.E.2d 898 (N.C. Ct. App. 2015)

The North Carolina Court of Appeals upheld the Commission’s power to set aside a Form 60 on grounds of “newly discovered evidence” and “fraud and/or misrepresentation” provided a due diligent investigation is first undertaken.  Hardison 776 S.E.2d 898, *5.  Defendants filed a Form 60 admitting a 22 December 2011 hernia claim after Plaintiff consistently denied pre-claim abdominal issues.  Discovery in a subsequently filed claim revealed that Plaintiff’s hernia was present as of 11 November 2011.  Such neurology record was not discoverable at the time of the hernia acceptance as the neurologic condition was not claimed at that time.

Submitted by Matthew Ledwith, Hedrick Gardner Kincheloe & Garofalo, LLP

In September, John Beyer and Jonathan Hall of Parker Poe obtained a defense verdict in Gaston County in a medical malpractice case against an OB/GYN and a nurse midwife, where allegations included negligence in managing shoulder dystocia during the delivery of a 10’ 11” baby boy, resulting in permanent brachial plexus palsy.  Plaintiff’s attorneys were Chuck Monnett and George Tolley (Timonium, Md.).   Trial judge was Linwood Foust.  The trial was bifurcated on Plaintiff’s motion, and the jury returned a defense verdict on liability during the third week of trial.   Plaintiff’s experts included Robert Allen, Ph.D., a biomedical engineer, who was prevented by the court from offering opinions on actual causation in this case.  Post-trial motions are pending.

The Defendants were performing a street sweeping operation on Independence Boulevard in Charlotte, North Carolina.  The driver of a motorcycle lost control as he was approaching the operation.  His wife was thrown from the vehicle and was killed as a result of the incident.  

The Court held that the testimony of Defendant's expert that the driver of a motorcycle had sufficient time to safely brake before the accident was sufficient to allow the trial judge to instruct the jury on intervening negligence. The Court further held that the expert's testimony was reliable and met the standards of Daubert.  The Court held that when considering all of the factors considered by the expert, including deposition review, site inspections, skid marks and Google Earth, his testimony was reliable. Finally, the Court held that a violation of a guideline from the Manuel for Uniform Traffic Control Devices (MUTCD) does not warrant negligence per se instruction. 

Submitted by Colin Scott, McAngus Goudelock & Courie, LLP

Christopher J. Geis and Sonny S. Haynes of Womble Carlyle Sandridge and Rice, LLP in Winston-Salem obtained a defense verdict in favor of the employer in a Family and Medical Leave Act of 1993 ("FMLA") case. During her employment at a county jail, Plaintiff requested and took medical leave pursuant to the FMLA.  When she attempted to return to work, her employer terminated her for misconduct that the employer became aware of while Plaintiff was on leave. 

Plaintiff filed the lawsuit in the United States District Court for the Eastern District of North Carolina alleging a violation of her rights under the FMLA and other state law claims.

After extensive discovery and briefing, the court granted Defendants' motion for summary judgment as to Plaintiff's state law claims. 

The case proceeded to a jury trial in Raleigh on Plaintiff's FMLA interference claim.  Experienced and aggressive attorneys represented Plaintiff.  After a four-day trial and four hours of deliberations, the jury rendered a defense verdict on May 30, 2014.

This asbestos case was tried before a jury for over three weeks in Greenville, South Carolina on Plaintiff's claims of negligence, strict liability, and breach of warranty.  Plaintiff alleged that her decedent died of mesothelioma as a result of exposure to asbestos from brakes and other friction products during the course of his 20-year career as a mechanic.  Although Plaintiff's original complaint named 38 defendants, only two defendants - Ford Motor Company and Volkswagen Group of America, Inc. - remained during the trial.  Among other things, the defendants argued that the decedent's alleged exposure to asbestos from brakes and friction products was not the cause of his mesothelioma because the type of asbestos fibers used in those products had a low level of toxicity and would not be of sufficient dose to cause or contribute to the decedent's mesothelioma.  The trial was bifurcated as to determination of liability and compensatory damages (Phase I) and punitive damages (Phase II).  After a day and a half of deliberations in Phase I, the jury returned a straight defense verdict in favor of the defendants.  Ford Motor Company was represented by NCADA members Kirk Warner and Chris Kiger of Smith, Anderson, Blount, Dorsett, Mitchell, & Jernigan, LLP, as well as by Shep Wainger from the Norfolk office of McGuireWoods, LLP and SCDTAA members Danny White and Curtis Ott from Gallivan, White, & Boyd, PA.  

This police shooting case was tried before a Buncombe County Superior Court jury for two and a half weeks from March 24 to April 9, 2014.  Plaintiff alleged that the defendant-officers acted maliciously- and were therefore liable in negligence and for punitive damages- in discharging their firearms at the suspect-driver during a vehicular pursuit, but missing him and striking his passenger, the injured plaintiff.  Plaintiff sought recovery for medical expenses exceeding $250,000 and asked the jury to return a verdict at or above $2,000,000.  After a little over a day of deliberations, the jury returned a complete and unanimous defense verdict as to all three defendant-officers.  The defendants were represented by NCADA member Jason R. Benton, who practices in the Charlotte office of Parker Poe Adams & Bernstein LLP.  Print media coverage of the result may be found here:  http://www.citizen-times.com/story/news/crime/2014/04/09/jury-asheville-officers-acted-without-malice/7531585/.