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Smith v. Carolina Manor Treatment Center8/20/2002
he shooting incident.
However, plaintiff argues that even if there were error in the admission of the evidence, such error was not prejudicial. In support of his argument, he cites the following: "All erroneous rulings of the trial court with respect to the admissibility of evidence will not result in a new trial. The burden is upon the appellant to show not only error but that such error was prejudicial to him, or that such error probably influenced the jury." Johnson v. Massengill, 12 N.C. App. 6, 7, 182 S.E.2d 232, 234 (1971), aff'd, 280 N.C. 376, 186 S.E.2d 168 (1972).
Defendants argue that the incident was not only irrelevant but also prejudicial under Holiday because it "tempts the jury to base its decision on emotion and to reward good people or punish bad people, rather than to render a verdict based upon the facts before them." Holiday, 311 N.C. at 279, 316 S.E.2d at 57. Further, " he use of character evidence by a party to a civil action 'might move the jury to follow the principles of poetic justice rather than rules of law.'" Id. (quoting Creech v. Creech, 222 N.C. 656, 664, 24 S.E.2d 642, 648 (1943)). In Holiday, evidence ofthe defendant physician's good character and reputation in the community was admitted over the plaintiff's objection. Id. at 281- 82, 316 S.E.2d at 58. Our Supreme Court held, "We cannot say, therefore, that the error in admitting this character testimony was harmless. There is here the danger that the jury was unduly tempted to find for [the defendant physician] on the issue of his negligence simply because they believed the inadmissible [character evidence]." Id. at 282, 316 S.E.2d at 59.
Here, the trial court conceded there were difficulties with the evidence being admitted under Rule 401, which deals with relevancy of evidence, and Rule 403, which deals with the prejudicial nature of evidence. Furthermore, the shooting incident occurred two years after the events in question. It dealt with a private matter in which Mr. Kelly, after finding his wife had been attacked by a man, engaged in a confrontation with the attacker. The negligence alleged in the present lawsuit deals only with a breach of a professional standard of care. Thus, we conclude the trial court's admission of the character evidence was sufficiently prejudicial that defendants are entitled to a new trial.
Because we remand the case for a new trial, we need not address defendants' remaining assignment of error. Thus, we reverse and remand for a new trial.
New trial.
Chief Judge EAGLES and Judge BIGGS concur.
Report per Rule 30(e).
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