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Elliott v. Birth3/19/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Appeal by defendant from order entered 16 November 2000 by Judge Albert A. Corbett, Jr. in Lee County District Court. Heard in the Court of Appeals 5 November 2001.
Defendant appeals the trial court's order, setting aside the jury's verdict and ordering a new trial on damages. This matter arises from an automobile collision that occurred on 27 November 1997 between Maria Elliott (Maria) and Shirley Birth (defendant), in which Brian Elliott (plaintiff) was injured. For the reasons that follow, we reverse.
The facts are as follows: On 27 November 1997, Thanksgiving, plaintiff, a three year-old child, was on his way to his uncle's house for a family Thanksgiving supper, when the accident occurred. His grandmother, Maria, was driving, while plaintiff rode in achild carrier in the back seat. Maria was driving west on a two- lane road, and defendant was driving towards them on the same road. Defendant was distracted by her pet dog, riding on her front seat; her car swerved across the center line and struck Maria's vehicle in the front passenger area before coming to rest in the roadside ditch. After the accident, plaintiff was driven to West Wake Memorial Hospital and treated for abrasions on his cheek and a small cut near his eye. The cut did not require stitches, and plaintiff was released to his parents' care with instructions to treat the cut with an antibacterial ointment and band aids. Maria was treated for bruises and pain, and released with instructions to take ibuprofen if necessary.
Patrick Elliott (Elliott), plaintiff's father, was appointed as his guardian ad litem, on 24 May 1998. Elliott filed suit on plaintiff's behalf on 26 May 1998, seeking damages for injuries sustained in the accident, and attorneys' fees. Although plaintiff's and Maria's actions were consolidated for trial, their appeals are reported in separate opinions. The case was tried before a jury on 4 January 1999. Prior to trial, defendant stipulated that her negligence was the proximate cause of the accident, and that plaintiff had suffered at least minor injuries. Therefore, the only issue at trial was the amount of damages.
The jury awarded plaintiff $350.00. Plaintiff moved the trial court to set the verdict aside on the grounds that it was inadequate. The trial court granted plaintiff's oral motion, and subsequently entered a written order setting aside the verdict andgranting plaintiff a new trial. Defendant appealed, and on 3 October 2000, this Court issued an unpublished opinion which held that the trial court's findings of fact were inadequate to allow meaningful appellate review. This Court vacated the trial court's order, and remanded for entry of "additional findings of fact and conclusions of law concerning its grant of a new trial."
On remand, the trial court again entered an order, which is the subject of the present appeal, setting aside the jury verdict and awarding plaintiff a new trial. The court's findings of fact included the following:
18. One of the minor Plaintiff's witnesses was his grandmother, who was with the child at the time of the accident. The grandmother is a native of Salzburg, Austria, and spoke with a strong German accent.
19. The Court finds that inadequate damages appear to have been given under the influence of prejudice as it relates
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