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Benton v. HillCrest Foods12/21/1999
violated the holding in Murrow. Based on the above evidence, plaintiffs were permitted to demonstrate defendants' knowledge of the need to provide adequate security measures to protect its business invitees.
In light of the fact that more recent data had been admitted, the trial court could have determined that data pertaining to criminal activity from 1988 to 1991 was merely cumulative. See N.C.G.S. § 8C-1, Rule 403. Furthermore, plaintiffs were found contributorily negligent, and additional crime data from Couchell would not have affected the jury decision as to plaintiffs' negligence. As such, even if the trial court had erred in excluding the 1988-1991 data, such error would have been harmless. See N.C. Gen. Stat. § 1A-1, Rule 61 (1990). We conclude that the trial court did not err in excluding the analysis of 1988-1991 data from John Couchell, a crime analysis expert.
VIII.
By their eighth assignment of error, plaintiffs argue that the trial court erred in failing to qualify Leroy Wagner, Jr. as an expert witness in the field of security for restaurants and in excluding his opinions. We cannot agree.
"If a party . . . fails to obey an order to provide or permit discovery . . . a judge . . . may make such orders in regard to the failure as are just[.]" N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (1990). The choice of sanctions under Rule 37 is within the trial court's discretion and will not be disturbed on appeal absent a showing of an abuse of discretion. Hursey v. Homes By Design, Inc., 121 N.C. App. 175, 464 S.E.2d 504 (1995).
In the case at bar, plaintiffs violated a pre-trial discovery order in that they failed to identify Leroy Wagner, Jr. as an expert. Defendants did not have notice that plaintiffs would seek to qualify Wagner as an expert until trial. Therefore, it was within the trial court's discretion to exclude Wagner's testimony.
Furthermore, the trial court has broad discretion in determining the admissibility of expert witness testimony and its ruling will not be disturbed on appeal absent a showing of an abuse of discretion. Jennings v. Jessen, 103 N.C. App. 739, 407 S.E.2d 264 (1991). Plaintiffs retained an expert witness, Alan H. Crawford, who testified as to security issues at the restaurant. Proffered testimony for Wagner reveals that Wagner would have testified as to the same security issues, such that his testimony would have been cumulative. We conclude that the trial court did not abuse its discretion in excluding Leroy Wagner, Jr. from testifying.
IX.
After reviewing all of plaintiffs' remaining assignments of error, we conclude that they are meritless.
Defendants' Appeals
Defendants' arguments and assignments of error depend on our finding merit in plaintiffs' appeal. Based on our disposition of plaintiffs' issues on appeal, we need not address the issues raised by defendants on appeal.
For all of the foregoing reasons, we hold that plaintiffs were afforded a fair trial free from prejudicial error and that judgment was properly entered for defendants.
No error.
Judges LEWIS and HORTON concur.
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