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In re Pedestrian Walkway Failure9/20/2005
f all of her experts' opinions. Therefore, Judge Spainhour could permissibly find that Mrs. Hepler either did not make reasonable inquiry of her experts or that, if she had made such inquiry, she was not in a position to contradict the information contained in the RFAs and should have admitted them. Thus, Judge Spainhour did not err by concluding that Mrs. Hepler had not complied with the dictates of Rule 36(a).
Further, Rule 36 provides that a trial court "may" order that a matter be deemed admitted upon determining that a response to a request for admission is noncompliant; therefore, trial courts are vested with the discretion to impose this sanction. See Whitley v. Coltrane, 65 N.C. App. 679, 681, 309 S.E.2d 712, 715 (1983) (holding that use of the word "may" in subsection (b) of Rule 36 indicates that "the ruling . . . discretionary with the trial court"). Therefore, this Court's review of a trial court's decision to deem a matter admitted under Rule 36(a) is limited todetermining whether the trial court abused its discretion. See id. Given the facts of the instant case, we discern no abuse of discretion in Judge Spainhour's decision to deem RFAs Nos. 2-5 admitted.
The corresponding assignments of error are overruled.
II.
Mrs. Hepler next argues that Judge Spainhour erred by precluding her from presenting evidence of her back injury at trial. This contention lacks merit.
As a sanction for failing to comply with a discovery order, a trial court may "refus to allow the disobedient party to support or oppose designated claims or defenses, or prohibit him from introducing designated matters in evidence." N.C. Gen. Stat. ยง 1A- 1, Rule 37(b)(2)(b). As already indicated, the decision to impose sanctions pursuant to Rule 37, and the choice of sanction, are consigned to the discretion of trial court. Ante, slip op.at 13, __N.C. App. at __, __ S.E.2d at __.
In the instant case, Mrs. Hepler failed to produce records of her office visits with Dr. Gieseke, an MRI taken of her back, chiropractic records relating to treatment of a pinched nerve in her lower spine during the 1990's, and documents, including hospital records, relating to treatment for back pain in 1994. Mrs. Hepler asserts that she committed no discovery violations because some of these records had been destroyed by the time she acted upon the realization that she had not produced them. In support of this position, Mrs. Hepler correctly notes that "if aparty is unable to answer discovery requests because of circumstances beyond its control, an answer cannot be compelled." Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 598, 516 S.E.2d 169, 172 (1999). However, the record reveals, and Judge Spainhour found, that the now unavailable records would have been available if Mrs. Hepler had produced them when they were originally requested. Accordingly, Judge Spainhour did not err by concluding that Mrs. Hepler had committed a discovery violation. Furthermore, given that the absence of these documents potentially prejudiced the defendants' ability to dispute Mrs. Hepler's claim that the pedestrian walkway collapse caused her back injury, we are unpersuaded that Judge Spainhour abused his discretion by precluding Mrs. Hepler from presenting evidence of this claim at trial.
The corresponding assignments of error are overruled.
III.
In her final argument, Mrs. Hepler challenges portions of Judge Spainhour's 22 April 2002 order which require the production of documents and compliance with the Rules of Civil Procedure and the CMOs entered in the pedestrian walkway litigation. She contends that the order should be reversed because it requires the i
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