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Osetek v. Jeremiah11/15/2005
tial right of the party upon whose adversary the burden rests; and, therefore, it should be carefully guarded and rigidly enforced by the court .[']"'"'" Id. at 354, 160 S.E.2d at 98 (citations omitted). Our courts have held that
"when a request is made for a specific instruction, correct in itself and supported by evidence, the trial court, while not obliged to adopt the precise language of theprayer, is nevertheless required to give the instruction, in substance at least, and unless this is done, either in direct response to the prayer or otherwise in some portion of the charge, the failure will constitute reversible error."
McLain v. Taco Bell Corp., 137 N.C. App. 179, 182, 527 S.E.2d 712, 715 (2000) (citation omitted).
In Griffis v. Lazarovich, the plaintiff contended, as in this case, that the trial court erred in failing to instruct the jury that the amount of her medical expenses was presumed reasonable. Griffis, 161 N.C. App. at 442, 588 S.E.2d at 924. The Court in Griffis noted that:
N.C.R. Evid. 301 states that the trial court must instruct the jury when a statutory or judicial presumption exists. N.C. Gen. Stat. § 8C-1, Rule 301 (2001). N.C. Gen. Stat. § 8-58.1 (2001) creates a mandatory presumption of reasonableness for a plaintiff's medical expenses if the medical expenses are an issue and evidence is presented showing the total charges.
Id. Therefore, Griffis held that an instruction on the mandatory presumption of reasonableness as to medical expenses must be given to the jury when such expenses are at issue and there is evidence of the total charges. In Griffis, the Court determined that the amount of medical expenses had already been stipulated to by the parties and were not at issue, and therefore found no error in the failure to give the instruction. Id. Here, as the majority notes, the amount of medical expenses was at issue and was contested by both sides. Further, evidence of the total charges for the expenses was presented by plaintiff and records of expenses were submitted into evidence. Therefore, under the statutory requirements of N.C. Gen. Stat. § 8-58.1, Rule 301, and this Court's holding in Griffis, plaintiff's request for instructions as to the mandatory presumption of reasonableness for medical expenses was correct in itself and supported by evidence.
Here, a review of the instructions indicates that the substance of the requested instructions was not given to the jury. The trial court instructed the jury that the burden of proof of damages was on plaintiff and that such damages "may include medical expenses, loss of earnings, pain and suffering, and permanent injury." The trial court also defined medical expenses for the jury. However, nowhere in the instructions did the trial court instruct the jury as to the rebuttable presumption that such charges were reasonable, as required by N.C. Gen. Stat. § 8-58.1. As the requested instruction was correct and supported by the evidence, the trial court's failure to give the substance of the requested instruction constitutes reversible error. McLain, 137 N.C. App. at 182, 527 S.E.2d at 715. I would, therefore, grant a new trial as to damages.
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