Wilmoth v. Hemric ( 2014 )

NO. COA14-459
NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2014
GLENN R. WILMOTH,
Plaintiff,
v. Surry County
No. 11 CVS 533
GILBERT W. HEMRIC and
VAN W. HEMRIC,
Defendants.
Appeal by defendants from judgment entered 18 December 2013
by Judge A. Robinson Hassell in Surry County Superior Court.
Heard in the Court of Appeals 5 November 2014.
Willardson & Lipscomb, L.L.P., by William F. Lipscomb, for
defendants-appellants.
Jay Vannoy and Franklin D. Smith, for plaintiff-appellee.
ELMORE, Judge.
On 21 November 2013, a jury found that plaintiff was
injured as a result of defendants’ negligence. Defendants
appeal from the judgment that resulted from the jury verdict
and, in relevant part, challenge the trial court’s denial of
their motion for a directed verdict. After careful
-2-
consideration, we reverse the trial court’s denial of that
motion and vacate the judgment.
I. Facts
On 9 July 2008, Glenn Wilmoth (plaintiff) observed two cows
wearing numbered purple identification tags in his sister’s
garden between 4:30 p.m. and 5:30 p.m. Plaintiff moved the cows
out of his sister’s garden to a nearby wooded area. Later that
evening, between 8:30 p.m. and 8:45 p.m., plaintiff went back to
his sister’s house. As he was leaving, he saw the same two cows
at the edge of the driveway. Plaintiff went back inside the
house to retrieve his brother-in-law. Plaintiff and his
brother-in-law exited the house only to find one cow standing in
the driveway. Plaintiff walked around the premises for the
purpose of locating the other cow, at which point that cow
charged and struck him, resulting in severe injuries to his back
and legs.
Plaintiff’s sister transported plaintiff to the hospital,
and he stayed there overnight. Approximately five days after
plaintiff left the hospital, he called Van Hemric (defendant Van
Hemric) after discovering that he might own the cows. Defendant
Van Hemric did not answer the phone so plaintiff left a
voicemail.
-3-
On or about 20 July 2008, approximately eleven days after
plaintiff sustained his injuries, a vehicle struck a cow less
than a mile from plaintiff’s home on CC Camp Road. Plaintiff
went to the accident scene and was able to identify the cow,
based on the purple tag, as the same one that injured him.
Plaintiff called defendant Van Hemric a day later and was able
to speak with him on the phone. Plaintiff told defendant Van
Hemric about the vehicle collision and the prior event that led
to his injuries.
On 25 April 2011, plaintiff filed a complaint alleging, in
relevant part, that defendants failed to act “as . . . ordinary,
reasonable, and prudent person[s] would have done upon learning
the cattle and/or livestock had roamed from the pasture.”
At trial, and after plaintiff presented all of his
evidence, defendants made a motion for a directed verdict, which
was denied by the trial court. Defendants thereafter presented
evidence, and Larry Chappell testified that defendants employed
him during the summer of 2008 to check cattle. The two
particular cows subject to this action were kept in the Kirk
Pasture. Among his duties, Chappell visited the Kirk pasture
twice a week to check the fences, count the cows, and record
his results in a book (the book). At some point in July 2008 he
-4-
discovered that two cows were missing, but Chappell could not
recall when in July this had occurred. He testified that he
recorded the exact date in the book but threw it away after he
stopped working in the Kirk Pasture and well before he had
knowledge of plaintiff’s injuries or plaintiff’s complaint.
A day after noticing that the two cows were missing,
Chappell reported that information to defendant Van Hemrick.
Defendant Van Hemrick testified that Chappell notified him about
the missing cows before 21 July 2008, but he could not recall
the specific day.
At the close of all the evidence, defendants renewed, and
the trial court once again denied, their motion for a directed
verdict. The jury found that plaintiff was injured as a result
of defendants’ negligence. Pursuant to the jury’s determination
of damages, the trial court ordered that plaintiff recover
$350,000 from defendants with interest at the legal rate of
eight percent per annum. Defendants moved for a judgment
notwithstanding the verdict, which the trial court denied.
II. Analysis
Defendants argue that the trial court erred in denying
their motion for a directed verdict because plaintiff failed to
-5-
present sufficient evidence to establish that defendants’
negligence caused plaintiff’s injuries. We agree.
“The standard of review of directed verdict is whether the
evidence, taken in the light most favorable to the non-moving
party, is sufficient as a matter of law to be submitted to the
jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d
133, 138 (1991) (citing Kelly v. Int’l Harvester Co., 278 N.C.
153, 179 S.E.2d 396 (1971)).
In determining the sufficiency of the
evidence to withstand a motion for a
directed verdict, all of the evidence which
supports the non-movant’s claim must be
taken as true and considered in the light
most favorable to the non-movant, giving the
non-movant the benefit of every reasonable
inference which may legitimately be drawn
therefrom and resolving contradictions,
conflicts, and inconsistencies in the non-
movant’s favor.
Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710
(1989).
Generally, a negligence recovery requires proof of a legal
obligation, a breach of that obligation, proximate cause, and
actual damages. Little v. Omega Meats I, Inc., 171 N.C. App.
583, 586, 615 S.E.2d 45, 48, aff'd, 360 N.C. 164, 622 S.E.2d 494(2005). Within the specific context of an animal owner’s
liability for negligence:
-6-
The liability of the owner of animals for
permitting them to escape upon public
highways, in case they do damage to
travelers or others lawfully thereon, rests
upon the question whether the keeper is
guilty of negligence in permitting them to
escape. In such case the same rule in regard
to what is and what is not negligence
obtains as ordinarily in other situations.
It is the legal duty of a person having
charge of animals to exercise ordinary care
and the foresight of a prudent person in
keeping them in restraint.
Gardner v. Black, 217 N.C. 573, 576, 9 S.E.2d 10, 11 (1940).
Importantly, a plaintiff must present evidence sufficient to
indicate that defendant’s animals “were at large with his
knowledge and consent, or at his will, or that their escape was
due to any negligence on his part.” Id. at 577, 9 S.E.2d at 12.
Here, plaintiff did not offer evidence sufficient to show
that the cow escaped due to defendants’ negligence (failure to
maintain an adequate fence, leaving a gate open, counting the
cows too infrequently, etc.). Rather, plaintiff’s theory of
liability at trial was that defendants acted negligently based
upon their failure to sufficiently look for the cows once they
learned or should have learned that the cows had escaped.
Thus, the dispositive issue is whether plaintiff presented
sufficient evidence for the jury to infer that before the time
of plaintiff’s injury, defendants knew or should have known that
-7-
the cows were missing. This knowledge was a necessary
prerequisite to establish defendants’ duty to engage in
reasonable measures to locate the cows. See id.The evidence taken in the light most favorable to plaintiff
shows the following: Chappell checked the pasture on a Tuesday
and Thursday each week and remembered a time in July 2008 when
he realized that two cows were missing. A day later, Chappell
reported that information to defendants. Defendant Van Hemric
recalled Chappell notifying him about the missing cows before
having a phone conversation with plaintiff on 21 July 2008,
which was twelve days after plaintiff sustained his injuries.
However, neither defendants nor Chappell recalled the exact day
in July that Chappell discovered the cows were missing. Thus,
whether defendants’ alleged negligent conduct (their failure to
properly search for the cows) occurred before or after
plaintiff’s injury is a matter of pure speculation.
We also note that although plaintiff saw the two cows in
his sister’s garden on 9 July 2008 between 4:30 p.m. and 5:30
p.m., and again at the time of his injury between 8:30 p.m. and
8:45 p.m., such evidence by itself only shows that the cows
escaped, not that defendants knew or should have known that the
cows escaped, especially because Chappell conducted his cow-
-8-
count on Tuesdays and Thursdays, and 9 July 2008 was on a
Wednesday.
We therefore hold that no sufficient evidence at trial
showed that defendants had violated a duty of care to search for
the cows at the time of plaintiff’s injury. Plaintiff failed to
establish that defendants knew or should have known that the
cows had escaped before the time of his injury. See Ingold v.
Carolina Power & Light Co., 11 N.C. App. 253, 259, 181 S.E.2d
173, 176 (1971) (“Evidence which does no more than raise a
possibility or conjecture of a fact is not sufficient to
withstand a motion . . . for a directed verdict.”).
Accordingly, the trial court erred by denying defendants’ motion
for a directed verdict.
III. Conclusion
In sum, we reverse the trial court’s denial of defendants’
motion for a directed verdict and vacate the trial court’s
judgment.
Reversed and vacated.
Judges ERVIN and DAVIS concur.