Please ensure Javascript is enabled for purposes of website accessibility

Tort/Negligence – Motion to Amend – Contributory Negligence – Jury Instructions

Tort/Negligence – Motion to Amend – Contributory Negligence – Jury Instructions

Listen to this article

Rabon v. Hopkins. (Lawyers Weekly No. 10-07-1163, 19 pp.) (Linda Stephens, J.) Appealed from Guilford County Superior Court. (John O. Craig III, J.) N.C. App. Click here for the full text of the opinion.

Holding: Defendants in a personal-injury case cannot amend their answer to assert the defense of contributory negligence on the day of the trial when the defense was not raised earlier.


Plaintiff was involved in a collision with a tractor-trailer owned by defendant Keystone Freight Corp. and operated by defendant Hopkins. Plaintiff filed a complaint based on claims of negligence by Hopkins, imputed negligence of Keystone under respondeat superior and negligent entrustment. Defendants filed an answer setting forth defenses of unavoidable accident and sudden emergency.

On the day the trial was set to begin, defendants moved for leave to amend their answer to include the defense of contributory negligence. The trial court denied the motion and granted plaintiff’s motion to preclude any evidence of negligence by plaintiff.

The evidence at trial showed that as defendant Hopkins pulled onto an exit ramp she saw a warning light that indicated that the air pressure for the truck’s brakes was low. She testified that she was not able to slow the truck as it approached a red light. After the truck collided with plaintiff’s vehicle, plaintiff suffered severe injuries.

It was later observed that the air line for the trailer’s brakes was disconnected from the tractor. The jury returned a verdict awarding the plaintiff $150,000 in damages for personal injury and $3,500 for property damage.

Motion to Amend

Defendants argue that the trial court erred when it refused to allow them to amend their answer to include contributory negligence. It is apparent that the court’s denial of defendants’ motions was based on undue delay and futility of the amendment. Futility of amendment appears justified in this case based on plaintiff’s inability to recall the accident and defendant Hopkins’ testimony that she did not believe the plaintiff was at fault.

With regard to undue delay, defendants’ answer was filed on Sept. 3, 2008. It was not until July 15, 2009, following the conclusion of discovery, that defendants moved to amend.

Defendants argue that their motion should be granted because the contributory negligence defense was “inadvertently omitted” from the answer and later argued that the plaintiff should have been on notice that contributory negligence would be argued. We find this argument disingenuous. Defendants’ argument is at odds with our Rules of Civil Procedure, especially the concept of notice pleading.

In their final argument as to why this amendment should be granted, defendants contend that the defense of contributory negligence became “vastly more important when it became apparent the case would be tried.” This is unpersuasive and offends common sense.

Evidence of Contributory Negligence

Defendants also claim the trial court erred when it agreed to disallow any evidence of contributory negligence, arguing that questions of each driver’s actions are always relevant in a two-vehicle accident case. But because the defense was not raised in the answer, the reasonableness of plaintiff’s actions is not at issue.

Expert Testimony

Defendants claim plaintiff’s expert witness should not have been allowed to testify about the tractor-trailer brakes based on his own admissions that the features of the brakes were outside his area of expertise. But the witness had done thousands of truck inspections and would know whether the air line was designed to stay attached during the normal course of transport.

Defendants also objected to a portion of the expert’s testimony of what theoretically could happen to the air pressure if the air line became disconnected. The witness read and explained a portion of compliance regulations on trucks with air brakes. Defendants also objected to the witness’ reading of a state commercial driving manual about safe driving practices following brake failure. We conclude the trial court did not abuse its discretion in allowing the expert testimony.

Motion for JNOV

Defendants argue that this case involves a “single allegedly negligent act” – the failure of defendant Hopkins to properly connect an air line that controlled the brakes. Defendants argue that plaintiffs did present sufficient evidence of this act and failed to establish a prima facie case. This argument overlooks the fact that that there was evidence that defendant Hopkins failed to reduce speed by engaging other braking mechanisms or downshifting her engine or maneuvering to avoid the collision.

Defendants also argue the trial court erred by not granting their motion for a new trial based on the jury instructions involving spoliation of evidence of excessive speed. We reject the argument.

Defendants denied in discovery that the truck had any device that recorded data regarding its operation. However, a plaintiff’s expert testified that the type of truck would have had such a device. Such contradictions among others were enough to support instructions on spoliation.

The defendants also argue that the trial court should not have told the jury that the 35 mph speed limit was in force and that violation of that limit was negligence. Defendants argue that interstate exit ramps are not subject to those rules. We conclude that trial court did not err by denying defendants’ motion for a new trial.

No error.

Top Legal News

See All Top Legal News


See All Commentary