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Estate of Coppick v. Hobbs Marina Properties, LLC

Court of Appeals of North Carolina

April 7, 2015


Heard in the Court of Appeals 12 August 2014.

As Corrected April 9, 2015.

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[Copyrighted Material Omitted]

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Sigmon, Clark, Mackey, Hutton, Hanvey & Ferrell, PA, by Forrest A. Ferrell and Jason White, Weaver, Bennett & Bland, P.A., by Michael David Bland, and Kennedy & Wulforst, P.A., by D. Todd Wulforst, for plaintiff-appellee.

Horack, Talley, Pharr & Lowndes, P.A., by Kimberly Sullivan, for defendant-appellant.

BRYANT, Judge. Chief Judge McGEE and Judge STROUD concur.


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Appeal by defendant Petroleum Equipment and Service, Inc. from judgment entered 11 April 2013 by Judge Forrest D. Bridges in Lincoln County Superior Court, No. 08 CVS 1960.

BRYANT, Judge.

Where the evidence was sufficient to support the jury verdict finding that the death of Nathan Coppick was caused by defendant's negligence and properly based on the doctrine of negligence per se, we find no error in the trial court's denial of defendant's motion for judgment notwithstanding the verdict or new trial. We also find no error in the trial court's assessment of interest on the compensatory damage award in accordance with North Carolina General Statutes, section 24-5.

On 27 March 2013, a jury trial commenced in Lincoln County Superior Court, the Honorable Forrest Donald Bridges, Judge presiding. Plaintiff, The Estate of Nathan Richard Coppick, by its Administrator Richard G. Coppick, had filed suit alleging negligence against defendants Hobbs Marina Properties, LLC; Hobbs Westport Marina, LLC; Championship Charters, Inc.; Joseph Clifton Champion; and Petroleum Equipment & Service, Inc. Prior to trial, plaintiff voluntarily dismissed its claim against defendants Championship Charters, Inc., and Joseph Clifton Champion. The record is silent as to the outcome of the proceedings against Hobbs Marina Properties, LLC, and Hobbs Westport Marina, LLC. But, at trial, the only defendant plaintiff proceeded against was Petroleum Equipment & Service, Inc. (hereinafter " defendant" ).

The evidence at trial tended to show that on 10 June 2008, Nathan Coppick was working at the Hobbs Westport Marina in Denver, North Carolina. Shortly before four o'clock that afternoon, the Championship II, an eighty-foot-long charter vessel with two fuel tanks (one twenty gallon tank, one ten gallon tank) was positioned at Hobbs Westport Marina for refueling. The gas pump was activated, and recorded video surveillance admitted as substantive evidence and played for the jury showed Nathan pulling a gasoline hose toward the gasoline receptacle located at the rear of the Championship II. Nathan then walked away from the gasoline receptacle and headed toward the front of the boat. According to the clock shown on the recorded video surveillance, after six minutes had elapsed, a vapor cloud was visible on the port side of the vessel in " real close proximity" to the fueling area. Then there were two explosions. The first explosion occurred as Nathan was stepping off a ladder from the second deck onto the center of the stern (the back of the boat). When the second explosion occurred, fire engulfed the stern of the Championship II. Nathan was killed instantly.

Evidence showed that defendant provided the fuel dispensing system equipment, including nozzles, used at the marina. The nozzle on the hose Nathan used to refuel the Championship II was a non-pressure-activated nozzle with a hold-open latch. Richard Strickland, Chief Fire Code Consultant with the North Carolina Department of Insurance, Office of State Fire Marshal, and Rebecca Warr, Safety Compliance Officer with the North Carolina Department of Labor,

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testified that use of gasoline nozzles with a hold-open latch at a marina was a violation of the North Carolina Fire Code and OSHA regulations.

The jury found defendant negligent and liable for Nathan Coppick's death. The jury awarded plaintiff $1,500,000.00, and the trial court entered judgment in accordance with the jury award. Defendant filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. The trial court denied the motion. Defendant appeals.

In its appeal from the denial of its motion for JNOV and alternatively, new trial, defendant contends the trial court erred in denying the motion. Defendant also challenges the trial court's instructions on negligence and negligence per se, the trial court's failure to instruct on insulating negligence, certain evidentiary rulings of the trial court, and the award of prejudgment interest.

" A motion for JNOV is essentially a renewal of a motion for a directed verdict. The standard to be employed by a trial judge in determining whether to grant a judgment notwithstanding the verdict is the same standard employed in ruling on a motion for a directed verdict." State Properties, LLC v. Ray, 155 N.C.App. 65, 72, 574 S.E.2d 180, 185--86 (2002) (citations omitted).

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. The non-movant is given the benefit of every reasonable inference which may legitimately be drawn from the evidence, resolving contradictions, conflicts, and inconsistencies in the non-movant's favor. A motion for directed verdict should be denied if more than a scintilla of evidence supports each element of the non-moving party's claim.

Trantham v. Michael L. Martin, Inc., __ N.C.App. __, __, 745 S.E.2d 327, 331 (2013) (quotations and citations omitted).

Negligence / Negligence Per Se

Defendant argues that plaintiff failed to prove the elements of negligence and, thus, the trial court erred in denying defendant's motion for JNOV. Defendant contends plaintiff failed to establish that defendant owed Nathan Coppick a duty of care, and failed to put forth evidence that defendant installed the nozzle used by Nathan at the time of his death. We disagree.

In order to set out a prima facie claim of negligence against [the defendant], [the] plaintiff was required to present evidence tending to show that (1) [the defendant] owed a duty to [the] plaintiff; (2) [the defendant] breached that duty; (3) such breach constituted an actual and proximate cause of plaintiff's injury; and, (4) [the] plaintiff suffered damages in consequence of the breach.

Cucina v. City of Jacksonville, 138 N.C.App. 99, 102, 530 S.E.2d 353, 355 (2000) (citation omitted). However, where there is a violation of a safety statute, the traditional role of the jury in determining whether plaintiff has set forth a prima facie case of negligence is superseded, and defendant-violator is considered to be negligent as a matter of law, or negligent per se.

The statute prescribes the standard, and the standard fixed by the statute is absolute. The common law rule of ordinary care does not apply -- proof of the breach of the statute is proof of negligence. The violator is liable if injury or damage results, ...

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