Volume 350 — North Carolina Reports

<bold>Police Officers — high speed chase — gross negligence — summary</bold> <bold>judgment</bold> <block_quote> The trial court properly granted summary judgment for two officers in their official capacities on gross negligence claims in a wrongful death action where the officers were involved in a high speed chase which ended with a one car accident in which the passenger in the fleeing car was killed. The officers pursued<page_number>Page 232</page_number> defendant Hill, the driver, over a stretch of approximately ten miles of roadway during a time of day when traffic was very light, they did not attempt to overtake defendant's vehicle or to force defendant's vehicle from the roadway, and they were well behind defendant's vehicle and traveling at a reduced speed when it crashed. Plaintiff failed to demonstrate any negligence by the officers, and certainly not the degree of gross negligence required to hold the officers liable for decedent's death.</block_quote>

<bold>1. Discovery — capital cases — post-conviction motion for</bold> <bold>appropriate relief — retroactivity of discovery statute</bold> <block_quote> The discovery provisions of N.C.G.S. § <cross_reference>15A-1415</cross_reference>(f) apply retroactively to post-conviction motions for appropriate relief in capital cases, but only when such motions were filed before the effective date of that statute, 21 June 1996, and had been allowed or were still pending on that date. In this context, the term "pending" means that on 21 June 1996 a motion for appropriate relief had been filed but had not been denied by the trial court, or the motion for appropriate relief had been denied by the trial court but the defendant had filed a petition for writ of certiorari which had been allowed by, or was still before, the N.C. Supreme Court.</block_quote><page_number>Page 401</page_number> <bold>2. Discovery — capital case — discovery of State's file — effective</bold> <bold>date of statute — prior denial of motion for appropriate</bold> <bold>relief</bold> <block_quote> Defendant was not entitled to discovery of the State's complete files pursuant to N.C.G.S. § <cross_reference>15A-1415</cross_reference>(f) where, at the time subsection (f) became effective on 21 June 1996, defendant had no motion for appropriate relief pending as the trial court had previously entered a final order denying his motion for appropriate relief, no petition for writ of certiorari to review that order had been allowed by the N.C. Supreme Court, and no petition for writ of certiorari was before the Court. Defendant's mere act of filing a motion with the trial court to reconsider its prior order denying his motion for appropriate relief did not make such order any less final or convert defendant's denied motion for appropriate relief into a pending motion so as to entitle him to discovery under N.C.G.S. § <cross_reference>15A-1415</cross_reference>(f).</block_quote>

<bold>1. Negligence — sudden incapacitation — instructions</bold> <block_quote> The North Carolina Supreme Court, in a case of first impression before it, adopted the following as the elements of the defense of sudden incapacitation: The defendant was stricken by sudden incapacitation; this incapacitation was unforeseeable to the defendant; the defendant was unable to control the vehicle as a result of this incapacitation; and this sudden incapacitation caused the accident. The defendant has the burden of proving each of these elements by a preponderance of the evidence.</block_quote><page_number>Page 558</page_number> <bold>2. Negligence — sudden incapacitation — unconsciousness</bold> <block_quote> The Court of Appeals erred in an action arising from an automobile accident by holding that jury instructions on sudden incapacitation should have included an instruction on unconsciousness. While unconsciousness may be more easily understood and applied to measure sudden medical incapacitation, the crux of the defense is that a defendant by reason of sudden incapacitation becomes unable to control the vehicle. The resolution of disputed facts has historically been left to the jury upon proper instructions.</block_quote> <bold>3. Negligence — sudden incapacitation — disjunctive instruction —</bold> <bold>new trial</bold> <block_quote> A plaintiff in an action arising from an automobile accident was entitled to a new trial where the jury charge given by the court on sudden incapacitation allowed the jury to find for defendant if defendant was either unable to control her vehicle or not capable of sense perception or judgment necessary for proper operation of her vehicle. Because the judge used the disjunctive, it cannot be said that the jury found that defendant was unable to control her vehicle because of sudden incapacitation.</block_quote> <bold>4. Negligence — sudden incapacitation — Alzheimer's</bold> <block_quote> The trial court did not err in an action arising from an automobile accident where plaintiff contended that the court improperly extended the sudden incapacitation defense by submitting sudden incapacitation based upon Alzheimer's. During the trial, defendant presented three medical explanations supporting the defense of sudden incapacitation which went directly to the elements: Alzheimer's disease, TIA, and arrhythmia. The testimony of defendant's two medical experts was neither objected to nor controverted.</block_quote>

<bold>Attorneys — appearance as counsel — no contact with client</bold> <block_quote> The trial court erred by denying plaintiff's motion for removal of defense counsel where defendant had been employed as a psychiatric resident at UNC Hospitals; an attempt to verify his credentials as a part of the licensing process revealed no record of him attending any medical school; he resigned and absconded; plaintiff filed an action alleging that defendant had engaged in nonconsensual sexual intercourse with her while falsely representing that he was a resident physician on the staff at UNC, a law firm retained to represent the UNC Liability Insurance Trust Fund filed a motion seeking permission to appear as counsel for defendant in this case on a limited basis in order to defend him in his absence, to protect the interest of UNC-LITF, and to respond to discovery requests to the extent possible; the court entered an order granting the firm's motion; and plaintiff filed this motion to remove the law firm as counsel for defendant. The law firm has had no contact with defendant and has not been authorized by him to undertake his representation in this or any other matter; no attorney-client relationship exists between defendant and the attorneys seeking to represent him. It was noted that Rule 24 of the North Carolina Rules of Civil Procedure provides a means by which an interested party may intervene in a pending lawsuit.</block_quote>

<bold>Trials — motion for new trial for insufficient evidence —</bold> <bold>standard of review</bold> <block_quote> In a caveat proceeding, the Court of Appeals correctly concluded that the trial court did not abuse its discretion in its order granting a new trial on the issue of undue influence. The trial court's decision to exercise its discretion to grant or deny a motion for a new trial for insufficient evidence under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 59(a)(7) must be based on the greater weight of the evidence as observed first-hand by the trial court; the test for appellate review continues to be simply whether or not the record affirmatively demonstrates an abuse of discretion by the trial court in doing so. <italic>Lassiter v. English</italic>, <cross_reference>126 N.C. 489</cross_reference> is overruled to the extent that it is inconsistent with this decision.</block_quote>