               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-961

                             Filed: 19 September 2017

Chatham County, No. 14 CVS 684

JORIS HAARHUIS, Administrator of the Estate of Julie Haarhuis (Deceased),
Plaintiff,

              v.

EMILY CHEEK, Defendant.


        Appeal by Defendant from judgment entered 28 April 2016 by Judge Eric L.

Levinson in Chatham County Superior Court. Heard in the Court of Appeals 5 April

2017.


        Copeley Johnson & Groninger PLLC, by Leto Copeley, White & Stradley PLLC,
        by J. David Stradley and Robert P. Holmes, and Patterson Harkavy LLP, by
        Narendra K. Ghosh, for the Plaintiff-Appellee.

        Burton, Sue & Anderson, LLP, by Walter K. Burton, Stephanie W. Anderson,
        and Cam A. Bordman, for the Defendant-Appellant.


        DILLON, Judge.


        Emily Cheek (“Defendant”) appeals from a jury verdict awarding Joris

Haarhuis (“Plaintiff”) compensatory and punitive damages for the wrongful death of

Plaintiff’s wife, and from an order by the trial court denying Defendant’s motion for

a new trial. For the following reasons, we affirm.

                                   I. Background
                             HAARHUIS ESTATE V. CHEEK

                                  Opinion of the Court



      Plaintiff filed this action against Defendant to recover both compensatory and

punitive damages for the wrongful death of his wife, Julie Haarhuis. Before trial, the

parties stipulated to a set of facts establishing that Defendant negligently caused the

death of Ms. Haarhuis, in relevant part, as follows: Defendant was driving on a two-

lane road at approximately 6:30 a.m. She lost control of her vehicle, crossing the

opposing lane of traffic and striking Ms. Haarhuis, who was walking on the opposite

shoulder of the road. As a result of the accident, Ms. Haarhuis suffered severe

injuries. Several days later, Ms. Haarhuis died as a result of those injuries.

      The trial was bifurcated, with the first phase of the trial addressing

compensatory damages and the second phase addressing punitive damages. During

the compensatory damage phase, Plaintiff put on evidence concerning his actual

damages, including evidence of the suffering his wife endured before her death. The

jury awarded Plaintiff $4.25 million in compensatory damages. The trial then moved

to the punitive damage phase.

      During the punitive damage phase of the trial, the jury heard evidence that

Defendant was still in school and worked part time, that she had consumed alcohol

in the early morning hours prior to the accident, and that she had a blood alcohol

content above the legal limit approximately two hours after the accident occurred.

The jury awarded Plaintiff $45,000 in punitive damages.




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                                   Opinion of the Court



      Defendant filed a motion for new trial which the trial court denied. Defendant

appealed.

                                      II. Analysis

      On appeal, Defendant makes a number of arguments concerning the conduct

of the trial and the trial court’s denial of her motion for a new trial. We address each

argument in turn.

      When reviewing a trial court’s ruling on a motion for a new trial, we consider

whether there are grounds for a new trial pursuant to Rule 59. See N.C. Gen. Stat. §

1A-1, Rule 59 (2015). Our review is “limited to the determination of whether the

record affirmatively demonstrates a manifest abuse of discretion by the judge.”

Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). “Abuse of

discretion results where the [trial] court's ruling is manifestly unsupported by reason

or is so arbitrary that it could not have been the result of a reasoned decision.” State

v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

                            A. Right to a Bifurcated Trial

      At trial, Defendant exercised her right to request a bifurcated trial pursuant

to N.C. Gen. Stat. § 1D-30. See N.C. Gen. Stat. § 1D-30 (2015). On appeal, Defendant

argues that Plaintiff’s questioning of the jury during voir dire was improper and

violated her “due process right” to a bifurcated trial because it involved issues that

would only be relevant to Plaintiff’s punitive damage claim.



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                                          Opinion of the Court



        Our General Assembly has provided that a plaintiff may not recover punitive

damages where the defendant is not found to be liable for compensatory damages.

N.C. Gen. Stat. § 1D-15.              Therefore, to ensure that a jury does not award

compensatory damages based on issues relevant only to punitive damages, our

General Assembly has granted a defendant the right to a bifurcated trial, which

allows “issues of liability for compensatory damages and the amount of compensatory

damages, if any, [to] be tried separately from the issues of liability for punitive

damages and the amount of punitive damages, if any.” N.C. Gen. Stat. § 1D-30. In a

bifurcated trial, the plaintiff is not allowed to introduce any evidence “relating solely

to punitive damages” during the compensatory damage phase. Id. In addition, the

statute requires the same trier of fact that tried the issues relating to compensatory

damages to try the issues relating to punitive damages. Id.

        In the present case, Defendant does not argue that Plaintiff introduced

improper evidence concerning Defendant’s intoxication during the compensatory

phase of the trial. Rather, she argues that Plaintiff’s questioning of potential jurors

during voir dire regarding their general attitudes about alcohol and drunk driving –

questions which were only relevant to the punitive damage phase of the trial – was

inappropriate.1


        1 Defendant’s objections to several of these questions were sustained by the trial court during
voir dire. Consequently, Defendant would only be entitled to relief based on these questions if they,
taken along with the totality of voir dire, resulted in an unfair trial. See State v. Jones, 347 N.C. 193,



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                                         Opinion of the Court



       We acknowledge that N.C. Gen. Stat. § 1D-30 presents a dilemma of sorts, as

suggested by Defendant’s argument. Specifically, N.C. Gen. Stat. § 1D-30 gives a

defendant the right to a bifurcated trial in order to ensure that the jury, when

considering the issue of compensatory damages, is not improperly influenced by

evidence relevant only to punitive damages.                  However, a defendant’s right to

bifurcation must be weighed against a plaintiff’s right to an impartial jury, which

includes a plaintiff’s right to question potential jurors during voir dire about issues

that they may be asked to consider. See State v. Jones, 339 N.C. 114, 136, 451 S.E.2d

826, 836-37 (1994) (“The purpose of voir dire is to ferret out jurors with latent

prejudices and to assure the parties’ right to an impartial jury.”).

       N.C. Gen. Stat. § 1D-30 requires that the same jury try both the issues relating

to compensatory damages and the issues relating to punitive damages, presumably

for judicial economy reasons. See N.C. Gen. Stat. § 1D-30 (providing that “[t]he same

trier of fact that tried the issues relating to compensatory damages shall try the

issues relating to punitive damages”). As such, in the present case, Plaintiff had the

right to question potential jurors regarding their general attitudes about alcohol and

drunk driving in order to determine “whether a basis for challenge for cause exist[ed]”

and to allow both parties to “intelligently exercise [their] peremptory challenges.”




203, 491 S.E.2d 641, 647 (1997) (“In reviewing any voir dire questions, [our] Court examines the entire
record of the voir dire, rather than isolated questions.”).


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                                    Opinion of the Court



State v. Gregory, 340 N.C. 365, 388, 459 S.E.2d 638, 651 (1995). Of course, the trial

judge must exercise discretion in determining the extent and type of questioning

permitted in order to protect the rights of all parties. See Jones, 339 N.C. at 134, 451

S.E.2d at 835 (stating that the “form of counsel’s questions” and “the manner and

extent of trial counsel’s inquiries” are within the sound discretion of the trial court).

We conclude that Plaintiff’s questioning, which was general in nature and did not

expressly state that Defendant had been intoxicated, was appropriate.

                                B. “Stake Out” Questions

       Defendant argues that the trial court erred in permitting Plaintiff’s attorney

to ask improper “stake out” questions during voir dire. Defendant contends that the

totality of Plaintiff’s voir dire questioning biased the jury, resulting in an unfair trial.

We disagree.

       The purpose of jury voir dire is to “eliminate extremes of partiality and ensure

that the jury's decision is based solely on the evidence presented at trial.” State v.

White, 340 N.C. 264, 280, 457 S.E.2d 841, 850 (1995). “The extent and manner of a

party’s inquiry into a potential juror’s fitness to serve is within the trial court's

discretion.” Id. On appeal, we review the entire record of voir dire to determine

“whether the trial court abused its discretion and whether that abuse resulted in

harmful prejudice to the defendant.” State v. Cheek, 351 N.C. 48, 66, 520 S.E.2d 545,

556 (1999).



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                                         Opinion of the Court



       A “stake out” question asks a juror to “pledge himself [or herself] to a future

course of action” by asking what “verdict [the prospective juror] would render, or how

they would be inclined to vote, under a given state of facts.” State v. Vinson, 287 N.C.

326, 336, 215 S.E.2d 60, 68 (1975), vacated in part on other grounds, 428 U.S. 902

(1976). Our Supreme Court has held that stake out questions are generally improper:

               Counsel may not pose hypothetical questions which are
               designed to elicit from prospective jurors what their
               decision might be under a given state of facts. Such
               questions are improper because they tend to “stake out” a
               juror and cause him to pledge himself to a decision in
               advance of the evidence to be presented.

Id.
       On appeal, Defendant challenges numerous questions asked by Plaintiff’s

counsel during voir dire. We will address each line of questioning in turn.2

       Defendant first takes issue with a hypothetical scenario presented by

Plaintiff’s counsel where counsel asked if the juror approached a red light late at

night with no traffic nearby, would the juror “wait for it to change or [] go straight

through it?” Although this question did involve a hypothetical set of facts, it was not

a stake out question because the facts presented were not similar to the underlying

facts of the case and did not ask jurors to state what kind of verdict they would render.




       2  Defendant challenges several questions which she failed to object to during the trial. Because
the trial court never had the opportunity to consider these issues, they are not properly before us on
appeal. N.C. R. App. P. 10(b)(1); State v. Nobles, 350 N.C. 483, 498, 515 S.E.2d 885, 895 (1999); State
v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991).


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                                   Opinion of the Court



See State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989). Rather, this

question addressed a “key criterion of juror competency” – whether jurors were

inclined to follow the law. See State v. Chapman, 359 N.C. 328, 346, 611 S.E.2d 794,

810 (2005).

      Defendant next challenges Plaintiff’s counsel’s questions regarding jurors’

attitudes toward awarding damages. Plaintiff’s counsel first posed the question as

follows:

              Which way do you lean? Are you a little closer to the folks
              who think that, in considering money, you should only
              consider the harms and losses or are you closer to folks who
              think you should factor in other things in determining how
              much money to include in your verdict?

The trial court overruled Defendant’s first objection to this line of questioning, but

after a bench conference, Plaintiff’s counsel rephrased the question as follows:

              What trouble would you have, if you are instructed by the
              judge . . . that you are only to consider the harms and losses
              that are proven from the evidence[,] in following that
              instruction and only considering harms and losses and
              factoring out [] everything else?

Defendant’s counsel also objected to this phrasing of the question. Even assuming

that the first iteration of the harms and losses question was an inappropriate stake

out question, we do not believe that it prejudiced Defendant.           Only one juror

responded to the first question before counsel rephrased it after the bench conference.

The second iteration of the question was clearly an appropriate voir dire question



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                                   Opinion of the Court



intended to determine if jurors could follow the law as presented by the trial court.

See State v. Wiley, 355 N.C. 592, 617, 565 S.E.2d 22, 40 (2002) (stating that the right

to an impartial jury recognizes “that each side will be allowed to inquire into the

ability of prospective jurors to follow the law”). Likewise, Plaintiff’s question to the

jury regarding whether they would have trouble putting money into a verdict for pain

and suffering also sought to determine whether jurors could follow the law allowing

damages for pain and suffering. See N.C. Gen. Stat. § 28A-18-2 (2015).

      Defendant also contends that Plaintiff’s counsel improperly asked jurors

whether they had lost someone who had provided “care” to them or to family

members. This was clearly not a stake out question, and was appropriate in order to

allow both parties to evaluate the fitness of each juror to serve on this particular jury.

See White, 340 N.C. at 280, 457 S.E.2d at 850.

      Finally, Defendant contends that it was improper for Plaintiff’s counsel to ask

whether jurors thought DUI laws were too harsh or too lax. Prior to trial, the parties

agreed that no questions would be asked which tended to tie Defendant to alcohol,

but that Plaintiff could ask about alcohol-related issues so long as it was not too

suggestive. This question appears to be an attempt by Plaintiff’s counsel to gauge

jurors’ attitudes toward alcohol in general. This was not a stake out question to

because it did not provide any facts of the case and did not ask jurors to state what

their verdict would be under a given state of facts. See Cheek, 351 N.C. at 66-67, 520



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                                   Opinion of the Court



S.E.2d at 556. While the issue of alcohol could perhaps have been approached more

delicately, we do not believe that this question prejudiced Defendant, when reviewed

in the context of the entire jury selection process.

      After thorough review of the transcript of jury voir dire in this case, including

the questions to which Defendant’s objections were sustained, we are unable to find

that the trial court abused its discretion during voir dire or that Defendant was

prejudiced by the totality of the questions posed by Plaintiff’s counsel.      See id.

Accordingly, this argument is overruled.

                                 C. Jury Instructions

      Defendant’s next argument involves the trial court’s instruction of the jury.

Specifically, Defendant argues that the trial court should not have given an

instruction to the jury regarding pain and suffering damages because there was no

evidence that the victim experienced conscious pain and suffering. We conclude that

the trial court did not commit reversible error regarding the challenged instruction.

      Our wrongful death statute provides that pain and suffering damages are

recoverable in a wrongful death action, N.C. Gen. Stat. § 28A-18-2(a)(2) (2015);

however, such damages are only available where the evidence supports such an

award. See DiDonato v. Wortman, 320 N.C. 423, 431, 358 S.E.2d 489, 493 (1987)

(stating that damages in a wrongful death action “must be proved to a reasonable

level of certainty, and may not be based on pure conjecture”); Brown v. Moore, 286



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                                   Opinion of the Court



N.C. 664, 672, 213 S.E.2d 342, 348 (1975) (noting that there is no basis for recovery

of pain and suffering damages where injury and death occurred simultaneously). And

when charging a jury in a civil case, the trial court “has the duty to explain the law

and apply it to the evidence on the substantial issues of the action.” Wooten v.

Warren, 117 N.C. App. 350, 358, 451 S.E.2d 342, 347 (1994); see also N.C. Gen. Stat.

§ 1A-1, Rule 51. The trial court must instruct on a claim or defense “if the evidence,

when viewed in the light most favorable to the proponent, supports a reasonable

inference of such claim or defense.” Wooten, 117 N.C. App. at 358, 451 S.E.2d at 347.

      Here, the evidence at trial, viewed in the light most favorable to Plaintiff, did

support a reasonable inference that the victim experienced conscious pain and

suffering.   For instance, three witnesses who were at the scene of the accident

testified that the victim was “trying to breathe, and moaning” after being struck by

Defendant’s vehicle. The victim’s treating physician testified that the injuries she

sustained would be “severely painful” and that she responded to painful stimuli until

her fourth day in the hospital. Based on this testimony, it could be reasonably

inferred that the victim consciously experienced pain and suffering before her death,

either immediately after the accident or during her hospitalization. Therefore, we

conclude that the trial court did not err in instructing the jury on pain and suffering.

                                D. Witness Testimony




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                                  Opinion of the Court



      Defendant next argues that the trial court improperly allowed individuals who

were not heirs of the victim to testify regarding elements of loss of society and

companionship damages. Specifically, Defendant contends that it was improper for

the victim’s cousin and one of her co-workers to testify regarding the victim’s

personality and demeanor, and for the co-worker to testify that she had discovered a

pregnancy test in the victim’s desk at the office. We disagree.

      Damages recoverable for wrongful death include the value of “[s]ociety,

companionship, comfort, guidance, kindly offices and advice of the decedent.” N.C.

Gen. Stat. § 28A-18-2(b)(4)(c). Our wrongful death statute further provides:

             All evidence which reasonably tends to establish any of the
             elements of damages in subsection (b) [of the statute], or
             otherwise reasonably tends to establish the present
             monetary value of the decedent to the persons entitled to
             receive the damages recovered, is admissible[.]

N.C. Gen. Stat. § 28A-18-29(c). Our Supreme Court has noted that “personality and

other traits relevant to what kind of companion” the decedent had been are relevant

in a wrongful death action. See DiDonato, 320 N.C. at 432, 358 S.E.2d at 494.

      Plaintiff argues that this challenged evidence was clearly relevant to the jury’s

determination regarding the value of the victim’s society, companionship, comfort,

guidance, kindly offices, and advice pursuant to N.C. Gen. Stat. § 28A-18-2(b)(4)(c),

and we can discern no error in its admission. In addition, Defendant has failed to

make any argument as to how she was prejudiced by this evidence, in light of the fact



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                                    Opinion of the Court



that other witnesses testified similarly, and Defendant has not challenged this other

evidence.

                                 E. Deterrence Argument

      Defendant argues that pursuant to Chapter 1D, it is improper to make a

“deterrence” argument during the compensatory phase of a bifurcated trial. We

disagree.    In   short,   the    purpose     of     punitive   damages   is   to   “punish,”

N.C. Gen. Stat. § 1D-1; therefore, a “punishment” argument might have been

inappropriate during the compensatory phase.                However, another purpose of

compensatory damages is to “deter” negligent behavior; therefore, Plaintiff’s

deterrence argument was not inappropriate.

      Compensation of persons injured by wrongdoing is “one of the generally

accepted aims of tort law.” Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The

Law of Torts § 13, at 389 (2d ed. 2011). However, “[c]ourts and writers almost always

recognize that another [general] aim of tort law is to deter certain kinds of conduct

by imposing liability when that conduct causes harm.” Id. § 14. Our Supreme Court

has noted that “liability [itself] promotes care and caution.”            Rabon v. Rowan

Memorial Hospital, Inc., 269 N.C. 1, 13, 152 S.E.2d 485, 493 (1967). The possibility

of being found liable in tort and ordered to pay compensatory damages certainly acts

to deter individuals from committing tortious conduct in the first instance. See id.




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                                   Opinion of the Court



      Under Chapter 1D, punitive damages may only be awarded if the plaintiff

proves that the defendant is liable for compensatory damages and one of three

aggravating factors is present. N.C. Gen. Stat. § 1D-15(a). These factors include

“[w]illful or wanton conduct.” N.C. Gen. Stat. § 1D-15(a)(3). In a bifurcated trial,

“evidence relating solely to punitive damages” is not admissible until the trier of fact

has determined whether compensatory damages are warranted and has set the

amount of compensatory damages. N.C. Gen. Stat. § 1D-30. Clearly, counsel would

not be permitted to reference any aggravating factor during her closing argument in

the compensatory phase of a bifurcated trial; however, that is not the issue we are

faced with in this case.

      Based on Chapter 1D of our General Statutes, the guidance of our Supreme

Court, and the long-established general purposes of tort law, we conclude that a

general deterrence argument is appropriate during the compensatory phase of a

bifurcated trial so long as it does not refer to any of the aggravating factors set forth

in N.C. Gen. Stat. § 1D-15(a) or urge the trier of fact to punish the defendant.

      Here, Plaintiff’s counsel stated in closing that a purpose of the civil justice

system was to “make people pay full and fair compensation . . . and[] not one penny

more” in order to “enforce [] safety rules[.]”       Plaintiff’s counsel reiterated this

argument as follows:

             If you[, the jury,] require less than full and fair
             compensation, . . . not only are you failing to compensate


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                                     Opinion of the Court



               [Plaintiff] . . . for the harm that’s been suffered but you’re
               not creating a deterrent of making people pay for the harm
               they cause, and not one penny more.

These statements were a proper characterization of a purpose of compensatory

damages. Plaintiff’s counsel did not urge the jury to punish Defendant or “send her

a message.” Rather, counsel simply recounted the purposes of tort law and requested

that the jury make Defendant pay for the “harm [she] cause[d], and not one penny

more.”

         Accordingly, we hold that the trial court did not abuse its discretion by failing

to sustain Defendant’s objection. See State v. Jones, 355 N.C. 117, 131, 558 S.E.2d

97, 106 (2002) (noting the standard of review for improper closing arguments that

provoke a timely objection).

                                    F. Damage Award

         Finally, Defendant contends that the trial court should have granted her

motion for a new trial based on the fact that the jury’s $4.25 million compensatory

damages verdict was excessive and against the manifest weight of the evidence. We

disagree.

         Rule 59 allows for the trial court to grant a new trial in the case of

“excessive . . . damages appearing to have been given under the influence of passion

or prejudice[,]” N.C. Gen. Stat. § 1A-1, Rule 59(a)(6), or “insufficiency of the evidence

to justify the verdict or that the verdict is contrary to law[.]” N.C. Gen. Stat. § 1A-1,



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                                    Opinion of the Court



Rule 59(a)(7). However, “[i]t is only when the jury has arbitrarily disregarded the

law and the evidence that the judge must exercise [] judicial discretion and set the

verdict aside.” Brown v. Moore, 286 N.C. 664, 674, 213 S.E.2d 342, 349 (1975). And

our Supreme Court has “held repeatedly since 1820 in case after case, and no

principle is more fully settled in this jurisdiction, that the action of the trial judge in

setting aside a verdict . . . is not subject to review on appeal in the absence of an abuse

of discretion.” Goldston v. Chambers, 272 N.C. 53, 59, 157 S.E.2d 676, 680 (1967)

(citing Armstrong v. Wright, 8 N.C. 93 (1820)).

       Here, we conclude that the trial court did not abuse its discretion in denying

Defendant’s motion for a new trial.

       Defendant argues that the jury’s relatively small punitive damage award of

$45,000 is indicative that the jury did more than simply compensate Plaintiff in

awarding $4.25 million in compensatory damages. Essentially, Defendant contends

that the small punitive damage award is indicative that the jury included a measure

of punishment in its compensatory award, not knowing that it would get the

opportunity to award punitive damages in a second phase.

       Regarding the large compensatory damage award, we note that our Supreme

Court has recognized the difficulty of calculating the “monetary value of [a] decedent,”

stating that such a task “will usually defy any precise mathematical computation.”

Brown, 286 N.C. at 673, 213 S.E.2d at 348-49. Therefore, “the assessment of damages



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                                   Opinion of the Court



must, to a large extent, be left to the good sense and fair judgment of the jury[.]” Id.

at 674, 213 S.E.2d at 349. As for the small punitive damage award, we note that

there was evidence that Defendant made very little money; therefore, it was not an

abuse of discretion for the trial court to determine that the jury acted appropriately

by finding that a $45,000 punitive damage award was an adequate punishment for

this particular Defendant. In conclusion, we cannot say that the trial court abused

its discretion in determining that the compensatory award was appropriate. See

Worthington v. Bynum, 305 N.C. 478, 486, 290 S.E.2d 599, 604 (1982).

                                    III. Conclusion

      For the foregoing reasons, we find that Defendant received a fair trial, free

from prejudicial error. Accordingly, we affirm the trial court’s denial of Defendant’s

motion for new trial pursuant to Rule 59.

      AFFIRMED.

      Chief Judge McGEE and Judge ZACHARY concur.




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