## Facts

- James Otis Snead was injured in an automobile collision involving a bread delivery van driven by Jimmy Junior Holloman, an employee of Flowers Baking Company of High Point, Inc.
- On the morning of February 19, 1988, Snead was driving north on Highway 50 in Garner, North Carolina, at about the 35-mph speed limit.
- Snead saw the Flowers bread van facing south in the center turn lane of the highway.
- When Snead was about two or three car lengths away, the van abruptly attempted to turn in front of him.
- Snead testified the event happened so quickly that he tried to apply his brakes but could not do so in time to avoid the collision.
- Snead sued Holloman and Flowers Baking Company for negligence and sought compensatory damages for his injuries.
- At trial, defendants pled contributory negligence; the trial court granted Snead’s motion for a directed verdict on that defense, removing contributory negligence from the jury.
- Evidence on damages included medical testimony from Snead’s orthopedic surgeon, Dr. Tejpal Singh Dhillon, who prescribed routine back exercises to relieve Snead’s spasms and improve his nerve condition.
- Snead stopped doing the prescribed exercises after about one month for reasons not shown in the record, even though Dhillon continued to prescribe them and repeatedly advised Snead to resume.
- Defendants requested a jury instruction on Snead’s duty to mitigate damages based on his failure to continue the exercise regimen; the trial court refused to give the instruction.
- The jury found for Snead and awarded damages, and judgment was entered on the verdict.
- Defendants appealed.

## Issues

1. Whether the trial court erred by directing a verdict for Snead on defendants’ affirmative defense of contributory negligence.
2. Whether the trial court erred by refusing to instruct the jury on Snead’s duty to mitigate damages (doctrine of unavoidable consequences) based on evidence that he discontinued prescribed therapeutic exercises.

## Decision

- The Court of Appeals affirmed the directed verdict against the contributory negligence defense.
- Viewing the evidence in the light most favorable to defendants, the court held defendants presented no more than a scintilla of evidence that Snead failed to use reasonable care for his own safety or that any such failure proximately caused the collision.
- The court noted defendants offered no evidence contradicting Snead’s account of the sudden turn or showing that Snead could have avoided the accident by keeping a better lookout or braking sooner.
- The court rejected defendants’ attempt to base contributory negligence on conjecture drawn from Snead’s inability to brake before impact.
- The Court of Appeals held the trial court should have instructed the jury on mitigation of damages because there was evidence from which a jury could find Snead unreasonably increased his damages by stopping the prescribed exercises.
- The court ordered a new trial limited to the issue of damages, leaving the liability determination intact.

## Legal Principles

- A motion for directed verdict tests the legal sufficiency of the evidence to support a verdict for the nonmoving party; the evidence is considered in the light most favorable to the nonmovant, with all reasonable inferences drawn in the nonmovant’s favor.
- If there is more than a scintilla of evidence supporting each element of a claim or defense, the issue must be submitted to the jury; if not, a directed verdict is proper.
- Contributory negligence is an affirmative defense, and the defendant bears the burden of producing evidence of (1) the plaintiff’s failure to exercise ordinary care for his own safety and (2) proximate causation.
- A directed verdict may be granted against an affirmative defense when the defendant fails to produce more than a scintilla of evidence on each element of that defense.
- Evidence that only raises conjecture about contributory negligence is insufficient to create a jury question; speculation cannot substitute for proof of breach and causation.
- The doctrine of unavoidable consequences (duty to mitigate damages) requires an injured plaintiff to use reasonable care and diligence to avoid or lessen the harm caused by the defendant’s wrong; the plaintiff cannot recover for the portion of loss attributable to an unreasonable failure to minimize damages.
- A mitigation-of-damages instruction is required when there is evidence from which a jury could find (1) the plaintiff failed to take reasonable steps to lessen damages (including reasonable medical or therapeutic measures) and (2) that failure increased the plaintiff’s harm.
- When a trial court’s instructional error affects only the amount of damages, the proper remedy may be a new trial limited to damages rather than a full retrial on liability.

## Conclusion

Snead v. Holloman held that defendants were not entitled to a contributory-negligence jury issue where they produced no concrete evidence that Snead could have avoided the collision, but it also held that defendants were entitled to a mitigation instruction on damages because medical testimony supported a finding that Snead unreasonably increased his injuries by discontinuing prescribed exercises; the court therefore affirmed liability and ordered a new trial on damages only.


Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991)