In this personal injury case arising from the collision of two vehicles, Theodore Moore filed suit in the Superior Court of Chatham County against Erin Bennett, asserting the following claims: Count 1negligence; Count 2negligent infliction of emotional distress based upon his physical injuries; and Count 3negligent infliction of emotional distress based upon his being within the “zone of impact” when his grandson, who was a backseat passenger in his car, was ejected from the back window of the car as a result of the collision. Following a jury trial, the trial court entered judgment on the jury’s verdict in favor of Moore, awarding him damages in the amount of $348,556. On appeal from the denial of her motion for new trial, Bennett asserts that Moore was precluded as a matter of law from recovering on Count 3 of his complaint and, because the trial court erred in failing to timely grant judgment in her favor on Count 3, Moore was able to present to the jury substantial irrelevant and highly prejudicial evidence. She contends that the presentation of such evidence improperly influenced the jury’s award of damages, especially in light of the court’s refusal to give the jury two of her requested jury instructions. Bennett also asserts that the trial court erred in charging the jury on the concept of “sudden emergency” and in failing to grant her motion for a directed verdict as to Moore’s claim for future medical expenses. As explained below, we conclude that the jury was authorized to find Bennett liable on Counts 1 and 2 of Moore’s complaint, and we affirm the judgment on the verdict to that extent. We also agree with Bennett’s contentions, however, that Moore was precluded as a matter of law from recovering on Count 3 of his complaint and that, because the jury was exposed to substantial, highly prejudicial evidence and argument in support of that claim, and because the court’s charge to the jury failed to rectify the error, the award of damages to Moore must be reversed. Therefore, we reverse the court’s judgment as to the award of damages and remand this case for a retrial as to damages on Moore’s claims under Counts 1 and 2 only.
Viewed in the light most favorable to the jury’s verdict,1 the record shows the following facts. At approximately 7:20 p.m. on August 2, 2008, Moore was driving south in the middle lane of highway I-95 in Chatham County. His wife was sitting in the front passenger seat, and his six- and twelve-year-old granddaughters and sixteen-year-old grandson were in the back seat. At the same time, Bennett was driving her sports utility vehicle “SUV” in the same direction in the left lane. As Bennett’s SUV was passing Moore’s car on the left, Moore’s wife and one of his granddaughters yelled out that the SUV was going to hit Moore’s car. Immediately thereafter, and without using a turn signal, Bennett started to change lanes and drove her SUV partially into the middle lane, striking Moore’s car. Moore spontaneously moved a few feet into the right lane before moving back into the middle lane. At the same time, Bennett jerked her SUV to the left and then back into the middle lane, where her SUV hit Moore’s car again, a few seconds after the first contact. The second contact caused Moore to lose control of his car, and the car swerved to the right and started spinning as it went down into a ravine, hitting trees and a fence along the way.
