IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-498

Filed: 1 September 2020

Nash County, No. 16 CVS 774

DONNIE GEORGE HOLLAND, EXECUTOR OF THE ESTATE OF SHIRLEY 

DAVIS PENDERGRASS, Plaintiff,

v.

RICHARD ALLAN FRENCH and NORTH CAROLINA DEPARTMENT OF 

TRANSPORTATION, Defendants.

Appeal by Defendant North Carolina Department of Transportation from order

entered 18 October 2018 and from judgment entered 11 December 2018 by Judge 

Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 

8 January 2020.

W. Earl Taylor, Jr. for plaintiff-appellee.

Attorney General Joshua H. Stein, by Special Deputy Attorneys General Alesia 

M. Balshakova, Joseph Finarelli, and Alexander G. Walton, for the State.

MURPHY, Judge.

A professional recommendation concerning a stop sign’s placement made in a 

post-accident report was a subsequent remedial measure typically excluded from 

evidence under Rule 407. That professional recommendation was appropriately used 

as impeachment evidence when it was properly admitted under the impeachment 

exception of Rule 407 and when it was relevant for impeachment under Rule 401. 

The professional recommendation was relevant evidence for impeachment purposes 
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Opinion of the Court

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when it contradicted the witness’s perception, memory, or narration, or the veracity 

of the witness’s testimony, on direct examination. 

The trial court did not abuse its discretion in concluding the probative value of 

the professional recommendation was not substantially outweighed by the danger of 

unfair prejudice when the professional recommendation was highly probative, was 

prepared by the witness, and was used to contradict the witness on crossexamination.

When the party that called the witness to testify fails to request a limiting 

instruction in accordance with Rule 105 concerning the witness’s recommendation, 

another party may make arguments concerning that evidence upon its proper 

admission.

BACKGROUND

On 4 April 2016, Ms. Shirley Pendergrass (“Decedent”) and Richard French 

(“French”) were involved in a motor vehicle crash at the intersection of Castalia Road 

and Red Road in Nash County. Decedent was driving on Castalia Road in an easterly 

direction, while French was driving on Red Road in a northerly direction. A stop sign 

required drivers approaching the intersection in a northerly direction on Red Road to 

stop and yield to drivers on Castalia Road. Decedent and French arrived at the 

intersection at the same time, and despite the stop sign, French failed to stop and 
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Opinion of the Court

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yield the right of way. The two vehicles collided, and Decedent sustained fatal

injuries.

French was charged with the following: misdemeanor death by motor vehicle; 

failing to stop for a stop sign; and failing to yield the right of way. On 5 August 2016, 

French pleaded guilty to misdemeanor reckless driving to endanger. 

On 31 May 2016, Decedent’s Executor, Donnie George Holland (“Plaintiff”),

sued French and his wife, who owned the vehicle French was driving, for wrongful 

death. French’s wife was later granted a dismissal from the case. Plaintiff alleged 

French’s failure to stop at the duly erected stop sign at the intersection of State Road 

1425 (“Castalia Road”) and State Road 1417 (“SR 1417” or “Red Road”) in Nash 

County caused the crash. Plaintiff amended the Complaint to add the North Carolina 

Department of Transportation (“NCDOT”) as a Third-Party Defendant for negligent 

installation and maintenance of traffic control devices on Red Road. 

NCDOT filed a motion in limine seeking to exclude any reference to or any 

evidence of subsequent remedial measures pursuant to North Carolina Rule of 

Evidence 407, including “recommendations for subsequent remedial measures.” The 

trial court ruled that Plaintiff was “prohibited from mentioning [subsequent remedial 

measures] during jury selection or [the] case in chief,” but reserved the issue for 

decision if the “matter [became] a direct issue” upon NCDOT’s presentation of 

evidence. 
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At trial, NCDOT called Christopher Lewis (“Lewis”), an Assistant Division

Traffic Engineer, about the placement of the stop sign. Lewis had visited the 

intersection where the crash occurred in December 2014, and again to make a 2016 

post-accident report.1 In portions of direct examination, Lewis testified as follows:

[NCDOT]: And did you go to the intersection [in 2014] to 

look at the signage there? 

[Lewis]: I did. 

[NCDOT]: And what signage did you observe at the 

time? 

[Lewis]: . . . What I found was a typical intersection 

that you would find in a rural part of a county. 

. . . So, I didn’t see an issue safety-wise when 

I went to the location. . . . [T]here wasn’t a 

sight distance issue to the primary stop sign 

on the right-hand side. 

. . .

[NCDOT]: . . . [In 2014, d]id you determine if there was 

any visibility issue with the right-hand stop 

sign? 

[Lewis]: I did not see any. 

[NCDOT]: And, therefore, you -- you did not make a 

decision to put any additional signage? 

[Lewis]: No, it -- it wasn’t necessary. . . . That - - that's 

my job is to make sure that when I leave 

something, I leave it -- leave it in a safe 

manner. And I even for a minute questioned 

 

1 This post-accident report was Exhibit 37 at trial.
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whether there was [a] visibility issue . . . . I 

would have instructed the sign erector while 

you’re here go ahead and add a stop ahead 

sign. 

[NCDOT]: So, you would not have instructed him? 

[Lewis]: I mean, if -- if there were --

[NCDOT]: Oh. 

[Lewis]: -- a visibility issue, I would have instructed 

him to do so, but in this case there wasn’t.

. . .

[Lewis]: So, getting back to the stop sign, we want to 

put the stop sign in a location where you can 

see it from a distance off. We want to give you 

as much time as you can to perceive what it is 

and to be able to safely come to a stop. And 

when I looked at this intersection in 2014, 

maintenance-wise with a supplemental stop 

sign, that’s great that it’s there. I saw no 

reason to -- to take it out and having that it’s 

been there and I have no history of it, my 

primary concern is that stop sign on the righthand side. And -- and I left there feeling that 

it was safe based on the engineering 

judgment. 

. . .

[NCDOT]: You’ve – you’ve heard the testimony by Mr. 

Marceau and the other experts with respect to 

their opinions about application of [the 

Manual on Uniform Traffic Control Devices].

Do you have any reasons to disagree with 

their opinions? 
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[Lewis]: . . . And when I went to t[h]is location in 2014 

prior to the accident, I left there with the 

impression that this is safe. I can see this stop 

sign. . . . So, do I disagree with what’s been –

what’s been said? I can’t think of anything I 

disagree with. . . .

[NCDOT]: But I mean, they opined the intersection 

ahead sign should have been placed and the 

supplemental sign should have been

protected. I mean, do you agree with that? 

[Lewis]: Could you say that again?

[NCDOT]: Yes. They opined that the stop ahead sign 

should have been placed.

[Lewis]: Again, I don’t know the history behind it, so 

it’s difficult for me to say what the reasons 

were for it being there to begin with.

[NCDOT]: No, I mean, the stop ahead sign. They say 

that it should have been placed by NCDOT, 

the experts --

[Lewis]: The stop -- the stop ahead sign?

[NCDOT]: Correct.

[Lewis]: I’m sorry. I thought you were referring to 

supplemental.

[NCDOT]: Yeah.

[Lewis]: The stop ahead sign, no, it -- it doesn’t – it’s not 

necessary for it to be placed because the 

visibility is to that primary stop sign. I have -

- you know, but the time I saw the 

intersection, I had no reason to -- to add it.
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. . .

[NCDOT]: They also opined about NCDOT -- they opined 

about the placement of the right-hand stop 

sign. That it -- the way it was placed it was 

closer to the woods, not as close to Red -- Red 

Road and that created the visibility 

conspicuity issue. Do you agree with that? 

[Lewis]: No.

(Emphasis added).

When direct examination of Lewis concluded, Plaintiff requested, out of the 

presence of the jury, to be allowed to question Lewis with respect to Exhibit 37, which 

comported with the trial court's ruling regarding subsequent remedial measures 

evidence. Lewis prepared Exhibit 37 after the accident, and the report stated that 

the stop sign was “too far out” and needed to be “move[d] in closer” to the road “for 

better sight distance.” Plaintiff sought to use that report to impeach Lewis’s

testimony on direct examination. After hearing arguments on the issue, the trial 

court allowed Plaintiff to proceed with cross-examination of Lewis, and to use Exhibit 

37 in doing so, while noting and overruling NCDOT’s standing objection. 

On cross-examination, Lewis further testified as follows: 

[Plaintiff]: How many times did you tell this jury that 

there was nothing wrong with that stop sign 

to the right? 

[Lewis]: More than once. 

[Plaintiff]: How many times did you estimate you told the 
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jury there was nothing wrong with that stop 

sign to the right? 

[Lewis]: I don't recall how many times. 

[Plaintiff]: I had seven or eight. Is that about right? 

[Lewis]: I - - I don’t recall. I would say that's fair. 

[Plaintiff]: How many times did you tell this jury there's 

not [a] visibility issue with that stop sign on 

the right? 

[Lewis]: Several times. 

[Plaintiff]: How many times did you tell that jury that 

you didn’t see any reason that he didn’t [see]

that sign? 

[Lewis]: I don’t know what the circumstances were in 

this crash. I could not find a reason, you know, 

why he wouldn’t have seen the sign. 

[Plaintiff]: How many times did you tell the jury there 

was no sight distance issue in this case? 

[Lewis]: Several times. 

Plaintiff then questioned Lewis regarding Exhibit 37. Lewis acknowledged 

Exhibit 37 referred to the stop sign at issue, he made the handwritten notations on 

Exhibit 37, and those notations were made after he went to the scene of the accident. 

According to Lewis, he wrote the following on Exhibit 37: “northbound stop sign too 

far out [on Red Road]”

2 (the commonly used name for the road); an underlined “Yes!” 

 

2 The phrase “on Red Road” does not appear on Exhibit 37, but Lewis confirmed that his 

notation “northbound stop sign too far out” referred to “on Red Road.” 
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Opinion of the Court

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next to that first opinion; and “move in closer to State Road 1417 for better sight 

distance.” In addition, Lewis testified he believed the stop sign was “too far out to 

the right.” Lewis also acknowledged he knew about the handwritten notations on 

Exhibit 37 when he testified during his direct examination testimony. 

The jury found both French and NCDOT negligent and awarded Plaintiff 

$800,000.00 in damages. NCDOT timely appeals. 

ANALYSIS

On appeal, NCDOT argues the trial court erred in admitting Exhibit 37 into 

evidence, and that Plaintiff’s use of the exhibit in enlarged, poster form was 

misleading and prejudicial. Exhibit 37 is Lewis’s 2016 post-accident report, which 

contains hand-written notations stating the stop sign was “too far out [on Red Road]”

and should be “move[d] in closer to [Red Road] for better sight distance[.]” To support 

its argument of erroneous admission of the report, NCDOT argues (1) Exhibit 37 was 

inadmissible evidence of subsequent remedial measures pursuant to Rule 407 of the 

Rules of Evidence, and (2) the probative value of Exhibit 37, which the trial court 

admitted for impeachment, was substantially outweighed by the danger of unfair 

prejudice pursuant to Rule 403 of the Rules of Evidence. We analyze both arguments 

and also perform a Rule 401 analysis of whether Exhibit 37 constituted proper, 

relevant impeachment evidence.

A. Rule 407
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1. Standard of Review

First, we examine whether Exhibit 37 was a subsequent remedial measure 

susceptible to exclusion under Rule 407. Our precedent does not clearly provide the 

standard of review for Rule 407; however, an analysis of our past cases shows that de 

novo review has consistently been used. As a result, we review the trial court’s Rule 

407 determination de novo. 

In general, appellate courts review a trial court’s evidentiary rulings according 

to an abuse of discretion standard. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 139 L. 

Ed. 2d 508 (1997) (“We have held that abuse of discretion is the proper standard of 

review of a district court’s evidentiary rulings.”); see also Sloan v. Miller Bldg. Corp., 

128 N.C. App. 37, 45, 493 S.E.2d 460, 465 (1997) (holding that “admission of 

[evidence] . . . [is] addressed to the sound discretion of the trial court and may be 

disturbed on appeal only where an abuse of such discretion is clearly shown”).

Additionally, “[e]videntiary errors are harmless unless a defendant proves that 

absent the error a different result would have been reached at trial.” State v. 

Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893 (2001).

However, in multiple cases, when ruling on issues involving Rule 407, we have

considered the matter anew and substituted our own judgment regarding a trial 

court’s evidentiary ruling involving Rule 407. In those cases, we applied de novo 

review, without explicitly saying so. 
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For example, the following review of the record took place in Smith v. N.C. 

Dept. of Nat. Res. & Cmty. Dev.: 

Finally, plaintiff contends the Commissioner erred in 

failing to admit evidence of subsequent remedial measures 

shown in exhibits number 9 through 18 and discussed in 

exhibit number 29. As plaintiff correctly points out, it is 

unclear from the transcript of the proceedings whether or 

not exhibit 29 was admitted into evidence. For the 

purposes of this argument, we will assume that it was not. 

Plaintiff argues the exhibits were admissible under Rules 

407 and 803(8) of the North Carolina Rules of Evidence.

According to Rule 407, evidence of subsequent remedial 

measures is not admissible to prove negligence or culpable 

conduct, but such evidence may be offered for other 

purposes such as ‘proving ownership, control, or feasibility 

of precautionary measures, if those issues are 

controverted, or impeachment.’ N.C.G.S. § 8C-1, Rule 407

(1992). Rule 803(8) provides that public records and 

reports are an exception to the hearsay rule. § 8C-1, Rule 

803(8) (1992).

Exhibits 9 through 18 are photographs of signs, railings 

and stairways constructed around the area of Beauty Falls 

after Richard Smith’s death. Plaintiff argues they were 

admissible under Rule 407 because the State contested the 

feasibility of precautionary measures. We disagree. . . . 

[T]he park superintendent[] testified that the park could 

not be made “safe,” but admitted that it could be made 

“safer” and mentioned several examples of possible 

precautionary measures. We find that the evidence was 

properly excluded under Rule 407, because the State did 

not challenge the feasibility of precautionary measures, 

nor did it contest ownership or control of the area.

Alternatively, plaintiff argues the evidence serves to 

impeach the State’s contentions that the area could not be 

made safe, claiming that the new railings and sign now 

render that area completely safe. We find this position to 
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Opinion of the Court

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be unsupported by the evidence. The fact that no accidents 

have occurred since the safety measures were put in place 

does not prove that accidents will not happen at Beauty 

Falls in the future. We believe the Commissioner correctly 

concluded that exhibits 9 through 18 were inadmissible.

Smith v. N.C. Dept. of Nat. Res. & Cmty. Dev., 112 N.C. App. 739, 746, 436 S.E.2d 

878, 883 (1993) (emphasis added).

We also performed a de novo review in Benton v. Hillcrest Foods, Inc.:

Plaintiffs concede that the instructions to security guards 

were created after the shootings in issue. However, 

plaintiffs argue that the instructions, which state that the 

security guards should lock the door in the event of a 

disturbance in the parking lot, show the feasibility of 

precautionary measures and would have impeached 

defendants’ testimony that there was no reason to lock the 

front door of the restaurant which was open twenty-four 

hours a day.

A witness for defendant stated, ‘There’s no reason to lock 

the door.’ However, testimony that there is no reason to 

lock the door does not address the feasibility of locking the 

door. Instead, the statement refers to the perceived lack of 

necessity to do so. Therefore, whether or not it would have 

been possible to lock the door was not controverted, and 

evidence that such a measure would have been feasible is 

not admissible under Rule 407.

Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 53, 524 S.E.2d 53, 61 (1999).

Immediately after that treatment of Rule 407, we stated “[w]hether to exclude 

evidence under Rule 403 is within the sound discretion of the trial court.” Id.

(emphasis added).
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Further, in Lane v. R.N. Rouse & Co., after explicitly stating that the standard 

of review concerning admission of evidence of similar circumstances is abuse of 

discretion, we did not mention that standard of review when examining a trial court’s 

Rule 407 ruling:

Finally, Rouse assigns error to the trial court’s admission 

of measures taken by Rouse, immediately following 

decedent's death, to cover the floor openings with plywood.

When, after an event, measures are taken which, if taken 

previously, would have made the event less likely to occur, 

evidence of the subsequent measures is not admissible to 

prove negligence or culpable conduct in connection with the 

event. This rule does not require the exclusion of evidence 

of subsequent measures when offered for another purpose, 

such as proving ownership, control, or feasibility of 

precautionary measures, if those issues are controverted, 

or impeachment. N.C. R. Evid. 407.

Here, Rouse argued repeatedly that it had no control of the 

construction site on the day of the accident. Rouse’s 

witnesses also questioned the feasibility of covering the 

floor openings. However, we agree with the trial court that 

evidence of Rouse’s actions in placing covers over the 

openings immediately after decedent’s fall was admissible 

as evidence of Rouse’s control of the work site on the day of 

the accident and of the feasibility of taking that 

precautionary measure.

Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 498-99, 521 S.E.2d 137, 140 (1999)

(alterations omitted).

In reviewing our precedent, we have performed de novo review of trial courts’ 

Rule 407 rulings without expressly identifying the standard of review. We now 
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Opinion of the Court

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perform a de novo review of the Record to determine whether Plaintiff offered the 

evidence as a subsequent remedial measure, and whether the evidence was 

admissible.

2. Subsequent Remedial Measures

“According to Rule 407, evidence of subsequent remedial measures is not 

admissible to prove negligence or culpable conduct, but such evidence may be offered 

for other purposes such as ‘proving ownership, control, or feasibility of precautionary 

measures, if those issues are controverted, or impeachment.’” Smith, 112 N.C. App. 

at 746, 436 S.E.2d at 883 (quoting N.C.G.S. § 8C-1, Rule 407 (1992)). This general 

exclusion of subsequent remedial measures stems from the rationale that 

“[p]recautions against the future cannot be considered as an admission of actionable 

negligence in the past.” McMillan v. Atlanta & C. Air Line Ry. Co., 172 N.C. 853,

855, 90 S.E. 683, 685 (1916). A post-accident report containing recommendations for 

improvements is excluded under Rule 407. Smith, 112 N.C. App. at 746-47, 436 

S.E.2d at 883. Post-incident written notes containing instructions are also excluded 

under Rule 407. Benton, 136 N.C. App. at 53, 524 S.E.2d at 61.

After reviewing the Record and Lewis’s testimony, we agree with the trial 

court’s ruling that Lewis’s notes in Exhibit 37 concerning the sign’s placement (“stop 

sign too far out”) and whether he believed the sign needed to be relocated (“move in 

closer to SR 1417 for better sight distance”) qualified as subsequent remedial 
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measures excludable under Rule 407, unless an appropriate exception applied. See 

Benton, 136 N.C. App. at 53, 524 S.E.2d at 61 (holding that written instructions to 

security guards after a shooting were excluded under Rule 407). Lewis’s notes in 

Exhibit 37 were made after the traffic collision at issue. In this post-accident report, 

Lewis made a professional recommendation to move the stop sign, which “would have 

made the event less likely to occur” if it had been made before the accident and in 

conjunction with actual movement of the sign. N.C.G.S § 8C-1, Rule 407 (2019).

Generally, these notes and post-accident reports should be excluded under Rule 407. 

Smith, 112 N.C. App. at 746-47, 436 S.E.2d at 883. 

However, Rule 407 instructs further that evidence of subsequent remedial 

measures may not serve as a bar to evidence introduced to impeach:

When, after an event, measures are taken which, if taken 

previously, would have made the event less likely to occur, 

evidence of the subsequent measures is not admissible to 

prove negligence or culpable conduct in connection with the 

event. This rule does not require the exclusion of evidence 

of subsequent measures when offered for another purpose, 

such as . . . impeachment.

N.C.G.S § 8C-1, Rule 407 (2019) (emphasis added). If Plaintiff properly offered the 

notes in Lewis’s post-accident report for impeachment purposes, Rule 407 does not 

prohibit the admission of Lewis’s notes in his post-accident report and no longer 

applies. We examine whether Plaintiff properly offered Lewis’s notes for 

impeachment purposes.
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B. Rule 401

1. Relevance

Next, we examine whether Lewis’s testimony was offered for a proper, relevant 

purpose, to wit: impeachment. “The admissibility of evidence [under N.C.G.S. § 8C1, Rule 401 (2017)] is governed by a threshold inquiry into its relevance. In order to 

be relevant, the evidence must have a logical tendency to prove any fact that is of 

consequence in the case being litigated.” State v. Holmes, 263 N.C. App. 289, 302, 

822 S.E.2d 708, 720 (2018), review denied, 372 N.C. 97, 824 S.E.2d 415 (2019). “Trial 

court rulings on relevancy technically are not discretionary.” Id. “Whether evidence 

is relevant is a question of law . . . [and] we review the trial court’s admission of the 

evidence de novo.” State v. Kirby, 206 N.C. App. 446, 456, 697 S.E.2d 496, 503 (2010).

Even though we review these rulings de novo, we give “great deference on appeal” to 

trial court rulings regarding whether evidence is relevant. State v. Allen, 828 S.E.2d 

562, 570 (N.C. Ct. App. 2019), appeal dismissed, review denied, 373 N.C. 175, 833 

S.E.2d 806 (2019). 

Here, the trial court determined Exhibit 37 was relevant for impeachment 

purposes, and the deferential standard of Rule 401 informs our approach in reviewing 

the relevancy of evidence for impeachment under Rule 407. State v. Stewart, 231 

N.C. App. 134, 139, 750 S.E.2d 875, 878 (2013). Lewis’s notes concerning the sign’s 

placement, and whether he believed the sign was in the safest place for visibility on 
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Red Road, had a logical tendency to prove the veracity of his testimony concerning

whether the sign at issue in this case should have been placed in a different location. 

Lewis’s notes also had a logical tendency to make his testimony more or less 

believable to the jury.

2. Impeachment Purposes

A longstanding principle within our jurisprudence provides that “[t]he primary 

purpose of impeachment is to reduce or discount the credibility of a witness for the 

purpose of inducing the jury to give less weight to his testimony in arriving at the 

ultimate facts in the case.” State v. Bell, 249 N.C. 379, 381, 106 S.E.2d 495, 498 (1959) 

(quoting State v. Nelson, 200 N.C. 69, 72, 156 S.E. 154, 156 (1930)); see also State. v. 

Shuler, 841 S.E.2d 607, 610 (N.C. Ct. App. 2020). “Impeachment evidence has been 

defined as evidence used to undermine a witness’s credibility, with any circumstance 

tending to show a defect in the witness’s perception, memory, narration or veracity

relevant to this purpose.” State v. Gettys, 243 N.C. App. 590, 595, 777 S.E.2d 351, 

356 (2015) (emphasis added) (quoting State v. Allen, 222 N.C. App. 707, 721, 731 

S.E.2d 510, 520 (2012)).

The opposing party can impeach by offering evidence of that witness’s prior 

inconsistent statements. State v. Anderson, 88 N.C. App. 545, 548, 364 S.E.2d 163, 

165 (1988). Plaintiff concedes the inability to call Lewis as an adverse witness for the 

sole purpose of introducing Exhibit 37. Had NCDOT not called Lewis as a witness, 
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Exhibit 37 would not have been admissible. However, NCDOT chose to call Lewis as 

a witness, and we examine the Record for testimonial inconsistencies permitting

Plaintiff to use Exhibit 37 for the purpose of undermining Lewis’s credibility. 

On direct examination, Lewis testified that when he went to the intersection

“[he] didn’t see an issue safety-wise . . . there wasn’t a sight distance issue to the 

primary stop sign on the right-hand side.” More specifically, he testified he did not 

see any visibility issues regarding the stop sign, the placement of the stop sign was 

safe, and he could see the stop sign. Lewis explicitly disagreed with the opinions of 

Marceau, Barrett, and Sutton, all retained experts who testified in the same capacity 

that the placement of the stop sign created a “visibility conspicuity issue.” 

Prior to Plaintiff’s introduction of Exhibit 37 on cross-examination, Lewis 

confirmed he had already told the jury “several times” that “there was nothing wrong 

with that stop sign to the right,” there was “no[] visibility issue with th[e] stop sign 

on the right,” and that he “could not find a reason . . . why [French] wouldn’t have 

seen the sign.” This testimony directly conflicts with Lewis’s notation on Exhibit 37, 

which states the stop sign was “too far out [on Red Road]” and should be “move[d] in 

closer to [Red Road] for better sight distance.” The notations on Exhibit 37 directly 

conflict with Lewis’s testimony on direct and cross-examinations and tend to discredit 

his testimonial account of his 2016 inspection. Exhibit 37 and the corresponding

testimony on cross-examination were admissible impeachment evidence 
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notwithstanding the general prohibition of evidence of subsequent remedial 

measures. The trial court did not err in admitting Exhibit 37 for impeachment.

NCDOT asks us to rely on Benton, where we placed limits on a plaintiff’s ability 

to cross-examine defense witnesses with evidence of subsequent remedial measures. 

Benton, 136 N.C. App. at 53, 524 S.E.2d at 61. There, a patron was shot and killed 

during an altercation at a restaurant, and an eyewitness for the defense testified, 

“[t]here’s no reason to lock the door.” Id. The plaintiff attempted to contradict this 

testimony by introducing evidence of written instructions, created after the incident, 

directing security guards to lock the door in case of disturbances in the parking lot.

Id. at 52-53, 523 S.E.2d at 60-61. We affirmed the trial court’s decision to exclude 

evidence of the written instructions to contradict the witness; the witness’s testimony 

did not address the feasibility of locking the door, an uncontroverted issue, and 

instead referred only to his perceived lack of necessity of doing so during the incident.

Id. 

Benton is distinguishable from the present case, and NCDOT’s reliance on 

Benton is misplaced. Our conclusion regarding Rule 407 in Benton turned on whether 

the parties controverted the feasibility of taking precautionary measures, which is 

another exception under Rule 407. Id. at 53, 524 S.E.2d at 61. In Benton, we only 

discussed impeachment in passing and in relation to proving feasibility. Id. The 

written instructions, which were adopted after the shooting, were not relevant to 
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Opinion of the Court

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“show a defect in the witness’s perception, memory, narration or veracity” of an 

eyewitness account of the shooting. Gettys, 243 N.C. App. 590 at 595, 777 S.E.2d at

356. Unlike the evidence of subsequent remedial measures at issue in Benton, 

Exhibit 37 is relevant to show a defect in Lewis’s perception, memory, and narration, 

as well as the veracity of his testimony, concerning the safety inspection he conducted 

following the accident. See Benton, 136 N.C. App. at 53, 524 S.E.2d at 61.

NCDOT also contends “[t]he impeachment exception applies when a party 

initiates the purported testimonial inconsistency and thereby tries to gain an unfair 

advantage by exploiting the exclusionary provision of Rule 407.” To support this 

assertion, NCDOT cites cases in which evidence of subsequent remedial measures 

was admissible to impeach a witness who inaccurately described the condition at the 

time of the accident or asserted the condition was repaired before the accident. See 

Tise v. Town of Thomasville, 151 N.C. 281, 65 S.E 1007 (1909); Mintz v. Atlantic Coast 

Line R. Co., 236 N.C. 109, 72 S.E.2d 38 (1952). NCDOT also cautions if we allow 

Plaintiff to impeach Lewis’s testimony with a report that reflects a change in his 

“engineering judgment” based on new “available pertinent information,” then the 

exception will swallow the rule. 

While NCDOT cites cases demonstrating how trial courts apply the 

impeachment exception to combat patently false testimony, it fails to cite any 

authority limiting application of the impeachment exception to these exclusive 
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purposes. Adoption of such a narrow interpretation of the impeachment exception

would actually impermissibly broaden the Rule 407 prohibition of evidence of 

subsequent remedial measures, which does not allow defendants in negligence cases

to “avail themselves of the [prohibition on remedial measures evidence] for the 

purposes of preventing a fair and full disclosure of pertinent facts not tending to 

establish negligence.” Pearson v. Harris Clay Co., 162 N.C. 224, 226, 78 S.E. 73, 74 

(1913). When the Record discloses that a defense witness, on direct examination, 

testifies about conditions prior to an accident or injury, which Lewis testified to in 

this case, it is proper on cross-examination to contradict that witness’s assertion with 

evidence directly controverting the witness’s testimony. Jefferson v. City of Raleigh, 

194 N.C. 479, 482, 140 S.E. 76, 77 (1927); see generally Tise, 151 N.C. 281, 65 S.E. 

1007. 

Plaintiff’s use of Exhibit 37 on cross-examination was proper, relevant

impeachment—NCDOT called Lewis as a witness, and Exhibit 37 contradicted 

Lewis’s testimony and undermined his credibility. Rule 407 does not exclude Exhibit 

37 for such a use, despite the general prohibition of evidence of subsequent remedial 

measures. The impeachment exception to Rule 407 applies, and Plaintiff’s 

impeachment of Lewis with his own report constituted relevant evidence. Next, we 

examine whether Rule 403 would prohibit the use of Exhibit 37, despite it being 

proper, relevant impeachment evidence excepted from Rule 407’s general prohibition.
HOLLAND V. FRENCH

Opinion of the Court

- 22 -

C. Rule 403

NCDOT argues the trial court should have excluded Exhibit 37 because its 

probative value was substantially outweighed by the danger of unfair prejudice and 

misleading the jury. We disagree. The trial court did not abuse its discretion in 

allowing the evidence under Rule 403. 

“Rule 403’s balancing test mandates the exclusion of prejudicial or otherwise 

inapplicable evidence when ‘its probative value is substantially outweighed’ by its 

prejudicial or inapplicable nature.” State v. Alonzo, 261 N.C. App. 51, 59, 819 S.E.2d 

584, 590 (2018) modified on other grounds, 373 N.C. 437, 838 S.E.2d 354 (2020). 

“Relevant evidence ‘may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusion of the issues or misleading the jury[.]’” 

State v. Smith, 263 N.C. App. 550, 566, 823 S.E.2d 678, 689 (2019) (quoting N.C.G.S. 

§ 8C-1, Rule 403 (2019)). We note that “the balance under Rule 403 favors 

admissibility of probative evidence.” State v. Peterson, 179 N.C. App. 437, 460, 634 

S.E.2d 594, 612 (2006).

“We review a trial court’s decision to exclude evidence under Rule 403 for abuse 

of discretion. An abuse of discretion results when ‘the 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. Triplett, 368 N.C. 172, 178, 775 S.E.2d 805, 809 (2015) 

(quoting State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008)).
HOLLAND V. FRENCH

Opinion of the Court

- 23 -

Exhibit 37 was highly probative to whether Lewis’s testimony was credible 

concerning the stop sign’s placement. Lewis prepared the report in Exhibit 37, but 

his testimony at trial contradicted what he wrote in it. We also note the proper 

purpose of the direct impeachment; Lewis was not collaterally attacked with a report 

he did not compose. 

NCDOT argues that Benton v. Hillcrest Foods, Inc. should guide our analysis 

regarding Rule 403 balancing in the present case. Benton, 136 N.C. App. at 53, 524 

S.E.2d at 61. In Benton, we reviewed a trial court’s Rule 403 exclusion of evidence in 

the form of written instructions to restaurant security guards, given after a 

confrontation between patrons, to “lock the door in the event of a disturbance in the 

parking lot.” Id. We held “that the proffered evidence [wa]s of slight probative value 

and present[ed] a danger that the jury would be unfairly prejudiced against [the] 

defendant for not having taken the remedial measure earlier.” Id. Unlike the low 

probative value of post-confrontation written instructions to security guards in 

Benton, Lewis’s 2016 inspection notes were highly probative, as they were evidence 

of his opinion concerning the safety and need for improvement of the stop sign’s 

placement, and contradicted the opinion he later provided before the jury. The risk 

of unfair prejudice to NCDOT was low. Here, the trial court did not abuse its 

discretion.

D. Limiting Instruction
HOLLAND V. FRENCH

Opinion of the Court

- 24 -

NCDOT also argues the trial court committed reversible error because it failed 

to issue a limiting instruction, after Plaintiff’s closing argument, restricting Exhibit 

37 to its proper scope. During closing argument, Plaintiff argued that all the 

evidence, including Exhibit 37 and Lewis’s related testimony, proved NCDOT’s 

negligence was the proximate cause of an accident that “killed a nice lady.” According 

to NCDOT, Plaintiff also argued Lewis’s testimony and opinions regarding the safety 

of the stop sign placement were “dishonest,” “untruthful,” and “could not be trusted.” 

NCDOT was entitled, upon request, to an instruction limiting the jury’s 

consideration of Exhibit 37 to its proper scope. Rule 105 of the North Carolina Rules 

of Evidence provides:

When evidence which is admissible as to one party or for 

one purpose but not admissible as to another party or for 

another purpose is admitted, the court, upon request, shall 

restrict the evidence to its proper scope and instruct the 

jury accordingly. 

N.C.G.S. § 8C-1, Rule 105 (2019). “The admission of evidence which is competent for 

a restricted purpose without limiting instructions will not be held error in the absence 

of a request by the defendant for such limiting instructions.” State v. Love, 152 N.C. 

App. 608, 617, 568 S.E.2d 320, 326 (2002). Additionally, “[counsel have] wide latitude 

in arguing their cases to the jury, and have the right to argue every phase of the case 

supported by the evidence, and to argue the law as well as the facts.” Jenkins v. 

Harvey C. Hines Co., 264 N.C. 83, 91, 141 S.E.2d 1, 6 (1965).
HOLLAND V. FRENCH

Opinion of the Court

- 25 -

Although Plaintiff’s reference to Exhibit 37 and Lewis’s related testimony 

conceivably had the potential to have the jury consider the evidence for an improper 

purpose, NCDOT failed to request a limiting instruction. In light of impeachment 

evidence discrediting Lewis’s testimony, Plaintiff had wide latitude to argue Lewis’s 

testimony and opinions regarding the safety of the stop sign placement were 

“dishonest,” “untruthful,” and “could not be trusted.” 

The trial court did not commit reversible error by not issuing a limiting 

instruction, because NCDOT failed to request an instruction limiting the jury’s 

consideration of Exhibit 37 to its proper scope.

CONCLUSION

Exhibit 37 was a subsequent remedial measure under Rule 407, but fell into 

the exception in Rule 407 as impeachment evidence and was properly admitted under 

Rules 407 and 401. Exhibit 37 was relevant evidence contradicting Lewis’s 

perception, memory, or narration, or the veracity of his testimony on direct 

examination, and the trial court did not abuse its discretion in concluding the

probative value was not substantially outweighed by the danger of unfair prejudice.

NCDOT failed to request a limiting instruction in accordance with Rule 105

concerning Exhibit 37, and Plaintiff was allowed to make arguments concerning 

Exhibit 37, upon its proper admission.

NO ERROR.
HOLLAND V. FRENCH

Opinion of the Court

- 2 -

Judge DILLON concurs in result with separate opinion.

Judge TYSON concurs in part and dissents in part, with separate opinion.
No. COA19-498 – Holland v. French.

DILLON, Judge, concurring in result.

This matter involves a fatal car accident occurring at an intersection in 2016, 

where the driver at fault ran a stop sign. After the accident, the North Carolina 

Department of Transportation (“NCDOT”) sent Mr. Lewis (one of its engineers) to the 

intersection to make a post-accident report. In his report, Mr. Lewis recommended 

that the NCDOT take remedial action to make the stop sign more obvious to 

approaching drivers.

At trial, Plaintiff called experts who testified that the NCDOT had been 

negligent in the placement of the stop sign prior to the accident.

During the NCDOT’s case in defense, the NCDOT chose to call Mr. Lewis to 

refute Plaintiff’s experts. The NCDOT’s counsel elicited from Mr. Lewis his opinion 

that the NCDOT had not been negligent in locating the stop sign prior to the accident. 

Specifically, Mr. Lewis testified that he had visited the intersection in 2014, two years 

prior to the accident, and that, based on his 2014 visit, it was his opinion that the 

stop sign was in a safe location. During Plaintiff’s cross-examination of Mr. Lewis, 

Plaintiff questioned him about his visit to the intersection in 2016, shortly after the 

accident. Over the NCDOT’s objection, Plaintiff introduced Mr. Lewis’ post-accident 

report into evidence to impeach his testimony.

The jury returned a verdict in favor of Plaintiff, finding the NCDOT negligent.
HOLLAND V. FRENCH

DILLON, J., concurring in result

2

On appeal, the NCDOT argues that Mr. Lewis’ post-accident report should not 

have been admitted, based on Rule 407 of our Rules of Evidence, which generally 

excludes evidence that the defendant took remedial measures after an accident to 

make its property safer. See N.C. Gen. Stat § 8C-1, Rule 407 (2016). Indeed, Rule 

407 recognizes that actions by a property owner after an accident to make its property 

safer is not an admission that the owner had been negligent in keeping its property 

safe at the time of the accident. Id.

I concur with the result in this case that the trial court did not commit 

reversible error in admitting the report into evidence based on the reasoning below.

Mr. Lewis’ report at issue contains this written notation:

STOP SIGN TOO FAR OUT. MOVE IN CLOSER TO [THE 

INTERSECTION] FOR BETTER SIGHT DISTANCE.

This notation was circled. Outside this circled notation was written “YES!”

The above notation contains two different statements by Mr. Lewis, which I 

address separately.

The first statement – “STOP SIGN TOO FAR OUT” – could reasonably be 

interpreted as Mr. Lewis’ opinion that the stop sign was not in a safe location at the 

time of the accident . . . that the sign was situated “too far” from the intersection. As 

such, I conclude that the statement was properly admitted for impeachment 
HOLLAND V. FRENCH

DILLON, J., concurring in result

3

purposes, irrespective of whether it falls within Rule 407.3 The statement could be 

interpreted as a direct contradiction of the opinion Mr. Lewis offered during his incourt testimony that the stop sign was not negligently placed.

It was the NCDOT who decided to call Mr. Lewis as a witness. Accordingly, 

Plaintiff had the right to impeach Mr. Lewis regarding any testimony he gave on 

direct examination with out-of-court statements he had made to the contrary, 

including any such statements contained in his post-accident report. Had the 

NCDOT not called Mr. Lewis, this first statement probably would not have come in 

to evidence. Accordingly, the trial court correctly allowed this statement in to 

evidence.

The second statement in the report is Mr. Lewis’ recommendation that the stop 

sign be “move[d] closer to [the intersection] for better sight distance[.]” I agree with 

my colleagues that this second statement, standing alone, clearly falls within Rule 

407. However, unlike the first statement, this second statement does not contradict 

anything Mr. Lewis testified to during his direct testimony. He never testified that 

he had not recommended the stop sign be moved after his 2016 visit. Accordingly, I 

conclude the statement was inadmissible.

 

3 It could be argued that this first statement, standing alone, falls outside of Rule 407 in that 

it does not suggest remedial action. But it could be argued that the statement falls within Rule 407, 

since it is part of a report commissioned by the NCDOT which recommends that remedial action be 

taken. However, even if the statement falls within Rule 407, it is still admissible, as Rule 407 allows 

evidence of remedial action to be admitted if properly offered for impeachment purposes.
HOLLAND V. FRENCH

DILLON, J., concurring in result

4

However, any error in allowing the second statement into evidence was not 

prejudicial to the NCDOT. Admittedly, Mr. Lewis’ recommendation that the stop 

sign should be moved to make it safer, though not an admission that the stop sign 

was not safe to begin with, does suggest to the jury that Mr. Lewis believed that the 

NCDOT had been negligent in its original placement of the stop sign. But, here, the 

jury already heard evidence suggesting that Mr. Lewis thought the stop sign was not 

in a safe location and that he thought it had been placed “too far” from the 

intersection. It is almost certain that, based on this first statement alone, the jury 

already assumed that Mr. Lewis thought remedial action was required. It is unlikely 

that the second statement – where he actually recommends remedial action – was 

crucial in swaying the jury to find the NCDOT negligent.

The NCDOT extensively cites to Benton v. Hillcrest Foods, Inc., 136 N.C. App. 

42, 524 S.E.2d 53 (1999) to support its position that the trial court committed 

reversible error. Benton is an instructive case on the nuances of the impeachment 

exception of the Rule 407 exclusion, but that case does not contradict my position 

here. In Benton, a restaurant patron’s estate sued the restaurant for failing to 

maintain a safe environment after the decedent was fatally shot. Id. at 46, 524 S.E.2d 

at 57. After losing at trial, the estate appealed, arguing that the trial court incorrectly 

disallowed evidence that the restaurant had issued written instructions to its security 

guards, post-shooting, that the restaurant doors should be locked whenever trouble 
HOLLAND V. FRENCH

DILLON, J., concurring in result

5

was detected outside. Id. at 53, 524 S.E.2d at 61. Our Court affirmed, concluding 

that the written instructions were Rule 407 evidence and that the instructions did 

not contradict evidence offered by the restaurant that “there was no reason to lock 

the front door.” Id. at 53, 524 S.E.2d at 61. In rejecting the estate’s argument, Judge 

(future Justice) Timmons-Goodson, writing for our Court, noted that the restaurant’s 

post-shooting instructions to lock the door when danger was detected outside would 

have only served as impeachment testimony had the restaurant’s witness testified 

that it was not feasible to lock the door:

However, testimony that there is no reason to lock the door 

does not address the feasibility of locking the door. 

Instead, the statement refers to the perceived lack of 

necessity to do so. Therefore, whether or not it would have 

been possible to lock the door was not controverted, and 

evidence that such a measure would have been feasible is 

not admissible under Rule 407.

Id. at 53, 524 S.E.2d at 61. If, however, the written instructions had contained a 

statement that the restaurant owners thought they had acted imprudently in not 

having a policy to lock the doors, perhaps that statement would have been admissible 

to impeach the suggestion by the restaurant’s witness that the restaurant saw no 

need to lock the doors.

I conclude that the NCDOT received a fair trial, free from reversible error.
No. 19-498 – Holland v. French

TYSON, Judge, concurring in part and dissenting in part.

I. Background

Shirley Davis Pendergrass died from injuries sustained during a car accident 

on 4 April 2016. Donnie George Holland qualified as executor for her estate 

(“Plaintiff”). He filed a wrongful death action against Richard Allan French 

(“French”) for his alleged failure to stop at a stop sign at the intersection of Castalia 

and Red Roads in Nash County. 

French asserted a third-party claim against the North Carolina Department of 

Transportation (“NCDOT”). Plaintiff was allowed to amend its complaint to bring 

direct causes of action against NCDOT for negligently installing traffic control 

devices on Red Road. NCDOT asserted sovereign immunity in its answer to 

Plaintiff’s amended complaint. 

Prior to trial, NCDOT also timely filed a motion in limine to prevent Plaintiff 

and French from introducing evidence of its subsequent remedial measures. Plaintiff 

asserted it was unaware of what witnesses NCDOT would call and who might be 

subject to cross-examination. The court preliminarily ruled counsel must refrain 

from commenting on the remedial evidence in front of the jury until the parties 

addressed the evidence. 

At trial, relevant to NCDOT, Plaintiff introduced testimony of two engineers, 

Daren Marceau and Dr. Rollin Barrett. French presented one engineer, Mike Sutton. 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

2

NCDOT presented testimony of Christopher Lewis, traffic engineer; Johnnie Paul 

Hennings, accident reconstruction analyst; and Andy Brown, division traffic 

engineer. After a hearing outside of the jury’s presence, the trial court ruled over 

NCDOT’s objection Plaintiff would be allowed to cross-examine Lewis regarding an 

aerial drawing and notes thereon he had prepared after the accident. His notes stated 

the stop sign was too far out from and that it needed to be moved closer to the road

for better sight distance. Plaintiff argued this evidence impeached Lewis’ prior 

testimony. 

The jury returned a verdict and found French and NCDOT were negligent and 

awarded $800,000 in damages. NCDOT appealed. 

II. Issue

NCDOT argues the trial court erred by allowing Plaintiff to impeach Lewis 

with Plaintiff’s Exhibit 37 in violation of Rule 407. N.C. Gen. Stat. § 8C-1, Rule 407 

(2019). NCDOT also argues the trial court abused its discretion and prejudicially 

erred by allowing this evidence to be admitted in violation of Rule 403. N.C. Gen. 

Stat. § 8C-1, Rule 403 (2019).

III. Standards of Review 

A trial court’s evidentiary rulings are generally reviewed by appellate courts 

under an abuse of discretion standard. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 139 

L. Ed. 2d 508, 516 (1997) (citations omitted) (“We have held that abuse of discretion 

is the proper standard of review of a [trial] court’s evidentiary rulings.”); see also
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

3

Sloan v. Miller Bldg. Corp., 128 N.C. App. 37, 45, 493 S.E.2d 460, 465 (1997) (holding 

that “admission of [evidence] . . . [is] addressed to the sound discretion of the trial 

court and may be disturbed on appeal only where an abuse of such discretion is clearly 

shown”). Additionally, regarding prejudice, “[e]videntiary errors are harmless unless 

a defendant proves that absent the error a different result would have been reached 

at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893 (2001).

“Trial court rulings on relevancy technically are not discretionary.” Id. 

“Whether evidence is relevant is a question of law . . . [and] we review the trial court’s 

admission of the evidence de novo.” State v. Kirby, 206 N.C. App. 446, 456, 697 S.E.2d 

496, 503 (2010); N.C. Gen. Stat. § 8C-1, Rule 401 (2019). Even though we review 

relevancy rulings de novo, we give the trial court rulings regarding whether evidence 

is relevant “great deference on appeal.” State v. Allen, __ N.C. App. __, __, 828 S.E.2d 

562, 570 (2019), appeal dismissed, review denied, 373 N.C. 175, 833 S.E.2d 806 (2019). 

As the plurality opinion correctly notes: “We review a trial court’s decision to 

exclude evidence under Rule 403 for abuse of discretion. An abuse of discretion 

results when ‘the 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. Triplett, 368 

N.C. 172, 178, 775 S.E.2d 805, 809 (2015) (quoting State v. Whaley, 362 N.C. 156, 160, 

655 S.E.2d 388, 390 (2008)).

IV. Jurisdiction
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

4

NCDOT asserted sovereign immunity to a direct action against the state in its 

answer to Plaintiff’s amended complaint. As sovereign immunity precludes suits 

directly against the State and is jurisdictional unless expressly waived, this issue is 

threshold before reaching the merits of NCDOT’s claims. In Batts v. Batts, 160 N.C. 

App. 554, 586 S.E.2d 550 (2003), disc. rev. denied, 358 N.C. 153, 592 S.E.2d 553 

(2004), this Court addressed this issue under a similar factual scenario.

The plaintiff, Stacy Batts, was a passenger in a car operated by Shawan Batts. 

Id. at 555, 586 S.E.2d at 551-52. The complaint alleged a stop sign controlling Mr. 

Batts direction of travel was obstructed by tree limbs. Id. The complaint was filed 

against Mr. Batts and the Town of Elm City. Id. Mr. Batts filed a crossclaim against 

the Town of Elm City and a third-party complaint against NCDOT. Id. The plaintiff 

then obtained permission of the trial court to amend her complaint to add NCDOT as 

a defendant and to dismiss her claim against the Town of Elm City. Id. at 556, 586 

S.E.2d at 552. The trial court denied NCDOT’s motion to dismiss the plaintiff’s 

complaint based on sovereign immunity. Id. 

On appeal, NCDOT also contended proper jurisdiction of the plaintiff’s claim 

was before the Industrial Commission pursuant to the Tort Claims Act. Id. at 557, 

586 S.E.2d at 552-53. This Court affirmed the trial court’s denial of NCDOT’s motion 

to dismiss. Id. at 559, 586 S.E.2d at 554. 

North Carolina Rule of Civil Procedure 14(c) provides that the State may be 

joined as a third-party defendant notwithstanding the provisions of the Tort Claims 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

5

Act. N.C. Gen. Stat. § 1A-1, Rule14(c) (2019). Rule 14(a) provides that a plaintiff may 

allege a claim against a third-party defendant arising of the transaction or occurrence 

that is the subject matter of the plaintiff’s claim. N.C. Gen. Stat. § 1A-1, Rule14(a) 

(2019). N.C. Gen. Stat. § 143-291 (2019) indicates sovereign immunity does not 

prevent the State from being joined as a third-party defendant in wrongful death 

action. See Teachy v. Coble Dairies, Inc., 306 N.C. 324, 332, 293 S.E.2d 182, 187 (1982) 

(“We recognize that actions for indemnification, as well as actions for contribution, 

are generally brought by means of a third-party complaint. Rule 14(c) does not limit 

the nature or character of third-party actions permissible against the State. We 

therefore hold that the State may be joined as a third-party defendant, whether in an 

action for contribution or in an action for indemnification, in the State courts.”). 

This Court concluded the plaintiff’s amended complaint against NCDOT was 

proper.

Under the clear language of Rule 14(a), once a third-party 

defendant is added to a lawsuit, a plaintiff may assert 

claims directly against the third-party defendant, subject 

only to the limitation that the claim arose out of the same 

transaction or occurrence as the plaintiff’s original claim 

against the original defendant. 

The Tort Claims Act waives sovereign immunity. By the 

addition of Rule 14(c), the General Assembly created an 

exception to the general rule that claims against the State 

under the Tort Claims Act must be pursued before the 

Industrial Commission as to third-party claims. . . . By 

adding subsection (c) to Rule 14, the General Assembly 

waived the State’s immunity to claims brought by a 

plaintiff under Rule 14(a), subject to the express 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

6

limitations contained therein. 

Batts, 160 N.C. App.at 557, 586 S.E.2d at 552-553. Jurisdiction was proper in the 

superior court. 

V. Analysis 

A. Rule 407

We all agree the trial court correctly ruled Lewis’ notes and recommendations 

in Exhibit 37 concerning the sign’s placement (“stop sign too far out”) and whether he 

believed the sign needed to be relocated (“move in closer to SR 1417 for better sight 

distance”) qualified under Rule 407 as subsequent remedial recommendations and 

measures and were properly excluded unless an appropriate exception applies. N.C. 

Gen. Stat. § 8C-1, Rule 407; see Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 53, 

524 S.E.2d 53, 61 (holding that written instructions to security guards after a 

shooting were excluded under Rule 407). The trial court properly ruled that Plaintiff 

was “prohibited from mentioning [subsequent remedial measures] during jury 

selection or [the] case in chief,” but reserved the issue for decision if the “matter 

[became] a direct issue” upon NCDOT’s presentation of evidence. 

When measures are taken after an event, which if taken previously would have 

made the event less likely to occur, evidence of the subsequent measures is not 

admissible to prove negligence or culpable conduct in connection with the event. N.C. 

Gen. Stat. § 8C-1, Rule 407. “Precautions against the future cannot be considered as 

an admission of actionable negligence in the past.” McMillan v. Atlanta & C. Air Line 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

7

Ry. Co., 172 N.C. 853, 855, 90 S.E. 683, 685 (1916). A post-accident report containing 

recommendations for improvements or remediation is excluded under Rule 407. 

Smith v. N.C. Dept. of Nat. Resources, 112 N.C. App. 739, 746-47, 436 S.E.2d 878, 883 

(1993). Post-incident written notes containing instructions are also excluded under 

Rule 407. Benton, 136 N.C. App. at 53, 524 S.E.2d at 61.

“This rule does not require the exclusion of evidence of subsequent measures 

when offered for another purpose, such as proving ownership, control, or feasibility 

of precautionary measures, if those issues are controverted, or impeachment.” N.C. 

Gen. Stat. § 8C-1, Rule 407; see Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 498-99, 

521 S.E.2d 137, 140 (1999).

It is undisputed Lewis’ notes in Exhibit 37 were made during a required site 

visit and review after the fatal traffic accident at issue had occurred. Lewis made a 

professional observation and recommendation in this 2016 post-accident report to 

move the stop sign, which “would have made the event less likely to occur” if it had 

been made before the accident and in conjunction with actual movement of the sign.

N.C. Gen. Stat. § 8C-1, Rule 407. NCDOT properly asserted and the trial court 

correctly ruled preliminarily Lewis’ post-accident report should be excluded from 

evidence under Rule 407. Id.; Smith, 112 N.C. App. at 746-47, 436 S.E.2d at 883. 

This correct ruling, together with NCDOT’s continuing objections, shifted to 

Plaintiff the burden to show a basis to allow admission. Whether Plaintiff met this 

burden becomes the pivotal question before us. Lewis’ direct testimony that the sign 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

8

was visible was not impeached. His post-accident statement could not be admitted 

on this basis. N.C. Gen. Stat. § 8C-1, Rule 407. 

Under Rule 407 and the trial court’s ruling, Plaintiff also concedes his inability 

to have called Lewis as an adverse witness for the sole purpose of introducing Exhibit 

37, even though he was the author of the notes and comments on the exhibit. Had 

NCDOT not called Lewis as a witness, Exhibit 37 would not have been admissible 

under the trial court’s ruling. Id.

As noted above, evidence of subsequent remedial measures, including postincident written notes containing instructions, is not admissible to prove prior 

negligence or culpable conduct, but such evidence may be admitted by Plaintiff 

showing other purposes such as “proving ownership, control, or feasibility of 

precautionary measures, if those issues are controverted, or impeachment.” Id.;

Benton, 136 N.C. App. at 53, 524 S.E.2d at 61.

When a party is attempting under Rule 407 to introduce evidence of a 

subsequent remedial measure for impeachment, the party must make an offer of 

proof containing: 

[1.] What the witness will testify to if the judge permits the 

proponent to pursue the line of inquiry.

[2.] The evidence is logically relevant to some issue other 

than the general question of negligence or fault.

[3.] The issue the evidence relates to is disputed in the case. 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

9

Robert P. Mosteller et al., North Carolina Evidentiary Foundations, Ch. 8, § 8-7(B) 

(3d ed. 2014). 

Here, Plaintiff failed to lay a foundation and did not introduce any evidence 

this information is logically relevant to some issue other than the general question of 

NCDOT’s negligence or fault. If Plaintiff meets its burden, Exhibit 37 may be subject 

to be admitted under the exceptions listed in Rule 407. Additionally, each line of 

notation on Exhibit 37 asserted as admissible needs to be subjected to the above 

analysis prior to admission. Id.

NCDOT argues this Court’s decision in Benton is dispositive to exclude Exhibit 

37. In Benton, we limited a plaintiff’s ability to cross-examine defense witnesses with 

evidence of subsequent remedial measures. Benton, 136 N.C. App. at 53, 524 S.E.2d 

at 61. A patron was shot and killed during an altercation at a restaurant. Id. An 

eyewitness for the defense had testified, “[t]here’s no reason to lock the door.” Id. 

Plaintiff attempted to undermine and impeach this testimony by introducing into 

evidence written instructions, created after the incident, which directed the 

restaurant’s security guards to lock the door in case of disturbances occurring in the 

parking lot. Id. at 52-53, 523 S.E.2d at 60-61. 

This Court affirmed the trial court’s decision to exclude evidence of the written 

instructions to contradict the witness’ testimony. We held the witness’ testimony did 

not address the feasibility of locking the door, an uncontroverted issue, and instead 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

10

referred only to the witness’ belief of the lack of necessity of doing so during the 

incident. Id. 

More than two years had elapsed since Lewis’ first visit to the rural site in 

2014, the basis of his direct testimony, and again in late 2016 for the required postaccident visit. Plaintiff laid no foundation or showing that the conditions Lewis had 

observed in 2014 had not changed or were similar to those he observed after the 

accident in 2016. Mintz v. Atlantic Coast Line R. Co., 236 N.C. 109, 72 S.E.2d 38 

(1952); Tise v. Town of Thomasville, 151 N.C. 281, 65 S.E 1007 (1909). 

Plaintiff failed to carry its burden by not offering how “[t]he evidence is 

logically relevant to some issue other than the general question of negligence or fault” 

in the face of NCDOT’s motion in limine and continuing objection to admission and 

the trial court’s prior ruling. Mosteller, North Carolina Evidentiary Foundations, § 8-

7 (B). I vote to reverse the trial court’s decision to allow cross-examination of Lewis 

based upon his 2016 post-accident review, recommendations, and the remedial 

actions taken. N.C. Gen. Stat. § 8C-1, Rule 407. I respectfully dissent. 

B. Rule 403

Even if Lewis’ post-accident notes and recommendations were admissible 

under the impeachment exception to Rule 407, NCDOT argues the trial court should 

have excluded Exhibit 37 under Rule 403. NCDOT asserts the danger of unfair 

prejudice and misleading the jury substantially outweighed its probative value. This 

Court has held: “Rule 403’s balancing test mandates the exclusion of prejudicial or 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

11

otherwise inapplicable evidence when ‘its probative value is substantially 

outweighed’ by its prejudicial or inapplicable nature.” State v. Alonzo, 261 N.C. App. 

51, 59, 819 S.E.2d 584, 590 (2018), modified on other grounds, 373 N.C. 437, 838 

S.E.2d 354 (2020). 

NCDOT urges this Court to overturn the trial court’s decision to allow Plaintiff 

to impeach Lewis’ testimony regarding conditions he observed in 2014 with a postaccident 2016 report that reflects a change in his “engineering judgment” based on 

new post-accident “available pertinent information.” It argues that to affirm the trial 

court’s application of the rule would allow the exceptions to swallow the overriding 

policy for the rule of exclusion to encourage remedial repairs. 

NCDOT acknowledges the trial court’s admission of evidence of remedial 

measures under the Rule 407 exceptions pursuant to Rule 403 is reviewed on appeal 

for abuse of discretion. See Benton, 136 N.C. App. at 53, 524 S.E.2d at 61 (holding 

whether to exclude evidence is within the sound discretion of the trial court and will 

not be disturbed “absent a showing that the ruling was so arbitrary that it could not 

have been the result of a reasoned decision”).

NCDOT also argues the probative value was substantially outweighed by 

prejudice because by Plaintiff using a “blown-up poster” of Lewis’ 2016 post-accident 

note, Plaintiff and French were allowed to “falsely” and aggressively cross-examine 

Lewis and to argue this properly excluded evidence in closing argument. 
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TYSON, J., concurring in part and dissenting in part

12

Plaintiff counters these arguments and cites a federal circuit court case as 

persuasive authority. In Dollar v. Long Mfg., N.C., Inc., the plaintiff sought to 

introduce a warning letter from a witness to contradict his trial testimony about the 

safety of a backhoe when attached to a certain tractor. Dollar v. Long Mfg., N.C., Inc., 

561 F.2d 613, 618 (5th Cir. 1977). The federal court analyzed the Federal Rule of 

Evidence 403, holding: 

Rule 403 authorizes the exclusion of relevant 

evidence if its probative value is substantially outweighed 

by the danger of unfair prejudice, we do not think this 

situation called for its application. In the face of Saunders’ 

testimony as to his present opinion of the safety of the 

backhoe when attached to a rollbar-equipped tractor, we do 

not think unfair prejudice to the defendant would have 

resulted from his having been confronted by his own letter 

warning of exposure to death by such use. Of course, 

“unfair prejudice” as used in Rule 403 is not to be equated 

with testimony simply adverse to the opposing party. 

Virtually all evidence is prejudicial or it isn’t (sic) material. 

The prejudice must be “unfair.”

Id.

I agree with NCDOT that presuming this line of questioning was permissible 

under the exceptions to Rule 407, “its probative value is substantially outweighed by 

its prejudicial or inapplicable nature” under Rule 403. N.C. Gen. Stat. § 8C-1, Rule 

403. I also respectfully dissent from the plurality opinion’s holding to the contrary.

VI. Conclusion

The trial court correct ruled that Rule 407’s general prohibition of admission 

of evidence of subsequent remedial measures precludes admission of Exhibit 37. 
HOLLAND V. FRENCH

TYSON, J., concurring in part and dissenting in part

13

NCDOT lodged a continuing objection to this questioning. Plaintiff failed to lay a 

required foundation to carry his burden to show Lewis’ post-accident 2016 notes, 

recommendation, and report did not remain within the exclusion of Rule 407.

We all agree Exhibit 37 was prepared post-accident, recommended and 

documented subsequent remedial measures implemented under Rule 407. Plaintiff 

failed to carry its burden to show Lewis’ post-accident 2016 report fell into an 

exception in Rule 407 as impeachment evidence to be properly admitted. In the 

alternative, the probative value of Lewis’ statements was substantially outweighed 

by the danger of unfair prejudice under Rule 403. NCDOT is entitled to a new trial. 

I concur in part and respectfully dissent in part.