Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation, Wrongful Death
This recent workers’ compensation case reaffirms that third party cases must be handled properly or remedies can be “elected” (i.e. lost). Accidents “on the job” can sometimes involve cases against “third parties.” Automobile accidents while at work or jobs where other employees from a different company cause injury are common such examples. In those cases, you should first finish treatment and resolve your workers’ compensation case. Then, and only then, you should explore a third party case. You can recover money for “pain and suffering” in the third party case, and there will be a lien on any recovery from the workers’ compensation insurance carrier. However, if handled properly, an experienced personal injury trial attorney can maximize your case’s value and ultimate recovery.
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know how to anticipate and prepare for defenses and insurance company tactics. During our twenty-two (22) years each of practicing law, we have successfully handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
Stephen Brad Wise, Appellant,
v.
Richard Wise d/b/a Wise Services and the South Carolina Uninsured Employers Fund, Respondents.
Opinion No. 4879.Court of Appeals of South Carolina.Heard November 4, 2010.Filed August 24, 2011.Pope D. Johnson, of Columbia, for Appellant.
John G. Felder, of St. Matthews; Robert Merrell Cook, II, of Batesburg-Leesville, for Respondents.
KONDUROS, J.:
Stephen Brad Wise (Claimant) appeals the circuit court’s dismissal of his workers’ compensation claim that arose from the same facts as a civil action he settled against a third party and a default judgment he obtained against his employer. He maintains the circuit court could not take judicial notice of the existence of his civil action when evidence of that claim did not appear in the appellate record. We affirm.
FACTS/PROCEDURAL HISTORY
This workers’ compensation action arose out of an accident Claimant had on October 30, 2000, while working for Richard Wise d/b/a Wise Services (Employer).[1] Claimant was riding on top of a bank building that was being moved when he came into contact with a high voltage electrical line in Orangeburg, South Carolina and sustained severe burns as a result. On June 26, 2001, Claimant filed a Form 50 against Employer for medical and compensation benefits for his injuries. On July 13, 2001, Employer filed a Form 51, denying Claimant was an employee and asserting he was an independent contractor. Additionally, Employer contended it was not covered by the Workers’ Compensation Act (the Act) because it does not have the requisite number of employees. Employer also maintained if Claimant was an employee, he was a casual employee and thus exempt under section 42-1-360 of the South Carolina Code. The South Carolina Uninsured Employers’ Fund (the Fund) contended Claimant was not subject to the Act. It further asserted that if Claimant was a covered employee, his weekly wage should be figured at the minimum compensation of $75 per week because he failed to file a tax return for his wages from Employer.
On May 2, 2002, the single commissioner held a hearing on the matter. On October 18, 2002, five months after the single commissioner conducted the hearing but prior to its issuing the order, Claimant filed a tort action against Employer and the City of Orangeburg (the City). On November 26, 2003, the single commissioner issued an order denying the claim, finding Employer regularly employed only three employees and thus was exempt from the Act and not required to provide workers’ compensation insurance coverage. The single commissioner further found because Employer was exempt from coverage, the Fund had no responsibility to provide benefits to Claimant. Finally, the single commissioner found the Workers’ Compensation Commission had no jurisdiction over the claim and dismissed it.
On December 8, 2003, Claimant filed a Form 30 appealing the single commissioner’s order to the Appellate Panel. On January 4, 2004, Claimant obtained a default judgment in the amount of $900,000 in the tort action against Employer. Claimant and the City reached a settlement.
On June 22, 2004, the Fund filed a motion to dismiss the appeal or order new evidence taken before the single commissioner. The Fund contended Claimant had waived his right to appeal his claim by filing suit against Employer alleging his employment did not fall within the scope of the Act and prosecuting that action to a final judgment of $900,000. Additionally, the Fund maintained Claimant did not notify it or the Commission of his suit against the City as a third-party tortfeasor, which section 42-1-560(b) of the South Carolina Code requires, and as a result he elected his remedy and was barred from receiving any benefits under the Act. The Fund provided an affidavit, a copy of Claimant’s summons and complaint against Employer and the City, the default judgment against Employer, and the order from February 24, 2004, dismissing the action against the City with prejudice. The Appellate Panel dismissed the workers’ compensation action, finding (1) Claimant, Employer, or their attorneys did not notify the Commission or the Fund of the civil suit; (2) when Claimant filed his civil action on the same issues that were before the Commission, the matter was removed from the Commission’s jurisdiction, and the Claimant alleged his employment did not fall within the parameters of the Act; and (3) accordingly, the matter is res judicata.
Claimant appealed to the circuit court, which reversed the order to dismiss, finding Regulation 67-215(B)(1) of the South Carolina Code of Regulations prohibited the Appellate Panel from addressing a motion to dismiss. The circuit court remanded the action to the Full Commission for it to consider the Fund’s motion to submit new evidence. The Full Commission then remanded the matter to the Appellate Panel, which granted the motion to submit additional evidence and remanded the action to the single commissioner to consider the new evidence. Claimant appealed the Appellate Panel’s allowance of additional evidence to the circuit court, which reversed the Appellate Panel, finding the Appellate Panel’s order was too summary to allow a meaningful review. On remand, the Full Commission issued an order granting the Fund’s motion to submit additional evidence, finding the record contains no evidence contrary or similar to the new evidence; thus, the new evidence was not cumulative or impeaching. Accordingly, the Full Commission remanded the action to the single commissioner to determine whether Claimant had elected his remedy.
Claimant again appealed to the circuit court, asserting the evidence did not fit the meaning of newly discovered evidence under Regulation 67-707 of the South Carolina Code. The circuit court reversed, finding the evidence did not constitute newly discovered evidence under Regulation 67-707. The circuit court stated: “The evidence of facts sought to be admitted did not exist at the time of the hearing before the [s]ingle [c]ommissioner. . . . [T]he evidence sought to be admitted does not constitute after discovered evidence within the meaning of Regulation 67-707.” (quoting State v. Haulcomb, 260 S.C. 260, 270, 195 S.E.2d 601, 606 (1973) (“[A]fter discovered evidence refers to facts existing at time of trial of which . . . [the] aggrieved party was excusably ignorant.”)). On remand, the Appellate Panel denied the Fund’s motion to admit additional evidence pursuant to Regulation 67-707 and ordered Claimant’s appeal as to whether Employer was subject to the Act be set for a hearing. Following the hearing, the Appellate Panel reversed the single commissioner, finding Employer had four employees in his employment, and thus, it was subject to the Act. The Fund appealed to the circuit court, which reversed the Appellate Panel, finding the action was “barred by the election of remedies of the [C]laimant by instituting and settling his tort claims without notice to and the consent of the [E]mployer and the [Fund].” The circuit court also found in the alternative, “pursuant to the election of jurisdiction provision of [s]ection 42-5-40 the Commission was divested of jurisdiction over this claim and its order is vacated.”[2] This appeal followed.
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). This court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse when the decision is affected by an error of law. Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).
The substantial evidence rule governs the standard of review in workers’ compensation decisions. Frame v. Resort Servs. Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct. App. 2004). The Appellate Panel’s decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct. App. 2005). An appellate court can reverse or modify the Appellate Panel’s decision only if the decision is affected by an error of law or is “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct. App. 2005) (citations and internal quotation marks omitted).
LAW/ANALYSIS
Claimant argues the circuit court erred in considering the documents relating to the civil action because they were not part of the record. He further contends the circuit court erred in taking judicial notice of the civil action because the Fund never requested the Appellate Panel take notice of it or raise it as a ground on appeal. We disagree.
I. Election of Remedies/Third-Party Action
When an employee’s claim arises out of and in the course of his or her employment, the Act provides the exclusive remedy. See Sabb v. S.C. State Univ., 350 S.C. 416, 422, 567 S.E.2d 231, 234 (2002). “Every employer and employee . . . shall be presumed to have accepted the provisions of this title respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment and shall be bound thereby.” S.C. Code Ann. § 42-1-310 (Supp. 2010).
“When an employee and his or her employer accept the provisions of the Act, the employee’s remedies under the Act exclude all other rights and remedies of the employee.” Harrell v. Pineland Plantation, Ltd., 337 S.C. 313, 325-26, 523 S.E.2d 766, 772 (1999) (citing S.C. Code Ann. § 42-1-540 (1985)).
THIS SECTION IS KNOWN AS THE EXCLUSIVE REMEDY PROVISION, AND IT shrouds an employer with immunity from any actions at law instituted by the employee. Such immunity is part of the broader quid pro quo arrangement imposed upon the employer and employee by the Act. The employee” receives the right to swift and sure compensation” in exchange for giving up the right to sue in tort; the employer receives such tort immunity in exchange for complying with those provisions of the Act that insure swift and sure compensation for the employee.
Id. at 326, 523 S.E.2d at 772. “The Act achieves such’ swift and sure compensation’ by requiring the employer to secure the payment of compensation under [section 42-5-10 of the South Carolina Code (1985)].” Id. at 326, 523 S.E.2d at 773. Section 42-5-10 provides: “Every employer who accepts the compensation provisions of this Title shall secure the payment of compensation to his employees in the manner provided in this chapter.” An employer that fails to secure such compensation becomes liable either under the Act or in an action at law.Harrell, 337 S.C. at 327, 523 S.E.2d at 773 (citing S.C. Code Ann. § 42-5-40 (1985)). “[T]he Act prohibits an employee from recovering both workers’ compensation and a tort judgment from an employer who fails to secure compensation.” Id. at 329, 523 S.E.2d at 774.
A claimant has three remedies for job-related injuries:
(1) To proceed solely against the employer thereby allowing the employer-carrier the opportunity to pursue reimbursement against the third party for its obligated payments.
(2) To proceed solely against the third party tort feasor under [section] 42-1-550 by instituting and prosecuting an action at law; and
(3) To proceed against both the employer-carrier and the third party tort feasor by complying with [section] 42-1-560.
Callahan v. Beaufort County Sch. Dist., 375 S.C. 92, 95-96, 651 S.E.2d 311, 313 (2007).
Section 42-1-560 of the South Carolina Code (1985) provides the requirements for simultaneously pursuing a third-party action and a workers’ compensation claim. It states: “Notice of the commencement of the [third-party] action shall be given within thirty days thereafter to the . . . Commission, the employer[,] and carrier upon a form prescribed by the . . . Commission.” § 42-1-560(b). The statute clearly requires timely notice be given to all three entities: employer, carrier, and Commission. Callahan, 375 S.C. at 96, 651 S.E.2d at 314. “The object of [section] 42-1-560 is to effect an equitable adjustment of the rights of all the parties. It would defeat this objective to allow the employee to demand compensation from the employer after having destroyed the employer’s normal right to obtain reimbursement from the third party.” Fisher v. S.C. Dep’t. of Mental Retardation-Coastal Ctr., 277 S.C. 573, 575-76, 291 S.E.2d 200, 201 (1982) (citation and internal quotation marks omitted). “[T]he settlement of a third party claim without notice to the employer and carrier bars a workers’ compensation action.” Kimmer v. Murata of Am., Inc., 372 S.C. 39, 52, 640 S.E.2d 507, 513-14 (Ct. App. 2006). In Fisher, the supreme court held that a claimant had elected a remedy, thus forgoing workers’ compensation benefits, by settling a third-party claim without complying with the notice requirements of section 42-1-560, even though the carrier had actual knowledge of the third-party suit. Id.
This court has previously explained the reasoning behind a settlement serving as a bar to a workers’ compensation action:
As a result of the failure to notify of a third party claim, the employer-carrier loses a voice in the litigation and is clearly prejudiced. That voice encompasses the right to select one’s own counsel, conduct one’s own investigation, and direct the litigation. Notice makes it possible for the employer-carrier to offer the employee meaningful assistance in prosecuting the third party claim. With timely knowledge the employer-carrier gains the opportunity to lend support to an effort that could lead to the carrier’s recovery of some or all of the compensation it might later be required to pay the injured employee under the Workers’ Compensation Act. The statute’s underlying purpose serves to protect the carrier’s subrogation interests and prevents an employee’s double recovery.
Kimmer, 372 S.C. at 51, 640 S.E.2d at 513 (citations omitted).
Case law makes clear that an employee cannot recover against an employer under both a workers’ compensation action and a civil action. Here, Claimant recovered $900,000 from Employer in the form of a default judgment. Further, because Claimant did not strictly comply with the notice provisions in filing suit against a third party, he is barred from recovering under the Act. However, we must determine if the evidence of the civil suit could be admitted as new evidence or the circuit court could take judicial notice of it.
II. Judicial Notice
“Notice may be taken of judicially cognizable facts” in administrative cases. S.C. Code Ann. § 1-23-330(4) (2005).
Appellate courts are generally reluctant to notice adjudicative facts even when those facts may be absolutely reliable. Notice of “facts” for the first time on appeal may deny the adverse party the opportunity to contest the matters noticed; it may also violate the general principle that appellate review should be limited to the record. Finally, appellate courts, limited to the “cold” record, cannot be as sensitive to the appropriateness of judicial notice as the trial judge. For the foregoing reasons we hold that original judicial notice of adjudicative facts at the appellate level should be limited to matters which are indisputable.
Masters v. Rodgers Dev., 283 S.C. 251, 256, 321 S.E.2d 194, 197 (Ct. App. 1984) (citations omitted). “A court can take judicial notice of its own records, files[,] and proceedings for all proper purposes including facts established in its records.” Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct. App. 1984). “It is not error for a judge to take judicial notice of what was stated in [a] former opinion in [a] prior action of the same case.” Id.
Claimant’s argument as to judicial notice revolves around the fact that the Fund did not request the Appellate Panel take judicial notice of the suit or raise judicial notice in its grounds on appeal to the circuit court. As Claimant’s own case law states, an appellate court can take judicial notice of something that was not before the trial court if it is indisputable. The summons and complaint and default judgment show that Claimant did file an action and recover against Employer thus making that his exclusive remedy. Additionally, he filed suit and entered a settlement against a third party without providing any notice to the Fund or the Commission as required by statute, thus barring the workers’ compensation action.
III. Additional Evidence
Additionally, the evidence of the civil claim could be admitted as new evidence under Regulation 67-707 of the South Carolina Code of Regulations (Supp. 2010), which provides the requirements for the admission of additional evidence in workers’ compensation cases. Regulation 67-707 states:
A. When additional evidence is necessary for the completion of the record in a case on review the Commission may, in its discretion, order such evidence taken before a Commissioner.
B. When a party seeks to introduce new evidence into the record on a case on review, the party shall file a motion and affidavit with the Commission’s Judicial Department.
C. The moving party must establish the new evidence is of the same nature and character required for granting a new trial and show:
(1) The evidence sought to be introduced is not evidence of a cumulative or impeaching character but would likely have produced a different result had the evidence been procurable at the first hearing; and
(2) The evidence was not known to the moving party at the time of the first hearing, by reasonable diligence the new evidence could not have been secured, and the discovery of the new evidence is being brought to the attention of the Commission immediately upon its discovery.
Claimant argues because the circuit court originally found it was not newly discovered evidence and the Fund did not appeal, it was the law of the case. However, an appeal of that ruling would have been interlocutory. See Leviner v. Sonoco Prods. Co., 339 S.C. 492, 494, 530 S.E.2d 127, 128 (2000) (holding an order by the circuit court remanding the matter to the single commissioner for further proceedings was not directly appealable). Therefore, the circuit court’s original decision to not allow the evidence as newly discovered was not the law of the case.
The evidence of the civil claim meets the criteria in the Regulation for the admission of new evidence: (1) it is not cumulative or impeaching character and would have produced a different result if produced at the first hearing and (2) was not known and could not have been discovered at the time of the first hearing and was brought to the attention of the Commission immediately upon its discovery. Nothing requires that the facts be in existence at the time of the first hearing by the single commissioner.[3] Accordingly, the circuit court’s decision is
AFFIRMED.
HUFF and LOCKEMY, JJ., concur.
[1] We note at the outset the procedural history of this case is difficult to follow.
[2] The circuit court stated it had erred in its prior determination that the evidence of the existence of Claimant’s tort action, default judgment, and settlement could not be admitted under Regulation 67-707.
[3] Claimant also argues the circuit court erred in failing to affirm the Appellate Panel’s finding that Employer had four employees and thus was subject to the Act. We need not address this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).
Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This recent SC Supreme Court decision reaffirms that business owners must take reasonable steps to protect their customers from foreseeable criminal acts. This case adopts a commonsense approach to premises liability. Basically, the duty varies depending on the level of risk. Higher risks (high crime area, prior incidents) mandate higher care. Premises liability cases are almost always vigorously defended. Early investigation into all facts and thorough preparation are essential to the outcome of the case. Better make sure your attorney is experienced and willing to fight hard for you and your family.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they collectively understand the criminal, insurance defense, and medical aspects of these very complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
BASS v. GOPAL INC
Gerald BASS, Petitioner, v. GOPAL, INC. and Super 8 Motels, Inc., Defendants, of whom Gopal, Inc. is, Respondent.
No. 27054.
— October 10, 2011
R. Bentz Kirby and Glenn Walters Sr., of Orangeburg, for Petitioner.Andrew F. Lindemann, of Davidson & Lindemann, of Columbia, for Respondent.Deborah J. La Fetra, of Sacramento, and Reynolds Williams, of Willcox, Buyck & Williams, of Florence, for Amicus Curiae Pacific Legal Foundation.
In this premises liability action, we are reviewing the court of appeals’ decision upholding the circuit court’s grant of summary judgment in favor of a motel and its franchisee when a guest was shot in the leg during an attempted robbery outside of his motel door. We affirm.
Facts/Procedural Background
The facts of this case are undisputed. From approximately June 1999 until the end of September 1999, Petitioner Gerald Bass was a guest at the Super 8 Motel (Super 8) in Orangeburg, South Carolina, while he and several co-workers performed refrigeration work at a local grocery store. Gopal, Incorporated (Respondent), a franchisee of Super 8, owned and operated the motel.
The Super 8 is an exterior corridor-style motel. At approximately 10:00 p.m. on the evening of September 28, 1999, Petitioner and his roommate, Wayne Kinlaw, were turning in for the evening when they received a knock at their door. The door was equipped with a peep hole, and there was a large plate glass window beside the door. Looking out the window, Kinlaw did not see anyone at the door and did not open the door. After several minutes, they heard a second knock. This time, Kinlaw and Petitioner noticed a man standing at the door—the same man Petitioner had seen earlier that evening at a convenience store across the street from the motel. Kinlaw asked the man what he wanted through the closed door. They only heard mumbling in response and did not open the door. Approximately fifteen minutes later, they received a third knock at the door. Both men got out of bed, and without looking first to see who was at the door, Kinlaw opened the door. They saw the same man standing a couple of feet from the door and both Kinlaw and Petitioner stepped outside. The man then asked Petitioner for his money, in unsavory terms. When Petitioner refused, the man shot Petitioner in the leg with a small caliber handgun and fled on foot.
In September 2002, Petitioner filed a complaint alleging negligence against both Respondent and Super 8.1Respondent and Super 8 each filed motions for summary judgment, which were granted. The court of appeals affirmed. Bass v. Gopal, Inc. and Super 8 Motels, Inc., 384 S.C. 238, 680 S.E.2d 917 (Ct.App.2009). This case is now before the Court upon grant of Petitioner’s petition for writ of certiorari, pursuant to Rule 242(a), SCACR.
Issue
I. Whether the court of appeals erred in upholding the circuit court’s finding that Respondent did not have a duty to protect Petitioner from the criminal act of a third party.Standard of Review
An appellate court reviews a grant of summary judgment under the same standard required of the circuit court under Rule 56(c), SCRCP. Edwards v. Lexington County Sheriff’s Dep’t, 386 S.C. 285, 290, 688 S.E.2d 125, 128 (2010). Rule 56(c), SCRCP, provides that summary judgment may be granted if a review of all documents submitted to the court shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. In determining whether a genuine issue of material fact exists, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 385 S.C. 452, 456, 684 S.E.2d 756, 758 (2009). In a negligence case, where the burden of proof is a preponderance of the evidence standard, the non-moving party must only submit a mere scintilla of evidence to withstand a motion for summary judgment. Hancock v. Mid–South Mgmt. Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).
Analysis
Petitioner argues the court of appeals placed too much emphasis on the lack of evidence of other crimes committed at the motel prior to the assault on Petitioner when it upheld the circuit court’s grant of summary judgment. Petitioner contends the court of appeals should have instead considered the evidence submitted as a whole, arguing the evidence, viewed in its entirety, raised a genuine issue of material fact as to whether Respondent had a duty of care with respect to Petitioner. In our opinion, Petitioner’s submissions to the circuit court provided at least a scintilla of evidence that the criminal assault on Petitioner was foreseeable. However, Petitioner offered no evidence that Respondent’s preventative measures were unreasonable under the circumstances. Therefore, we uphold the circuit court’s grant of summary judgment.
In any negligence action, the threshold issue is whether the defendant owed a duty to the plaintiff. See Daniel v. Days Inn of America, Inc., 292 S.C. 291, 295, 356 S.E.2d 129, 131 (Ct.App.1987) (stating the familiar components of a negligence action—duty, breach, causation, and damages). In South Carolina, while an innkeeper is not the insurer of safety of its guests, it is settled that an innkeeper “is under a duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm.” Allen v. Greenville Hotel Partners, Inc., 405 F.Supp.2d 653, 659 (D.S.C.2005) (quoting Courtney v. Remler, 566 F.Supp. 1225, 1231 (D.S.C.1983)). As a guest at the motel, Respondent undoubtedly had a duty to protect Petitioner on some level. The extent of that duty may be determined with an analysis of whether the innkeeper knew or had reason to know of a probability of harm to its guests. Daniel, 292 S.C. at 296, 356 S.E.2d at 132 (citing Courtney, 566 F.Supp. at 1232). Perhaps a clearer description of a business owner’s duty, then, is that a business owner has a duty to take reasonable action to protect its invitees against the foreseeable risk of physical harm.
Four basic approaches to the foreseeability issue have emerged amongst jurisdictions nationally. Miletic v. Wal–Mart Stores, Inc ., 339 S.C. 327, 331, 529 S.E.2d 68, 69 (Ct.App.2000) (citing Posecai v. Wal–Mart Stores, Inc., 752 So.2d 762, 766 (La.1999)). The first approach, considered to be somewhat outdated, is known as the imminent harm rule. Miletic, 339 S.C. at 331, 529 S.E.2d at 69. Under this rule, the landowner owes no duty to protect patrons from violent acts of third parties unless he is aware of specific and imminent harm about to befall him. Id. at 331, 529 S.E.2d at 70. This Court adopted this rule in Shipes v. Piggly Wiggly St. Andrews, Inc.:
There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises do not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises.
269 S.C. 479, 484, 238 S.E.2d 167, 169 (1977) (quoting and expounding the rule in Cornpropst v. Sloan, 528 S.W.2d 188, 198 (Tenn.1975)) (emphasis supplied). This standard has been criticized as imposing too minimal a duty on business owners to protect patrons. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972 (Ind.1999); McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 902 (Tenn.1996). Since adopting this standard, Tennessee has replaced its imminent harm rule with the balancing test, discussed below. McClung, 937 S.W.2d at 902.
A second approach is the prior or similar incidents test. Miletic, 339 S.C. at 331, 529 S.E.2d at 70 (citing Posecai, 752 So.2d at 765). This is the test urged by Respondent, and in our view, is the test applied by the circuit court and court of appeals in this case. Under this test, foreseeability may only be established by evidence of previous crimes on or near the premises. Id. Courts following this test will consider the nature and extent of previous crimes, their frequency, recency, and similarity to the crime at issue. Id. With this approach, some courts require that prior crimes be of the same general type and nature as the offense at issue, see, e.g., Taylor v. Hocker, 428 N.E.2d 662, 664–65 (Ill.App.Ct.1981) (holding that previous crimes against property were insufficient to put the landowner on notice of personal assaults against its patrons), while others will impose a duty to protect patrons based on past crimes of any type, see, e.g ., Polomie v. Golub Corp., 640 N.Y.S.2d 700, 701 (N.Y.App.Div.1996) (“[T]here is no requirement that the past experience relied on to establish foreseeability be of the same type of criminal conduct to which plaintiff was subjected․”). The prior incidents test offers the same advantages as the imminent harm test—it prevents businesses from effectively becoming the insurer of the public’s safety. However, for the following reasons, we do not believe evidence of prior criminal incidents should be the sine qua non of determining the foreseeability required to establish a duty:
First, the rule leads to results which are contrary to public policy․ [U]nder the rule, the first victim always loses, while subsequent victims are permitted recovery. Such a result is not only unfair, but is inimical to the important policy of compensating injured parties. Surely, a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.
Second, a rule which limits evidence of foreseeability to prior similar criminal acts leads to arbitrary results and distinctions. Under this rule, there is uncertainty as to how “similar” the prior incidents must be to satisfy the rule. The rule raises a number of other troubling questions. For example, how close in time do the prior incidents have to be? How near in location must they be? The rule invites different courts to enunciate different standards of foreseeability based on their resolution of these questions.
Third, the rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts․ The mere fact that a particular kind of an accident has not happened before does not ․ show that such accident is one which might not reasonably have been anticipated. Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.
Isaacs v. Huntington Mem’l Hosp., 695 P.2d 653, 658–59 (Cal.1985) (internal citations and quotations omitted); see also Michael J. Yelnosky, Comment, Business Inviters’ Duty to Protect Invitees from Criminal Acts, 134 U. Pa. L.Rev. 883, 905 (1986) (observing that the prior similar acts test produces “extraordinarily arbitrary results” and “denies ․ compensation to the first victim”).
A majority of jurisdictions have adopted the totality of the circumstances approach in an effort to prevent the “rigid application of a mechanical” prior incidents rule. Isaacs, 695 P.2d at 659; see also District of Columbia v. Doe, 524 A.2d 30, 33 (D.C.1987); Seibert v. Vic Regnier Builders, Inc., 856 P.2d 1332, 1339 (Ariz.1993); Doud v. Las Vegas Hilton Corp., 864 P.2d 796, 802 (Nev.1993); Clohesy v. Food Circus Supermarkets, Inc., 694 A.2d 1017, 1023–24 (N.J.1997); Reitz v. May Co. Dept. Stores, 583 N.E.2d 1071, 1074 (Ohio Ct.App.1990). Under this test, courts will consider all relevant factual circumstances, “including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.” Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972 (Ind.1999). Therefore, “[t]he lack of prior similar incidents will not preclude a claim where the landowner knew or should have known that the criminal act was foreseeable.” Id. at 973. This test is the broadest of the four approaches.
Because of its broad applicability, the totality of the circumstances approach has been subject to criticism. See Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207, 215 (Cal.1993) (noting that, at the time, it was the only jurisdiction employing the standard); McClung, 937 S.W.2d at 900 (“[T]he totality approach arguably requires businesses to implement expensive security measures (with costs passed on to consumers) and makes them the insurers of customer safety, two results which courts seek to avoid.”); Uri Kaufman, When Crime Pays: Business Landlord’s Duty to Protect Customers from Criminal Acts Committed on the Premises, 31 S. Tex. L.Rev. 89, 112 (1990) (stating the totality approach’s effect is to impose an unqualified duty on businesses in high crime areas to provide elaborate security). The Supreme Court of Tennessee expressed concern over the natural consequence of this test in McClung v. Delta Square Limited Partnership: “[b]usinesses may react by moving from poorer areas where crime rates are often the highest. Not surprisingly then, the totality of the circumstances test has been described as ‘imprecise,’ ‘unfair,’ and ‘troublesome’ because it makes liability for merchants even less predictable than under the prior incidents rule.” 937 S.W.2d at 900 (citations omitted). We note that, in McClung, the Supreme Court of Tennessee abandoned the imminent harm test put forth in Cornpropst v. Sloan, the case on which this Court relied in Shipes. We, too, believe that a totality of the circumstances test shifts too great a burden on business owners, and effectively requires businesses to anticipate crime by virtue of the unfortunate fact that crime is endemic in today’s society.
The fourth and final approach adopted by courts is the balancing test; an approach originally formulated by the California Supreme Court, Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207, 214–15 (1993), and that has since been adopted by the supreme courts of Tennessee, McClung, 937 S.W.2d at 902, and Louisiana, Posecai, 752 So.2d at 768. See also Krier v. Safeway Stores 46, Inc., 943 P.2d 405, 415 (Wy.1997) (approving of McClung’s balancing test but not expressly adopting). “The balancing approach acknowledges that duty is a flexible concept, and seeks to balance the degree of foreseeability of harm against the burden of the duty imposed.” McClung, 937 S.W.2d at 901 (citing Ann M., 863 P.2d at 215). As such, the more foreseeable a crime, the more onerous is a business owner’s burden of providing security. McClung, 937 S.W.2d at 901. Under this test, the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner, but their absence does not foreclose the duty to provide some level of security if other factors support a heightened risk. Simply put by Judge Posner of the United States Court of Appeals for the Seventh Circuit, “the hotel should increase its expenditures on security until the last dollar buys a dollar in reduced expected crime costs ․ to the hotel’s guests.” Shadday v. Omni Hotels Mgmt. Corp., 477 F.3d 511, 514 (7th Cir.2007).
At least one court has criticized the balancing test as bleeding the line between duty and breach. See Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973 (Ind.1999) (adopting the totality of the circumstances instead of the balancing test because the reasonableness of a business owner’s precautions “is basically a breach of duty evaluation and is best left for the jury to decide.”). We note this concern, but believe the heavy burden imposed on businesses by the totality of the circumstances approach requires narrowing, and duty can be a flexible concept. As the foreseeability of potential harm increases, so, too, does the duty to prevent against it. Indeed, our courts have consistently imposed a duty on business owners to employ reasonable measures to protect invitees from foreseeable harm. See Allen v. Greenville Hotel Partners, Inc., 405 F.Supp.2d 653, 659 (D.S.C.2005) (business owner has a “duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm”). In adopting a balancing approach, we do not alter this duty, but merely elucidate how to determine (1) if a crime is foreseeable, and (2) given the foreseeability, determine the economically feasible security measures required to prevent such harm. The optimal point at which a dollar spent equals a dollar’s worth of prevention will not always be apparent, but may be roughly ascertained with the aid of an expert, or some other testimony. Shadday, 477 F.3d at 514. As opposed to the imminent harm, prior incidents, or totality of circumstances tests, we believe the balancing approach appropriately weighs both the economic concerns of businesses, and the safety concerns of their patrons. In replacing our imminent harm test with a balancing test, we hope to “encourage[ ] a reasonable response to the crime phenomenon without making unreasonable demands.” McClung, 937 S.W.2d at 902.
We turn now to the facts of the instant case. The circuit judge found Defendants owed no duty of care to protect Petitioner from the criminal act of a third party because Petitioner did not demonstrate Defendants knew or had any reason to know an assault against Petitioner would occur. The circuit court determined this based on Petitioner’s failure to provide the court with specific instances of criminal activity on the premises prior to the September 28, 1999 incident.
Petitioner was unable to supply a report of criminal incidents at the Super 8 prior to the attack on Petitioner.2However, Petitioner produced a CRIMECAST report3 that showed, in 1999, the risk of crimes against persons at the Super 8 was 3.5 times the national average risk, nearly twice the state average risk, but slightly less than the county risk. The risk of rape and robbery at the Super 8 was above the county average, according to the report. Petitioner also submitted a report indicating the robbery rate in Orangeburg County in 1999 exceeded the state benchmark by approximately 190 percent. Specifically, from January 1, 1999, through September 30, 1999, 160 aggravated assaults and 60 robberies occurred county-wide.
We do not believe evidence of an elevated crime rate covering the expanse of an entire county, on its own, is sufficient to prove foreseeability by a preponderance of the evidence. Such a finding would diminish a business’s economic incentive to expand into higher crime counties, which arguably are in the greatest need of commercial stimulus. However, we are not prepared to say crime forecasting tools, such as the CRIMECAST report, bear no probative value. The weight given to CRIMECAST reports in determining foreseeability varies nationally. Compare Shadday v. Omni Hotel Mgmt. Corp., 2006 WL 693680 (S.D.Ind.2006) (finding a CRIMECAST report showing the risk of rape as 3.5 times higher than the national average did not prove foreseeability sufficient to survive summary judgment), and Ali v. Dao, 2009 WL 2567995 (N.J.Super.A.D.2009) (finding high CAP index was not sufficient evidence to prove foreseeability), with Whitt v. Wal–Mart Stores East, L.P., 2010 WL 1416756 (E.D.Ky.2010) (a low CAP index for violent crimes indicated a low risk of a violent crime in Wal–Mart parking), and Currie v. Chevron USA, Inc., 2006 WL 5249707 (N.D.Ga.2006) (CRIMECAST report was sufficient to establish lack of foreseeability). In citing these cases, we note federal courts require more from a non-moving party to survive summary judgment than do our state courts. In this case, the especial high probability of crime at the Super 8 compared to the national and state averages raised at least a scintilla of evidence that the crime against Petitioner was foreseeable. We recognize that, according to the report, the risk of an aggravated assault occurring at the Super 8 was slightly lower than the county-wide risk. However, the risk of robbery and rape at the Super 8 was above the county average, and the security measures required to curb robbery, rape, and aggravated assault are arguably similar. Based on the foregoing, we believe Petitioner produced at least some evidence the aggravated assault was foreseeable.
In so finding, this Court must determine whether Petitioner provided any evidence Respondent’s preventative actions were unreasonable given this risk. Petitioner asserts Respondent should have either hired a security guard to patrol the premises or installed a roving camera security system. In our view, the hiring of security personnel is no small burden. Considering a business’s economic interest, it is difficult to imagine an instance where a business would be required to employ costly security guards in the absence of evidence of prior crimes on the premises. However, a business, such as this one, in a high crime area without evidence of prior criminal incidents may be required to institute less costly measures to offset an elevated risk of harm, such as installing extra lighting, fences, locks, or security cameras, or simply training existing personnel on best security practices.
As part of the balancing approach we adopt, a determination of whether a business proprietor’s security measures were reasonable in light of a risk will, at many times, be identified by an expert. Petitioner’s expert visited the Super 8 on three occasions, both during the day and night time, to observe the neighborhood and physical layout of the motel. He determined Respondent provided adequate lighting at its facility and the physical hardware on the door was within industry standards. However, the expert concluded the addition of a closed circuit camera or some type of additional security personnel would have been reasonable in light of his perceived risk. The expert based his risk perception at the site primarily upon criminal incident data he gathered from 2000 to 2004, after the assault on Petitioner took place. Determinative of this case, in our opinion, is the expert’s testimony that “if ․ this is [the] first time [a criminal incident occurred], there wasn’t enough data for [Respondent] to say he really needed to spend a bunch of money on surveillance cameras, a bunch of money on a full-time security guard or part-time, or train his employees to do a guard tour․” This expert’s testimony was the only evidence supplied by Petitioner that spoke to the reasonableness of Respondent’s precautions.4 Even casting all evidence in a light most favorable to the Petitioner, he failed to provide any evidence that Respondent should have expended more resources to curtail the risk of criminal activity that might have been probable. Therefore, we find the court of appeals’ decision upholding the circuit court’s grant of summary judgment was proper.
Conclusion
Today, we adopt the balancing approach to determining foreseeability in the context of whether a business owner has a duty to protect its invitees from criminal acts of third parties. We believe this test appropriately strikes a balance between the economic concerns of businesses and the safety concerns of the public. Even with all reasonable inferences from the evidence cast in favor of Petitioner, we find Petitioner did not provide the circuit court any evidence that Respondent’s security measures were unreasonable given the risk of criminal activity on the property. Therefore, the circuit court’s grant of summary judgment is
AFFIRMED.
I concur in the majority’s decision to affirm the Court of Appeals’ decision upholding the circuit court’s grant of summary judgment, but would do so on the ground that petitioner’s negligence in leaving the safety of his motel room exceeded respondent’s negligence, if any, as a matter of law. See Bass v. GO PAL, Inc., 384 S.C. 238, 247, 680 S.E.2d 917, 921–922 (Ct.App.2009).
The Court of Appeals held that, under existing South Carolina law, an innkeeper owes a duty to her guests “to provide ․ reasonable protection against injuries from criminal acts, and the actual amount of protection depends on the amount and types of criminal activity that have previously occurred on the premises.” Bass, at 245, 680 S.E.2d at 245, fn. 4. The court distinguished this specialized innkeeper duty from that of a merchant, whose duty to protect customers from third party criminal acts is limited to those which the merchant has actual or constructive knowledge are, or are about to, occur. Id. [citing Miletic v. Wal–Mart Stores, Inc., 339 S.C. 327, 529 S.E.2d 68 (Ct.App.2000) ].
While I appreciate the majority’s scholarly approach to the issues of duty and foreseeability, I perceive little difference between our existing law, and the test adopted by the majority, other than a requirement for expert testimony, and reliance upon city/county statistics. Like the Court of Appeals, I would hold that since there is no duty imposed upon business owners to conduct a crime analysis, there is no reason to impute knowledge of the CRIMECAST report to respondent, and further that these types of city/county statistical reports are irrelevant to determining an innkeeper’s duty. I would not alter our existing law, but were I to do so, I would remand to permit the parties an opportunity to meet the newly announced test.
Because I would hold that the Court of Appeals correctly affirmed the grant of summary judgment on the comparative negligence ground, I concur in the result reached by the majority.
FOOTNOTES
1. The appeal against Super 8 has been dismissed. In describing the procedural history preceding this appeal, we refer to Super 8 and Gopal collectively as Defendants.
2. The Orangeburg County Department of Public Safety only has records dating back to 2000 because of a software change in 2000 that deleted records prior to that time. Instead, Petitioner’s expert supplied the circuit court with a crime incident report at the Super 8 showing three robberies, two aggravated assaults, and four simple assaults occurred on the property from 2000 to 2004.
3. “The CRIMECAST model produces probability measures that place any location in the United States in context with national, state and county levels of criminality.” The crimes against persons (CAP) index represents the overall risk of homicide, rape, robbery, and aggravated assault.
4. The affidavit of another expert supplied by Petitioner merely agreed with the first expert’s assessment as it related to the precautionary measures required of Respondent.
Justice PLEICONES:
BEATTY, KITTREDGE and HEARN, JJ., concur.PLEICONES, J., concurring in a separate opinion.
Jan 21, 2012 | DUI & DWI, Uncategorized
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THE STATE OF SOUTH CAROLINA
In The Supreme Court
The Town of Mt. Pleasant, Appellant, v. Treva Roberts, Respondent.
Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge
Opinion No. 27005
Heard June 7, 2011 – Filed July 11, 2011
AFFIRMED AS MODIFIED
Charles Mac Gibson, Jr., of Charleston, and Ira A. Grossman, of Mt. Pleasant, for Appellant.
Diedreich P. von Lehe, III, of Charleston, for Respondent.
JUSTICE BEATTY: The Town of Mount Pleasant (“Town”) appeals the circuit court’s order reversing and dismissing Treva Roberts’s municipal court conviction for driving under the influence (“DUI”)[1] on the ground the arresting officer’s vehicle was not equipped with a video camera pursuant to section 56-5-2953 of the South Carolina Code.[2] The Town contends the circuit court erred in: (1) ruling on the appeal as it was divested of appellate jurisdiction given Roberts failed to obtain a bond or pay her court-ordered fine prior to initiating her appeal; and (2) “narrowly construing” section 56-5-2953 to require the reversal of Roberts’s DUI conviction and dismissal of the charge. We affirm as modified.
I. FACTUAL/PROCEDURAL HISTORY
On November 11, 2007, at approximately 1:00 a.m., Officer Bruce Burbage of the Town of Mount Pleasant’s Police Department conducted a traffic stop of Roberts after observing her driving erratically. As a result of his initial observations, Officer Burbage conducted three field sobriety tests, on which he noted Roberts “performed pretty poorly.”
Subsequently, Officer Burbage arrested Roberts for DUI and transported her to the Mount Pleasant Police Department where Roberts was offered, but refused, a breathalyzer test. There was no recording of the initial traffic stop, field sobriety tests, or the arrest as neither Officer Burbage’s vehicle nor the backup officer’s was equipped with a video camera.[3]
In response to Roberts’s discovery motions,[4] which included a request for production of the incident site videotape, the Town’s prosecutor forwarded an “Affidavit for Failure to Produce Videotape” executed by Officer Burbage on October 16, 2009. The affidavit, a form generated by the Town, included a “checked” box that stated: At the time of the Defendant’s arrest the vehicle I was operating had not been equipped with a videotaping device and therefore pursuant to Section 18 of Senate Bill 174 of 1998,[5] the videotaping requirement regarding vehicles is not applicable.
On October 30, 2009, a municipal court judge conducted a jury trial on Roberts’s DUI charge. Prior to trial, Roberts moved to dismiss the charge based on Officer Burbage’s failure to videotape the entire arrest pursuant to section 56-5-2953. Roberts asserted that section 56-5-2953 conferred upon her a statutory right to have the roadside arrest videotaped. Because Officer Burbage failed to comply with the statutorily-mandated procedure, Roberts claimed this violation warranted the dismissal of her DUI charge. The motion to dismiss was denied.
The Town relied on subsection (G) of the statute for the proposition that the videotaping requirement took effect only “once the law enforcement vehicle is equipped with a videotaping device.”[6] Because Officer Burbage’s vehicle was not equipped with a video camera, the Town argued that the videotaping provisions of section 56-5-2953 were inapplicable and, thus, the failure to videotape Roberts’s arrest did not warrant the dismissal of the DUI charge.[7]
In support of her motion, Roberts called several law enforcement officers from Charleston, Berkeley, and Dorchester counties in an attempt to establish that the Town had fewer video cameras than other municipalities despite the Town’s significantly higher number of DUI arrests.[8] Given these statistics, Roberts argued that the Town had willfully avoided complying with the 1998 statute as it had not requested from the South Carolina Department of Public Safety (DPS) additional video cameras in response to the increasing number of DUI arrests. Roberts also offered evidence that the Town was financially able to purchase additional video cameras, but had chosen not to do so.[9]
The Town countered Roberts’s arguments by claiming that DPS was solely responsible for providing the video cameras and, thus, the Town did not have a duty to request or purchase additional cameras in order to comply with the statute.[10]
At the conclusion of the pre-trial hearing, the municipal court judge denied Roberts’s motion to dismiss based on a “strict interpretation” of section 56-5-2953. In his written return, the judge concluded that “there is no requirement that the Town of Mount Pleasant obtain any video cameras and that the statute only provides what the Town must do once they get the video cameras on board.” Further, the judge ruled that “Section 56-5-2953(G) indicated that the other provisions of [the statute] take effect . . . once the vehicle is equipped with a [videotaping] device.”
Roberts was convicted and appealed her conviction to the circuit court, arguing the municipal court judge erred in denying her motion to dismiss the charge based upon the Town’s failure to comply with the “mandatory” videotaping provisions of section 56-5-2953.
The Town moved to dismiss the appeal for lack of jurisdiction based on Roberts’s failure to obtain a bond or pay the court-ordered fine prior to initiating the appeal. The Town contended the circuit court was without jurisdiction to rule on the appeal given Roberts did not comply with the procedural requirements of section 14-25-95 of the South Carolina Code,[11] which governs appeals from municipal court to circuit court.
The circuit court judge issued a written order in which it reversed Roberts’s DUI conviction and dismissed the charge. The judge initially determined that it had “subject matter jurisdiction” to hear the appeal. In so ruling, the judge found jurisdiction was vested in the circuit court when Roberts timely filed and served her notice of appeal as required by section 14-25-95. The judge further concluded that Roberts’s “non-entry into a bond and non-payment of the fine assessed [did] not deprive [the court] of the subject matter jurisdiction.” Additionally, the judge held that all issues with respect to the non-entry into a bond or non-payment of the fine were moot as Roberts had appeared at the hearing and paid her fine the day of the hearing.
As to the merits of Roberts’s appeal, the judge specifically found that the videotaping requirements of section 56-5-2953 were mandatory based on this Court’s decision in City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007).[12] Interpreting subsection (G) of the statute, the judge concluded that this provision was “merely to provide a reasonable grace period for law enforcement agencies to equip their vehicles with video recording devices.” The judge explained that to construe subsection (G) as proposed by the Town would permit law enforcement agencies to “successfully circumvent [the statute’s videotaping requirements] ad infinitum” by not requesting video cameras from DPS.
The judge also ruled that the Town’s failure to produce a videotape of Roberts’s conduct at the incident site was not “excused” as none of the enumerated exceptions in subsection (B) of section 56-5-2953[13] were satisfied.
The judge concluded that the Town’s failure to comply with the videotaping requirements a decade after the enactment of section 56-5-2953 was “unreasonable” and constituted a violation of the statute that warranted the reversal of Roberts’s conviction and the dismissal of the DUI charge.
The Town appealed the circuit court’s order to the Court of Appeals. This Court certified the case from the Court of Appeals pursuant to Rule 204(b), SCACR.
II. Discussion
A. Standard of Review
“In criminal appeals from a municipal court, the circuit court does not conduct a de novo review; rather, it reviews the case for preserved errors raised to it by an appropriate exception.” City of Cayce v. Norfolk S. Ry. Co., 391 S.C. 395, 399, 706 S.E.2d 6, 8 (2011); see S.C. Code Ann. § 14-25-105 (Supp. 2010) (“There shall be no trial de novo on any appeal from a municipal court.”).“Therefore, our scope of review is limited to correcting the circuit court’s order for errors of law.” Suchenski, 374 S.C. at 15, 646 S.E.2d at 880.
B. Appellate Jurisdiction
As a threshold matter, we must address the Town’s jurisdictional challenge as any defect in the circuit court’s appellate jurisdiction would necessarily affect this Court’s jurisdiction to rule on the Town’s appeal.
The Town asserts the circuit court judge erred in characterizing its jurisdictional challenge as one that implicated subject matter jurisdiction rather than appellate jurisdiction. The Town avers the circuit court judge did not have appellate jurisdiction to rule on Roberts’s appeal given Roberts failed to either pay the court-ordered fine or obtain a bond prior to initiating her appeal to the circuit court. Under the Town’s interpretation of section 14-25-95, the circuit court could only be vested with appellate jurisdiction if one of the above-listed prerequisites was satisfied.
Because our analysis of this issue and the Town’s second issue is dependent upon our evaluation of the applicable statutes, we begin with an overview of this state’s well-established rules of statutory construction.
1.
“The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.” Bryant v. State, 384 S.C. 525, 529, 683 S.E.2d 280, 282 (2009). When a statute is penal in nature, it must be strictly construed against the State and in favor of the defendant. State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991). However, “[a]ll rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute.” State v. Sweat, 386 S.C. 339, 351, 688 S.E.2d 569, 575 (2010) (citation omitted).
In ascertaining legislative intent, “a court should not focus on any single section or provision but should consider the language of the statute as a whole.” Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Where the statute’s language is plain, unambiguous, and conveys a clear, definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning. Gay v. Ariail, 381 S.C. 341, 345, 673 S.E.2d 418, 420 (2009).
If the statute is ambiguous, however, courts must construe the terms of the statute. Lester v. S.C. Workers’ Comp. Comm’n, 334 S.C. 557, 561, 514 S.E.2d 751, 752 (1999). “A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.” Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606-07 (2006). In interpreting a statute, the language of the statute must be read in a sense that harmonizes with its subject matter and accords with its general purpose. Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992).
“Any ambiguity in a statute should be resolved in favor of a just, equitable, and beneficial operation of the law.” Bennett v. Sullivan’s Island Bd. of Adjustment, 313 S.C. 455, 458, 438 S.E.2d 273, 274 (Ct. App. 1993). Courts will reject a statutory interpretation that would lead to a result so plainly absurd that it could not have been intended by the Legislature or would defeat the plain legislative intention. Unisun Ins. Co. v. Schmidt, 339 S.C. 362, 368, 529 S.E.2d 280, 283 (2000).
2.
As an initial matter, we agree with the Town’s argument that the circuit court judge erred in classifying the jurisdictional challenge as one of subject matter jurisdiction. See Great Games, Inc. v. S.C. Dep’t of Revenue, 339 S.C. 79, 83 n.5, 529 S.E.2d 6, 8 n.5 (2000) (“The failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of ‘appellate’ jurisdiction over the case, but it does not affect the court’s subject matter jurisdiction.”); see also State v. Brown, 358 S.C. 382, 596 S.E.2d 39 (2004) (recognizing that failure to timely appeal a conviction from magistrate court does not implicate subject matter jurisdiction).
Clearly, the circuit court had subject matter jurisdiction to hear and determine Roberts’s appeal from her municipal court conviction as the Legislature has specifically authorized it to do so. See S.C. Code Ann. § 14-5-340 (1977) (“Circuit judges may hear appeals from magistrates’ courts and municipal courts to the court of general sessions and the court of common pleas, upon notice as required by law being given for the hearing of such appeals.”); S.C. Const. art. V, § 11 (“The Circuit Court shall be a general trial court with original jurisdiction in civil and criminal cases, except those cases in which exclusive jurisdiction shall be given to inferior courts, and shall have such appellate jurisdiction as provided by law.”).
As for the circuit court’s appellate jurisdiction, we find that Roberts properly met the prerequisites of section 14-25-95. Pursuant to this Code section, Roberts was required to file her notice of appeal with the municipal court “within ten days after sentence is passed or judgment rendered, or the appeal is considered waived.” Id. § 14-25-95. There is no dispute that Roberts timely filed her appeal with the municipal court. Having met this procedural prerequisite, the circuit court was vested with appellate jurisdiction to determine Roberts’s appeal. Cf. Town of Hilton Head Island v. Goodwin, 370 S.C. 221, 224, 634 S.E.2d 59, 61 (Ct. App. 2006) (“A party who fails to timely appeal or take any other timely action necessary to correct an error is procedurally barred from contesting the validity of the conviction.”).
Unlike the Town, we do not believe the circuit court was divested of appellate jurisdiction because Roberts failed to obtain a bond or pay her court-ordered fine prior to filing her notice of appeal with the municipal court. These two provisions of section 14-25-95 do not implicate jurisdiction as there is no temporal restriction in that sentence of the statute. Instead, these provisions serve the purpose of insuring that an appellant will appear for the hearing before the circuit court. If an appellant fails to comply with these provisions, the municipality may issue a bench warrant to address any delinquency on the part of the appellant.
Finally, we note that Roberts appeared at the hearing and paid her fine; therefore, any related issue is moot. See Linda Mc Company, Inc. v. Shore, 390 S.C. 543, 557, 703 S.E.2d 499, 506 (2010) (“A case becomes moot when judgment, if rendered, will have no practical legal effect upon the existing controversy. This is true when some event occurs making it impossible for the reviewing Court to grant effectual relief.” (citations omitted)).
C. Reversal of DUI conviction/Dismissal of DUI charge
Having found that the circuit court was vested with appellate jurisdiction, we must next decide whether the Town’s violation of the videotaping provisions of section 56-5-2953 warranted the reversal of Roberts’s DUI conviction and the dismissal of the charge.
Although this is the specific question presented, we believe there is a more fundamental question to consider in analyzing section 56-5-2953: if the Legislature imposes a statutory obligation on the State to create evidence and provides a sanction for inexcusable noncompliance, does the State’s failure to do so necessarily warrant a per se dismissal of the accused’s case?
Up until this point, our appellate courts have affirmatively answered this question when a law enforcement agency inexcusably failed to videotape a DUI arrest with an existing video camera. In the instant case, the Town failed to create a videotape of Roberts’s DUI arrest because the patrol vehicle had never been equipped with a video camera.
The Town argues the circuit court judge erred in construing section 56-5-2953 to require the dismissal of Roberts’s DUI charge on the basis that the arresting officer’s vehicle was not equipped with a video camera.
Applying the rules of statutory construction, the Town maintains that in promulgating section 56-5-2953 the Legislature clearly provided for instances where an incident site videotape would not be available as demonstrated by certain statutory exceptions.[14] Furthermore, because the Legislature mandated in subsection (D) that DPS would supply the video cameras, the Town claims that it was not obligated to purchase or request additional videotape equipment; thus, its failure to equip Officer Burbage’s vehicle with a camera rendered the mandatory provisions of section 56-5-2953 inapplicable pursuant to subsection (G).
The key case in the analysis of this issue is City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007). In Suchenski, the defendant was convicted in municipal court for driving with an unlawful alcohol concentration (DUAC). Id. at 14, 646 S.E.2d at 879. On appeal, the circuit court reversed the conviction based on the City of Rock Hill’s failure to videotape the defendant’s entire arrest as the arresting officer’s camera “ran out of tape.” Id. The circuit court did not address whether the arresting officer’s failure to comply with section 56-5-2953 was excused pursuant to an exception in subsection (B) of the statute. Id. at 14, 646 S.E.2d at 880.
This Court affirmed the circuit court’s decision. In so ruling, we found that any argument concerning the exceptions for noncompliance in section 56-5-2953(B) was not preserved as the circuit court had not ruled on this issue and the City of Rock Hill had not sought a post-judgment ruling regarding this issue. Id. at 16, 646 S.E.2d at 880. We also rejected the City of Rock Hill’s contention that a violation of the videotaping statute should not result in dismissal of a charge if there was no showing of prejudice to the defendant. Id. at 16, 646 S.E.2d at 881. We found the plain language of the statute provided that the “failure to produce videotapes would be a ground for dismissal if no exceptions apply.” Id.
Although the decision in Suchenski indisputably established that the videotaping provisions of section 56-5-2953 are mandatory and not optional, we did not address whether the failure to comply with the statute could be excusable if the law enforcement vehicle was never equipped with a camera. Specifically, we were not required to assess the import of subsection (G) with respect to the statutory exceptions of subsection (B).
Subsection (B) of section 56-5-2953 outlines several statutory exceptions that excuse noncompliance with the mandatory videotaping requirements. Noncompliance is excusable: (1) if the arresting officer submits a sworn affidavit certifying the video equipment was inoperable despite efforts to maintain it; (2) if the arresting officer submits a sworn affidavit that it was impossible to produce the videotape because the defendant either (a) needed emergency medical treatment or (b) exigent circumstances existed; (3) in circumstances including, but not limited to, road blocks, traffic accidents, and citizens’ arrests; or (4) for any other valid reason for the failure to produce the videotape based upon the totality of the circumstances.
Our appellate courts have strictly construed section 56-5-2953 and found that a law enforcement agency’s failure to comply with these provisions is fatal to the prosecution of a DUI case. See Suchenski; 374 S.C. at 17, 646 S.E.2d at 881 (holding that “dismissal of the DUAC charge is an appropriate remedy provided by section 56-5-2953 where a violation of subsection (A) is not mitigated by subsection (B) exceptions”); Murphy v. State, Op. No. 4816 (S.C. Ct. App. filed Apr. 6, 2011) (Shearouse Adv. Sh. No. 13 at 49) (recognizing the State’s noncompliance with section 56-5-2953, which is not mitigated by a statutory exception, warranted dismissal; holding that video complied with section 56-5-2953(A) even though it did not capture a continuous full view of the accused at the incident site (citing Suchenski)).
Although our appellate courts have acknowledged these statutory “escape valves,” they have so far considered their application only where a law enforcement agency failed to create a video recording of the DUI arrest because the video camera malfunctioned. Our courts, however, have not analyzed whether these exceptions apply where the law enforcement vehicle has never been equipped with a video camera as in the instant case.
Taking into consideration the purpose of section 56-5-2953, which is to create direct evidence of a DUI arrest, we find the Town’s protracted failure to equip its patrol vehicles with video cameras, despite its “priority” ranking, defeats the intent of the Legislature and violates the statutorily-created obligation to videotape DUI arrests. Accordingly, we do not believe that the Town should be able to continually evade its duty by relying on subsection (G) of section 56-5-2953. Thus, we hold that the Town’s failure to equip its patrol vehicles does not negate the application of the statutory exceptions in subsection (B).
Under the specific facts of this case, we find the Town failed to satisfy any of the above-outlined statutory exceptions. Significantly, the Town conceded in municipal court and before the circuit court that the initial three exceptions did not apply and could not justify its failure to videotape Roberts’s DUI arrest.
Thus, the only feasible exception is that there was a “valid reason” for the Town’s failure to comply with the mandatory videotaping requirements. Although the Town did not explicitly reference this provision, it argued that Officer Burbage’s patrol vehicle was not equipped with a video camera because DPS had not supplied the Town with a sufficient number of cameras and the Town was not obligated to expend funds to purchase the cameras.
As we interpret the circuit court judge’s order, we do not discern a ruling that the Town was obligated to purchase the cameras with its own funds. Instead, the circuit court judge imposed an obligation on the Town to request additional video cameras given the Town’s “high ranking” for DUI arrests as compared to other municipalities.
Consequently, the question becomes whether the Town’s failure to request additional video cameras constituted a “valid reason for the failure to produce the videotape based upon the totality of the circumstances.” Id. § 56-5-2953(B). We find the Town’s explanation is disingenuous given its significantly higher number of DUI arrests as compared to smaller municipalities.[15] Moreover, the Town’s interpretation of subsection (G) is nonsensical as the requirements of section 56-5-2953 could be circumvented in perpetuity if a law enforcement agency purposefully does not request additional video cameras.
Admittedly, the Legislature was silent with respect to a time requirement for when vehicles must be equipped with video cameras. However, applying the rules of statutory construction, we find the Town’s interpretation would defeat the legislative intent of section 56-5-2953 and the overall DUI reform enacted in 1998.
Finding that neither subsection (G) nor the statutory exceptions in subsection (B) excuse the Town’s noncompliance with section 56-5-2953, the question becomes whether the failure to videotape a DUI arrest warrants a per se dismissal of the DUI case or whether, as the Town contends, the accused must establish that he or she was prejudiced.
As evidenced by this Court’s decision in Suchenski, the Legislature clearly intended for a per se dismissal in the event a law enforcement agency violates the mandatory provisions of section 56-5-2953. Notably, the Legislature specifically provided for the dismissal of a DUI charge unless the law enforcement agency can justify its failure to produce a videotape of a DUI arrest. Id. § 56-5-2953(B) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930 . . . if [certain exceptions are met].”). The term “dismissal” is significant as it explicitly designates a sanction for an agency’s failure to adhere to the requirements of section 56-5-2953.
Furthermore, it is instructive that the Legislature has not mandated videotaping in any other criminal context. Despite the potential significance of videotaping oral confessions, the Legislature has not required the State to do so. By requiring a law enforcement agency to videotape a DUI arrest, the Legislature clearly intended strict compliance with the provisions of section 56-5-2953 and, in turn, promulgated a severe sanction for noncompliance.
Thus, we hold that dismissal is the appropriate sanction in the instant case as this was clearly intended by the Legislature and previously decided by this Court in Suchenski.
Our decision should in no way be construed as eradicating subsection (G) of section 56-5-2953. Instead, we emphasize that subsection (G) is still viable and must be read in conjunction with subsection (B) as these exceptions, under the appropriate factual circumstances, could operate to excuse a law enforcement agency’s noncompliance due to the failure to equip a patrol vehicle with a video camera. For example, we can conceive of a scenario where a law enforcement agency establishes a “valid reason” for failing to create a video of the incident site by offering documentation that, despite concerted efforts to request video cameras, it has not been supplied with the cameras from DPS.
III. Conclusion
In conclusion, the circuit court judge erred in classifying the Town’s jurisdictional challenge as one involving subject matter jurisdiction. Because Roberts timely served her notice of appeal on the municipal court, she met the procedural requirements of section 14-25-95; thus, her failure to obtain a bond or pay the court-ordered fine did not divest the circuit court of appellate jurisdiction.
As to the merits, we find the Town’s prolonged failure to equip its patrol vehicles with video cameras defeats the intent of the Legislature; therefore, the Town should not be able to avoid its statutorily-created obligation to produce a videotape by repeatedly relying on subsection (G) of section 56-5-2953. Because the Town failed to establish any statutory exception to excuse its noncompliance, we hold the circuit court judge correctly reversed Roberts’s DUI conviction and dismissed the charge. Accordingly, we affirm as modified the decision of the circuit court judge.
AFFIRMED AS MODIFIED.
TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.
[1] S.C. Code Ann. § 56-5-2930 (2006).
[2] Section 56-5-2953 provides in relevant part:
(A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site videotaped
(1) The videotaping at the incident site must:
(a) begin not later than the activation of the officer’s blue lights and conclude after the arrest of the person for a violation of Section 56-5-2930, 56-5-2933, or a probable cause determination that the person violated Section 56-5-2945; and (b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.
S.C. Code Ann. § 56-5-2953 (2006). This section was amended effective February 10, 2009. Act No. 201, 2008 S.C. Acts 1682-85. Accordingly, we have cited to the 2006 Code as the amended statute is not applicable to the instant case.[3] At the time of Roberts’s arrest, the “best case scenario” was that only two of the Town’s twelve police department vehicles on patrol that night were camera-equipped. According to the annual inventory records of the South Carolina Department of Public Safety, the Town in 2007 had a total of seven in-car camera systems, of which one was acquired in 2001 and the remaining six in 2002.[
4] Brady v. Maryland, 373 U.S. 83 (1963); Rule 5, SCRCrimP.
[5] Section 18 provides in relevant part:
The provisions in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement as soon as the law enforcement vehicle used for traffic enforcement is equipped with a videotaping device.
Act No. 434, 1998 S.C. Acts 3236.
[6] Subsection (G) provides in pertinent part:
The provisions contained in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement once the law enforcement vehicle is equipped with a videotaping device.
Id. § 56-5-2953(G).
[7] As will be discussed, this argument would be valid but for the Town’s obvious intentional efforts to avoid complying with section 56-5-2953.
[8] According to records produced by the South Carolina Law Enforcement Division (SLED), the Town made 2,796 DUI arrests between 1998 and 2008. Based on these arrest records, the Town ranked first out of all municipalities for total DUI arrests. The Department of Public Safety used these statistics to determine the priority for issuing additional video cameras; thus, law enforcement agencies with the “highest ranking” for DUI arrests received priority in terms of the issuance of additional video cameras.
Despite these statistics, several nearby municipalities with fewer DUI arrests had received more video cameras from DPS than the Town, for example: (1) the City of Folly Beach made 162 DUI arrests and received 6 cameras; (2) the Town of Moncks Corner made 198 DUI arrests and received 13 cameras; and (3) the City of the Isle of Palms made 339 DUI arrests and received 13 cameras.
[9] Roberts offered evidence that the Town had recently expended: (1) $65,145 for the replacement of a “Town of Mt. Pleasant” sign at the Long Point Road Exit of I-526 East; (2) $100,000 for a marketing firm’s development of a new Town slogan and logo; (3) $1,328,064.70 for the renovation of the “Farmer’s Market” on Coleman Boulevard; and (4) $6,000,000 for a parcel of property known as the “O.K. Tire Store,” which was intended to be developed into a park.
[10] In support of its claim, the Town referenced subsection (D) of section 56-5-2953, which states in relevant part:
The Department of Public Safety is responsible for purchasing, maintaining, and supplying all videotaping equipment for use in all law enforcement vehicles used for traffic enforcement. The Department of Public Safety also is responsible for monitoring all law enforcement vehicles used for traffic enforcement to ensure proper maintenance of videotaping equipment. Id. § 56-5-2953(D).
[11] Section 14-25-95 provides:
Any party shall have the right to appeal from the sentence or judgment of the municipal court to the Court of Common Pleas of the county in which the trial is held. Notice of intention to appeal, setting forth the grounds for appeal, must be given in writing and served on the municipal judge or the clerk of the municipal court within ten days after sentence is passed or judgment rendered, or the appeal is considered waived. The party appealing shall enter into a bond, payable to the municipality, to appear and defend the appeal at the next term of the Court of Common Pleas or shall pay the fine assessed.
S.C. Code Ann. § 14-25-95 (Supp. 2010).
[12] City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007) (“Section 56-5-2953 commands the arresting officer to videotape the individual during a DUI arrest.”).
[13] Id. § 56-5-2953(B) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if [certain exceptions are met]).”
[14] See, e.g., State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct. App. 2004) (recognizing that law enforcement agency’s failure to videotape a DUI arrest was excusable as the arresting officer submitted an affidavit that certified the videotape machine was inoperable at the time of the arrest).
[15] It is interesting to note that the Town requested fifty additional cameras in May 2009 apparently after recognizing that its failure to videotape DUI arrests may severely impact the prosecution of its pending DUI cases. The Town’s request was in response to a DPS survey, dated April 28, 2009, that stated in part, “The Department is glad to announce that the original requests have been fulfilled, and we have officially awarded over 3200 camera systems.”
Jan 16, 2012 | Brain Injury/Head Trauma, Car Accidents, Nursing Home Abuse, Personal Injury, Uncategorized, Wrongful Death
SC Wrongful Death Statute: Here is the actual law, as enacted. Don’t worry. Keep reading. We’ll explain what it means at the end.
DEATH BY WRONGFUL ACT
SECTION 15-51-10. Civil action for wrongful act causing death.
Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony. In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.
SECTION 15-51-20. Beneficiaries of action for wrongful death; by whom brought.
Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused. Every such action shall be brought by or in the name of the executor or administrator of such person.
SECTION 15-51-30. Effect of illegitimacy.
In the event of the death of an illegitimate child or the mother of an illegitimate child by the wrongful or negligent act of another, such illegitimate child or the mother or father or the heirs at law or the distributees of such illegitimate child shall have the same rights and remedies in regard to such wrongful or negligent act as though such illegitimate child had been born in lawful wedlock.
SECTION 15-51-40. Damages; amount and to whom payable.
In every such action the jury may give damages, including exemplary damages when the wrongful act, neglect, or default was the result of recklessness, wilfulness, or malice, as they may think proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit such action shall be brought. The amount so recovered shall be divided among the before-mentioned parties in those shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his or her estate. However, upon motion by either parent or any other party of potential interest based upon the decedent having died intestate, the probate court may deny or limit either or both parent’s entitlement for a share of the proceeds if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority.
SECTION 15-51-41. Court approval required for settlement of wrongful death or survival action.
Any settlement of a wrongful death or survival action must be approved by either a probate court, circuit court, or United States District Court, as provided in Section 15-51-42.
SECTION 15-51-42. Approval of settlements of wrongful death or survival actions.
(A) Only a duly appointed personal representative, as defined in Section 62-1-201(30), shall have the authority to settle wrongful death or survival actions.
(B) If no action is pending, the personal representative shall petition either the probate or the circuit court of this State seeking approval of a proposed settlement. The petition must be verified by the personal representative and shall set forth, in terms satisfactory to the court in which the petition is filed, the basic facts surrounding the death of the decedent, the pertinent facts surrounding the liability of the alleged wrongdoer, the amount of insurance available to pay for damages, the terms of the proposed settlement, the statutory beneficiaries of the wrongful death or survival action, the heirs at law or appropriate devisees of the estate, the appropriate creditors, the amount of their claims, and, if the personal representative has retained legal counsel, the terms and provisions of the agreement with respect to attorney’s fees and costs.
It is not necessary that a personal representative be represented by legal counsel for the court to consider the petition and approve the settlement. If the personal representative is represented by legal counsel, the counsel shall sign a certificate attesting to the fact that he is of the opinion that the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent.
The court shall schedule a hearing and receive into evidence those facts that the court considers necessary and proper to evaluate the settlement. After conducting this inquiry, the court shall issue its order either approving or disapproving the proposed settlement. If the settlement is approved by the court, the personal representative has the power to conclude the settlement, including the execution of those documents as the settlement terms contemplate.
(C) If a wrongful death or survival action has been filed in state court and:
(1) the settlement agreement between the parties is reached before the matters reach trial, the personal representative shall petition the court in which the wrongful death or survival action has been filed and follow the procedure for settlement as provided in (B) above;
(2) the settlement agreement is reached during the trial, or after trial but before notice of appeal is filed, of either the wrongful death or survival action, then no petition is necessary, and the court shall conduct a hearing, at which the parties may present to the court the pertinent facts and information, including that information required in subsection (B) above, which the court may require in order to consider whether to approve or disapprove the settlement. If the court finds the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent, then the court shall issue its order approving the settlement;
(3) the settlement agreement is reached after notice of appeal is filed, the personal representative shall petition the appellate court before which the matter is pending to remand the case to the circuit court for consideration of the settlement agreement in accordance with the procedure outlined in (2) above.
(D) For any actions pending in the federal courts, the same procedure may be followed, but the federal court, at its discretion, may issue an order transferring the case to state court for consideration of the proposed settlement.
(E) Once a settlement agreement has been approved by an appropriate court, the person paying the settlement proceeds and all those on whose behalf the payment is made and any other persons who could be responsible because of the actions on whose behalf the settlement proceeds are being paid, are relieved and discharged from further liability and shall have no obligation or legal duty to see to the appropriate or proper distribution of the settlement proceeds among either the wrongful-death beneficiaries or those entitled to the proceeds of the settlement of the survival action. Once payment has been made to the personal representative, the obligations of the person making the payment and those on whose behalf the payment is being made, and all those who could be responsible for the actions of these persons, are fully and completely released and finally and forever discharged from any further responsibility in connection with the action or actions.
(F) Any person bringing a wrongful death or survival action in a court other than the probate court must notify the probate court of this action within ten days after the filing of the action. The provisions of this subsection apply to wrongful death or survival actions filed after the effective date of this section.
(G) When the administration of an estate is final except for the administration of survival action proceeds because of the pendency of a survival action brought on behalf of the estate, the probate court may issue, upon petition by the personal representative, a special order providing that no accountings are required until the survival action is settled or verdict rendered in a trial. The attorney for the personal representative must notify the probate court immediately upon completion of the survival action and furnish the court with a copy of the order approving settlement or a copy of the judgment, whichever is appropriate.
SECTION 15-51-50. Liability for costs.
The executor or administrator, plaintiff in the action, shall be liable to costs in case there be a verdict for the defendant or nonsuit or discontinuance, out of the goods, chattels and lands of the testator or intestate, if any.
SECTION 15-51-60. Effect of action prior to death.
The provisions of this article shall not apply to any case in which the person injured has, for such injury, brought action, which has proceeded to trial and final judgment before his or her death.
*****
So what does this complex statute really mean? It means you had better retain an experienced wrongful death trial attorney that knows what they are doing. Every lawyer advertises for these cases, but few actually understand this area of the law. One website actually boasts that they advise recovery based on tax consequences and who gets the money. There are actually two (2) potential causes of action, and you always pursue both. The first is a “survival” action which is brought on behalf of the decedent. If you can prove that they lived for only an instant, their estate would be entitled to compensation for pain and suffering, medical bills, and funeral expenses. Those funds would be distributed according to a will or intestacy laws. The second cause of action is for “wrongful death” and is for such damages as loss of support, services, and companionship. Those benefits would go to the family directly.
The personal injury trial attorneys at Reeves, Aiken & Hightower, LLP, are seasoned litigators with over 70 years combined experience. We welcome the opportunity to sit down and discuss your particular case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
Jan 16, 2012 | DUI & DWI, Uncategorized
Breath Tests for Blood Alcohol Determination: Partition Ratio
by Srikumaran K. Melethil, Ph.D, Professor of Pharmacology, University of Missouri at Kansas City
The author is a professor in the UMKC School of Pharmacology, and also a graduate of the UMKC School of Law. The following is a condensation of a paper written in fulfillment of a research and writing requirement in the course of Scientific Evidence and Opinion Testimony. In relevant part:
I. SCIENTIFIC BASIS OF BREATH TESTS
1. Introduction:
In cases involving drunk driving, the prosecution has to prove that the defendant’s blood alcohol concentration (BAC) at the time of the offense is at or above a statutory concentration. In the majority of jurisdictions it is 0.10% [i.e., 0.1 gram of alcohol per 100 milliliters of blood]. In some jurisdictions, it is 0.08%, see People v. Ireland, 39 Cal. Rptr. 2d. 870 (Cal. Ct. App. 1995). In this connection, there is an ongoing national debate to reduce this value to 0.08% nationwide. In order to provide proof of BAC it is necessary to obtain a suitable biological sample (i.e., blood, urine, expired air) from the defendant at the time of arrest. Determination of BAC by use of a breath test, is by far the most popular scientific test for drunk driving. The breath test involves the measurement of alcohol in an appropriate sample of breath, expired alveolar air. (Alveolar air is that part of the expired air, which is in equilibrium with blood; usually this is taken as the terminal portion of expired air. One likely reason for the high variability observed in partition ratios is the difficulty in obtaining true alveolar, or deep lung air for analysis). This breath alcohol concentration is then multiplied by a factor called the partition ratio to convert the concentration measured in the breath to the corresponding alcohol concentration in the blood. In most jurisdictions, a value of 2100 is used for this ratio by statutory mandate. However, this partition ratio of 2100 can differ from individual to individual or differ in a given individual from time to time. Therefore, while it is quite simple to perform, the use of breath tests to determine BAC suffers from a major and fundamental weakness in that it is an indirect method.
For that reason, the conversion (extrapolation) of the directly measured concentration of alcohol in the expired air to obtain its concentration in the blood has been the subject of much litigation. Understandably, this conversion is fraught with problems of variability (uncertainties) introduced by the theoretical assumptions underlying the method. As was pointed out by one of the leading researchers in this area, The most trying forensic difficulties were consequent to what now appears to some to be an error in policy made by the pioneers in breath testing. This was in deciding to calculate the blood concentration from a quantity of alcohol found in the breath. Mason & Dubowski, Traffic & Chemical Testing in the United States: a Resume & Some Remaining Problems, 20 Clinical Chemistry 126, 128 (1974). The following section will present the scientific basis for the statutory decision to select a partition ratio of 2100 and the variability, both inter-subject and intra-subject, to be expected in this ratio.
2. Basic assumptions:
A direct correlation is assumed between the concentration of alcohol in the alveolar air and concentration of alcohol in the blood, more precisely, ethanol. This assumption is based on Henry’s Law which states that, at constant temperature, the concentration of gas dissolved in a liquid is proportional to its concentration in the air directly above the liquid. Brent and Stiller, Handling Drunk Driving Cases, ‘ 7 (Breath Tests) (1985). As applied to determination of BACs, this means that the concentration in the expired alveolar air is directly proportional to the concentration in the blood (i.e., the greater concentration of alcohol in the blood, the greater its concentration in the expired alveolar air). It is at the alveoli, commonly called air sacs (of which there are about 700 million in an average adult), where exchange of gases occur between blood and the expired alveolar air. Alcohol is a volatile liquid and assumed to freely diffuse (i.e., readily pass) across the membranes of the alveoli. Due to the latter assumption, it is also assumed that the exhaled alveolar air is in equilibrium with the blood. Equilibrium can be best explained as a condition where the ratio of concentrations of alcohol in blood and expired alveolar air has achieved a constant value. Therefore, in principle, its concentration in blood can be estimated by measuring its concentration in the expired alveolar air.
The commonly used partition-ratio of 2100 can be expressed as follows:
In principle, this ratio is determined by simultaneously (or as close to simultaneous as experimentally possible) measuring the concentration of alcohol in the blood and expired alveolar air of test subjects administered alcohol under controlled conditions. While values in the scientific literature for this ratio range from 1900 to 2400, an international panel chose, in 1972 Essentially by fiat, the currently accepted value of 2100. Brent, supra at 133.
3. Factors that affect the partition ratio.
Some factors that affect the partition-ratio, such as the effect of temperature, may be obvious, even to a non-scientist. There are others that are not so apparent. These factors can either increase or decrease the actual BAC.
a. Effect of Temperature: The widely used partition blood-to-air partition ratio of 2100 is based on a normal body temperature of 98.6 0F. A higher body temperature of the individual will overestimate the actual BAC because of the higher volatility (or vapor pressure) of liquids like alcohol at a higher temperature. An elevation in body temperature of 1 0C (1.8 0F) results in a 7% higher value in the result. Therefore, a person with a body temperature of 100.4 0F and with an actual blood alcohol of 0.0935 % will register a value of 0.10 % by the breath test. As can be seen from this hypothetical example, a small difference in body temperature can make the difference of guilt or innocence of drunk driving in defendants with a BAC close to the legal limit. This widely accepted ratio is also based on the assumption that the average temperature of exhaled air is 93.20 F.
b. Atmospheric Pressure: There is little evidence to support the belief that the partition ratio is affected by atmospheric (barometric) pressure. Breathalyzer tests conducted at altitudes of 5000 feet and 10000 feet essentially gave the same results. This is expected based on scientific principles of gases.
c. Cellular Composition of Blood: Blood contains suspended cells (e.g. red and white cells) and proteins, and is therefore only a partial liquid. The partition ratio of 2100 is based on a average hematocrit (the cell volume of blood) of 47%; hematocrit values range from 42 to 52 % in males and 37 to 47 % in females. Therefore, a person with a lower hematocrit will have falsely elevated blood alcohol based on a breath test; this variability has been estimated to be relatively small, ranging from – 2 to + 5 %.
Since alcohol freely diffuses into cells but not into cellular membranes, the subtle point to be aware of is the variability in volume of the cell debris (i.e. volume of cell membranes after cells are analyzed), and not the actual hematocrit that is responsible for the reported variability. Understandably, a higher hematocrit value represents a higher value of cell debris. The mean value from several studies show that debris can account for about 16% of the volume of blood. For example, 0. 119 mg % (in serum) is equivalent to 0.10% of BAC. Fitzgerald and Hume, Intoxication Test Evidence: Criminal and Civil,‘ 4:26 at 152 (1987).
d. Physical Activity and hyperventilation: Exercise can underestimate blood alcohol values. In one study BACs of subjects before and after running up a flight of stairs decreased 11 to 14 % after one trip and 22-25 % after two such trips. In a another study, a 15% decrease in blood alcohol was reported in subjects following vigorous exercise or hyperventilation.
e. Changes in water content of expired air: Water, present in the form of vapor, in expired air will condense into the liquid form with a lowering of temperature. Air exhaled into the tubes of a breath test device, such as the Breathalyzer, is assumed to be saturated with water at about 93.20 F . Decreases in this temperature can result in an underestimation of reported BAC due to condensation of water and the subsequent removal of alcohol from the expired air. One study showed that when the mouthpiece of the breath test instrument was kept at 23 0C, there was an average decrease in temperature of exhaled air by 1.6 0C.
f. Radio Frequency Interference (RFI): Andre Moenssens, et al., Scientific Evidence in Civil and Criminal Cases ‘ 3.09 at 204 (4th ed. 1995). This interference describes the effect of an electronic instrument on a radio wave or current that it is not designed to pick up. If a particular Breathalyzer as an electronic instrument were susceptible to RFI, then the measurement of light distance obtained when the operator balances the meter might not be an accurate indication of the amount of alcohol in the breath sample. Instead, the light distance might reflect, in part, a deflection in the meter needle caused by a stray current induced by radio waves in the surrounding environment.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
Jan 15, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
Symptoms of Brain Injury
Any brain function can be disrupted by brain trauma: excessive sleepiness, inattention, difficulty concentrating, impaired memory, faulty judgment, depression, irritability, emotional outbursts, disturbed sleep, diminished libido, difficulty switching between two tasks, and slowed thinking. Sorting out bonafide brain damage from the effects of migraine headaches, pain elsewhere in the body, medications, depression, preoccupation with financial loss, job status, loss of status in the community, loss of status in the family, and any ongoing litigation can be a formibable task.
The extent and the severity of cognitive neurologic dysfunction can be measured with the aid of neuropsychological testing. Neuropsychologists use their tests to localize dysfunction to specific areas of the brain. For example, the frontal lobes play an essential role in drive, mood, personality, judgment, interpersonal behavior, attention, foresight, and inhibition of inappropriate behavior. The ability to plan properly and execute those plans is known as “executive function.” Frontal lobe injury is often associated with damage to the olfactory bulbs beneath the frontal lobes. Patients may note reduced or altered sense of smell. One recent study (Varney 1993) showed that 92% of brain injured patient suffering anosmia (loss of smell) had ongoing problems with employment, even though their neuropsychological testing was relatively normal.
The effects of brain injury on the patient may be equaled or even surpassed by the effect on the patient’s family. Brain injuries are known for causing extreme stressors in family and interpersonal relationships.
In general, symptoms of traumatic brain injury should lessen over time as the brain heals but sometimes the symptoms worsen because of the patient’s inability to adapt to the brain injury. For this and other reasons, it is not uncommon for psychological problems to arise and worsen after brain injury.
SYMPTOM CHECKLIST
A wide variety of symptoms can occur after “brain injury.” The nature of the symptoms depends, in large part, on where the brain has been injured. Below find a list of possible physical and cognitive symptoms which can arise from damage to specific areas of the brain:
Frontal Lobe: Forehead
Loss of simple movement of various body parts (Paralysis).
Inability to plan a sequence of complex movements needed to complete multi-stepped tasks, such as making coffee (Sequencing).
Loss of spontaneity in interacting with others.
Loss of flexibility in thinking.
Persistence of a single thought (Perseveration).
Inability to focus on task (Attending).
Mood changes (Emotionally Labile).
Changes in social behavior.
Changes in personality.
Difficulty with problem solving.
Inability to express language (Broca’s Aphasia).
Parietal Lobe: near the back and top of the head
Inability to attend to more than one object at a time.
Inability to name an object (Anomia).
Inability to locate the words for writing (Agraphia).
Problems with reading (Alexia).
Difficulty with drawing objects.
Difficulty in distinguishing left from right.
Difficulty with doing mathematics (Dyscalculia).
Lack of awareness of certain body parts and/or surrounding space (Apraxia) that leads to difficulties in self-care.
Inability to focus visual attention.
Difficulties with eye and hand coordination.
Occipital Lobes: most posterior, at the back of the head
Defects in vision (Visual Field Cuts).
Difficulty with locating objects in environment.
Difficulty with identifying colors (Color Agnosia).
Production of hallucinations.
Visual illusions – inaccurately seeing objects.
Word blindness – inability to recognize words.
Difficulty in recognizing drawn objects.
Inability to recognize the movement of object (Movement Agnosia).
Difficulties with reading and writing.
Temporal Lobes: side of head above ears
Difficulty in recognizing faces (Prosopagnosia).
Difficulty in understanding spoken words (Wernicke’s Aphasia).
Disturbance with selective attention to what we see and hear.
Difficulty with identification of, and verbalization about objects.
Short term memory loss.
Interference with long term memory.
Increased and decreased interest in sexual behavior.
Inability to catagorize objects (Categorization).
Right lobe damage can cause persistent talking.
Increased aggressive behavior.
Brain Stem: deep within the brain
Decreased vital capacity in breathing, important for speech.
Swallowing food and water (Dysphagia).
Difficulty with organization/perception of the environment.
Problems with balance and movement.
Dizziness and nausea (Vertigo).
Sleeping difficulties (Insomnia, sleep apnea).
Cerebellum: base of the skull
Loss of ability to coordinate fine movements.
Loss of ability to walk.
Inability to reach out and grab objects.
Tremors.
Dizziness (Vertigo).
Slurred Speech (Scanning Speech).
Inability to make rapid movements.
This is one of the most effective presentations of latent brain injury I have found. It is located at the website “BrainInjury.com” As a former ICU Registered Nurse (RN), I was impressed with the graphics and list of symptoms depending on which part of the brain was injured. The trial attorneys at Reeves, Aiken & Hightower, LLP, are experienced serious injury lawyers and are uniquely familiar with brain injury cases. Closed head or traumatic brain injury (TBI) sadly occurs more often than earlier realized and can result from even relatively minor trauma during automobile accidents, large truck accidents, motorcycle accidents (even with a helmet), and work-related accidents (workers’ compensation). We welcome the opportunity to sit down and personally discuss your particular case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
