Feb 3, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This recent SC Court of Appeals decision illustrates how small tactical moves at trial can make a real difference in the outcome. Trial skills and litigation experience matters. Better make sure your accident attorney actually goes to Court. You can always settle for less. You usually have to fight to get what you truly deserve.
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 understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Elizabeth Fettler, Appellant,
v.
Frederick Gentner, Respondent.
Appeal from Richland County
James R. Barber, III, Circuit Court Judge
Opinion No. 4933
Heard November 17, 2011 – Filed January 25, 2012
Reversed and Remanded
Everett Hope Garner, of Columbia, for Appellant.
Ronald E. Alexander, of Columbia, for Respondent.
Lockemy, J.: In this civil action for negligence and damages as a result of a vehicular accident, Elizabeth Fettler argues the trial court erred in (1) denying her motion for a directed verdict and judgment notwithstanding the verdict (JNOV) on the issue of Frederick Gentner’s negligence, and (2) presenting an erroneous and prejudicial charge to the jury as a result of the denial of her directed verdict motion. We reverse and remand.
FACTS
On December 25, 2002, Fettler was a passenger in the vehicle her husband was driving on White Pond Road in Columbia, South Carolina. Gentner stated his vehicle was “probably ten car lengths” behind the Fettlers’ vehicle. Fettler testified that before her husband could proceed down an on ramp to the interstate, he had to yield at a yield sign to avoid an oncoming car turning left onto the on ramp. While at the yield sign, the Fettlers were rear-ended by Gentner. Gentner testified that while he saw the oncoming vehicle, it was in the distance at the time the Fettlers came to the yield sign. He stated he saw no reason for the Fettlers to stop at the yield sign because there was no vehicle in front of them. Gentner said after he saw the Fettlers come to the ramp, he stopped looking in the direction he was traveling. He specifically stated he “focused [his] attention no longer on [the Fettlers’ vehicle] but on the vehicle that was coming across.” Despite his actions, Gentner agreed he is required to look where he is going while driving a vehicle.
At the close of evidence, Fettler made a motion for a directed verdict on the issue of Gentner’s negligence. Gentner argued against the motion, stating Fettler’s husband did not have the right to stop his car in the road for no good reason, particularly at a yield sign. In discussing the motion, the trial court noted Gentner admitted to failing to keep a proper lookout and stated:
What he said is I quit paying attention as soon as those cars turned. I don’t know what they did; I didn’t see them again. I didn’t pay any attention until I saw this car stopped, and the guy that was driving that car stopped, and said he stopped it because he was yielding to the car, which he was required to do. And there was no testimony to the contrary. Your guy says I didn’t see anything, so we’re supposed to circumstantially say okay, there wasn’t anything there then?
However, the court eventually denied the motion for a directed verdict on the issue of negligence.
At the conclusion of the trial, the jury returned a unanimous verdict for Gentner. After the verdict was read, Fettler made a motion for a JNOV, contending the evidence allowed only one reasonable inference in favor of Fettler on the issues of negligence and proximate cause. The trial court treated the JNOV motion as a thirteenth juror motion, and stated there was evidence in the record to support the jury’s decision, and so it denied Fettler’s motion.
STANDARD OF REVIEW
“‘When reviewing the denial of a motion for directed verdict or JNOV, this Court applies the same standard as the trial court.'” Pridgen v. Ward, 391 S.C. 238, 243, 705 S.E.2d 58, 61 (Ct. App. 2010) (quoting Gibson v. Bank of America, N.A., 383 S.C. 399, 405, 680 S.E.2d 778, 781 (Ct. App. 2009)). “‘The Court is required to view the evidence and inferences that reasonably can be drawn from the evidence in the light most favorable to the non-moving party.'” Id. (quoting Gibson, 383 S.C. at 405, 680 S.E.2d at 781). “‘The motions should be denied when the evidence yields more than one inference or its inference is in doubt.'” Id. (quoting Gibson, 383 S.C. at 405, 680 S.E.2d at 781). “‘An appellate court will only reverse the [trial] court’s ruling when there is no evidence to support the ruling or when the ruling is controlled by an error of law.'” Id. (quoting Gibson, 383 S.C. at 405, 680 S.E.2d at 781).
LAW/ANALYSIS
I. Directed Verdict and JNOV on the Issue of Defendant’s Negligence
Fettler contends the trial court erred in denying her motion for a directed verdict and JNOV because the evidence was not susceptible to more than one reasonable inference on the issue of Gentner’s negligence. We agree.
“A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or omission; (3) resulting in damages to the plaintiff; and (4) damages proximately resulted from the breach of duty.” Thomasko v. Poole, 349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002) (citing Bloom v. Ravoira, 339 S.C. 417, 422, 529 S.E.2d 710, 712 (2000)). “[P]arties have a duty to keep a reasonable lookout to avoid hazards on the highway.” Id. at 12, 561 S.E.2d at 599. “In determining issues of negligence and contributory negligence arising out of collisions between vehicles proceeding in the same direction, [our supreme court has] held that a leading vehicle has no absolute legal position superior to that of one following.” Still v. Blake, 255 S.C. 95, 104, 177 S.E.2d 469, 473-74 (1970). “Each driver must exercise due care under the circumstances.” Id. at 104, 177 S.E.2d at 474. “As a general rule, the driver of the leading vehicle is required to make reasonable observations under the circumstances to determine that the particular movement of his vehicle, such as turning, slowing up, or stopping, can be made with safety to others, and to give adequate warning or signal of his intentions.” Id. “The driver of the following vehicle owes a reciprocal duty to keep his vehicle under reasonable control and not to follow too closely.” Id.
“‘Evidence of an independent negligent act of a third party is directed to the question of proximate cause.'” Manios v. Nelson, Mullins, Riley & Scarborough, LLP, 389 S.C. 126, 142, 697 S.E.2d 644, 652 (Ct. App. 2010) (quoting Matthews v. Porter, 239 S.C. 620, 628, 124 S.E.2d 321, 325 (1962)). “‘The intervening negligence of a third person will not excuse the first wrongdoer if such intervention ought to have been foreseen in the exercise of due care. In such case, the original negligence still remains active, and a contributing cause of the injury.'” Id. at 142, 697 S.E.2d at 653 (quoting Bishop v. S.C. Dep’t of Mental Health, 331 S.C. 79, 89, 502 S.E.2d 78, 83 (1998)). “Ordinarily, proximate cause is a question for the jury.” Id. (citing McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 (Ct. App. 2009).
Both Gentner and Gentner’s wife admit their failure to keep a lookout after the Fettlers reached the yield sign in front of the on ramp. The record reflects Gentner’s admissions:
Fettler’s counsel: After the Fettlers entered the ramp, you were looking at this [oncoming] vehicle and weren’t looking where you were going down that ramp?
Gentner: That’s correct, yes sir.
Fettler’s counsel: You weren’t looking? You weren’t looking where you were going?
Gentner: That’s correct.
Fettler’s counsel: That’s correct. Don’t you think you’re required to look where you’re going when you’re driving a vehicle?
Gentner: Yes, sir.
Gentner’s wife confirms Gentner’s admissions in the record, stating:
Fettler’s counsel: And you said you diverted your eyes somewhere and he diverted his eyes. Is that right?
Gentner’s wife: Yes.
Fettler’s counsel: So, both of you looked away from the lane of travel where you were headed. Is that right?
Gentner’s wife: Well, yes.
Fettler’s counsel: And subsequent to that, there was a car in front of you and it turned out to be the Fettlers, and y’all hit them in the rear. Is that correct?
Gentner’s wife: Yes.
Gentner argues there is evidence in the record supporting the inference that Fettler’s husband’s negligence caused or contributed to the accident by unnecessarily stopping at the yield sign. Thus, Gentner contends, there are conflicts of fact relating to his negligence to go to a jury. However, the only evidence supporting negligence on behalf of Fettler’s husband is Gentner’s personal testimony. Gentner testified he did not think there was any reason for the Fettlers to stop at the yield sign because the oncoming car that eventually turned left was not close enough to disturb the Fettlers’ travel. However, Fettler states there was an oncoming vehicle turning left onto the on ramp that they yielded for at the yield sign. Fettler’s husband claimed he yielded because the oncoming car was in the process of making its left-hand turn onto the on ramp. Taking into consideration Gentner himself testified he was “10 car lengths” behind the Fettlers, all parties agree there was a yield sign on the road before entering the interstate from the Gentners’ and Fettlers’ direction, and the Gentners both testified they took their eyes off the direction they were traveling, we find there was no evidence to provide a jury with any reasonable inference other than Gentner was negligent.
Gentner’s position that the Fettlers did not need to stop at the yield sign does not create an inference of negligence on Fettler’s husband’s part, it merely stands as a personal opinion from someone who did not have his eyes focused on his lane of travel. Thus, we reverse and remand the trial court’s denial of the Fettlers’ directed verdict and JNOV motions for a new trial in accordance with this decision.
II. Prejudicial Jury Charge
Fettler argues the trial court erred in presenting a prejudicial and erroneous charge to the jury. Specifically, Fettler contends the trial court erred in denying her directed verdict motion, resulting in an erroneous charge of negligence to the jury which was unsupported by the evidence. We agree, but as a threshold matter, we will first address preservation of the issue.
“An appellate court cannot address an issue unless first raised by appellant and ruled on by the trial judge.” Thomasko v. Poole, 349 S.C. 7, 10, 561 S.E.2d 597, 598 (2002) (citing Staubes v. City of Folly Beach, 339 S.C. 406, 421, 529 S.E.2d 543, 546 (2000)). Once a party moves for a directed verdict on an issue, and that motion is denied, the party is not required to object again to the subsequent jury instruction regarding that issue. See id. at 10-11, 561 S.E.2d at 598-99; see also Carter v. Peace, 229 S.C. 346, 355, 93 S.E.2d 113, 117 (1956) (finding a motion for a directed verdict on the issue of negligence had been refused; thus, the negligence instructions were correct under the trial court’s conception of the evidence and there was no duty upon appellant to object to the instruction because it would be futile and unnecessary). The issue is preserved. See Thomasko, 349 S.C. at 10-11, 561 S.E.2d at 598-99. “This [c]ourt does not require parties to engage in futile actions in order to preserve issues for appellate review.” Staubes, 339 S.C. at 415, 529 S.E.2d at 547.
While Fettler did not object to the jury instruction of negligence, she argued a motion for a directed verdict and JNOV.[1] on the issue of Gentner’s negligence and was denied. Therefore, we find the issue sufficiently preserved, and an objection to the jury charge of negligence would have been futile, as the trial court had already ruled there was evidence to go to the jury on the issue. We continue below to the merits of this argument.
“‘An appellate court will not reverse the trial court’s decision regarding jury instructions unless the trial court committed an abuse of discretion.'” Berberich v. Jack, 392 S.C. 278, 285, 709 S.E.2d 607, 611 (2011) (quoting Cole v. Raut, 378 S.C. 398, 404, 663 S.E.2d 30, 33 (2008)). “‘An abuse of discretion occurs when the trial court’s ruling is based on an error of law or is not supported by the evidence.'” Id. (quoting Cole, 378 S.C. at 404, 663 S.E.2d at 33).
“‘A jury charge consisting of irrelevant and inapplicable principles may confuse the jury and constitutes reversible error where the jury’s confusion affects the outcome of the trial.'” Id. (quoting Cole, 378 S.C. at 404, 663 S.E.2d at 33). “An erroneous jury instruction will not result in reversal unless it causes prejudice to the appealing party.” Id. (citing Cole, 378 S.C. at 405, 663 S.E.2d at 33); see also Clark v. Cantrell, 339 S.C. 369, 390, 529 S.E.2d 528, 539 (2000) (“When instructing the jury, the trial court is required to charge only principles of law that apply to the issues raised in the pleadings and developed by the evidence in support of those issues.”).
Because we find the issue of Gentner’s negligence should have been resolved by a directed verdict in Fettler’s favor, we also find there was no evidence in the record to support a charge of negligence to the jury. As the issue of Gentner’s negligence should have been decided as a matter of law, the irrelevant and inapplicable principles of negligence had the strong possibility of confusing the jury and affecting the outcome of the trial. We reverse and remand this issue to the trial court for a new trial in accordance with this decision.
CONCLUSION
Based on the foregoing reasons, the trial court’s decision is
Reversed and Remanded.
Huff and Pieper, JJ., concur.
[1] As previously stated, the trial court viewed the motion for a JNOV as a thirteenth juror motion.
Jan 30, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
The article below reaffirms the real need for aggressive products liability lawyers. Yet again, a manufacturer has released a dangerous product into the market with serious flaws that are acknowledged only “after the fact.” There was already government oversight. And yet, children and their parents were still left unprotected. I am proud to be a plaintiff’s attorney who fights for those harmed by dangerous products. Despite all of the “tort reform” efforts by insurance carriers, personal injury lawyers willing to take cases to juries remain the best hope for those injured by the callous indifference of companies.
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
The Colorful Hearts Teddy Bear has been recalled by Build-A-Bear Workshop because its plastic eyes can fall out, posing a choking hazard to children.
For the third time this year, Build-A-Bear Workshop has discovered a potentially dangerous defect in its toys.
The Overland-based toy retailer is recalling 297,200 “Colorful Hearts Teddy Bears” because the toy’s plastic eyes can fall out, posing a potential choking hazard to children.
The news also comes on the heels of the U.S. Consumer Product Safety Commission’s announcement last week that Build-A-Bear agreed to pay a $600,000 penalty to settle allegations that it previously failed to report a dangerous defect involving its toy bear beach chair, which was eventually recalled in 2009. In that settlement, Build-A-Bear denied the commission’s allegations.
In this most recent recall, the colorful hearts bears — which were made in China — sold for $18 in stores and online from April of this year through this month. No injuries have been reported.
Jill Saunders, a company spokeswoman, wrote in an emailed statement that the bears passed an independent laboratory’s testing evaluation before being sold. But the company then observed that some production runs used ‘substandard fabric” that may tear around the bear’s eyes.
“We discovered the issue while doing ongoing quality and safety checks and immediately reported the issue to the CPSC and began the recall process,” she said. “That we have conducted three product recalls this year despite the fact that we have not received a single injury report related to any of those three products clearly demonstrates how seriously we take product safety.”
Patty Davis, a spokeswoman for the product safety commission, said Build-A-Bear reported the issue to the government this week.
“Any time a firm recalls a product, there is potential danger involved for consumers,” she said. “In this case, it involved young children, so we acted as quickly as possible.”
Consumers can return these bears to any Build-A-Bear store, where they will receive a coupon for any other available stuffed animal.
Ed Mierzwinski, consumer advocate for U.S. PIRG , the national association of state Public Interest Research Groups, said eyes falling off stuffed animals and dolls is a well-known problem that can lead to a choking hazard.
“Kids kiss their dolls,” he said. “Kids chew on their dolls. What’s going to fall off first is their eyes.”
Mierzwinski said he’s glad the company issued this recall — and that no injuries have been reported.
Still, he’s troubled by this year’s recalls and the penalty involving the 2009 recall.
“This company — its recent time line — gives me some concern that they really need to review their management and their risk analysis to make sure they are in compliance with the law to protect children,” Mierzwinski said.
RECENT RECALLS
Last month, Build-A-Bear and the commission announced a recall of a pink inflatable inner tube that poses a strangulation hazard if pulled over a small child’s head. The company said it had received one report of a 3-year-old girl pulling the inner tube over her head and having difficulty removing it. The inner tube is 9 inches in diameter.
The inner tube was part of a three-piece Fruit Tutu Bikini swimwear set for teddy bears. It was sold for $12.50 and was available in stores and online from April 2011 to August 2011. About 20,830 units were distributed.
And in August, Build-A-Bear recalled its “Love.Hugs.Peace” lapel pin because the paint on it contained an excessive level of lead. The company did so after initially defending the safety of the product when a California-based consumer health advocacy group raised concerns about it last year.
Besides three recalls in the past year, Build-A-Bear was accused of failing to report injuries from an item recalled in 2009. According to the product safety commission, the toy retailer learned of 10 reports of injury related to its toy bear beach chairs between July 2007 and January 2009. The toy beach chairs — about 260,000 of which were sold over a seven-year span — had sharp edges on their wooden folding frame that regulators said could pinch or even amputate a child’s fingertip.
But the company did not notify regulators of the incidents until two months before a recall was issued in 2009.
Under federal law, manufacturers and retailers are required to report to regulators within 24 hours upon receiving information that a product contains a defect that could create a substantial hazard or unreasonable risk of serious injury or death.
In its defense, Build-A-Bear said it did not have enough information at the time to conclude that the defects could create such a hazard or risk. So it does not believe it violated that reporting requirement.
“When Build-A-Bear Workshop had sufficient information … it promptly began working with CPSC in March of 2009 on the voluntary recall of the toy bear chair,” the retailer said in a statement.
This article was originally posted in the St. Louis Post Dispatch on December 24, 2011 by Kavita Kumar.
Jan 30, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death
The article below highlights the risks of new technology and the need for experienced products liability lawyers. Yet again, a manufacturer has prematurely released a dangerous product onto the general public with serious internal flaws that are acknowledged “after the fact.” There was already government oversight. And yet, owners were still left unprotected. I am proud to be a plaintiff’s attorney who fights for those harmed by dangerous products. Despite all of the “tort reform” efforts by insurance carriers, juries and personal injury lawyers willing to fight remain the last hope for those who are injured by the callous indifference of companies.
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 understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
DETROIT (AP) — General Motors will strengthen the structure around the batteries in its Volt electric cars to keep them safe during crashes, a person briefed on the matter said Thursday.
GM will ask Volt owners to return the cars to dealers for structural modifications, said the person, who did not want to be identified because GM executives plan to announce the repairs later Thursday.
The fixes are similar to a recall and involve about 8,000 Volts sold in the U.S. in the past two years. GM is making the repairs after three Volt batteries caught fire following crash tests done by federal safety regulators. The fires occurred seven days to three weeks after tests and have been blamed on a coolant leak that caused an electrical short.
GM’s move is considered a step below a recall, which would be issued by a car company and the National Highway Traffic Safety Administration.
NHTSA and GM have said the electric cars are safe and that no fires have occurred after crashes on real-world roadways.
The Volt has a T-shaped, 400-pound (181-kilogram) battery pack that can power the car for about 35 miles (56 kilometers). After that, a small gasoline generator kicks in to run the electric motor.
NHTSA has been investigating the batteries after a Volt caught fire in June at a crash test facility in Wisconsin. The fire broke out three weeks after a side-impact crash test.
GM said the Volt’s battery should have been drained after the crash, but it never told NHTSA to do that. Later, two GM executives said the company had no formal procedure to drain the batteries until after the June fire. GM has said that the liquid solution used to cool the Volt’s battery leaked and crystallized, causing an electrical short that touched off the fire.
The company now sends out a team to drain the batteries after being notified of a crash by GM’s OnStar safety system.
The company sold 7,671 Volts last year, falling short of its goal of 10,000. It was outsold last year by its main electric car competitor, the Nissan Leaf, at 9,674.
Article originally published by Associated Press on January 5, 2012
Jan 29, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
Safety Sphere Motorcycle Airbag Suit Turns You into a Giant Orange
December 17th, 2011by: Technabob
I’m one of those guys who thinks motorcycles are really cool, but I don’t ride one. I think it’s because I’ve always been convinced that I’d end up killing myself if I tried to negotiate the slick roads and maniac drivers of Chicago in the winter time. I actually knew a guy in college who rode a motorcycle and got in an accident and ended up as a paraplegic, so that doesn’t help with my anxieties.
But if I were to take up motorcycle riding, this would be protective gear which would convince me to ride.
Designed by Rejean Neron, the Safety Sphere is exactly what it sounds like. It’s a special bike suit that automatically inflates into a sphere, enveloping the rider and protecting them from injury if they ever go flying off the bike in a crash. The suit inflates to its full capacity in 5/100ths of a second, and fills with compressed air to cushion the impact. The sphere is made up of two layers of fabric, including an inner layer of thin elastic material, and an outer layer of parachute-type cloth. A battery connects to an electric ignition which triggers nitrocellulose canister, inflating the suit in the event of an impact.
Yes, the resulting expanded suit looks completely ridiculous. I’m reminded of that part ofWilly Wonka where Violet Beuregarde turns into a blueberry, except this time you’ll be turning into a navel orange. Still, I’d rather look stupid than end up dead. From the looks of things, you might still need some Oompa Loompas to come rescue you after an accident, too.
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This is one of those articles that may seem a little far fetched at first. However, given the seriousness of motorcycle injuries and the frequency of such accidents on our roadways, perhaps we should take another look. I like the bright orance safety suit. Afterall, just like with airbags in automobiles, you never want to actually need them. But, despite being as safe as possible, a serious motorcycle accident can occur in an instant because of another driver’s inattention or carelessness. This suit could very well become standard safety equipment for motorcyclists one day. We thank Technabob for introducing this cool technology that may be able to prevent serious injury or even death.
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 inducted 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 complex injury cases. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
Jan 28, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This recent SC Supreme Court opinion demonstrates the legal complexities of serious wreck cases. Fortunately, automobile accidents involving trains, as in the case below, are rare. However, this case also illustrates how experience really does count in serious injury cases. Each case is unique, and every aspect must be considered. A seemingly insignificant fact may later prove to be critical. Early investigation and real trial experience is often key to the outcome of cases. Better be sure your attorney is aggressive and experienced in handling complex injury and wrongful death cases.
At Reeves, Aiken, Hightower & Burns, 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 Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Beaulah Platt, as guardian for Asia Platt, a minor under the age of fourteen years, as Personal Representative of the Estate of Valerie Marie Platt, deceased, and as Personal Representative of the Estate of William Leroy Platt, deceased, Petitioner,
v.
CSX Transportation, Inc., and South Carolina Department of Transportation, Defendants,
of whom South Carolina Department of Transportation is Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Berkeley County
Roger M. Young, Circuit Court Judge
Opinion No. 26849
Heard April 6, 2010 – Filed August 9, 2010
AFFIRMED IN PART, VACATED IN PART
David L. Savage, of Savage & Savage, of Charleston; John E. Parker, Ronnie L. Crosby and Matthew V. Creech, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Petitioner.
Jonathan J. Anderson, Lisa A. Reynolds and Eric M. Johnsen, all of Anderson and Reynolds, of Charleston, for Respondent.
CHIEF JUSTICE TOAL: Petitioner brought wrongful death and survival actions against CSX Transportation, Inc. (CSX) and the South Carolina Department of Transportation (SCDOT) stemming from a collision between an automobile and a freight train. Petitioner settled the claims against CSX, and the trial court granted summary judgment in favor of SCDOT. The court of appeals affirmed, and we granted Petitioner’s request for a writ of certiorari to review the court of appeals’ decision.
FACTS/PROCEDURAL BACKGROUND
On June 19, 1999, an automobile (the Vehicle) carrying four passengers (one adult male, one adult female, one boy child, and one girl child) was struck by a freight train at the intersection of US 52 and Red Bank Road in Berkeley County. The girl child, the only survivor, was thrown from the Vehicle upon impact and suffered severe physical injuries.
US 52 intersects Red Bank Road at approximately a 45 degree angle, with the railroad track running parallel to US 52. Red Bank Road runs generally east-to-west, and US 52 runs generally north-to-south. An automobile travelling west on Red Bank Road approaching US 52 would first encounter the railroad tracks, cross the tracks, and then, within several car lengths, come to the intersection with US 52, which is equipped with a traffic light. The Vehicle was travelling west on Red Bank Road; thus, it came upon the railroad tracks before reaching the traffic light at the US 52/Red Bank Road intersection.
Safety devices and warning signals at the intersection of the railroad track with Red Bank Road include cantilevered gate arms, flashing lights, warning bells, and “Do Not Stop on Tracks” signage. The traffic lights are designed to work in concert with the warning signals to prevent collisions. Specifically, as a train approaches the intersection, a signal is sent to SCDOT’s traffic light system and the preemption cycle is initiated, overriding the normal system operation. The preemption cycle is pre-programmed to run through the light phases (green, yellow, and red) to clear any traffic off the tracks before the train arrives at the intersection. There are several different preemption cycles that may run, depending upon what phase the traffic lights are in when the preemption signal is received. The ultimate goal, regardless of which preemption cycle is run, is for a red light to be showing at Red Bank Road when the train arrives.
At trial, Petitioner alleged SCDOT was negligent in: (1) failing to coordinate the active warning devices with the traffic signals; (2) failing to properly sequence the lights during the preemption cycle; (3) sequencing the lights so as to create a trap for motorists; and (4) failing to warn motorists of the dangers of being trapped between the gate arms.
The trial court granted SCDOT’s motion for summary judgment, finding: (1) SCDOT only had a duty to warn CSX of defects in the warning system, and it fulfilled that duty, and (2) the gate arms were the proximate cause of the accident and there was no evidence establishing otherwise. The trial court mentions but did not rule on the issue of SCDOT’s potential immunity under the South Carolina Tort Claims Act (SCTCA) and federal preemption under the Railroad Safety Act of 1970 because it found SCDOT’s traffic signals were not a proximate cause of the accident.
The court of appeals affirmed the trial court’s grant of summary judgment, holding: (1) the public duty rule bars Petitioner’s claim; (2) Petitioner’s state law claims are preempted by federal regulations; and (3) the gate arms were the proximate cause of the accident, not the traffic lights. Platt v. CSX Transp., Inc., 379 S.C. 249, 665 S.E.2d 631 (2008).
ISSUES
Petitioner presents the following issues for review:
(1) Did the court of appeals err in holding the public duty rule barred Petitioner’s claim on SCDOT’s negligence regarding the traffic lights?
(2) Did the court of appeals err in holding Petitioner’s claims were preempted by federal law?
(3) Did the court of appeals err in holding the record lacked evidence to establish the traffic signals as a proximate cause of the acciden
STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine issue of material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the evidence and all inferences that can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994). When reviewing a grant of summary judgment, the appellate court applies the same standard applied by the trial court. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002).
ANALYSIS
SCDOT alleges and the court of appeals held that the public duty rule bars Petitioner’s negligence claims based on statutory obligations. We agree.
An essential element in a cause of action based upon negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Doe v. Greenville County Sch. Dist., 375 S.C. 63, 72, 651 S.E.2d 305, 309 (2007). Without a duty, there is no actionable negligence. Id. A plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law. Arthurs ex rel. Estate of Munn v. Aiken County, 346 S.C. 97, 104, 551 S.E.2d 579, 582 (2001). When the duty is created by statute, we refer to this as a “special duty,” whereas when the duty is founded on the common law, we refer to this as a legal duty arising from “special circumstances.” See id. at 109-10, 551 S.E.2d at 585 (explaining that this Court restricts the term special duty to those arising from statutes, whereas a legal duty arising from a “special circumstance” is created under the common law).
Under the public duty rule, public officials are not liable to individuals of the public for negligence in discharging their statutory obligations. Tanner v. Florence County Treasurer, 336 S.C. 552, 561, 521 S.E.2d 152, 158 (1999). A public official may be liable if he owed a special duty of care to the individual, as determined by a six-factor test, assessing whether: (1) an essential purpose of the statute is to protect against a particular kind of harm; (2) the statute imposes on a specific public officer a duty to guard against or not cause that harm; (3) the class of persons the statute intends to protect is identifiable before the fact; (4) the plaintiff is a person within that class; (5) the public officers know or should know of the likelihood of harm to the class if he fails in his duty; and (6) the officer is given sufficient authority to act in the circumstances or he undertakes to act in the exercise of his office. Jensen v. Anderson County Dep’t of Soc. Servs., 304 S.C.195, 200, 403 S.E.2d 615, 617 (1991).
Petitioner does not contend that the six-factor test is met in this case. Rather, she argues the public duty rule is not dispositive because SCDOT has a common law duty to properly repair and maintain the state highway system, which she contends the court of appeals erroneously failed to consider when it affirmed the trial court’s grant of summary judgment. We find Petitioner’s common law argument is not preserved for appellate review.
While Petitioner pleaded common law negligence in her complaint, the trial court did not rule on that issue, and Petitioner did not file a motion to alter or amend the judgment. See I’on L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000) (stating if the trial court fails to rule upon an issue raised to it, the losing party must file a motion to alter or amend the judgment to preserve that issue for appellate review). In fact, Petitioner did not fully assert a common law basis for SCDOT’s duty until her reply brief to the court of appeals. For these reasons, we hold Petitioner did not properly preserve the issue of a common law duty for appellate review. See Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 511, 598 S.E2d 712, 715 (2004) (stating issue may not be raised for the first time on appeal).
Because Petitioner’s common law argument is unpreserved and the court of appeals correctly affirmed the grant of summary judgment regarding SCDOT’s statutory obligations, Petitioner is unable to establish SCDOT owed a legal duty to Petitioner. See Doe, 375 S.C. at 72, 651 S.E.2d at 309. Without this essential element, Petitioner cannot prevail on her negligence claim. See id.
Having found Petitioner is unable to establish a legal duty, we need not address Petitioner’s remaining issues. See Futch v. McAllister Towing of Greenville, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (recognizing that appellate court need not address remaining issues when determination of one issue is dispositive). Accordingly, we affirm the court of appeals as to the public duty rule, and vacate the remainder of that opinion.
CONCLUSION
The trial court properly granted summary judgment on SCDOT’s statutory duty, and the court of appeals correctly affirmed on that ground. Petitioner failed to preserve her common law duty argument; thus, she cannot establish SCDOT owed her a legal duty. Therefore, the court of appeals is affirmed in part and vacated in part.
PLEICONES, BEATTY, JJ., and Acting Justices James E. Moore and John H. Waller, Jr., concur.
Jan 28, 2012 | Brain Injury/Head Trauma, Car Accidents, DUI & DWI, Personal Injury, Uncategorized, Wrongful Death
This recent SC Supreme Court opinion discusses what is required to hold bars accountable for continuing to serve alcohol to intoxicated customers when those same patrons then get behind the wheel and hurt or kill someone. At first glance, it might be easy to say the drunk driver is the one who is responsible and nobody else. After all, driving under the influence is a criminal act. However, after more considered review, do we want to permit bar owners and/or homeowners who knowingly continue to serve intoxicated persons to escape liability for their role in the horrific harm that can result. Of course not. Each of us has a duty to watch out for one other whether in law or in life. You would never want to see a drunk person go get into their car and drive away. We know and have seen what can happen. Instead, a homeowner can offer to drive a friend home or even stay the night. A bar owner can likewise take reasonable steps to protect their customer and the public at large. A simple phone call to a friend or cab company is all that is required to be safe. If you play a role and do not take steps to protect the driving public, you should expect to held accountable for your actions, just like the drunk driver. As you can see after reading the opinion below, these cases are vigorously fought and defended. Better make sure your attorney is an seasoned accident attorney with real trial court experience.
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 inducted 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 potential criminal, insurance, and medical aspects of complex injury cases. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jon E. Hartfield, by and through his Conservator, Haskell L. Hartfield and Haskell L. Hartfield, Individually, Respondents,
v.
The Getaway Lounge & Grill, Inc., Shou Mei Morris, individually and as President of The Getaway Lounge & Grill, Inc., Appellants.
Appeal from Greenwood County
Larry R. Patterson, Circuit Court Judge
Opinion No. 26836
Heard June 11, 2009 – Filed July 26, 2010
AFFIRMED
C. Rauch Wise, of Greenwood, for Appellants
Jon Eric Newlon, of McCravy Newlon & Sturkie Law Firm, of Greenwood, for Respondents.
CHIEF JUSTICE TOAL: After visiting a number of bars one night in July 2003, Hoyt Helton (Helton) drove his vehicle across the center line and struck a car in which John Erik Hartfield (Hartfield) was a passenger. Helton died at the scene and a South Carolina Law Enforcement Division (SLED) toxicologist recorded his blood alcohol content (BAC) at .212. Hartfield, who suffered serious injuries, and his father (Respondents) filed suit against three bars Helton visited that evening. Respondents were awarded a $10 million verdict against The Getaway Lounge & Grill (The Getaway).[1] The trial court also granted Respondents’ motion to pierce the corporate veil of The Getaway. We certified this case for review pursuant to Rule 204(b), SCACR.
FACTS/PROCEDURAL HISTORY
At trial, Helton’s wife testified that her husband would typically start drinking around noon and would usually leave home around 4:00 or 4:30 p.m. to go to his favorite bars. She had no recollection of her husband drinking at home on the day of the accident.
Other testimony established that Helton’s first stop the day of the accident was Williams Package and South End Pub (South End Pub), one of his regular stops. Robert Cockrell (Cockrell), owner and operator of the South End Pub, testified that Helton arrived around 4:00 or 4:15 p.m. and stayed inside until 5:30 p.m., when he became angered by another person at the bar and walked out. Helton’s friend, Brad Harrison (Harrison), found Helton sitting outside the entrance to the South End Pub when Harrison arrived around 6:00 or 6:15 p.m. Later, Cockrell saw Helton on the bench when he closed the establishment at 7:00 p.m. Cockrell testified that Helton was not served a beer that day, Helton did not show up with a beer, and Helton was not drinking a beer when Cockrell saw him on the bench as he was closing up. Cockrell also testified that when Helton arrived at the bar, he did not appear to be intoxicated, though he talked about being sick and was seen sitting at a table, leaning over, and holding his stomach.
Helton’s second stop was The Getaway where he arrived between 7:15 and 7:30 p.m. Dianna Bice (Bice), one of the owners of The Getaway, testified she was at the bar that night, never saw Helton drinking, and he did not appear intoxicated. Harrison testified that when he arrived at The Getaway at approximately 8:00 p.m., Helton was sitting at the bar drinking a beer. He recalled that Helton had three beers while at The Getaway and did not appear intoxicated. Harrison and Helton left The Getaway at the same time, which Harrison testified was before 9:30 p.m. Trooper Tony Keller (Keller), who investigated the accident, testified that Harrison told him he left The Getaway between 9:30 and 10:00 p.m.
Helton’s final stop the evening of the accident was the Carolina Drive-In. Billy McDonald (McDonald) was tending bar that evening and testified that Helton arrived around 10:00 p.m. According to McDonald’s trial testimony, Helton stayed at the Carolina Drive-In only ten or fifteen minutes and did not have a beer. However, Keller testified that McDonald informed him that Helton had one beer at the Carolina Drive-In. McDonald stated that he did not recognize any problems in the way Helton walked into the bar. Helton departed Carolina Drive-In around 10:10 or 10:15 p.m. After leaving Carolina Drive-In, Helton placed a cell phone call to his wife and left a voice message. Keller testified that, after listening to the message, he had no doubt that Helton was intoxicated.
The crash occurred at approximately 10:51 p.m. Helton died at the scene and Hartfield was seriously injured. Keller arrived at the scene shortly after the accident and stated that he found no cups or alcohol containers. Fluid samples revealed Helton’s BAC to be .212 at the time of the collision. Keller testified that paramedics extracted Hartfield from the car and transported him from the scene by helicopter. Hartfield’s father explained that his son spent approximately ten months in the hospital following the accident. For roughly six months, Hartfield was in a coma. Today, Hartfield still requires care, wears a leg brace, is unable to drive, and has problems with short term memory.
At trial, Respondents called Dr. William Brewer (Brewer), a chemistry instructor at the University of South Carolina, who teaches forensic chemistry. Brewer was previously a toxicologist at the Clemson Veterinary Diagnostic Center and with SLED. Beginning with Helton’s BAC at the time of death, Brewer used a method called “retrograde extrapolation” to determine how many beers Helton would have to have consumed over the hours preceding the accident to reach a .212 BAC. Brewer testified that, based on his calculations, Helton must have consumed more than the amount of beer testimony had suggested in order to reach a .212 level. Brewer also stated that Helton’s approximate BAC during the time he was at The Getaway would have been between .18 and .20, and that Helton would have been grossly intoxicated and exhibiting symptoms of intoxication.
The jury returned a verdict for Respondents in the amount of $8,000,000 for Hartfield and $2,000,000 for Hartfield’s father. The court then conducted a hearing to determine whether the corporate veil of The Getaway could be pierced. The trial court issued an order piercing the corporate veil thereby making Shou Mei Morris and The Getaway (Appellants) liable in the amount awarded by the jury. This appeal followed.
ISSUES
| I. Did the trial court err in admitting the testimony of Brewer? |
| II. Did the trial court err in failing to direct a verdict in favor of The Getaway? |
| III. Did the trial court err in charging the jury statutory inferences from the criminal statute on driving under the influence? |
| IV. Did the trial court err in failing to charge the jury that the plaintiff must prove Helton was visibly intoxicated at The Getaway? |
| V. Did the trial court err in instructing the jury that The Getaway is liable if employees should have known Helton was intoxicated? |
| VI. Did the trial judge err in piercing the corporate veil of The Getaway? |
LAW/ANALYSIS
I. Brewer’s Testimony
Appellants argue the trial court erred in admitting the testimony of Brewer. We disagree.
The admission of evidence is within the sound discretion of the trial judge and will not be reversed absent a clear abuse of discretion. See Hofer v. St. Clair, 298 S.C. 503, 513, 381 S.E.2d 736, 742 (1989). “An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion without evidentiary support.” Conner v. City of Forest Acres, 363 S.C. 460, 467, 611 S.E.2d 905, 908 (2005). Where a party calls an expert, the expert may testify as to his opinion, but his opinion must be based upon facts proven at trial. See Gathers By and Through Hutchinson v. S.C. Elec. & Gas Co., 311 S.C. 81, 82-83, 427 S.E.2d 687, 688-89 (Ct. App. 1993). A party may ask a hypothetical question of an expert, but the hypothetical must be based on facts supported by the evidence. Id. at 82, 427 S.E.2d at 688.
At trial, Appellants objected to the introduction of Brewer’s testimony as speculative. Appellants contend that Hartfield did not establish sufficient facts for the expert to give an opinion as to Helton’s sobriety when he was at The Getaway. The court of appeals addressed a similar argument in Gathers. In Gathers, the plaintiff was electrocuted when he touched a copper water pipe under his home, and plaintiff’s counsel called an expert who, based on a hypothetical question, theorized that a defect in the defendant’s service line caused the pipe to become electrified. Id. The defendant argued that the testimony should have been excluded because there was not a sufficient factual foundation upon which to base the opinion. Id. The court of appeals found no error in admitting the testimony stating:
[C]ounsel may rely upon circumstantial evidence to prove an essential fact in framing a hypothetical question. Deciding whether a conclusion assumed in the hypothetical is at least reasonably supported by circumstantial evidence is a question of law for the court. If circumstantial evidence reasonably supports the assumptions, whether the evidence actually establishes the assumed facts becomes a question of fact for the trier of fact.
Id. at 83, 427 S.E.2d at 688-89.
In the present case, the circumstantial evidence presented by Respondents was sufficient to support Brewer’s opinions. As outlined above, Respondents established a general timeline of Helton’s activities on the day of the accident. Respondents introduced evidence showing Helton’s BAC at the time of the accident and elicited testimony that Helton left a voice message just prior to the accident in which he sounded intoxicated. Respondents also called witnesses who testified concerning the approximate time Helton left The Getaway and the amount of alcohol he consumed between leaving The Getaway and the time of the wreck. We find that this evidence provided reasonable support for Brewer’s testimony. Though Respondents’ case was based on circumstantial evidence, Respondents sufficiently developed the facts to form the basis of Brewer’s testimony. Hence, the trial court did not err in admitting Brewer’s testimony.
II. Directed Verdict
Appellants argue Respondents did not meet their burden to establish that the employees of The Getaway “knowingly” sold beer to an intoxicated person. Consequently, Appellants contend the trial court erred in refusing to direct a verdict for Appellants. We disagree.
In ruling on a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the nonmoving party. See Sabb v. S.C. State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002) (citation omitted). A motion for a directed verdict goes to the entire case and may be granted only when the evidence raises no issue for the jury as to liability. See Carolina Home Builders, Inc. v. Armstrong Furnace Co., 259 S.C. 346, 358, 191 S.E.2d 774, 779 (1972). This Court will reverse the trial court’s rulings on directed verdict motions only where there is no evidence to support the rulings or where the rulings are controlled by an error of law. See Hinkle v. National Cas. Ins. Co., 354 S.C. 92, 96, 579 S.E.2d 616, 618 (2003) (citation omitted).
S.C. Code Ann. § 61-4-580 (2009) provides in part that “[n]o holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder’s permit: . . . (2) sell beer or wine to an intoxicated person . . . .”
In Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990), the court of appeals established that a third party injured by actions of an intoxicated person served in violation of the earlier version of section 61-4-580 may pursue a civil action against the vendor. Daley, 303 S.C. at 84, 399 S.E.2d at 14. The court further allowed that an injured third party may show that the alleged violators knowingly served alcohol to an intoxicated person or were confronted with such information, from the person’s appearance or otherwise, as would lead a prudent man to believe that the person was intoxicated. See id. at 86, 399 S.E.2d at 15.
In Daley, the court of appeals considered whether or not a trial judge should have granted a motion for directed verdict. Id. at 84, 399 S.E.2d at 15. The evidence in Daley was that the driver had nine twelve-ounce cans of beer over the previous four or five hours, did not recall drinking beer at any other establishment that evening, and officers indicated they believed the driver was intoxicated immediately after the accident. Id. at 83, 399 S.E.2d at 14. The court of appeals held there was no error in denying the directed verdict motion, noting “[t]here was more than ample evidence that Ward was intoxicated at the time of the accident and the jury could have easily concluded he was just as intoxicated at the time he was served his last beer at the [bar].” Id. at 84-85, 399 S.E.2d at 15.
In the present case, Respondents established a timeline of Helton’s actions and that Helton had a .212 BAC only fifty to ninety-five minutes after leaving The Getaway. Keller testified he had no doubt that Helton was under the influence of alcohol when he left a voice message for his wife minutes before the accident. Brewer testified that, using retrograde extrapolation, a man of Helton’s approximate weight would have exhibited outward symptoms of intoxication. Given the deferential standard of review with regard to motions for directed verdict, we find that Respondents presented sufficient evidence for a jury question. The trial court therefore did not err in denying Appellants’ motion.
III. Statutory Inference
Appellants contend the trial court erred in allowing a permissive inference from the driving under the influence (DUI) statute. Appellants argue that the trial judge’s instruction on the inference for DUI was error for two reasons: (1) the charge was not relevant to a civil case and (2) there was no showing that the blood and urine samples were handled in accordance with procedures approved by SLED, per the requirements of the implied consent statute. We disagree.
At the close of the trial, the judge charged the jury in pertinent part:
Now, in proving the violation of this statute the plaintiff must prove that the defendant or both defendants or their employees violated the statute, they sold alcoholic beverages to a person that they knew or should have known was intoxicated at the time they sold the alcoholic beverages to that person. If that is proven to you by the greater weight or preponderance of the evidence, then I would charge you that an intoxicated person is a person who has drunk a sufficient quantity of an intoxicating beverage to appreciably impair the normal control of their bodily or mental functions.
Now, in this state at the time there was a permissive inference that a person was under the influence of alcohol when that person has a blood alcohol level of .10 percent or greater. Now, you have to determine if it’s been established at the time that the alcohol was served and the person was intoxicated. Now, this inference is just an inference to be taken by you along with any other evidence of intoxication that you find in the case.
Because South Carolina does not have a Dram Shop Act, our civil remedy arises out of criminal statutes. See Tobias v. Sports Club, Inc., 332 S.C. 90, 92, 504 S.E.2d 318, 319 (1998) (holding injured third parties may bring a negligence suit against the tavern owner based on a violation of the alcohol control statutes). Similarly, a trial judge in a civil action should be able to aid the jury in assessing whether a bartender knowingly sold alcohol to an intoxicated individual by charging the jury on permissible inferences regarding “being under the influence of alcohol” under our criminal laws. The civil remedy is predicated on criminal statutes, thus it should be permissible for a trial judge to charge on the permissive inference of intoxication under our criminal statutes. Hence, the charge as given was relevant in a civil case and the trial court committed no error in charging the permissible inference.
Also, Appellants’ contention that S.C. Code Ann. § 56-5-2950 (Supp. 2009) forbids entrance of Helton’s BAC is misplaced. Section 56-5-2950 is designed to ensure procedural due process in a criminal trial. See Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 37, 627 S.E.2d 751, 753 (Ct. App. 2006) (“The implied consent laws of this State attempt to balance the interest of the State in maintaining safe highways with the interest of the individual in maintaining personal autonomy free from arbitrary or overbearing State action.”). Therefore, if someone’s BAC was obtained in violation of this statute, it only affects admissibility in a criminal proceeding. Because the present matter is a civil case, the procedural due process concerns of a criminal case are not present and section 56-5-2950 is inapplicable. So long as a sufficient chain of custody exists to authenticate the evidence in a civil case, this type of evidence is admissible. Thus, the trial court committed no error in allowing evidence of Helton’s BAC.
IV. Visibly Intoxicated
Appellants contend that the trial court erred in failing to adopt their requested instruction to the jury that “[b]efore you can find the defendant liable, the plaintiff must prove that Hoyt Helton was visibly intoxicated.” We disagree.
As noted above, the court of appeals established in Daley that a third party injured by the actions of an intoxicated person served in violation of the earlier version of section 61-4-580 may pursue a civil action against the vendor. Daley, 303 S.C. at 84, 399 S.E.2d at 14. Section 61-4-580 prohibits the holder of a permit authorizing the sale of beer or wine from knowingly selling beer or wine to an intoxicated person. S.C. Code Ann. § 61-4-580 (2009). The statute does not contain a requirement that the intoxicated person be visibly intoxicated, only that a person “knowingly” sell beer or wine to an intoxicated person. Consequently, the trial court’s refusal to adopt Appellants’ proposed instruction was not error.
Appellants would have this Court adopt a new standard allowing for liability only where the intoxicated person is visibly intoxicated. We see no reason to adopt Appellants’ proposal. Though the present case focused on the visible symptoms exhibited by Helton while at The Getaway, other cases under section 61-4-580 might concern knowledge acquired through a different medium.[2]
V. “Should have known”
Appellants contend that the trial court erred in instructing the jury that Respondents may meet their burden of proof by showing that Appellants’ employees served alcohol to a person they “should have known” was intoxicated. The trial court’s instruction to the jury included, “The plaintiff has to prove under the statute . . . that businesses that sold the alcohol knew or should have known he was intoxicated.” Appellants argue that this instruction lessened the proof required under the law and was rejected by the court of appeals in Daley. We disagree.
In Daley, the plaintiff in a suit under the predecessor to section 61-4-580 argued that the trial court erred in denying her requested charge that her burden was to prove that the defendants “knew or should have known that the patron was in an intoxicated condition at the time he or she was served.” Daley, 303 S.C. at 85, 399 S.E.2d at 15. The court of appeals found no error in the trial court’s decision denying the requested charge, but allowed that the plaintiff would have been entitled to an instruction as to a “reasonable person” standard. Id. at 86-87, 399 S.E.2d at 15-16. The proper standard, as stated by the court of appeals is “whether the bartenders negligently served alcoholic beverages to a person who, by his appearance or otherwise, would lead a prudent man to believe that person was intoxicated.” Id. at 87, 399 S.E.2d at 16. In our view, “knew or should have known” is an articulation of an objective “reasonable person” standard. We see no difference between the “reasonable person” and “should have known” standards. Moreover, this instruction did not lessen the proof required under our law. Thus, the trial court did not err in instructing “knew or should have known.”
VI. Piercing the Corporate Veil
Appellants argue that Respondents failed to prove the fundamental unfairness in recognizing the corporate entity. We disagree.
We affirm the trial court’s decision allowing Respondents to pierce the corporate veil pursuant to Rule 220(b), SCACR, and the following authorities: Sturkie v. Sifly, 280 S.C. 453, 457-58, 313 S.E.2d 316, 318 (Ct. App. 1984) (The second part of the two-pronged test used to determine whether a corporate entity should be disregarded “requires that there be an element of injustice or fundamental unfairness if the acts of the corporation be not regarded as the acts of the individuals.”); Multimedia Pub. of S.C., Inc. v. Mullins, 314 S.C. 551, 556, 431 S.E.2d 569, 573 (1993) (citation omitted) (“The essence of the fairness test is simply that an individual businessman cannot be allowed to hide from the normal consequences of carefree entrepreneuring by doing so through a corporate shell.”).
CONCLUSION
For the aforementioned reasons, the decision of the trial court is affirmed.
WALLER, BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent. I believe the trial court erred in denying Appellants’ motion for a directed verdict and, even assuming the motion was properly denied, erred in charging the jury. Consequently, I would reverse.
I. Directed Verdict
To meet his burden of proof, Respondent was required to show that the employees of The Getaway “knowingly” sold alcohol to an intoxicated person. In my view, Respondent’s case was based, not on evidence, but on speculation, and was not sufficient to withstand Appellants’ motion for a directed verdict.
Regarding a motion for directed verdict, this Court has held:
The issue must be submitted to a jury whenever there is material evidence tending to establish the issue in the mind of a reasonable juror. However, this rule does not authorize submission of speculative, theoretical and hypothetical views to the jury. We have repeatedly recognized that when only one reasonable inference can be deduced from the evidence, the question becomes one of law for the court. A corollary of this rule is that verdicts may not be permitted to rest upon surmise, conjecture or speculation.
Hanrahan v. Simpson, 326 S.C. 140, 149, 485 S.E.2d 903, 908 (1997) (citations omitted).
During Respondent’s case, Respondent presented the following evidence to demonstrate that employees of The Getaway “knowingly” sold alcohol to an intoxicated person: Helton had a .212 BAC 50-90 minutes after leaving The Getaway, Helton typically sipped his beer, Helton consumed one beer at the Carolina Drive-in, and Helton consumed three beers at The Getaway.
Respondent presented no direct evidence showing that Appellants’ employees “knowingly” served alcohol to an intoxicated person, and instead relied on Dr. Brewer’s testimony. In fact, the only direct evidence regarding Helton’s visit to The Getaway presented during the trial was that Helton was not exhibiting symptoms of intoxication.
In place of direct evidence, Respondent presented the testimony of Dr. Brewer. Using retrograde extrapolation, Dr. Brewer opined that a hypothetical man of Helton’s approximate weight would have been exhibiting outward symptoms of intoxication when he was served the third beer at The Getaway. Based on the assumption that the hypothetical man consumed three beers at The Getaway, one beer at the Carolina Drive-in, and no other alcohol from the time he entered the Getaway until the crash, Dr. Brewer concluded that the man would have had to have consumed alcohol prior to arriving at The Getaway. Dr. Brewer then opined that, based on these assumptions, the man arrived at The Getaway with a .10 or .12 BAC. Finally, Dr. Brewer concluded that, under these assumed facts, the hypothetical person may have been exhibiting visible symptoms of intoxication when he was served the third beer at the Getaway.
Dr. Brewer’s testimony, based on a hypothetical person of Helton’s approximate weight, was carefully worded:
[B]ased on my calculations he would certainly have over a .10, a .12 just having that first beer, if we’re making the assumption that’s all he had, was those four beers. . . . As he is being given more beer he should be showing outward signs of great impairment because his alcohol concentration is going up. So, you know, I think that’s general, but maybeat first his speech may not be that impaired after three or four beers, but with each beer he certainly would be becoming more and more impaired. (emphasis supplied).
Given the evidence, in order for the jury to find in favor of Respondent, it must find (1) that Dr. Brewer’s assumption that Helton did not consume any alcohol after leaving the Getaway other than one beer at the Carolina Drive-in, was true, though Respondent provided no evidence to account for the time between Helton leaving the Getaway and arriving at the Carolina Drive-in, which could have been more than a half an hour; (2) that the hypothetical man on which Dr. Brewer based his testimony accurately reflected how Helton would react to alcohol, despite the fact that Helton weighed more than the hypothetical man and was an alcoholic; and (3) that Helton did in fact exhibit the outward symptoms that Dr. Brewer opined the hypothetical man “should” have been exhibiting.
In my view, only by piling inference upon inference could the jury conclude that the employees of the Getaway “knowingly” served alcohol to an intoxicated person. A plaintiff is not required to present direct evidence in order to make a case, but verdicts may not rest on speculation. See Hanrahan, 326 S.C. at 149, 485 S.E.2d at 908.
In upholding the trial court’s decision to deny a directed verdict, the majority cites to Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990). In Daley, the Court of Appeals affirmed the denial of a directed verdict in a case in which no direct evidence was presented to show that the defendant knowingly served an intoxicated person. However, Daley presented a much stronger set of facts than the instant case. The plaintiff was injured when a driver struck his car. The plaintiff and the investigating officer testified that the driver was intoxicated immediately after the accident, and the driver agreed. The driver had left the bar 15-20 minutes before the accident and had spent the previous 4-5 hours at the bar drinking nine, twelve-ounce cans of beer. The driver did not recall drinking beer at any other bar that evening.
This, in my view, constitutes a much stronger set of facts than the instant case. Helton visited not one, but three different bars on the night of the accident. The Getaway was not his last stop and the accident occurred 50-90 minutes after Helton left The Getaway. Given these facts, I believe a jury verdict for Respondent can only be based on speculation and the trial court erred in denying Appellants’ motion for directed verdict.
II. Statutory Inference
Even assuming the judge properly submitted the case to the jury, I believe the trial judge erred in instructing the jury that it could consider the statutory inference from the driving under the influence (DUI) statute in deciding liability. In my view, the inference is not relevant to the question before the jury – whether the Appellants’ employees knowingly sold alcohol to an intoxicated person.
In Suskey v. Loyal Order of Moose Lodge # 86, 325 Pa.Super. 94, 472 A.2d 663 (Pa. 1984), the Superior Court of Pennsylvania upheld a lower court’s decision not to include the instruction regarding whether the driver was “under the influence” in a suit against a bar owner for knowingly serving an intoxicated person. The court noted that “being ‘under the influence’ and ‘visibly intoxicated’ relate to different characteristics of ability and control as opposed to appearance.”[3] Id. at 99-100, 472 A.2d at 666. I agree with the reasoning of the Pennsylvania court. Whatever standard the General Assembly may have chosen to set with regard to a person’s ability or inability to lawfully operate a motor vehicle, it is not relevant to the question whether a person is intoxicated such that the employees knowingly served an intoxicated person.
Moreover, in my view, to apply the criminal inference in a civil matter would run contrary to the intent of the General Assembly. The criminal statute, as it existed at the time of the accident, provided as follows:
(b) In the criminal prosecution for a violation of [statutes] relating to driving a vehicle under the influence of alcohol, drugs, or a combination of them, the alcohol concentration at the time of the test, as shown by chemical analysis of the person’s breath or other body fluids, gives rise to the following:
. . .(3) If the alcohol concentration was at that time ten one-hundredths of one percent or more, it may be inferred that the person was under the influence of alcohol. S.C. Code Ann. § 56-5-2950 (2003) (emphasis added).
The express language of the statute specifies that the inference applies in a criminal prosecution and to apply the inference in a civil case contradicts the statute. See Wood v. Brown, 201 S.E.2d 225 (N.C. App. 1973) (“By the express language of the statute . . . it applies ‘(i)n any criminal action’ . . . . By no sound exercise of statutory construction can we take such specific language to authorize the application of the statutory presumption in civil actions.”). I note that my position is in accord with that of the majority of other jurisdictions that have dealt with this issue. See 16 A.L.R.3d 748, § 9.
Furthermore, I believe the charge was prejudicial. The instruction as to whether Helton was “under the influence” followed on the heels of the trial court’s discussion of intoxication. Additionally, the trial court failed to adequately distinguish between “intoxication” and “under the influence.” Given that evidence established Helton’s BAC at the time of the accident, and that Dr. Brewer opined as to Helton’s presumed BAC during his time at The Getaway, both of which were in excess of the .10 BAC referenced in the charge, I find that the instruction prejudiced Appellants.
In my view, the trial court erred in instructing the jury with regard to a presumption that a driver is under the influence and Appellants were prejudiced by the error. I would therefore reverse.
For the reasons stated above, I would reverse the decision of the trial court.
[1] The trial court granted a directed verdict motion for the defendant South End Pub which was affirmed by the court of appeals inHartfield ex rel. Hartfield v. McDonald, 381 S.C. 1, 671 S.E.2d 380 (Ct. App. 2008). However, the jury could not reach a verdict as to Carolina Drive-In. The instant case concerns only the claim against The Getaway.
[2] The second part of Appellants’ requested charge is that a high alcohol reading alone is not sufficient to establish liability. As noted above, we believe the trial court’s instruction with regard to the requirement that the plaintiff prove the Appellants “knowingly” sold beer or wine to an intoxicated person obviates the need for this instruction.
[3] Though Suskey concerned a mandatory inference, rather than the permissible inference in the instant case, there is no difference for purposes of my analysis.
