Mar 24, 2012 | Car Accidents, Personal Injury, Uncategorized
This case makes a critical distinction between tort law and contract causes of action. Here, the alleged defect in the product (cruise control in truck) only resulted in harm to the product itself. Fortunately, the defect did not cause an accident that injured or killed. Rather, the vehicles caught fire and were consumed. As a result, the Court affirmed that the only recovery available to the vehicle owners was under contract liability, not a tort action. Tort liability is only an option where a product defect causes harm to other property or personal injury. This distinction is critical is determining what damages you can seek. Of course, we are always grateful when only property damage is involved. Property can always be replaced. You and your family cannot.
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 understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jeffrey M. Sapp, Jr., Appellant,
v.
Ford Motor Company, Respondent.
Appeal from Jasper County
John C. Few, Circuit Court Judge
and
Bryan D. Smith, Appellant,
v.
Ford Motor Company, Respondent.
Appeal from York County
S. Jackson Kimball, III, Special Circuit Court Judge
Opinion No. 26754
Heard April 21, 2009 – Filed December 21, 2009
AFFIRMED IN RESULT
Karl S. Brehmer and L. Darby Plexico, III, both of Brown & Brehmer, Columbia, for Appellants Jeffrey M. Sapp, Jr. and Bryan D. Smith.
Curtis Lyman Ott and Carmelo B. Sammataro, both of Turner Padget Graham & Laney, of Columbia, for Respondent.
Ryan A. Earhart, Erin E. Richardson, and Patrick C. Wooten, all of Nelson, Mullins, Riley & Scarborough, of Charleston, for amicus curiae South Carolina Defense Trial Attorneys’ Association.
CHIEF JUSTICE TOAL: In these consolidated appeals, the trial courts found the economic loss rule precluded Appellants’ tort claims and granted judgment in favor of Respondent Ford Motor Company. We affirm the dismissal, and overrule Colleton Preparatory Academy, Inc. v. Hoover Universal Inc., 379 S.C. 181, 666 S.E.2d 247 (2008) to the extent it expands the narrow exception to the economic loss rule articulated in Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 384 S.E.2d 730 (1989).
FACTUAL/PROCEDURAL BACKGROUND
I. Sapp Appeal
In 2004, Appellant Jeffrey M. Sapp purchased a 2000 Ford F-150 truck from Atlantic Coast Construction for $5,000. The truck had 190,000 miles on it at the time of sale and Sapp bought it “as is.” On May 16, 2005, while Sapp was driving the truck, the cruise control stopped working, and the truck caught fire shortly after Sapp parked.
The fire did not injure Sapp or damage any property other than the vehicle itself. He filed a claim with his insurance company, and approximately three months later, the truck was repaired and returned to him. The repair costs were approximately $7,000.
Sapp filed suit against Ford alleging causes of action for negligence, strict liability, breach of warranty, and fraud/misrepresentation. Sapp alleged Ford knew of a design defect in the cruise control switch, which would short circuit and cause a fire in the engine compartment. The trial court granted summary judgment as to all causes of action and specifically found that the economic loss rule precluded the tort claims.
II. Smith Appeal
On January 31, 2006, Appellant Bryan D. Smith’s 2000 Ford F-150 truck caught fire and was completely destroyed. Smith filed suit against Ford alleging causes of action for negligence, strict liability, breach of warranty, and negligent misrepresentation. Smith alleged Ford knew of the same design defect alleged in Sapp’s complaint. The master-in-equity dismissed Smith’s tort claims pursuant to the economic loss rule.
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).
Any party may move for a judgment on the pleadings under Rule 12(c), SCRCP. A judgment on the pleadings is proper where there is no issue of fact raised by the complaint that would entitle plaintiff to judgment if resolved in plaintiff’s favor. Russell v. City of Columbia, 302 S.C. 86, 89, 406 S.E.2d 338, 339 (1991).
LAW/ANALYSIS
Appellants argue the trial courts erred in granting summary judgment based on the economic loss rule. We disagree.
The economic loss rule is a creation of the modern law of products liability. Under the rule, there is no tort liability for a product defect if the damage suffered by the plaintiff is only to the product itself. Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 341, 384 S.E.2d 730, 734 (1989). In other words, tort liability only lies where there is damage done to other property or personal injury. Id.
The purpose of the economic loss rule is to define the line between recovery in tort and recovery in contract. Contract law seeks to protect the expectancy interests of the parties. Tort law, on the other hand, seeks to protect safety interests and is rooted in the concept of protecting society as a whole from physical harm to person or property. In the context of products liability law, when a defective product only damages itself, the only concrete and measurable damages are the diminution in the value of the product, cost of repair, and consequential damages resulting from the product’s failure. Stated differently, the consumer has only suffered an economic loss. The consumer has purchased an inferior product, his expectations have not been met, and he has lost the benefit of the bargain. In this instance, however, the risk of product failure has already been allocated pursuant to the terms of the agreement between the parties. On the other hand, the parties have not bargained for the situation in which a defective product creates an unreasonable risk of harm and causes personal injury or property damage. Accordingly, where a product damages only itself, tort law provides no remedy and the action lies in contract; but when personal injury or other property damage occurs, a tort remedy may be appropriate.
In Kennedy, we held the economic loss rule does not preclude a homebuyer from recovering in tort against the developer or builder where the builder violates an applicable building code, deviates from industry standards, or constructs a house that he knows or should know will pose a serious risk of physical harm. Such an exception was and still remains necessary to protect homeowners. As explained in Kennedy, the mechanics of home purchasing have evolved and drastically changed over the past two hundred years and, accordingly, courts have shifted from following the doctrine of caveat emptor (“let the buyer beware”) to the doctrine ofcaveat venditor (“let the seller beware”).[1] A home is typically an individual’s single largest investment and is a completely different type of manufactured good than any other type of product that a consumer will buy. Moreover, courts have recognized that the transaction between a builder and a buyer for the sale of a home largely involves inherently unequal bargaining power between the parties. For these reasons, we created this narrow exception to the economic loss rule to apply solely in the residential home context.
The rule announced in Kennedy followed a long line of South Carolina cases directed toward protecting consumers only in the residential home building context,[2] and we noted that this holding followed cases from around the country expanding protections afforded to homebuyers and imposing tort liability on residential homebuilders.[3]
In Colleton Preparatory Academy, Inc. v. Hoover Universal Inc., 379 S.C. 181, 666 S.E.2d 247 (2008), this Court was faced with the issue of whether to expand the Kennedy exception to the economic loss rule beyond the residential home building context to all manufacturers. The majority held that the economic loss rule will not preclude a plaintiff from filing a products liability suit in tort where only the product itself is injured when the plaintiff alleges breach of duty accompanied by a clear, serious, and unreasonable risk of bodily injury or death. The dissent argued that this decision not only broadly expanded the exception to the economic loss rule, but also completely altered the law on products liability in South Carolina. In our view, the traditional economic loss rule provides a more stable framework and results in a more just and predictable outcome in products liability cases. Accordingly, we overrule Colleton Prep to the extent it expands the narrow exception to the economic loss rule beyond the residential builder context.
Furthermore, like the dissent in Colleton Prep, we, too, are cautious in permitting negligence actions where there is neither personal injury nor property damage. Imposing liability merely for the creation of risk when there are no actual damages drastically changes the fundamental elements of a tort action, makes any amount of damages entirely speculative, and holds the manufacturer as an insurer against all possible risk of harm. Carolina Winds Owners’ Ass’n, Inc. v. Joe Harden Builder, Inc., 297 S.C. 74, 87, 374 S.E.2d 897, 905 (Ct. App. 1988).
The Kennedy opinion did not signal a watershed moment in products liability law in South Carolina, nor did it alter the application of the economic loss rule in products liability cases. The Kennedy court specifically noted that “[t]he ‘economic loss rule’ will still apply where duties are created solely by contract. In that situation, no cause of action in negligence will lie.” Kennedy, 299 S.C. at 347, 384 S.E.2d at 737. Several opinions from the federal courts that were issued prior to Kennedy found South Carolina’s economic loss rule precluded a negligence action against a manufacturer,[4] and subsequent cases found that, in light of and notwithstanding Kennedy, the economic loss rule prohibited negligence actions against a manufacturer where duties were created solely by contract and where the product only injured itself or where the damage was contemplated by the parties’ contract.[5] We conclude the federal courts were correct in this regard.
At the time of our decision in Kennedy, we had no intention of the exception extending beyond residential real estate construction and into commercial real estate construction. Such a progression was in error and we now correct that expansion. Much less did we intend the exception to the economic loss rule to be applied well beyond the scope of real estate construction in an ordinary products liability claim. We emphasize the exception announced in Kennedy is a very narrow one, applicable only in the residential real estate construction context.
Turning to the merits of the instant appeals, we hold the trial courts properly granted judgment in favor of Ford on Appellants’ tort claims. The only damage caused by the defect in the trucks was damage to the trucks themselves – purely an economic loss to Appellants. Therefore, the economic loss rule precludes Appellants’ recovery in tort.
CONCLUSION
For the above reasons, we affirm the ruling of the trial courts.
PLEICONES and KITTREDGE, JJ., concur. WALLER, J., concurring in result only. BEATTY, J., concurring in result only in a separate opinion.
JUSTICE BEATTY (concurring in result): I concur but write separately. This Court heralded a change in its view of the economic loss rule in Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 384 S.E.2d 730 (1989). The Court gave no indication that its new analytical framework was limited to residential housing construction. In proclaiming its new framework, the Court set about a review of the Court of Appeals’ economic loss analysis in Carolina Winds Owners’ Ass’n v. Joe Harden Builder, Inc., 297 S.C. 74, 374 S.E.2d 897 (Ct. App. 1988). In rejecting the opinion of the Court of Appeals, this Court concluded that the traditional analysis of the economic loss rule was problematical. The Court, referring to the analysis of the Court of Appeals, stated:
Where a purchaser’s expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only “economic” losses. Conversely, where a purchaser buys a product which is defective and physically harms him, his remedy is in either tort or contract. This is so, the analysis provides, because his losses are more than merely “economic.”
We find that this legal framework generates difficulties. This is so because the framework’s focus is on consequence, not action. Builder “A” and Builder “B” can be equally blameworthy, and build equally shoddy housing, but because Builder “A”‘s negligence happened to be discovered early enough, no one was harmed. It hardly seems fair that Builder “A” should profit from a diligent buyer’s discovery, or because he was fortunate.
The framework we adopt focuses on activity, not consequence. If a builder performs construction in such a way that he violates a contractual duty only, then his liability is only contractual. If he acts in a way as to violate a legal duty, however, his liability is both in contract and in tort.
A builder is no less blameworthy in such a case where lady luck has smiled upon him and no physical harm has yet occurred. We discounted the necessity of showing physical harm in Terlinde, 275 S.C. 395, 271 S.E.2d 768 (1980), in which we considered and declined to adopt arguments asserting the “economic loss” rule contained in theTerlinde briefs.
Kennedy, 299 S.C. at 345-46, 384 S.E.2d at 736-37 (emphasis added).
Today, this Court would overrule Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 379 S.C. 181, 666 S.E.2d 247 (2008).[i] Colleton adheres to the Kennedy analysis framework. If it is wrongly decided, then Kennedy should be overruled as well and this Court should simply say that the economic loss rule is not applicable to residential home building. Of course, this would not explain the negative treatment of the rule in other areas such as professional services. See Tommy L. Griffin Plumbing & Heating v. Jordan, Jones & Goulding, Inc., 320 S.C. 49, 55, 463 S.E.2d 85, 88-89 (1995) (finding design professionals, including engineers, may have a duty separate and distinct from contractual duties such that the economic loss doctrine would not prohibit a tort action);Beachwalk Villas Condo. Ass’n v. Martin, 305 S.C. 144, 146-47, 406 S.E.2d 372, 374 (1991) (finding a special duty for architects);Lloyd v. Walters, 276 S.C. 223, 226, 277 S.E.2d 888, 889 (1981) (finding an attorney liable for economic loss to a corporate shareholder when attorney breached a duty to the corporation); but see McCullough v. Goodrich & Pennington Mortgage Fund, Inc., 373 S.C. 43, 53, 644 S.E.2d 43, 49 (2007) (rejecting the notion of a special duty in the secured transactions arena).
The inconsistent treatment of the doctrine, by use of varying analytical frameworks, does not provide the bench and bar guidance in the proper application of the doctrine. The Court should simply pronounce a list of areas to which public policy prohibits the application of the economic loss doctrine and forego any legal analysis.
[1] A more complete history of the evolution of the law in this area, along with several additional useful sources, can be found atKennedy, 299 S.C. at 342-44, 384 S.E.2d at 735-36.
[2] See Roundtree Villas Ass’n, Inc. v. 4701 Kings Corp., 282 S.C. 415, 321 S.E.2d 46 (1984) (holding that where the lender undertook to repair defects in the housing units in order to facilitate further sales, the lender could be held liable in tort for negligent repairs); Terlinde v. Neely, 275 S.C. 395, 271 S.E.2d 768 (1980) (holding that a subsequent purchaser of a home may pursue a cause of action in contract or tort against a developer); Lane v. Trenholm Bldg. Co., 267 S.C. 497, 229 S.E.2d 728 (1976) (holding that when a new building is sold, there is an implied warranty of fitness for its intended use which springs from the sale itself);Rutledge v. Dodenhoff, 254 S.C. 407, 175 S.E.2d 792 (1970) (recognizing that a builder-vendor of a new home gives its purchasers an implied warranty of fitness); Rogers v. Scyphers, 251 S.C. 128, 161 S.E.2d 81 (1968) (recognizing a builder’s duty to refrain from constructing housing it knows or should know will pose a serious risk of physical harm).
[3] See Huang v. Garner, 203 Cal. Rptr. 800 (Cal. App. 1984); Barnes v. Mac Brown & Co., 342 N.E.2d 619 (Ind. 1976); Village Cross Keys Inc. v. The United States Gypsum Co., 556 A.2d 1126 (Md. 1989); Oates v. JAG, Inc., 333 S.E.2d 222 (N.C. 1985); New Mea Construction Corp. v. Harper, 497 A.2d 534 (N.J. 1985); Sewell v. Gregory, 371 S.E.2d 82 (W. Va. 1988).
[4] See Laurens Electric Cooperative v. Altec Industries, 889 F.2d 1323 (4th Cir. 1989) (prohibiting a products liability claim where the only injury sustained was to the product itself); 2000 Watermark Ass’n v. Celotex Corp., 784 F.2d 1183 (4th Cir. 1986) (prohibiting a tort claim against a defendant who negligently installed defective shingles pursuant to our economic loss rule); Purvis v. Consolidated Energy Products Co., 674 F.2d 217 (4th Cir. 1982) (holding under South Carolina’s economic loss rule, a tobacco farmer could not maintain an action against a barn manufacturer because his only injury was an economic loss to his tobacco crop and the barn itself).
[5] See Palmetto Linen Service, Inc. v. U.N.X., Inc., 205 F.3d 126 (4th Cir. 2000) (upholding the dismissal of plaintiff’s negligence claim pursuant to South Carolina’s economic loss rule where defendant’s chemical dispensing system harmed only plaintiff’s linens because the destruction of the linens was a “natural and foreseeable result of a malfunction” and the parties contemplated this allocation of risk in their contract); Myrtle Beach Pipeline Corp. v. Emerson Elec. Co., 843 F. Supp. 1027 (D.S.C. 1993), aff’d, 46 F.3d 1125 (4th Cir. 1995) (dismissing plaintiff’s tort claim where defendant’s product, an air eliminator, ruptured causing an oil spill because plaintiff’s loss was only to the defective air eliminator since plaintiff did not own the property which the defective air eliminator damaged).
[i] Colleton Preparatory Academy, Inc. limited recovery to the cost of repair suffered by the plaintiff even in a tort action when there is no bodily injury. However, it did not require the plaintiff to wait until injury occurred to bring an action in tort.
Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized
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 understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Noel and Elizabeth Dillon, Appellants/Respondents,
v.
Neil Frazer, Respondent/Appellant.
Appeal From Greenville County
G. Edward Welmaker, Circuit Court Judge
Opinion No. 26629
Heard January 8, 2009 – Re-filed June 1, 2009
AFFIRMED IN PART; REVERSED IN PART
Cynthia Barrier Patterson, of Columbia, and Donald R. Moorhead, of Greenville, for Appellant/Respondents.
C. Stuart Mauney and T. David Rheney, both of Gallivan, White & Boyd, of Greenville, for Respondent/Appellant.
JUSTICE PLEICONES: This action arose out of an automobile accident in which Noel Dillon was injured due to Neil Frazer’s admitted negligence. The men were co-employees of a company located in Ontario, Canada and both were residents of Ontario. After a jury verdict for $6,000, Dillon[1] appealed the trial court’s refusal to grant a new trial absolute on damages. Frazer appealed four points, all relating to whether or not Dillon’s action should have been barred by the exclusivity statute found in Ontario workers’ compensation law. We certified the case pursuant to Rule 204(b), SCACR. We now affirm the trial court’s ruling refusing to apply Ontario law, reverse the trial court’s refusal of a new trial absolute as to damages, and remand.
FACTS
In 2002, Dillon and Frazer were employed by Massiv Die-Form (Massiv), a Canadian corporation with no facilities or place of business in South Carolina. The men were in Greenville, South Carolina working for Massiv. During their visit, Dillon and Frazer stayed at a hotel in Greenville and drove a rental car, all of which was paid for by Massiv. Both Dillon and Frazer were paid 30 minutes per day for the travel time between their hotel and the worksite. Frazer was the only employee authorized to drive the rental car.
Dillon sustained injuries in a car accident when Frazer ran a stop sign in a car in which Dillon was a passenger. Dillon was transported by ambulance to a hospital, where it was determined that he had eight fractured ribs on his right side and two on his left, a fractured sternum, a fractured clavicle, a fractured left thumb, and a punctured lung. He was admitted to the hospital where he remained for two days. Once back in Canada, Dillon received physical therapy. The remainder of his care was covered by the Canadian Health System and those costs were not sought in this action.
Due to his punctured lung, Dillon was not medically able to fly back to Canada until the Friday following his release from the hospital. He did not return to work for at least 10 weeks. Initially, Dillon returned to full-time work, but performed fewer overtime hours than prior to his injuries. Dillon testified that, prior to the accident, he worked roughly between 900 and 1,100 hours of overtime and double time each year. He stated that, after the accident, the number of hours he was able to work diminished.
Frazer admitted liability, so the only questions remaining for the jury were the amount of damages due Dillon and whether Dillon’s wife was entitled to damages for loss of consortium. All told, Dillon’s hospital care in Greenville amounted to $10,518. Dillon also claimed $320 for EMS transportation to the hospital and $1,188 in physical therapy bills. In addition to compensation for medical care, Dillon also contended that he was entitled to $509,168 in lost past and future earnings, including $101,350 in lost wages from the date of injury to the estimated trial date and $407,818 for the post-trial period, based on calculations by Dillon’s expert.
During deliberations, the jury sent questions to the judge asking whether any compensation had been paid to Dillon by a third party. The jury awarded Dillon $6,000 and found for Frazer on the consortium claim by Dillon’s wife. Dillon moved for a new trialnisi additur or in the alternative, for a new trial absolute as to damages only. The trial court granted Dillon’s motion for additur and increased the damages by $15,000, bringing the total amount of damages to $21,000. He denied all other motions.
I.
New trial absolute
Dillon argues on appeal that the trial court erred by not granting a new trial absolute as to damages. We agree.
The trial court has sound discretion when addressing questions of excessiveness or inadequacy of verdicts, and its decision will not be disturbed absent an abuse of discretion. Toole v. Toole, 260 S.C. 235, 239, 195 S.E.2d 389, 390 (1973). “The trial court must grant a new trial absolute if the amount of the verdict is grossly inadequate or excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of passion, caprice, prejudice, partiality, corruption or some other improper motive. The failure of the trial judge to grant a new trial absolute in this situation amounts to an abuse of discretion and on appeal this Court will grant a new trial absolute.” Vinson v. Hartley, 324 S.C. 389, 404-05, 477 S.E.2d 715, 723 (Ct. App. 1996). When considering a motion for a new trial based on the inadequacy or excessiveness of the jury’s verdict, the trial court must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, prejudice, or some other improper motive. Elam v. S.C. Dept. of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004).
DISCUSSION
In Kalchthaler v. Workman, 316 S.C. 499, 450 S.E.2d 621 (Ct. App. 1994), the Court of Appeals held that a party, having requested and been granted an additur, cannot complain of the amount. However, this does not preclude a party that is granted additur from appealing the trial judge’s refusal to grant a new trial absolute. Sullivan v. Davis, 317 S.C. 462, 467, 454 S.E.2d 907, 911 (Ct. App. 1995).
Dillon presented evidence of over $500,000 in damages as a result of the accident. While Frazer contested portions of Dillon’s claim, unchallenged testimony at trial established the following damages: $10,518 in medical bills, $320.00 for EMS transportation to the hospital, $1,188 in physical therapy bills, and $18,000 in lost wages and overtime pay. This totals $30,026 in undisputed damages.
We find the jury verdict of $6,000 irreconcilably inconsistent with the unchallenged evidence presented at trial. The disparity between the award and the admitted damages goes beyond a merely conservative award and suggests that the jurors were motivated by improper considerations.
This suggestion is borne out by the following three questions asked by the jury during deliberations: (1) if it could see the deposition of the human resources director for Massiv; (2) whether Dillon received any compensation while he was not working during the ten weeks after the accident; and (3) whether medical bills for the accident were paid for, and if so, by whom. The trial judge responded that those matters “are not for your concern.” The jury’s verdict demonstrates that the jury failed to follow the court’s instruction.
In Sullivan, supra, the jury sent questions to the trial judge inquiring as to what medical expenses had been covered by insurance.Id. at 466, 454 S.E.2d at 910. The jury awarded $20,000 despite the plaintiff’s medical bills totaling roughly $130,000, leading the Court of Appeals to conclude that “[t]he jurors obviously did not follow the court’s instructions to disregard insurance. . . . Therefore we must set it aside and grant a new trial absolute.” Id. at 466-67, 454 S.E.2d at 910-11. In the instant case, the record demonstrates that the jury ignored the trial court’s instruction to disregard matters relating to third party payment of medical bills.
The jury’s award of $6,000 in the face of over $30,000 in undisputed damages is grossly inadequate and demonstrates that the verdict was actuated by improper motivation. No plausible reason for the amount of the verdict has been advanced. For these reasons, the trial court erred in not granting Dillon’s motion for a new trial absolute.
II.
Application of Ontario law
Frazer argues in relation to the Ontario worker’s compensation exclusivity law, that the trial court erred: (1) in refusing to apply the exclusivity law; (2) in refusing to admit evidence on the exclusivity law; (3) in refusing to charge the jury on the exclusivity law; and (4) in denying Frazer’s motion for judgment notwithstanding the verdict based on application of the exclusivity law. Because each point hinges on the applicability of Ontario worker’s compensation law and the exclusivity law, we address these points as one and affirm on the ground that Frazer failed to plead Ontario law and so, is barred under Rules 12(b) and 8(c). See Rule 12(b), SCRCP (every defense must be asserted in the responsive pleading); Rule 8(c), SCRCP (in a responsive pleading a party “shall set forth affirmatively . . . any other matter constituting an avoidance or affirmative defense.”).[2]
Even if Frazer’s argument was preserved, we find that lex loci delicto properly governs this case. See Lister v. Nationsbank of Delaware, 329 S.C. 133,, 143, 494 S.E.2d 449, 454 (Ct. App. 1998) (In choice of law in South Carolina, the general rule is that the substantive law governing a tort action is the law of the state where the injury occurred.); Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303, 305 (1964), overruled on other grounds (In tort cases, the law of the place where the injury was occasioned or inflicted governs in respect of the right of action.).
CONCLUSION
For the reasons stated above, we affirm the trial court’s refusal to apply Ontario law and reverse the denial of Dillon’s motion for a new trial absolute. Since Frazer admitted liability, we remand for a new trial on damages only.
TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.
[1] Though Elizabeth Dillon filed Notice of Appeal, she did not pursue her appeal.
[2] Frazer asserted South Carolina worker’s compensation law in his pleadings, but did not include Ontario worker’s compensation law. The trial court denied his motion to amend his pleadings to include Ontario law.
Mar 15, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This SC Supreme Court case illustrates how every aspect of a serious injury case is aggressively defended. Here, defense lawyers wrongfully struck minority jurors during jury selection. The Court correctly reversed the case and remanded it for a new trial. But note, the lawyers had to fight all the way to the state Supreme Court and will have to try this case all over again. Better make sure your serious accident attorney is willing to go the distance and fight for you and your family. There is too much at stake to risk an inexperienced or timid lawyer.
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 understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Manuel Robinson, as duly appointed Personal Representative of the Estate of Brenda Doris Robinson, deceased, Petitioner,
v.
Bon Secours St. Francis Health System, Inc. and St. Francis Hospital, Inc., d/b/a St. Francis Women’s and Family Hospital, Adrian Paul Corlette, Sr., MD, Elaine Mary Haule, MD, Donald Webster Wing, MD and Tara L. Sabatinos, PA, Respondents.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Greenville County
D. Garrison Hill, Circuit Court Judge
Opinion No. 26628
Heard January 22, 2009 – Filed April 13, 2009
REVERSED
Matthew Christian and W. Harold Christian, Jr., both of Christian Moorhead & Davis, of Greenville, for Petitioner.
Ashby W. Davis, of Davis & Snyder, of Greenville, and Gregory A. Morton, of Donnan & Morton, of Greenville, for Respondents.
PER CURIAM: We granted a writ of certiorari to review the Court of Appeals’ opinion in Robinson v. Bon Secours St. Francis Health Sys. Inc., Op. No. 2006-UP-333 (S.C. Ct. App. filed September 20, 2006). The sole issue on certiorari is whether the Court of Appeals properly upheld the trial court’s denial of Robinson’s Batson[1] motion. We reverse.
FACTS
Robinson is the personal representative of the estate of his deceased wife, Brenda, who passed away while under the care of Respondents on September 19, 2000.[2] Robinson brought wrongful death and survival actions against the hospital and treating physicians. The trial commenced on March 21, 2005.
During jury selection, counsel for the defense struck four potential jurors: three black females and one white male. The jury was ultimately composed of five white males, seven white females, one black female alternate, and one white female alternate. Robinson made a Batson motion to set aside the state’s strikes of the three black potential jurors.
In response, defense counsel explained the rationale for his strike of Juror No. 12 stating, she was “a 53-year-old black female would more identify with the 52-year-old decedent in this case than she would any other party.” Defense counsel also gave his reasons for striking the other black female jurors being that one had limited education and limited life experience due to her youth, and the other was too young and unemployed.
The trial court held the explanations given were race neutral such that Robinson had not met his burden of demonstrating purposeful discrimination; the Court of Appeals affirmed. Robinson v. Bon Secours St. Francis Health Sys. Inc., Op. No. 2006-UP-333 (S.C. Ct. App. filed September 20, 2006).
ISSUE
Did the Court of Appeals err in affirming the denial of Petitioner’s Batson motion?
DISCUSSION
The Equal Protection Clause of the Fourteenth Amendment prohibits the striking of a venire person on the basis of race or gender. McCrea v. Gheraibeh, 380 S.C. 183, 669 S.E.2d 333 (2008). A Batson hearing must be held when members of a cognizable racial group or gender are struck and the opposing party requests a hearing. State v. Adams, 322 S.C. 114, 124, 470 S.E.2d 366, 372 (1996). At the hearing, the proponent of the strike must offer a facially race-neutral explanation for the strike. Once the proponent states a race-neutral reason, the burden is on the party challenging the strike to show the explanation is mere pretext, either by showing similarly situated members of another race were seated on the jury or that the reason given for the strike is so fundamentally implausible as to constitute mere pretext despite a lack of disparate treatment. State v. Evins, 373 S.C. 404, 415, 645 S.E.2d 904, 909 (2007), cert. denied, — U.S. —-, 128 S.Ct. 662, 169 L.Ed.2d 521 (2007); McCrea v. Gheraibeh.
An explanation for a jury strike will be deemed race-neutral unless a discriminatory intent is inherent. Purkett v. Elem, 514 U.S. 765, 768, (1995); Adams, 322 S.C. at 123, 470 S.E.2d 471 (emphasis supplied). Where the stated reason is inherently discriminatory, the inquiry ends and a pretext inquiry is obviated. McCrea, 380 S.C. at ___, 669 S.E.2d at 335. On two occasions, this Court has found the stated reason for a juror strike facially discriminatory. In Payton v. Kearse, 329 S.C. 51, 56, 495 S.E.2d 205, 208 (1998), we held a peremptory challenge based upon a characterization of the juror as a “redneck” was facially discriminatory, and therefore violative of Batson. Most recently, in McCrea, we found a solicitor’s “uneasiness” over a potential juror’s dreadlocks was insufficient to satisfy the race-neutral requirement.
Here, defense counsel stated the reason he struck the juror was that she was a “53-year-old black female” who “would more identify with the 52-year-old decedent in this case than she would any other party.” The reason is, on its face, inherently discriminatory.[3] Accordingly, the trial court erred in proceeding to the next step of the inquiry, i.e., whether the stated reason was pretextual. AccordMcCrea (trial court must first elicit race-neutral reason for strike before proceeding with pretext inquiry). We hold the trial court erred in denying Robinson’s Batson motion. The case is reversed and remanded for a new trial.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, PLEICONES, BEATTY, JJ., and Acting Justice James E. Moore, concur.
[1] Batson v. Kentucky, 476 U.S. 79 (1986).
[2] Brenda Robinson was a fifty-two year old epileptic who had a shunt implanted in August 2000 to drain fluid from her brain. She went to the St. Francis Hospital Emergency Room on September 11, 2000 after a seizure where she was evaluated and discharged. As a result of this evaluation, Robinson was subsequently advised she had a urinary tract infection and was proscribed antibiotics. She went home and began having seizures several days later. She returned to the hospital on September 15, 2000, and became comatose. She died four days later.
[3] We are unpersuaded by the claim that the reason for the strike was a similarity in age, as opposed to race. At best, the age factor provides an alternate motivation for the strike. This Court, however, has specifically rejected a dual motivation analysis in the context of a Batson claim. Payton v. Kearse, 329 S.C. 51, 59, 495 S.E.2d 205, 210 (1998) (notwithstanding validity of remaining explanations, one racially discriminatory reason vitiates strike).
Mar 10, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
Below are some interesting statistics relating to alcohol related fatalities. Although this data is from 2006, it is indicative of the serious problem with drunk driving fatalities. The figures compiled speak for themselves. The highlighted statistic indicating there is an “alcohol-impaired driving fatality every 39 minutes” is the most disturbing. Despite tougher laws and better intervention by police, these numbers are not significantly improved since then. If you drink, please don’t drive. Get a friend to drive. Call a cab. Be Safe. Get Home.
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Alcohol-Impaired Driving
In 2006, 13,470 people were killed in alcohol-impaired-driving crashes. These alcohol-impaired-driving fatalities accounted for 32 percent of the total motor vehicle traffic fatalities in the United States. Traffic fatalities in alcohol-impaired-driving crashes fell by 0.8 percent, from 13,582 in 2005 to 13,470 in 2006. The 13,470 alcohol-impaired-driving fatalities in 2006 were almost the same as compared to 13,451 alcohol-impaired-driving fatalities reported in 1996.
Drivers are considered to be alcohol-impaired when their blood alcohol concentration (BAC) is .08 grams per deciliter (g/dL) or higher. Thus, any fatality occurring in a crash involving a driver with a BAC of .08 or higher is considered to be an alcohol-impaired-driving fatality. The term “driver” refers to the operator of any motor vehicle, including a motorcycle. Estimates of alcohol-impaired driving are generated using BAC values reported to the Fatality Analysis Reporting System (FARS) and imputed BAC values when they are not reported. The term “alcohol-impaired” does not indicate that a crash or a fatality was caused by alcohol impairment.
The 13,470 fatalities in alcohol-impaired-driving crashes during 2006 represent an average of one alcohol-impaired-driving fatality every 39 minutes. (Emphasis added). In 2006, all 50 States, the District of Columbia, and Puerto Rico had by law created a threshold making it illegal per se to drive with a BAC of .08 or higher. Of the 13,470 people who died in alcohol-impaired-driving crashes in 2006, 8,615 (64%) were drivers with a BAC of .08 or higher. The remaining fatalities consisted of 4,030 (30%) motor vehicle occupants and 825 (6%) were non-occupants.
The national rate of alcohol-impaired-driving fatalities in motor vehicle crashes in 2006 was 0.45 per 100 million vehicle miles of travel.
In 2006, 1,794 children age 14 and younger were killed in motor vehicle crashes. Of those 1,794 fatalities, 306 (17%) occurred in alcohol-impaired driving crashes.
Children riding in vehicles with drivers who had a BAC level of .08 or higher counted for half (153) of these deaths. Another 45 children age 14 and younger who were killed in traffic crashes in 2006, were pedestrians or cyclists who were struck by drivers with a BAC of .08 or higher.
www.NHTSA.gov
DOT HS 810 801
(Updated March 2008)
