Fernanders v. MARKS CONST. OF SC, INC.

• Decision Date: 13 April 1998
• Docket Number: No. 2824.,2824.
• Citation: 499 S.E.2d 509,330 S.C. 470
• Parties: Angileek FERNANDERS, as Personal Representative of the Estate of Micha Fernanders, Respondent, v. MARKS CONSTRUCTION OF SOUTH CAROLINA, INC.; Rochester Midlands Corp., International Pavilion, L.P.; FKL Go-Karts, Inc.; and FKL Kartworld, of whom International Pavilion, L.P., is Appellant.
• Court: South Carolina Court of Appeals

330 S.C. 470

499 S.E.2d 509

Angileek FERNANDERS, as Personal Representative of the Estate of Micha Fernanders, Respondent, v. MARKS CONSTRUCTION OF SOUTH CAROLINA, INC.; Rochester Midlands Corp., International Pavilion, L.P.; FKL Go-Karts, Inc.; and FKL Kartworld, of whom International Pavilion, L.P., is Appellant.

No. 2824.

Court of Appeals of South Carolina.

Heard January 7, 1998.

Decided April 13, 1998.

Rehearing Denied May 21, 1998.

James C. Cothran, Jr., of Holcombe, Bomar, Gunn & Bradford, Spartanburg, for appellant.

Kenneth C. Anthony, Jr., of Knie, White & Anthony, Spartanburg, for respondent. HEARN, Judge:

This is a tort action. International Pavilion, L.P., appeals the jury's findings of comparative fault and award of damages. It argues the trial judge erred in refusing to charge the jury on the effect of joint and several liability and that joint and several liability is obsolete under comparative negligence. We disagree and affirm.

FACTS

Micha Fernanders, age six, drowned when she fell from a bumper boat into a pond at International Pavilion, an amusement park located in Spartanburg County. Although the pond was only three to four feet deep, Micha's clothing became caught in the boat's propeller, trapping her beneath the boat. The child could not be seen because International Pavilion had colored the water in the pond.

Angileek Fernanders, Micha's mother, brought this action alleging negligence and recklessness against International Pavilion and FKL Go-Karts, Inc., the manufacturer of the bumper boat. Marks Construction, the builder of the pond, was also named as a defendant, but settled with Fernanders.

FKL did not submit to personal jurisdiction and thus did not appear at trial. After denying International Pavilion's motion to sever FKL from the case, the trial judge charged the jury on the law of comparative negligence and punitive damages. After deliberations began, the jury submitted the following question to the judge: "Regarding the absence of FKL, is International Pavilion responsible for paying damages for which FKL is responsible?" The judge responded:

Let me simply say that I can't answer that question except in this fashion. [That] is not a factor for you to consider in arriving at your determination in the case. Your verdict... must be based strictly upon the testimony and evidence presented during the trial and the law as I have given it to you during my instruction.

Counsel for International Pavilion objected to the charge. He stated: "I submit the Court should charge the jury about the fact that the verdict will be joint and severable and if they don't collect from ... FKL, then International will pay it all.... I believe they should know that it's joint and severable in South Carolina because that's the law." The trial judge denied this request.

Thereafter, the jury returned its verdict, finding Fernanders five percent negligent, International Pavilion fifteen percent negligent, and FKL eighty percent negligent. The jury awarded $750,000 actual damages and assessed $1,000,000 punitive damages against FKL.

DISCUSSION

I.

International Pavilion argues that the trial judge erred in refusing to charge the jury on the concept of joint and several liability. We disagree.¹

A trial judge is required to charge only the current and correct law of South Carolina. McCourt By and Through McCourt v. Abernathy, 318 S.C. 301, 306, 457 S.E.2d 603, 606 (1995) (judge did not err in refusing to give a charge having a tendency to confuse the jury). Ordinarily, a trial judge has a duty to give a requested instruction that correctly states the law applicable to the issues and evidence. Brown v. Smalls, 325 S.C. 547, 554-55, 481 S.E.2d 444, 448 (Ct.App.1997). In a case involving special verdicts and interrogatories, the trial court shall instruct the jury as may be necessary to enable the jury to make its findings upon each issue. Rule 49(a), SCRCP.

In support of its position, International Pavilion cites cases from other jurisdictions, including those discussed below. Although commentators suggest a trend toward informing juries about the effect of their verdicts,² only seven states have addressed whether courts should inform juries about the effect of joint and several liability in comparative negligence cases. The Supreme Court of West Virginia has refused to permit such a charge, finding the issues raised by joint and several liability differ from those presented by modified comparative negligence. Valentine v. Wheeling Elec. Co., 180 W.Va. 382, 376 S.E.2d 588, 592 (1988). Colorado's legislature created the same prohibition by statute. Colo.Rev.Stat. § 13-21-111.5(5) (1989). By contrast, Hawaii, Idaho, Iowa, Montana, and Wyoming have permitted trial courts to issue joint and several liability charges.³ These decisions reflect a judicial apprehension about the harshness of modified comparative systems and an attempt to remedy this effect by allowing juries to use notions of "responsibility and fairness" in calculating percentages.⁴ Note 3, supra; F. Patrick Hubbard & Robert L. Felix, Comparative Negligence in South Carolina: Implementing Nelson v. Concrete Supply Co., 43 S.C.L.Rev. 273, 319-20 (1992).

We decline to align ourselves with the jurisdictions that require trial courts to issue joint and several liability charges and reject the notion that juries should use normative analysis or outcome-based reasoning to arrive at a verdict. Every litigant is entitled to an impartial finder of fact. Day v. Kilgore, 314 S.C. 365, 368, 444 S.E.2d 515, 517 (1994) (citing Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954)). Giving instructions about the effect of joint and several liability seriously compromises this right. In our view, charging the jury on the concept of joint and several liabilty would be similar to charging the jury on the existence of liability insurance, something that is specifically proscribed by South Carolina law. Rule 411, SCRE; Dunn v. Charleston Coca-Cola Bottling Co., 311 S.C. 43, 45, 426 S.E.2d 756, 757-58 (1993). The same policy considerations which support the rule regarding informing the jury about the existence of insurance require that the jury not be instructed on joint and several liability. The prejudice inherent in such an instruction is manifest.

We therefore hold the trial judge did not err in refusing to charge the jury on the law of joint and several liability. Because the doctrine has no bearing on the jury's ultimate fact-finding role in determining the relative negligence of joint tortfeasors, the manner in which any judgment would be paid was not a proper subject for the jury's consideration.⁵

II.

International Pavilion also asserts the trial court erred in finding that it was jointly and severally liable for Fernanders' damages, arguing the doctrine of joint and several liability is "obsolete" and "unjust" under a comparative negligence system.⁶ We disagree.

The concept of joint and several liability is deeply grounded in tort law. See Merryweather v. Nixan, 101 Eng.Rep. 1337, 1337 (1799) (discussed in Atlantic Coast Line R. Co. v. Whetstone, 243 S.C. 61, 68, 132 S.E.2d 172, 175 (1963)and M & T Chem., Inc. v. Barker Indus., Inc., 296 S.C. 103, 104-05, 370 S.E.2d 886, 887-88 (Ct.App.1988),cert. denied, 298 S.C. 75, 378 S.E.2d 261 (1989)); Guido Calabresi & Jeffrey O. Cooper, New Directions in Tort Law, 30 Val.Univ.L.Rev. 859, 879 (1996). Under this rule, if A is ten percent negligent and B is ninety percent negligent, and together they combine to injure C, they are both liable to C. C can recover one hundred percent of his or her damages from either one. Without question, the rule of joint and several liability favors plaintiffs since the aggregate wealth of the defendants stands behind the judgment regardless of the proportionate responsibility of the defendants individually for the loss. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 67, at 475 (5th ed. 1984).

Before the adoption of comparative negligence a plaintiff's contributory negligence completely thwarted recovery. The fairness of the rule of joint and several liability was much more apparent; as between a defendant who was less at fault than a co-defendant and a plaintiff who was completely innocent, it was reasonable to place the loss on the wrongdoing defendant. With the adoption of comparative negligence,⁷ however, retention of the doctrine of joint and several liability is less defensible.

Commentators have noted that joint and several liability is not consistent with the purpose of comparative negligence, which is to apportion damages on the basis of relative fault. Victor E. Schwartz, Comparative Negligence § 9-4(c)(5), at 217 (1994); F. Patrick Hubbard & Robert L. Felix, Comparative Negligence in South Carolina; Implementing Nelson v. Concrete Supply Co., 43 S.C.L.Rev. 273, 306 (1992) (discussing the "conceptual tension" between the comparative approach of Nelson and noncomparative approach of joint and several liability); see also Henry Wood & Beth Deere, Comparative Fault § 13:4, at 234-36 (3d ed. 1996) (reviewing doctrine's status in comparative negligence jurisdictions). Nine states with comparative negligence schemes continue to follow the traditional common law rule.⁸ Thirty-seven others, however, have either abolished or partially abrogated the doctrine.⁹ The implementation of this change has occurred primarily by statute. John W. Wade, Should Joint and Several Liability of Multiple Tortfeasors be Abolished?, 10 Am.J.Tr.Adv. 193, 207 (1986).

Although Nelson adopted a comparative system for allocating liability between a plaintiff and multiple defendants, the supreme court did not address the allocation of lability between multiple defendants. See Hubbard & Felix, 43 S.C.L.Rev. at 306. Our supreme court has, however, since the Nelson decision, reaffirmed the applicability of joint and several liability, albeit not in the...