MacKenzie v. C&B Logging

• Citation: 436 S.C. 122,871 S.E.2d 185
• Decision Date: 09 February 2022
• Docket Number: Appellate Case No. 2018-001016,Opinion No. 5893
• Parties: Isabelle MACKENZIE, Appellant/Respondent, v. C&B LOGGING and Charles Brandon Barr, Respondents/Appellants.
• Court: South Carolina Court of Appeals

436 S.C. 122

871 S.E.2d 185

Isabelle MACKENZIE, Appellant/Respondent,

v.C&B LOGGING and Charles Brandon Barr, Respondents/Appellants.

Appellate Case No. 2018-001016

Opinion No. 5893

Court of Appeals of South Carolina.

Heard December 8, 2020

Filed February 9, 2022

J. Camden Hodge, Eric M. Poulin, and Roy T. Willey, IV, all of Anastopoulo Law Firm, LLC, of Charleston, for Appellant/Respondent.

Robert D. Moseley, Jr., and Megan M. Early-Soppa, both of Moseley Marcinak Law Group LLP, of Greenville, for Respondents/Appellants.

GEATHERS, J.:

In this negligence case, Isabelle MacKenzie (MacKenzie) argues that she should have been allowed to introduce into evidence certain prior charges and criminal convictions of a driver whose alleged negligence led to her injuries. On cross-appeal, C&B Logging and Charles Brandon Barr argue that if this court reverses the circuit court, it should then enter a directed verdict on MacKenzie's employment-related claims because Barr was acting within the scope of his employment at the time of the accident. We affirm.¹

FACTS/PROCEDURAL HISTORY

Charles Brandon Barr (Barr) was driving a company truck for C&B Logging (C&B) on the night of April 23, 2016, when he began wondering if the truck's progressively flattening tire would be able to last until he reached his destination. Deciding not to risk it, Barr stopped near a friend's home, pulling across the road to the left side. Barr testified that he believed the friend could help reinflate the tire, but the friend was not at home.

As Barr was pulling back onto the highway, Arthur Lee Gregg (Gregg)² was coming from the opposite direction and about to round a curve a short distance away from Barr. Gregg rounded the curve before Barr could completely cross from the left lane of the highway into the correct lane. Gregg smashed into one of the rig's axles, then skidded to a stop a short distance away.

Following Gregg was MacKenzie, driving her motorcycle. With little time to react, MacKenzie slalomed her motorcycle between the two vehicles and went to the ground. MacKenzie did not hit either truck.³

MacKenzie filed suit against Barr and C&B for negligence on multiple grounds, including that C&B was liable for "negligently hiring, employing and/or retaining in employment ... Barr," as well as for inadequately supervising and training him.

At trial, MacKenzie attempted to introduce into evidence a laundry list of former moving violations and drug-related charges and convictions against Barr to prove negligent hiring, training, supervision, retention, and entrustment by C&B.⁴ MacKenzie argued that the drug-related charges and convictions were admissible on multiple grounds. First, MacKenzie sought to show that Barr did not stop in search of air for his tire, but instead stopped for drug-related purposes.⁵ Second, MacKenzie relied on Green v. Hewett⁶ to argue that the drug-related charges and convictions were admissible because they demonstrated "a breach of duty to society as a whole"⁷ and "a history of bad decision making" relevant to whether C&B acted negligently in employing Barr. Finally, MacKenzie contended the charges and convictions themselves could be used for impeachment purposes if Barr lied about the convictions on the stand.⁸

Barr and C&B argued that the charges and convictions related to drug possession were substantially more prejudicial than probative. The circuit court ruled that MacKenzie could introduce the traffic violations, but excluded the drug-related charges and convictions. The circuit court "d[id] not believe that they [were] probative, and any probative value [was] certainly outweighed by the potential prejudicial effect in this case."

The jury found in favor of MacKenzie and awarded her $179,678.49 in actual damages. The jury also apportioned the blame between Barr and C&B, holding Barr liable for sixty percent of the damages and the company liable for the remaining forty percent. The jury did not award punitive damages to MacKenzie. These cross-appeals followed.

ISSUE ON APPEAL

Did the circuit court err in declining to admit evidence of Barr's drug-related charges and convictions for the purposes of the negligent hiring and retention claim and the request for punitive damages against C&B?

STANDARD OF REVIEW

An appellate court's review of the circuit court's admission or exclusion of potentially relevant evidence is considered under a deferential standard.

The court's ruling to admit or exclude evidence will only be reversed if it constitutes an abuse of discretion amounting to an error of law.... The trial court's decision will not be reversed on appeal unless it appears the trial court clearly abused its discretion and the objecting party was prejudiced by the decision.

Proctor v. Dep't of Health & Envtl. Control , 368 S.C. 279, 313, 628 S.E.2d 496, 514 (Ct. App. 2006) (citations omitted).

LAW/ANALYSIS

MacKenzie argues that the circuit court erred in excluding portions of Barr's criminal record that MacKenzie asserts supported her employment-related claims against C&B and her request for punitive damages.⁹ Specifically, MacKenzie contends that the circuit court was wrong to exclude, under Rule 403, SCRE, evidence of Barr's drug-related charges and convictions. We disagree and find that the circuit court acted within its discretion in ruling as it did.

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, SCRE.

According to MacKenzie, because of the circuit court's exclusion of the drug-related charges and convictions, "the jury was [allowed] to hear only part of the story" about Barr's criminal history. MacKenzie notes that the "offenses were not so remote in time, but instead occurred in 2011 and 2012, and during the period in which [Barr] was employed by C&B Logging, LLC." Admitting the convictions, in MacKenzie's view, "could have led to the imposition of punitive damages."

However, allowing only part of the story is precisely the point of Rule 403 : If the rest of the story is found by the court to be substantially more unfairly prejudicial than probative, it is to be excluded. See Rule 403, SCRE ("Although relevant , evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...." (emphasis added)).

The traffic violations allowed by the circuit court were proper for admission because the jury could view them as probative of a reason for caution on C&B's part when it came to employing Barr. See Doe v. ATC, Inc. , 367 S.C. 199, 206, 624 S.E.2d 447, 450 (Ct. App. 2005) ("Our review of negligent hiring and retention cases from other jurisdictions leads us to conclude that such cases generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties.... From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused. " (emphasis added) (citation omitted)). Clearly, an employer could anticipate that someone who had previously improperly operated a motor vehicle could potentially cause harm when operating a motor vehicle in the scope of his employment.

However, the same is not true of the drug-related charges and convictions. As the circuit court found, the probative value of the evidence of Barr's drug-related charges and convictions was virtually non-existent. For example, none of the charges or convictions MacKenzie sought to introduce involved operating a motor vehicle while under the influence of drugs or alcohol.¹⁰ Furthermore, even if they had, a trooper at the scene of the accident testified that he had no reason to believe that Barr was under the influence of drugs or alcohol at the time of the incident. Simply showing that Barr had a criminal record is not sufficient to admit the evidence without some showing that it was related to the ultimate issue in the case that is now on appeal—namely, whether C&B's decision to hire and retain Barr justified an award of punitive damages to MacKenzie.

The issue was not why Barr pulled over to the side of the road, but his conduct as and after he did so—and whether C&B was negligent for the purposes of actual damages, and more culpable for the purposes of punitive damages, in employing him based on the risk that he would not operate his truck properly. See Doe , 367 S.C. at 206, 624 S.E.2d at 450 ("Our review of negligent hiring and retention cases from other jurisdictions leads us to conclude that such cases generally turn on two fundamental elements—knowledge of the employer and foreseeability of harm to third parties.... From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused. " (emphasis added) (citation omitted)). And because the drug convictions lacked probative value on the underlying claim of negligent employment, they held no probative value as to punitive damages for the employment-related claims.

Barr's previous drug charges and convictions do not indicate that C&B showed a reckless disregard for MacKenzie's rights, because there was nothing about them that indicated an increased likelihood that Barr would not follow safety procedures in pulling to the side of the road. On the other hand, the unfairly prejudicial nature of the allegation that Barr had previously possessed narcotics, and the suggestion that he might have stopped on the side of the road to obtain the same, is self-evident when it comes to whether jurors might have improperly considered it in imposing punitive damages.

MacKenzie's attempt to create a ground for admitting...