Berberich v. Jack

Decision Date04 April 2011
Docket NumberNo. 26955.,26955.
Citation709 S.E.2d 607,392 S.C. 278
PartiesNeal BERBERICH, Appellant,v.Naomi M. JACK, Respondent.
CourtSouth Carolina Supreme Court

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalS.C.Code Ann. § 15–1–300 (1976) Edward L. Graham, of Graham Law Firm, of Florence, for Appellant.Ronald P. Diegel and William H. Frye, both of Murphy & Grantland, of Columbia, for Respondent.Justice BEATTY.

Neal Berberich brought this negligence action against Naomi M. Jack after he slipped and fell from a wet ladder while working at her home. Berberich alleged Jack engaged in reckless, willful, and wanton conduct that proximately caused his injuries because she refused to turn off a lawn sprinkler system while he was working. Berberich appeals from a jury verdict in favor of Jack, arguing, in a case of first impression, that the trial court abused its discretion in denying his request to charge the jury on the definitions of recklessness, willfulness, and wantonness and to instruct the jury that heightened forms of wrongdoing could not be compared to ordinary negligence under comparative negligence. Berberich alternatively asserts the jury should have been instructed that heightened degrees of wrongdoing are entitled to greater weight than ordinary negligence. He also asserts error in the denial of his new trial motion. We reverse and remand.

I. FACTS

On July 1, 2002, Berberich entered into a contract with Jack to perform work on her home in Florence, South Carolina. During the course of the project, a controversy arose regarding Jack's use of an automatic sprinkler system, which came on in various zones in the yard to water the lawn. According to Berberich, he told Jack that he and his crew were having difficulty working with the sprinklers on and asked that they be shut off. Jack refused and told him to “make the best of the situation and work around it.” Jack became upset when Berberich turned the sprinklers off on several occasions and threatened to lock the controls if they were turned off again.

Jack maintained she never received a complaint about the system or a request to turn it off, and she never threatened to lock the controls. However, she stated when the system was turned off a second time, she instructed one of the crew members that her sprinkler system was not to be shut off again.

On August 9, 2002, Berberich was working alone on a punch list of items to finish the project when he observed the sprinklers come on in one area of the yard. Berberich noticed the controls had been locked so he could not turn the system off. Berberich moved to the front of the house, away from the sprinklers, to work on the windows. He then ascended an eight-foot ladder to reach the top of a tall bay window to clean some caulking. As he was working, the sprinklers came on in the zone where his ladder was located.

While coming back down the ladder, Berberich slipped on a wet rung and fell to the ground, injuring himself. Berberich told Jack he had fallen and asked her to call for an ambulance, but she ignored his request. As he walked away from Jack's home, Berberich collapsed in her driveway. Berberich used his cell phone to call for an ambulance, which arrived shortly after his call. Berberich received medical treatment for his injuries, which included a lumbar strain and contusion, abrasions on his back and his left shoulder, and a swollen right ankle.

Jack, in contrast, asserts Berberich came to her door to talk about the payment due. She denies Berberich told her he had fallen and that he had asked her to call an ambulance. She maintains Berberich did not fall at her house and that she is unaware an ambulance came to her home.

On April 29, 2004, Berberich brought this negligence action against Jack, alleging his injuries “were directly and proximately caused by the negligence, wil[l]fulness, wantonness and recklessness of” Jack. Berberich sought recovery for medical expenses, lost wages, and other actual damages. He also sought an award of punitive damages.

At trial, Berberich contended Jack's actions in locking the controls and refusing to turn off the sprinklers constituted reckless, willful, and wanton conduct. He withdrew his request for punitive damages before the case was submitted to the jury, but he asked the trial court to charge the jury on the definitions of recklessness, willfulness, and wantonness and to instruct the jury that ordinary negligence is not a defense to a heightened degree of wrongdoing, so that his ordinary negligence could not be compared to Jack's allegedly reckless, willful, and wanton conduct. He also sought a verdict form with special interrogatories in accordance with these proposed charges. The trial court denied the requests, stating it believed the definitions Berberich sought were relevant only if punitive damages were at issue, and the charge requested by Berberich was not the law in South Carolina.

The trial court charged the jury on comparative negligence. The jury returned a verdict for the defense. The jury found Berberich was 75% negligent and Jack was 25% negligent in causing the accident, resulting in no recovery for Berberich. Berberich's motions for a judgment notwithstanding the verdict (JNOV) and a new trial (based on the allegedly erroneous jury charge and verdict form, as well as juror bias) were denied. Berberich appeals.

II. STANDARD OF REVIEW

In an action at law, on appeal of a case tried by a jury, this Court may correct only errors of law. Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010); Townes Assocs. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). The factual findings of the jury will not be disturbed unless no evidence reasonably supports the jury's findings. Townes Assocs., 266 S.C. at 85, 221 S.E.2d at 775.

III. LAW/ANALYSIS

A. Comparative Negligence Charge

Berberich first argues the trial court abused its discretion in denying his request to charge the jury on the definitions of recklessness, willfulness, and wantonness and to further instruct the jury that a plaintiff's ordinary negligence is not a defense to a defendant's conduct that is reckless, willful, and wanton. Berberich contends reckless, willful, and wanton conduct constitutes a heightened degree of wrongdoing that cannot properly be compared to ordinary negligence. In the alternative, Berberich argues the trial court abused its discretion in failing to instruct the jury that it should give more weight to conduct that is reckless, willful, and wanton. Berberich asserts this case presents a novel issue regarding tort law since the adoption of comparative negligence in this state.

“An appellate court will not reverse the trial court's decision regarding jury instructions unless the trial court committed an abuse of discretion.” 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.

An erroneous jury instruction will not result in reversal unless it causes prejudice to the appealing party. Id. 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.”). “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.” Cole, 378 S.C. at 404, 663 S.E.2d at 33.

(1) Contributory Negligence versus Comparative Negligence

Prior to the adoption of comparative negligence in 1991, the doctrine of contributory negligence was the long-prevailing standard for tort recovery in South Carolina. “Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.” Gladden v. S. Ry. Co., 142 S.C. 492, 522–23, 141 S.E. 90, 99 (1928) (citation omitted).

Under contributory negligence, if a plaintiff was negligent to any extent in contributing to his own injury, the plaintiff was completely barred from recovering damages from a negligent defendant. Gladden, 142 S.C. at 523, 141 S.E. at 100; S.C. Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 348 S.E.2d 617 (Ct.App.1986).

To ameliorate the harsh results that could occur under this general rule, an exception developed that a defendant could not assert the contributory negligence of a plaintiff as a total defense in cases where the defendant's conduct was reckless, willful, or wanton; under such circumstances, the plaintiff's own contributory negligence would not bar the plaintiff's recovery. Dawson v. S.C. Power Co., 220 S.C. 26, 66 S.E.2d 322 (1951); Orangeburg Sausage Co. v. Cincinnati Ins. Co., 316 S.C. 331, 450 S.E.2d 66 (Ct.App.1994). However, if the plaintiff was also contributorily reckless, the plaintiff could not recover for the defendant's similarly reckless conduct. Ardis v. Griffin, 239 S.C. 529, 123 S.E.2d 876 (1962).

In 1991, South Carolina abolished the doctrine of contributory negligence and adopted comparative negligence as its tort standard in Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). In Nelson, this Court stated that, under comparative negligence “a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant.” Id. at 245, 399 S.E.2d at 784. “The amount of the plaintiff's recovery shall be reduced in proportion to the amount of his or her negligence.” Id.

The Court adopted a modified version of comparative negligence known as the “less than or equal to” approach, by which the plaintiff in a negligence...

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