Bray v. Marathon Corp.

• Citation: 347 S.C. 189,553 S.E.2d 477
• Decision Date: 10 September 2001
• Docket Number: No. 3386.,3386.
• Parties: Marilyn BRAY and Allan Bray, Appellants, v. MARATHON CORPORATION, and Alabama Corporation; American Refuse Systems, Inc., a North Carolina Corporation; John Doe and Richard Doe, Defendants, of whom Marathon Corporation, and Alabama Corporation; and American Refuse Systems, Inc., a North Carolina Corporation; are, Respondents.
• Court: Court of Appeals of South Carolina

347 S.C. 189

553 S.E.2d 477

Marilyn BRAY and Allan Bray, Appellants, v. MARATHON CORPORATION, and Alabama Corporation; American Refuse Systems, Inc., a North Carolina Corporation; John Doe and Richard Doe, Defendants, of whom Marathon Corporation, and Alabama Corporation; and American Refuse Systems, Inc., a North Carolina Corporation; are, Respondents.

No. 3386.

Court of Appeals of South Carolina.

Heard April 4, 2001.

Decided September 10, 2001.

Rehearing Denied October 17, 2001.

Ray P. McClain, of Charleston; and Ronald J. Jebaily, of Jebaily & Glass, of Florence, for appellants.

Gray T. Culbreath and Ellen M. Adams, both of Collins & Lacy, of Columbia; and Saunders M. Bridges, of Bridges, Orr & Ervin, of Florence, for respondents.

HOWARD, J.:

Marilyn Bray brought this products liability action against Marathon Corporation ("Marathon"), the manufacturer of a trash compactor, and American Refuse Systems, Inc. ("ARS"), the lessor of the compactor, alleging claims of negligence, breach of warranty, and strict liability.¹ Bray seeks recovery as the user of the compactor for emotionally induced injuries she sustained as a result of witnessing the compactor crush her co-worker to death. Applying the negligence "bystander" requirements adopted by our supreme court in Kinard v. Augusta Sash and Door Co., 286 S.C. 579, 336 S.E.2d 465 (1985), to all causes of action, the trial court granted summary judgment to Marathon and ARS because Bray did not have a close relationship with her co-worker. We conclude the Kinard bystander analysis is inapplicable to Bray's strict liability cause of action. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

The facts, viewed in a light most favorable to Bray, are as follows. Baron Blackmon was a maintenance mechanic at General Electric's manufacturing plant located in Florence, South Carolina. Bray and Blackmon had been co-workers for approximately fifteen years. On March 5, 1994, Blackmon was inside the "charge box" of a Ram-Jet Trash Compactor manufactured by Marathon and leased to General Electric by ARS. When Bray approached it to discard a bag of trash, Blackmon asked Bray to start the trash compactor. Bray declined, until Blackmon assured her it was safe to do so. Bray pressed the "start" button, causing the ram to move toward Blackmon instead of away from him. Blackmon called to Bray to reverse the compactor. Bray turned the manual override switch to "reverse," but the ram continued moving toward Blackmon. Bray attempted to stop the compactor, but the ram would remain stopped only as long as she maintained continuous pressure on the "stop" button. Blackmon was pinned inside the compactor, so Bray released the button and ran for help. Upon her return, she found Blackmon blue and unconscious. The ram had crushed him to death.

Bray filed this action against Marathon and ARS for breach of implied and express warranty, strict liability, and negligence, alleging she suffered serious and permanent physical injuries caused by the emotional trauma of witnessing Blackmon's death.²

Marathon and ARS moved for summary judgment, arguing Bray failed to state a cause of action because her claim did not meet the bystander requirements adopted by our supreme court in Kinard. The court granted summary judgment to Marathon and ARS, concluding Bray was a "bystander" to Blackmon's death and could not recover for her injuries because she was not closely related to him. See Kinard, 286 S.C. at 582-83,

336 S.E.2d at 467.

Bray moved for reconsideration pursuant to Rule 59, SCRCP, arguing her claim was not a "bystander" cause of action. The court denied the motion, and Bray appeals.

STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and 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 court must view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the nonmoving party. Worsley Cos. v. Town of Mt. Pleasant, 339 S.C. 51, 55, 528 S.E.2d 657, 659 (2000). If triable issues exist, they must be submitted to the jury. Id. at 55, 528 S.E.2d at 660.

"The plain language of Rule 56(c), SCRCP, mandates the entry of summary judgment, after adequate time for discovery against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial." Carolina Alliance for Fair Employment v. S.C. Dep't of Labor, Licensing, & Regulation, 337 S.C. 476, 485, 523 S.E.2d 795, 800 (Ct.App.1999). "In such a situation, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 116, 410 S.E.2d 537, 546 (1991).

On appeal, this Court reviews the grant of summary judgment using the same standard applied by the trial court. Id. at 114, 410 S.E.2d at 545.

DISCUSSION

I. Negligence

Bray asserts two theories of recovery based upon negligence. She asserts a claim for negligence under a line of cases allowing recovery for injury as a result of mental and emotional trauma in the absence of physical impact and an action for negligent infliction of emotional distress under Kinard.

A. Cause of Action under Padgett

First, Bray argues her claims are supported by Padgett v. Colonial Wholesale Distributing Co., 232 S.C. 593, 103 S.E.2d 265 (1958), and other South Carolina cases allowing recovery for injury as a result of mental and emotional damages in the absence of physical impact. See Spaugh v. Atl. Coast Line R.R. Co., 158 S.C. 25, 155 S.E. 145 (1930); Mack v. South-Bound R.R. Co., 52 S.C. 323, 29 S.E. 905 (1898). We find Padgett inapplicable to support a cause of action in the current circumstances.

Padgett was not a products liability case. The plaintiff in Padgett was inside his house when he heard a "terrible noise and there was a jarring of the residence." 232 S.C. at 597, 103 S.E.2d at 266. The plaintiff opened his door and discovered a wholesale liquor truck had collided with his house. He remained outside after the accident for about two hours talking to officers at the scene and picking up debris. The next morning he was ill and later suffered from skin problems and nervousness. Relying upon previous cases, our supreme court ruled that the trial judge was correct in submitting to the jury the question of whether or not the plaintiff had sustained physical or bodily injury as a consequence of the shock, fright, and emotional upset he had experienced. Id. at 607-608, 103 S.E.2d at 272.

Bray asserts that Padgett is applicable in this instance. However, we note that unlike Bray, Padgett was a direct victim. He was in his house when it was jarred by the truck and he suffered physical damage to his property. His shock and distress did not result from witnessing an injury to another person but, presumably, from fear of harm to himself. Under Bray's version of the facts, she was never in harm's way. The negligence of Marathon and/or ARS, if any, did not operate directly against Bray, as it did against the plaintiff in Padgett. We do agree with Bray in her assertion that damages may be recovered in South Carolina for bodily injuries suffered as a result of emotional and mental distress caused by a defendant's negligence in the absence of any physical impact. Kinard allows such an action in the absence of physical impact and without the requirement that the plaintiff be in the zone of danger. 286 S.C. at 582, 336 S.E.2d at 467.

Although we find that the Padgett line of cases is not applicable as a cause of action, the cases are helpful in understanding whether Bray's injuries are compensable as "physical harm" under a strict liability analysis as discussed later in this opinion.

B. Bystander Cause of Action under Kinard

Upon establishing that plaintiffs could recover for physical injury resulting from emotional trauma in the absence of physical impact, a problem arose concerning who could recover for these injuries. Physical harm directly resulting from physical impact is limited to the person or persons sustaining the physical impact. However, physical harm resulting from emotional trauma at witnessing some event could be experienced by all those who have perceived the traumatic event through their senses. These people have generally been described as bystanders.

Our supreme court recognized a cause of action for negligent infliction of emotional distress in a bystander setting in Kinard. 286 S.C. at 579, 336 S.E.2d at 465. In Kinard, a child was severely injured while riding in a car with her mother. The mother sought damages "for severe shock and emotional trauma" caused by witnessing her daughter's injury. Id. at 580-81, 336 S.E.2d at 466. To resolve the problem of disproportionate liability³ which could arise from the recognition of bystander liability, the court approved the analysis of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), in which the California Supreme Court adopted a "foreseeability" approach to negligent infliction of emotional distress claims. South Carolina incorporated these factors into a cause of action for the negligent infliction of emotional distress with the following elements:

(a) the negligence of the defendant must cause death or serious physical injury to another; (b) the plaintiff bystander must be in close proximity to the accident; (c) the plaintiff and the victim must be closely related; (d) the plaintiff must contemporaneously perceive the accident; and (e) the emotional distress must

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