Brown v. Smalls

Decision Date07 January 1997
Docket NumberNo. 2624,2624
CourtSouth Carolina Court of Appeals
PartiesAntoinette BROWN, Guardian Ad Litem for Darius BROWN, Appellant/Respondent, v. Christopher SMALLS, Respondent/Appellant. . Heard

Kathryn S. Craven, of Grimball & Cabaniss, Charleston, for respondent/appellant.


Antoinette Brown, as Guardian ad Litem for Darius Brown (Brown), filed this action in negligence for personal injuries resulting from a collision between a motorist, Christopher Smalls (Smalls) and a pedestrian, Brown. Smalls filed an answer entering a general denial and asserting the affirmative defense of comparative negligence. At trial, the jury found Brown seventy-five percent (75%) negligent and Smalls twenty-five percent (25%) negligent. Both parties appeal. We reverse and remand.


On October 16, 1992, Brown, a three year old child, was playing in Elizabeth Wright's yard on Bozo Lane in Charleston County. Bozo Lane, a straight, two-way street, runs through a residential subdivision and has houses on both sides. Because cars were parked on both sides and the street was very crowded, cars traveling in opposite directions could not go down the street at the same time. In addition to several adults standing around outside, a lot of children were running and playing outside and in Wright's yard. Several of the children were riding bicycles in the road.

On this date, Smalls, who was driving Ronette Smiley's mother's car, was following Smiley, Smalls' girlfriend at the time, to her house. Smiley testified she "mashed her brakes" to alert Smalls to "slow up a little bit" because "there were a bunch of kids playing in the street and in the yard with no adult supervision." According to Smiley, the children were playing "back and forth across the street."

As Smiley approached Wright's home on Bozo Lane, she observed Brown on the edge of the driveway pushing his bicycle. Smiley witnessed the accident when she looked in her rearview mirror. She testified Smalls "came to a complete stop and [Brown] pushed the bicycle into the [front driver's side of the] car." She stated she did not see the car run over Brown, nor did she see Smalls drive off of the roadway.

Robert Brown, Jr., Smalls' friend and a passenger in Smalls' car on the day of the accident, observed children playing in Wright's yard. He stated Darius Brown was on a bicycle and "come out and he hit the car." When he first noticed Brown coming out of the yard toward the car, he yelled out Smalls' name to get his attention because Smalls "didn't see the boy coming out." He stated Smalls came to a complete stop and Brown then ran into the road and hit the front right-hand side of the car. According to Robert Brown, Jr., Smalls was traveling ten miles per hour and did not drive his car off of the road before the accident occurred. Brown further testified Smalls' car was in the roadway when Darius Brown ran into the road and hit the car. However, Brown also stated Smalls swerved off of the road to move around another vehicle and that the accident occurred at that time.

Dr. Robert Lowery, Brown's orthopedist, testified Brown's injuries were consistent with being run over by an automobile.

Yvonne Legare, Brown's aunt, was riding down Bozo Lane with her sister, Christine Williams, and her aunt, Sara Frazier, who was driving the car. Frazier had to drive very slowly down the road because cars were parked on both sides. Legare stated Frazier's vehicle was in front of Smalls' vehicle. However, neither Legare nor Williams witnessed the accident.

Immediately before the accident, Williams saw Brown sitting on a big wheel on the side of the road. Frazier stated she saw Brown before the accident and he was pushing his bicycle toward the road. Legare testified Frazier pulled over on the left side of the road to park, Smalls "swerved over on the [right] side to go past her," and then she "heard a loud sound, like a Bip." Frazier heard Smalls' "wheels squeal" after she parked her car. Legare stated Brown's body was on the shoulder of the road on the right and his legs were underneath Smalls' car on the rear right passenger side.

Carmon Legare witnessed the accident. She observed "a whole lot of people" in Wright's yard. She testified approximately twenty-five children were in the yard and As Smalls was driving, he saw a lot of parked cars in the area. After Brown ran out of the driveway and hit the car, Smalls came to a complete stop. Smalls stated he did not drive off of the roadway onto the shoulder of the road nor did he try to pass a car that was parking on the left side of the road. In his deposition, Smalls admitted he saw children playing and "a good many people out there."

                they were "[p]laying, back and forth across the street."   Legare saw Brown that afternoon "[i]n the yard and across the street."   According to Legare, Brown was pushing his bicycle across the street when the car hit him.  She stated Brown tried to cross the street between the cars and did not stop before he went into the street, but "just ran on across."   She estimated Smalls was driving fifteen miles per hour.  Legare stated Smalls did not try to pass Frazier's car and that Frazier was behind Smalls.  She further stated Smalls did not drive off of the road before the accident and that Brown was on the pavement when he got hit

Sharon Robinson, who lives on Bozo Lane, witnessed the accident. She saw the children riding their bicycles from driveway to driveway. Robinson warned Brown and the other children "not to ride [their bicycles] in the street because you don't know when a car is coming through." Although Brown got off his bicycle for a few minutes, he soon got back on it again. Robinson stated Brown came out of the driveway with his bicycle, did not look to see if anything was coming, and ran into the rear right side of Smalls' car. Brown was trying to cross the street on his bicycle to go play with the children in the yard across the street and did not stop before he rode his bicycle into the road. She testified Smalls could not have seen Brown in the driveway because there were too many cars parked on the side of the street.

At the close of Brown's case, Smalls moved for a directed verdict on the issue of negligence, which the court denied. At the close of Smalls' case, the court denied Brown's motion for a directed verdict as to the defense of comparative negligence, but granted Smalls' motion for a directed verdict on the issue of punitive damages.

Subsequent to the jury instructions, Brown objected to the charging of comparative negligence and to the following charge requested by Smalls: "I charge you that ordinarily a person has a right in the absence of circumstances to put a reasonable person on notice to the contrary to assume that others will act with due care and in accordance with the law." Brown further requested an additional charge as to the effect of the child's age as it applies to the law of comparative negligence. The court denied this request.

The jury found Brown's amount of negligence was seventy-five percent (75%) and Smalls' amount of negligence was twenty-five percent (25%). The court denied both Brown's motion for a new trial and Smalls' motion for judgment notwithstanding the verdict.


I. Did the trial court err in failing to submit the issue of punitive damages to the jury?

II. Was the trial court's jury instruction as to the standard of care involving minors erroneous?

III. Did the trial court err in submitting the issue of comparative negligence to the jury?


In an action at law on appeal of a case tried by a jury, the jurisdiction of this Court extends merely to corrections of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses there is no evidence which reasonably supports the jury's findings. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).


Brown argues the trial court improperly instructed the jury as to the standard of care involving minors. The judge charged the following:

Our common law rules of the road require that an operator of a motor vehicle use the same care that would have been exercised by a person of ordinary reason and prudence if that person were driving the same vehicle at the same time and place and under the same circumstances.

A person using the public roads of this State owes a duty to exercise ordinary care at all times to avoid placing himself or herself or others in danger, and to use like care to avoid an accident.

A driver on the public roads owes a duty to keep a proper lookout for other persons or objects upon the highway. This duty is not merely one of looking, but one of seeing.

A driver must look in such an intelligent and careful manner as to enable him or her to see a person or object upon a highway which may be reasonably expected.

A person operating a motor vehicle is under a duty to keep the vehicle under proper control so as to be able to slow down, stop or turn such vehicle in order to avoid colliding with another vehicle or pedestrian or obstruction lawfully on the roadway.

A person who fails to keep a proper lookout or fails to keep his vehicle under proper control or fails to see what a person of ordinary care would have seen is negligent.


Where a driver of a motor vehicle knows of the presence of children in the neighborhood or should have known of this fact, the driver is under a duty to exercise care, usually stated to be reasonable, ordinary, due or proper care, for the safety of the child.

More care must be exercised toward children than toward persons of mature years.

Children of tender years are entitled to care proportionate to their inability to foresee and avoid...

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