Creighton v. Coligny Plaza Ltd., No. 2909.

CourtCourt of Appeals of South Carolina
Writing for the CourtCURETON.
Citation512 S.E.2d 510,334 S.C. 96
PartiesCecilia CREIGHTON, Appellant, v. COLIGNY PLAZA LIMITED PARTNERSHIP, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., Mary Katherine Toomer, Rainbow's End, Inc., and D & M Landscaping Company, Respondents. Robert Creighton, Appellant, v. Coligny Plaza Limited Partnership, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., Mary Katherine Toomer, Rainbow's End, Inc., and D & M Landscaping Company, Respondents.
Decision Date30 November 1998
Docket NumberNo. 2909.

334 S.C. 96
512 S.E.2d 510

Cecilia CREIGHTON, Appellant,
v.
COLIGNY PLAZA LIMITED PARTNERSHIP, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., Mary Katherine Toomer, Rainbow's End, Inc., and D & M Landscaping Company, Respondents.
Robert Creighton, Appellant,
v.
Coligny Plaza Limited Partnership, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., Mary Katherine Toomer, Rainbow's End, Inc., and D & M Landscaping Company, Respondents

No. 2909.

Court of Appeals of South Carolina.

Heard October 8, 1998.

Decided November 30, 1998.

Rehearing Denied April 10, 1999.


334 S.C. 106
Paul H. Infinger, of Dukes, Williams, Infinger & Meeks, of Beaufort, for appellants

A. Parker Barnes, David S. Black and Mary Grace Georgio, all of A. Parker Barnes, Jr. & Associates, of Beaufort; Cheryl D. Shoun and Charles F. Castner, both of Ogletree, Deakins, Nash, Smoak & Stewart, of Charleston; and Russell S. Stemke, of Pratt-Thomas, Pearce, Epting & Walker, of Charleston, for respondents.

CURETON, Judge:

Cecilia Creighton brought an action for negligence as a result of a slip and fall that occurred on the steps outside of Rainbow's End, a retail establishment in Coligny Plaza on Hilton Head Island. Ms. Creighton's husband, Robert Creighton, also brought an action for loss of consortium. The jury returned a verdict in favor of the defendants. The Creightons appeal. We affirm in part, reverse in part, and remand.

FACTS

On the morning of July 19, 1990, Cecilia and Robert Creighton drove from Beaufort to Coligny Plaza on Hilton Head Island to go shopping. During the drive, there was a heavy downpour of rain. While the Creightons were eating lunch at a restaurant located in Coligny Plaza, there was another brief, heavy downpour of rain.

After lunch, Ms. Creighton decided to go into Rainbow's End, one of the retail stores in Coligny Plaza. Ms. Creighton had to climb a set of seven wooden steps to enter the store. As Ms. Creighton was leaving the store, she slipped and fell while attempting to walk down the first step.

The entrance steps were covered in the center by a strip of indoor-outdoor carpet, which left a strip of uncovered wood along the outer edge of each step. Beverly Wilburn (Wilburn), the owner of Rainbow's End, installed the carpeting with carpet remnants and glue, and placed a metal trim along the front outer edge of the steps. Wilburn replaced the carpet every one to two years. On each side of the entrance steps were two large palm trees with limbs overhanging the

334 S.C. 107
handrails. Carolina jasmine, a type of vine, was growing along the outer edge of some of the steps and was intertwined with portions of the handrails. Wilburn planted the palm trees and jasmine vine

The site and building where the fall occurred are owned by Coligny Plaza Limited Partnership (Partnership) and its individual partners, J. Norris Richardson, Lois H. Richardson, J.N. Richardson, Jr., and Mary Katherine Toomer. Rainbow's End leased the property from the Partnership pursuant to a five year written lease which expired on June 1, 1990, before the slip and fall, occurred. After the expiration of the written lease, Rainbow's End remained in the building on a month-to-month basis.

D & M Landscaping had a written agreement with the Partnership to provide the landscaping and maintenance at Coligny Plaza.1 Under the contract, D & M was to maintain a clean, neat appearance at Coligny Plaza by doing things such as mowing the grass, trimming shrubbery, vacuuming streets, blowing off sidewalks, and emptying trash cans. D & M was not responsible for maintaining the carpet on the entrance steps to Rainbow's End. However, D & M was responsible for trimming and maintaining the palms and jasmine.

STANDARD OF REVIEW

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

LAW/ANALYSIS

Bifurcation of Liability and Damages

The Creightons contend the trial court erred in ordering separate trials of liability and damages.

334 S.C. 108
This issue is not preserved because the trial judge never ruled on the grounds the Creightons raise on appeal. An issue not raised to or ruled on by the trial court is not preserved for appellate review. Schofield v. Richland County Sch. Dist., 316 S.C. 78, 447 S.E.2d 189 (1994)

At the pretrial conference, the Creightons' attorney objected to bifurcation because he did not want the jurors to hear "sterile testimony" alone, given the difficulty proving a slip and fall case. Additionally, he objected to bifurcation because he wanted the trial judge to fully address the discovery abuse allegations. On appeal, the Creightons allege the trial judge failed to exercise discretion, prejudiced the Creightons, and ignored judicial economy by bifurcating the trial. Because the argument presented by the Creightons to the trial court was based on grounds other than those raised on appeal, the issue is not properly preserved.

However, even if this issue was preserved, the trial judge did not abuse his discretion in bifurcating the trial. This court must review a trial judge's decision to bifurcate the issues of liability and damages under an "abuse of discretion" standard. See Keels v. Pierce, 315 S.C. 339, 433 S.E.2d 902 (Ct.App.1993) (appellate court will not disturb trial judge's ruling on motion to consolidate absent abuse of discretion); see also Giles v. Parker, 304 S.C. 69, 403 S.E.2d 130 (Ct.App. 1991) (bifurcation of trial was well within trial judge's discretion).

Under Rule 42(b), SCRCP, the court

in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any ... separate issue ... always preserving inviolate the right of trial by jury as declared by the Constitution or as given by a statute of the State.

A trial should be bifurcated only if the issues are so distinct that trial of each alone would not result in injustice. Fortune v. Gibson, 304 S.C. 279, 403 S.E.2d 674 (Ct.App.1991). Where evidence relevant to the issues of both hability and damages overlap, bifurcation is inappropriate. Id.

334 S.C. 109
The trial judge raised the issue of bifurcation sua sponte at a pre-trial hearing on discovery abuse motions almost three weeks before the trial. The trial judge found it would be significantly shorter to try the liability phase of the case separately because of the extensive medical testimony regarding Ms. Creighton's injuries, as well as the numerous discovery problems related thereto. The court also found bifurcation would eliminate the expense of having out of state doctors testify to Ms. Creighton's damages if the jury entered a defendants verdict in the liability trial. Thus, the trial judge ordered bifurcation only after considering convenience, expedition, and judicial economy as required under Rule 42(b). Furthermore, the Creightons cannot show any prejudice resulted from the bifurcation. The medical testimony relating to Ms. Creighton's damages was not necessary to establish liability in regard to the slip and fall. We find no abuse of discretion by the trial judge in bifurcating the trial.

Jury Voir Dire

The Creightons argue the trial court erred by failing to conduct a more extensive voir dire examination of four jurors.

The manner and scope of voir dire is largely within the discretion of the trial judge. Crosby v. Southeast Zayre, Inc., 274 S.C. 519, 265 S.E.2d 517 (1980); State v. Middleton, 266 S.C. 251, 222 S.E.2d 763 (1976); Norris v. Ferre, 315 S.C. 179, 432 S.E.2d 491 (Ct.App.1993). On appeal, this court will rely on the judgment of the trial judge who is able to observe the character and demeanor of the jurors, unless the record firmly establishes an abuse of discretion. See Wilson v. Childs, 315 S.C. 431, 434 S.E.2d 286 (Ct.App.1993).

Rule 47(a), SCRCP, provides that upon the court's examination of prospective jurors, the court shall ask such additional questions submitted by the parties or their attorneys as it deems proper. If a party is dissatisfied with a trial judge's examination of a juror, the party should move for permission to ask additional questions. State v. Ivey, 331 S.C. 118, 502 S.E.2d 92 (1998). The refusal to make an examination of prospective jurors to determine bias or prejudice, when a timely request has been made, constitutes reversible error. Crosby v. Southeast Zayre, Inc., 274 S.C. 519, 265 S.E.2d 517

334 S.C. 110
(1980). However, absent a timely objection to the examination of a juror, the issue is not properly preserved for appeal. See Ivey, 331 S.C. 118, 502 S.E.2d 92 (1998).

Jurors Carlson and Sampson

During jury voir dire, juror Don Carlson (Carlson) stated he knew Mr. Richardson (a partner in Coligny Plaza) socially and had done business with him. The trial judge asked Carlson if that would affect his ability to be fair and impartial. Initially, Carlson responded, "I can't honestly say." However, after further questioning, Carlson responded he could be fair and impartial. Ultimately, the Partnership struck Carlson from the jury. Juror Charles Sampson (Sampson) also stated he knew and had done business with Mr. Richardson. The trial judge did not ask Sampson any more questions. The Creightons moved to dismiss Carlson and Sampson because of their relationship with defendant Richardson. The trial judge denied the motion. Although the Creightons requested Carlson and Sampson be dismissed, they did not request further inquiry by the trial court, which is the argument presented on appeal. Thus, the issue is not preserved.

Even if this issue had been properly preserved, we find nothing in the record to indicate the trial judge abused his...

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35 practice notes
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...of the duty that resulted in damages occurred. Miller, 317 S.C. at 31, 451 S.E.2d at 403; see also Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 512 S.E.2d 510 Generally, duty is defined as the obligation to conform to a particular standard of conduct toward another. Murray v. Bank o......
  • Henson v. International Paper Co., No. 3745.
    • United States
    • Court of Appeals of South Carolina
    • February 17, 2004
    ...Georgetown Steel Corporation, the City of Georgetown, and Georgetown County as defendants. 2. See Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 119, 512 S.E.2d 510, 522 (Ct.App.1998) (stating because no objection was raised concerning the trial judge's jury instruction in regard to c......
  • Fairchild v. S.C. Dep't of Transp., No. 27112.
    • United States
    • United States State Supreme Court of South Carolina
    • May 25, 2012
    ...in the absence of a clear abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 512 S.E.2d 510 (Ct.App.1998). An abuse of discretion occurs when the trial court's order is controlled by an error of law or when there is n......
  • Fairchild v. South Carolina Dep't of Transp., Opinion No. 27112
    • United States
    • United States State Supreme Court of South Carolina
    • April 11, 2012
    ...in the absence of a clear abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 512 S.E.2d 510 (Ct. App. 1998). An abuse of discretion occurs when the trial court's order is controlled by an error of law or when there is......
  • Request a trial to view additional results
35 cases
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...of the duty that resulted in damages occurred. Miller, 317 S.C. at 31, 451 S.E.2d at 403; see also Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 512 S.E.2d 510 Generally, duty is defined as the obligation to conform to a particular standard of conduct toward another. Murray v. Bank o......
  • Henson v. International Paper Co., No. 3745.
    • United States
    • Court of Appeals of South Carolina
    • February 17, 2004
    ...Georgetown Steel Corporation, the City of Georgetown, and Georgetown County as defendants. 2. See Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 119, 512 S.E.2d 510, 522 (Ct.App.1998) (stating because no objection was raised concerning the trial judge's jury instruction in regard to c......
  • Fairchild v. S.C. Dep't of Transp., No. 27112.
    • United States
    • United States State Supreme Court of South Carolina
    • May 25, 2012
    ...in the absence of a clear abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 512 S.E.2d 510 (Ct.App.1998). An abuse of discretion occurs when the trial court's order is controlled by an error of law or when there is n......
  • Fairchild v. South Carolina Dep't of Transp., Opinion No. 27112
    • United States
    • United States State Supreme Court of South Carolina
    • April 11, 2012
    ...in the absence of a clear abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 512 S.E.2d 510 (Ct. App. 1998). An abuse of discretion occurs when the trial court's order is controlled by an error of law or when there is......
  • Request a trial to view additional results

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