Fairchild v. Dept. of Transp.
| Citation | 385 S.C. 344,683 S.E.2d 818 |
| Decision Date | 27 August 2009 |
| Docket Number | No. 4611.,4611. |
| Parties | Marilee B. FAIRCHILD and Larry J. Fairchild, Appellants/Respondents, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, William Leslie Palmer and Palmer Construction Co., Inc., Defendants, Of whom William Leslie Palmer and Palmer Construction Co., Inc., are Respondents/Appellants. |
| Court | Court of Appeals of South Carolina |
Bert G. Utsey, III, of Walterboro, and George David Jebaily, of Florence, for Appellants/Respondents.
Kirby D. Shealy, III and Bradley L. Lanford, both of Columbia, for Respondents/Appellants.
On appeal from this tort action, Marilee and Larry Fairchild1 argue the trial court erred in (1) refusing to instruct the jury on certain charges; (2) directing a verdict on Fairchild's claim for punitive damages; and (3) denying their motion for a new trial. William Palmer and Palmer Construction cross-appeal and maintain the trial court erred in (1) failing to grant Palmer's motion for an independent medical examination of Fairchild and (2) granting Fairchild's motion for directed verdict as to the affirmative defense of comparative negligence. We affirm in part, reverse in part, and remand.
On March 1, 2001, Fairchild and Palmer were involved in an automobile accident in the inside, southbound lane of Interstate 95. James Rabb, a South Carolina Department of Transportation (SCDOT) employee, was also traveling southbound but began crossing over the median to head in the northerly direction. Rabb was driving a SCDOT dump truck with a trailer attached carrying a backhoe. While Rabb waited for the northbound traffic to clear, the trailer hitched to the dump truck protruded approximately halfway across the inside southbound lane in which Fairchild and Palmer were traveling.
Two cars traveling ahead of Fairchild simultaneously switched from the inside to the outside traffic lane. Fairchild, driving a minivan, then saw the backend of Rabb's trailer blocking her traffic lane. In response, Fairchild "flashed" her brakes but did not slam on the brakes. Fairchild testified she had her foot on the brake as she continued to coast in order to stay ahead of the car behind her and not hit the trailer obstructing the road. Though Fairchild avoided colliding with Rabb's trailer, she did not avoid a collision with Palmer, who was traveling directly behind her.
Palmer, also driving a truck and hauling a trailer, braked in an attempt to avoid colliding with Fairchild. Palmer also swerved to the right but was unable to avoid hitting Fairchild's vehicle. The force of the impact caused Fairchild's minivan to flip and roll, ultimately coming to a rest in the median. Fairchild sustained injuries to her head, neck, and right shoulder as a result of the accident.
On February 26, 2003, Fairchild brought suit against SCDOT, Palmer, and Palmer Construction. In her complaint, Fairchild maintained Palmer was operating a vehicle owned by Palmer Construction when the accident occurred. Additionally, Fairchild asserted several negligence claims against the three defendants. Fairchild requested a jury trial and sought both actual and punitive damages. Ultimately, Fairchild entered into a covenant not to sue with SCDOT, and the Honorable Roger Young dismissed SCDOT as a party to the action.
During the trial, both sides presented evidence regarding what happened on the day of the accident, as well as medical evidence regarding Fairchild's injuries. Over the course of the trial, both sides also made several motions. Palmer moved for an independent medical exam pursuant to Rule 35(a), SCRE, and sought to have it performed by Dr. James Ballenger, a psychiatrist with whom Palmer had consulted as an expert witness. Ultimately, the trial court denied Palmer's request because Dr. Ballenger was listed as an expert witness for the defense. At the close of the evidence, the trial court directed a verdict for Fairchild on Palmer's affirmative defense of comparative negligence. Thereafter, Palmer renewed his motion for a directed verdict as to punitive damages, and the trial court granted the motion. The trial court also refused to charge the jury with several instructions requested by Fairchild.
At the conclusion of trial, the jury found in favor of Fairchild and awarded her $720,000 in damages.2 After the jury published its verdict, Fairchild moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial nisi additur. The trial court denied all of Fairchild's post-trial motions. Both Palmer and Fairchild appeal.
Fairchild contends the trial court erred in refusing to instruct the jury on three requested charges. She maintains the charges were timely submitted to the trial court, and the charges would have assisted the jury in making an informed decision based on South Carolina law; thus, the charges rendered were inadequate. Palmer argues there were no allegations or evidence of the intervening negligence of third persons in this case. Therefore, the trial court did not err in refusing to instruct the jury on the charges. Finally, Palmer submits Fairchild cannot demonstrate the requisite error or prejudice to warrant reversal on this basis. We agree with Fairchild and find the trial court erred in refusing to instruct the jury on the requested charges.
"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. "A trial court must charge the current and correct law." Wells v. Halyard, 341 S.C. 234, 237, 533 S.E.2d 341, 343 (Ct.App.2000). In reviewing a jury charge for alleged error, an appellate court must consider the charge as a whole in light of the evidence and issues presented at trial. Id. "Ordinarily, a trial [court] has a duty to give a requested instruction that correctly states the law applicable to the issues and evidence." Fernanders v. Marks Constr. of S.C., Inc., 330 S.C. 470, 473, 499 S.E.2d 509, 510 (Ct.App.1998). However, jury instructions should be confined to the issues made by the pleadings and supported by the evidence. Baker v. Weaver, 279 S.C. 479, 482, 309 S.E.2d 770, 771 (Ct.App.1983). In Burns v. South Carolina Commission for Blind, 323 S.C. 77, 80, 448 S.E.2d 589, 591 (Ct.App.1994) (internal citations omitted) this court held:
If the requested charge states a sound principle of law that is applicable to the case, and not otherwise covered by the charge, refusal to charge it is error and requires a new trial. Moreover, when general instructions to the jury are insufficient to enable the jury to understand fully the law of the case and issues involved, a refusal to give a requested charge is reversible error.
To warrant reversal, the party seeking the requested jury charge must demonstrate error and prejudice. Cole v. Raut, 378 S.C. 398, 405, 663 S.E.2d 30, 33 (2008) (). "An alleged error is harmless if the appellate court determines beyond a reasonable doubt that the alleged error did not contribute to the verdict." Wells, 341 S.C. at 237, 533 S.E.2d at 343.
In the present case, Fairchild requested the trial court submit the following charges to the jury:3
Plaintiff's Request to Charge Number 11: Liability exists for the natural and probable consequences of negligent acts and omissions, proximately flowing there from. Intervening negligence of a third person will not excuse the original wrongdoer if such intervention ought to have been foreseen in the exercise of due care. Matthews v. Porter, 239 S.C. 620, 124 S.E.2d 321 (1962). It is the law in South Carolina that the negligence of a treating doctor is reasonably foreseeable. It is the general rule that if an injured person uses ordinary care in selecting a physician for treatment of his injury, the law regards the aggravation of the injury resulting from the negligent act of the doctor as part of the immediate and direct damages which naturally flow from the original injury. Bessinger v. Deloach, 230 S.C. 1, 94 S.E.2d 3 (1956); Graham v. Whitaker, 282 S.C. 393, 321 S.E.2d 40 (1984).
Plaintiff's Request to Charge Number 12: The intervening negligence of a third person will not excuse the original wrongdoer if such intervention ought to have been foreseen in the exercise of due care. Graham v. Whitaker, 282 S.C. 393, 321 S.E.2d 40 (S.C.1984). The negligence of an attending physician is reasonably foreseeable. Therefore, if an injured person uses ordinary care in selecting a physician for treatment of her injuries, the law regards the aggravation of the injury resulting from the negligent act of the physician as part of the immediate and direct damages which naturally flow from the original injury. Payton v. Kearse, 319 S.C. 188, 460 S.E.2d 220 (Ct.App.1995).
Plaintiff's Request to Charge Number 13: I CHARGE YOU THAT "if an injured person uses ordinary care in selecting a physician for treatment of his injury, the law regards the aggravation of the injury resulting from the negligent act of [or treatment by] the physician as a part of the immediate and direct damages which naturally flow from the original injury." Bessinger v. DeLoach 94 S.E.2d 3, 5, (S.C.1956).
In its ruling regarding the jury charge, the trial court stated it refused to charge the jury on the requests because there was no evidence of negligence by an attending physician. However, Fairchild made a compelling argument that the trial court should have instructed the jury on the requested charges. Fairchild argues defense counsel stressed the side effects of the drugs Fairchild took...
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