Fairchild v. South Carolina Dep't of Transp.

Decision Date11 April 2012
Docket NumberOpinion No. 27112
PartiesMarilee B. Fairchild and Larry J. Fairchild, Plaintiffs, Of whom Marilee B. Fairchild is Respondent, 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 Petitioners.
CourtSouth Carolina Supreme Court


Appeal From Colleton County

Perry M. Buckner, Circuit Court Judge


Kirby D. Shealy, III and Bradley L. Lanford, both of Baker, Ravenel & Bender, of Columbia, for Petitioners.

Bert G. Utsey, III, of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Walterboro; and George D. Jebaily and Suzanne H. Jebaily, both of Jebaily Law Firm, of Florence, for Respondent.


This Court granted a petition for a writ of certiorari to review the decision in Fairchild v. South Carolina Department of Transportation, 385 S.C. 344, 683 S.E.2d 818 (Ct. App. 2009). The Court of Appeals affirmed in part, reversed in part, and remanded for a new trial a negligence action arising from a motor vehicle accident. In relevant part, the Court of Appeals determined (1) Marilee Fairchild's claim for punitive damages should have been submitted to the jury, (2) the trial court should have charged the jury on the intervening negligence of a treating physician, and (3) the trial court did not abuse its discretion in denying William Leslie Palmer's motion under Rule 35, SCRCP for an independent medical examination (IME) to be performed by Dr. James Ballenger. We affirm.


This action arises out of a motor vehicle accident that occurred on March 1, 2001 while several vehicles were traveling south on Interstate 95 in South Carolina.

Just before the accident, James Rabb, an employee with the South Carolina Department of Transportation (SCDOT), was driving a dump truck with an attached trailer transporting a backhoe. Rabb was traveling in the left lane of the southbound traffic (closest to the median) when he pulled in to a paved "cross-over" in the median so he could turn around and enter the northbound lanes of I-95. While Rabb was stopped waiting for the northbound traffic to clear, the back of his trailer allegedly protruded into the left traffic lane on the southbound side.

Several cars traveling south in the left lane directly behind Rabb saw Rabb's trailer and simultaneously switched to the right lane. When those cars moved over, Marilee Fairchild, who was behind them driving a minivan, saw Rabb's trailer partially blocking the left lane where she was traveling. Fairchild "flashed" her brakes and then continued to brake while staying ahead of the vehicle behind her. Fairchild managed to avoid Rabb's trailer, but she was struck by a truck traveling behind her that was driven by William Leslie Palmer.

Palmer, whose truck also had an attached trailer (which contained a motorcycle), hit his brakes and swerved to the right when he came upon Fairchild. However, Palmer struck Fairchild's minivan, and the force of the impact with Palmer's large vehicle caused Fairchild's minivan to flip over and roll before landing in the median. Rabb's truck was not hit in the accident.

On February 26, 2003, Fairchild1 brought this negligence action against SCDOT, Palmer, and Palmer Construction Co., alleging she sustained physical injuries and property damage in the accident. She sought both actual and punitive damages. Fairchild thereafter entered into a covenant not to sue with SCDOT, and SCDOT was dismissed as a party.

At trial, the jury returned a verdict in favor of Fairchild for $720,000. Both parties appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. We thereafter granted Palmer's2 petition for a writ of certiorari.

A. Punitive Damages

Palmer first argues the Court of Appeals erred in holding the trial court should have submitted Fairchild's claim of punitive damages to the jury based on its determination that the evidence and its reasonable inferences created a factual question as to whether he had acted recklessly.

The trial court granted Palmer's motion for a directed verdict on Fairchild's claim for punitive damages on the basis there was no evidence of reckless conduct by Palmer. However, the trial court did conclude that two statutes governing traffic safety were implicated in this case and charged the jury on the same. The first, section 56-5-1520(A), provides general rules as to maximum and safe speeds and states when lower speeds may be required:

A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Speed must be so controlled to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care.

S.C. Code Ann. § 56-5-1520(A) (2006).

In addition, the trial court charged the jury on section 56-5-1930(a), which prohibits following too closely:

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.

Id. § 56-5-1930(a).

The Court of Appeals found the grant of a directed verdict on the claim for punitive damages was error as the evidence and its reasonable inferences created a factual question as to whether Palmer had acted recklessly. Fairchild, 385 S.C. at 353, 683 S.E.2d at 823. The court agreed with Fairchild that, based on Palmer's conduct, which included driving a large commercial truck3 into heavy traffic just before the accident without any reduction in his rate of speed, and his alleged statutory violations, the jury should have been permitted to consider whether Palmer acted recklessly. Id.

Citing long-standing South Carolina precedent, the Court of Appeals held the violation of a statute constitutes negligence per se, and negligence per se is some evidence of recklessness and willfulness that requires submission of the issue of punitive damages to the jury. Id. at 354, 683 S.E.2d at 823. The Court of Appeals cited this Court's decision in Wise v. Broadway, 315 S.C. 273, 433 S.E.2d 857 (1993) as well as additional authorities to this effect:

Wise v. Broadway, 315 S.C. 273, 276, 433 S.E.2d 857, 859 (1993) ("The causative violation of a statute constitutes negligence per se and is evidence of recklessness and willfulness, requiring the submission of the issue of punitive damages to the jury."); Rhodes v. Lawrence, 279 S.C. 96, 97-98, 302 S.E.2d 343, 344 (1983) ("In these circumstances, a jury question as to punitive damages was clearly presented given the well settled rule that a showing of statutory violation can be evidence of recklessness and willfulness."); Austin v. Specialty Transp. Servs., Inc., 358 S.C. 298, 314, 594 S.E.2d 867, 875 (Ct. App. 2004) ("A factual question as to punitive damages is presented when there is evidence of a statutory violation.").

Id. The Court of Appeals noted "[t]hese cases limit their holdings to creating a jury question only and not recklessness per se." Id. The court referenced the express limitation pronounced by this Court in Wise:

Violation of a statute does not constitute recklessness, willfulness, and wantonness per se, but is some evidence that the defendant acted recklessly, willfully, and wantonly. It is always for the jury to determine whether a party has been reckless, willful, and wanton. However, it is not obligatory as a matter of law for the jury to make such a finding in every case of a statutory violation.

Id. at 354, 683 S.E.2d at 823-24 (quoting Wise, 315 S.C. at 276-77, 433 S.E.2d at 859 (internal citations omitted)).

The Court of Appeals concluded that there was evidence Palmer was negligent per se in causing the accident, which consisted of following another vehicle too closely and speeding; consequently, a jury could have found Palmer violated sections 56-5-1930(a) and 56-5-1520(A), and the finding of a statutory violation may be considered by the jury as evidence of recklessness. Id. at 357, 683 S.E.2d at 825. As a result, the court reversed the grant of a directed verdict on punitive damages and remanded for a new trial. Id.

On appeal to this Court, Palmer asserts this was error, and that "evidence of a statutory violation alone, without more, is generally insufficient to send the issue of punitive damages to the jury." He contends the two statutes at issue codify the common law standards for safe speeds and following distances, and they do not establish bright-line standards; therefore, they should not form the basis for an award of punitive damages without other supporting evidence.

In reviewing a ruling on a motion for a directed verdict, this Court must view the evidence and all reasonable inferences from the evidence in the light most favorable to the party opposing the motion. Weir v. Citicorp Nat'l Servs., Inc., 312 S.C. 511, 435 S.E.2d 864 (1993). A case should be submitted to the jury when the evidence is susceptible of more than one reasonable inference. Unlimited Servs., Inc. v. Macklen Enters., Inc., 303 S.C. 384, 401 S.E.2d 153 (1991). It is not the duty of the trial court to weigh the testimony in ruling on a motion for a directed verdict. Young v. Bost, 241 S.C. 289, 128 S.E.2d 118 (1962).

Punitive damages are recoverable where there is evidence the defendant's conduct was reckless, willful, or wanton. Cartee v. Lesley, 290 S.C. 333, 350 S.E.2d 388 (1986). Recklessness is the doing of a negligent act knowingly; it is a conscious failure to exercise due care, and the element distinguishing actionable negligence from a willful tort is inadvertence. Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011). The terms "willful" and "wanton" when pled in a negligence action...

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