Gadson v. ECO Servs. of S.C.
| Decision Date | 18 February 2005 |
| Docket Number | 2005-UP-130 |
| Parties | Starr Gadson, by her Guardian ad Litem Kathy Gadson, Respondent, v. ECO Services of South Carolina, Inc. and Joseph Jenkins, Appellants. |
| Court | Court of Appeals of South Carolina |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Heard January 12, 2005
Appeal From Jasper County Paul M. Burch, Circuit Court Judge
Deborah H. Sheffield, of Charleston, for Primary Appellant.
Joseph R. Weston, of Mt. Pleasant, for Secondary Appellant.
Daniel E. Henderson, of Ridgeland, for Respondent.
ECO Services of South Carolina, Inc. (ECO) and Joseph Jenkins appeal from jury verdicts against them on Starr Gadson's claims for negligent entrustment. We affirm as to Jenkins and reverse as to ECO.
Jenkins worked for ECO, solid waste contractor that services Beaufort, Jasper, and Hampton counties. As a helper, ” Jenkins used ECO's trucks to go back for missed pickups. On August 6, 1997, Jenkins failed to return ECO's truck at then end of the day to the Hilton Head office. Instead, he drove the truck to Hardeeville. Gadson testified that she saw Jenkins drive the truck to a friend's house. Jenkins's cousin John Jenkins was riding in the front of the truck and Gadson's brother and another passenger were riding in the back. Gadson's brother climbed out of the truck and went home. Gadson and several other people climbed into the back of the truck and Jenkins drove them to McDonald's. After they ate, Jenkins drove them to a store where John bought a cigar and one or two wine coolers, which he shared with another passenger. Jenkins then drove them to the Purrysburg Landing, where they talked for about an hour.
When the group started back to Hardeeville, John was driving the truck. [1] He suddenly sped up to around 80 miles per hour and then lost control of the vehicle, resulting in the accident. Gadson and the other passengers in the back were thrown from the truck.
Gadson along with others injured in the accident, brought suit alleging negligence and negligent entrustment against ECO Jenkins, and John. [2] The case was tried to a jury. ECO and Jenkins were represented at trial, but Jenkins did not appear. John was not represented and did not appear at trial. The jury returned a general verdict against all three defendants. The jury found, in special interrogatories, as follows: (1)ECO entrusted its vehicle to Jenkins; (2) ECO was negligent in entrusting its vehicle to Jenkins; (3) ECO's negligence proximately caused the plaintiffs' injuries (4) John was the driver of the vehicle; (5) John's negligence proximately caused the plaintiffs' injuries; (6) Jenkins was not the driver of the vehicle; and (7) Jenkins was negligent in entrusting the vehicle to John. It awarded Gadson $50, 000 in actual damages.
ECO and Jenkins both requested and were granted ten days to file post-trial motions. In their motions, ECO and Jenkins asked for JNOV and new trial based on alleged juror misconduct. [3] The trial court initially dismissed both motions finding they were untimely. On remand from this court, the trial court considered both motions on the merits, but denied them. ECO and Jenkins appealed.
When reviewing the denial of a motion for a directed verdict or JNOV, this court uses the same standard as the trial court by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000). The motion must be denied when the evidence is susceptible of more than one inference. Id. at 300, 536 S.E.2d at 418. Neither this court nor the trial court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence. Id.
ECO and Jenkins both argue the trial court erred in denying their motions for directed verdict and JNOV on Gadson's claims for negligent entrustment.
The theory of negligent entrustment provides: ‘the owner or one in control of the vehicle and responsible for its use who is negligent in entrusting it to another can be held liable for such negligent entrustment.'” Am. Mut. Fire Ins. Co. v. Passmore, 275 S.C. 618, 622, 274 S.E.2d 416 418 (1981) (quoting 19 A.L.R.3d 1175, 1192).
The Restatement (Second) of Torts § 308 (1965) [4], provides as follows:
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
We will consider Gadson's claims against ECO first.
It is undisputed that ECO owned the truck involved in the accident. ECO does dispute that Jenkins had authority to be driving the truck on the night of the accident. Lou Joseph Diaz, general manager for ECO, testified that Jenkins had never taken the truck to Hardeeville after work hours prior to the date of the accident. However, one of the other passengers injured in the truck contradicted this testimony when he said that he had seen Ricky driving the truck around Hardeeville in the evenings for a week before the accident.
Jenkins was suspended twice early in 1997 for unexcused absences from work. Additionally, a note in Jenkins's personnel file indicated that Jenkins was terminated for unauthorized use of a company vehicle on July 11, 1997-three weeks before the accident occurred. When confronted, Diaz testified that the date on the note was probably a typographical error by the personnel office in Charleston. He further testified that the note was probably intended to reflect that Jenkins was fired on August 7, 1997 as a result of the accident, and that Jenkins had not been disciplined in July of 1997. Diaz noted that this could be confirmed by the personnel office; however, the ECO employee who inserted the note into the file was never called to testify. Hector Calderon, human resource director at ECO, testified that ECO never fired Jenkins in July of 1997. He stated ECO's payroll records showed Jenkins was working for the company during that time. We agree with ECO that the only reasonable conclusion is that the notation that Jenkins was terminated on July 11, 1997 is a typographical error. See Hopson v. Clary, 321 S.C. 312, 314, 468 S.E.2d 305, 307 (Ct. App. 1996) () However, even if we accept the notation as evidence ECO had previously terminated Jenkins for unauthorized use of a vehicle, we find the record does not support the jury's finding of negligent entrustment against ECO.
Gadson asserts that the evidence proves ECO knew that Jenkins was an irresponsible employee, and therefore was likely to cause harm to third parties with the truck. We disagree. The crux of the issue is whether ECO knew or should have known that Jenkins intended or was likely to use the truck in such a manner as to create an unreasonable risk of harm to others. The only inference from the evidence in the record is that Jenkins had attendance problems at work about six months before the accident, and that he was known to take ECO's trucks home without authorization. Jenkins's driving record contained no violations, accidents, or suspensions over the three-year period prior to the accident. There is simply no evidence that ECO knew that Jenkins was likely to drive the truck recklessly, or that ECO knew that Jenkins was likely to entrust...
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