Gathers By and Through Hutchinson v. South Carolina Elec. and Gas Co.

• Decision Date: 08 December 1992
• Docket Number: No. 1942,1942
• Citation: 311 S.C. 81,427 S.E.2d 687
• Court: South Carolina Court of Appeals
• Parties: David GATHERS, By and Through his Personal Representative, Katherine HUTCHINSON, Respondent, v. SOUTH CAROLINA ELECTRIC & GAS COMPANY, Appellant. . Heard

Page 687

427 S.E.2d 687

311 S.C. 81

David GATHERS, By and Through his Personal Representative, Katherine HUTCHINSON, Respondent, v. SOUTH CAROLINA ELECTRIC & GAS COMPANY, Appellant.

No. 1942.

Court of Appeals of South Carolina.

Heard Dec. 8, 1992.

Decided Feb. 16, 1993.

Wm. Howell Morrison and Martha D. Ballenger, both of Holmes & Thomson, Charleston, and M. Richbourg Roberson, of South Carolina Elec. & Gas Co., Columbia, for appellant.

George J. Kefalos and Benjamin Goldberg, Charleston, for respondent.

PER CURIAM:

David Gathers was electrocuted when he touched a copper water pipe under his home. Gathers's estate filed a wrongful death action against South Carolina Electric & Gas Company, alleging negligence and strict liability. A jury awarded the estate $100,000 actual damages on the negligence claim. SCE & G appeals. We affirm.

1. SCE & G first argues the court erred in denying its motion to strike the estate's expert's testimony regarding how the pipe became electrified, because it was based on assumptions unsupported by evidence. Based on a hypothetical posed by Gathers's counsel, the expert theorized a loose neutral on SCE & G's service line electrified the pipe. SCE & G contends this defect was not supported by evidence, and, therefore, the expert did not have a sufficient factual foundation upon which to base his opinion. ¹

Opinion testimony of an expert may be based upon a hypothetical question. Brown v. La France Industries, 286 S.C. 319, 333 S.E.2d 348 (Ct.App.1985). The hypothetical question must be based on facts supported by the evidence. Id. Counsel posing the hypothetical may, however, frame the question on any theory which can reasonably be deduced from the evidence and select as a predicate for it such facts as the evidence proves or reasonably tends to prove. Id. Stated another way, counsel may rely upon circumstantial evidence to prove an essential fact in framing a hypothetical question. Hyles v. Cockrill, 169 Ga.App. 132, 312 S.E.2d 124 (1983). Deciding whether a conclusion assumed in the hypothetical is at least reasonably supported by circumstantial evidence is a question of law for the court. See id. If circumstantial evidence reasonably supports the assumptions, whether the evidence actually establishes the assumed facts becomes a question of fact for the trier of fact. See id.

On the day Gathers died, SCE & G inspected the premises and discovered 120 volts of electrical current running through the water pipes. As a safety precaution, SCE & G disconnected the service line and the meter from Gathers's house and discarded them. When it later reconnected service with a new service line and meter, the deadly voltage no longer existed on the water pipes. These circumstances strongly suggest a defect in the service line. One of SCE & G's witnesses testified that a loose neutral connection on a service line is the most probable cause of water pipe...