Greenville Memorial Auditorium v. Martin, No. 23161

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HARWELL; GREGORY; GREGORY
• Citation: 391 S.E.2d 546,301 S.C. 242
• Decision Date: 08 December 1989
• Docket Number: No. 23161
• Parties: GREENVILLE MEMORIAL AUDITORIUM, Appellant, v. Thomas MARTIN, Respondent. . Heard

Page 546

391 S.E.2d 546 301 S.C. 242 GREENVILLE MEMORIAL AUDITORIUM, Appellant,
v.
Thomas MARTIN, Respondent. No. 23161. Supreme Court of South Carolina. Heard Dec. 8, 1989.
Decided Feb. 20, 1990.

Page 547

[301 S.C. 243] Jeff Weston and Merl F. Code, Greenville, for appellant.

Douglas F. Patrick, Greenville, for respondent.

HARWELL, Justice:

Respondent Thomas Martin filed an action against appellant Greenville Memorial Auditorium under the South Carolina Tort Claims Act. Respondent sought damages for injuries received as a result of his being struck by a glass bottle which was thrown by an unknown third party from appellant's balcony during a rock concert. Respondent's complaint alleged that appellant's negligence in securing the premises during the concert created an unreasonable risk of harm and proximately caused respondent's injury. Despite appellant's defense which was based on the Tort Claims Act and its allegation that respondent's injury was caused by the [301 S.C. 244] conduct of a third party, the jury returned a $12,000 verdict for respondent. This appeal follows.

DISCUSSION

1. REFUSAL OF TRIAL JUDGE TO PERMIT TESTIMONY REGARDING

REQUIREMENT OF PROBABLE CAUSE BEFORE SEARCHING PATRONS

Appellant asserts the trial judge erred in refusing to allow the director of security to testify that security personnel could not search patrons as they entered the auditorium without probable cause. Appellant argues this testimony was crucial to its defense: that respondent's injuries were caused by a third party bringing a concealed bottle of alcohol into the auditorium rather than by appellant's failure to search all patrons as they entered the auditorium. Appellant submits that because it is a public subdivision under S.C.Code Ann. § 15-78-30(h) (1986) of the Torts Claim Act, it is subject to constitutional limitations and the jury was entitled to know appellant's security personnel could not search patrons without probable cause.

An alleged erroneous exclusion of evidence is not a basis for establishing prejudice on appeal in absence of an adequate proffer of evidence in the court below. Raleigh & C.R. Co. v. Jones, 104 S.C. 332, 88 S.E. 896 (1916); Vause v. Mikell by Solomonic, 290 S.C. 65, 348 S.E.2d 187 (Ct.App.1986). Because appellant's trial counsel failed to make an offer of proof in order to preserve the question for appeal, we do not need to address whether the trial judge erred in excluding such testimony. Honea v. Prior, 295 S.C. 526, 369 S.E.2d 846 (Ct.App.1988).

2. REFUSAL OF TRIAL JUDGE TO DIRECT A VERDICT

At the close of his case, counsel for the appellant made a motion for a directed verdict which was denied by the trial judge. Appellant asserts this was error because the evidence did not establish its liability. Appellant states the evidence was uncontroverted that this was the first instance of bottle throwing at a concert that the director of security had witnessed in twenty-nine years and therefore, the resulting injury was unforeseeable.

[301 S.C. 245] In reviewing whether the trial judge erred in denying a party's motion for a directed verdict, we review the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing such motion. Kennedy v. Custom Ice Equipment Co., 271 S.C. 171, 246 S.E.2d 176 (1978). Our task is to determine if the evidence warranted the submission of the case to the jury. Id. Contrary to appellant's assertion, in order to establish liability, it is not necessary the person charged with negligence should have contemplated the particular event which occurred. Young v. Tide Craft, 270 S.C. 453, 242 S.E.2d 671 (1978). It is sufficient that he

Page 548

should have foreseen his negligence would probably cause injury to someone. Childers v. Gas Lines,...