Johnson v. Hoechst Celanese Corp.
| Decision Date | 07 December 1994 |
| Docket Number | No. 2288,2288 |
| Citation | 317 S.C. 415,453 S.E.2d 908 |
| Court | South Carolina Court of Appeals |
| Parties | Duke K. JOHNSON and Joan M. Johnson, Richard H. and Dana Benson Brant, Joel M. and Deborah B. Brockman, Ray Collins, George F. and Connie S. Crane, Thomas J. and Kathryn D. Cunningham, Margaret S. Davenport, Tracy Woodrow, Jr. and Loyce V. Dees, William J. and Sara T. Dunn, Edgar N. and Frances Patricia Elliott, Vivian Gamble, Louis F. and Patricia F. Gantt, Lawrence L. and Princess A. Gentry, Danny B. and Marilyn M. Grey, Thomas G. and Shirley B. Hickman, Jacob P. and Shelby H. Jumper, Randy E. and Jackie B. Lollis, Vickie Lynn Lucas (Benson), David B. and Margaret E. McCanless, Doris O. McClain, William T. McDowell, Jr., Barry M. and Wynndy McKinney, Lloyd A. Merritt, Mildred R. Mitchell (Gossett), Arthur M. and Penelope K. Pace, Lee Samuel Pate, III, Richard J. and Alice E. Ponce, William L. Powell, Robert L. and Terrye E. Raines, Steve and Hilda C. Richard, Carlton R. and Barbara B. Riddle, William C. Robertson, William D. and Mary Ethel L. Singleton, James G. and June W. Thompson, Robert J. and Aloha W. Vance, Danny H. and Pamela J. Waters, and James E. and Janice L. Wright, Respondents, OF WHOM Clyde J. Atwood and Bernice J. Atwood, L.J. Solesbee and Betty S. Solesbee, Larry L. Stewart and Linda B. Stewart are Appellants, v. HOECHST CELANESE CORPORATION, and Daniel International Corporation, d/b/a Daniel Construction Company, OF WHOM Hoechst Celanese Corporation is Respondent. . Heard |
William A. Jordan and Cecil H. Nelson, Jr., of Nelson & Jordan; J. Kendall Few and John C. Few, of Few & Few, Greenville, for appellants.
L. Gray Geddie, Jr., and Ronald E. Cardwell, of Ogletree, Deakins, Nash, Smoak & Stewart, Greenville, for respondent.
The plaintiffs in this tort action asserted claims of nuisance, trespass, negligence, and strict liability for the alleged contamination of their properties located in the Pineforest Subdivision of Greenville County. The plaintiffs alleged Hoechst Celanese Corporation dumped chemicals on land located on Hoechst Celanese property, and the chemicals migrated off the property through the air, ground, and surface water, contaminating their land.
Eighty-eight cases were consolidated for trial with the liability and damage issues bifurcated. A central issue in the case involved the geographical location of the property of each plaintiff in relation to contaminated water or land, and/or their inclusion in or exclusion from "plumes" of alleged ground water contamination. These "plumes," detailed on diagrams prepared by experts who testified in the case, purported to show the migration of toxicity over time.
Very able counsel tried this complex litigation for three weeks. Numerous experts testified, using diagrams and subdivision plats or drawings for illustration. The plaintiffs' exhibits, alone, numbered in excess of 92. Though the cases were consolidated, there was no agreement among the parties that each plaintiff fit into a particular liability or damage category, so as to require extrapolation of verdict to individual plaintiffs based upon a representative plaintiff in that category.
The categories were five in number. One category included those properties which the defendant claimed would be the only ones within a "plume." Another category consists of those properties that would not be affected. Plaintiffs' experts grouped the third and fourth categories as those properties that would be affected by the years 1995 and 2020, respectively. Finally, during the trial, plaintiffs' counsel argued a fifth category consisting of two plaintiffs, the Brockmans and Cunninghams, because they live on or in close proximity to a creek which traverses the subdivision. These plaintiffs would have been within the 2020 plume of ground water contamination, but they claimed their properties were presently affected by the creek. For example, the record contains Mrs. Brockman's testimony that the creek flooded onto her property, the property behind her, and across the street during heavy rains (the Cunninghams live diagonally across the stream behind the Brockman property).
As the liability portion of the trial neared conclusion, the trial judge advised counsel he intended to give the jury a color coded map as a court exhibit which depicted the location of each plaintiff using the classifications argued by the parties. The court instructed the parties to prepare such an exhibit and corresponding verdict form. The exhibit as used by the court consisted of a blown up copy of a tax map of the subdivision, with a clear plastic overlay. Different colored dots were then stuck onto the overlay to delineate the five categories of property. The court's exhibit and verdict form were reviewed by the parties before they were given to the jury, and after specific inquiry by the court, there was no objection to them. After the judge charged the jury, instructing it on the use of the map and verdict form, plaintiffs' counsel made three objections to the charges. None of these objections were addressed to either the court's exhibit or the verdict form.
The jury returned a defense verdict against all plaintiffs outside the 1995 plume, with the exception of the Brockmans and Cunninghams. At this point, plaintiffs' counsel moved to reopen the judgment with respect to three property owners, the appellants (Atwoods, Stewarts, Solesbees). These three landowners had been properly classified in the 2020 plume. However, counsel contended the three landowners should have been designated with the Brockmans and Cunninghams (as "creek plaintiffs") because the creek was located on or next to their properties. They argued the verdict demonstrated the jury found on trespass and nuisance theories for all plaintiffs identified as being on the creek or affected by the creek when it flooded. Therefore, counsel moved to reopen testimony regarding liability to allow the three plaintiffs to testify as to the effect of the creek on their properties. The court held its ruling in abeyance pending the damages phase of the trial.
After the damages verdict was returned, the three landowners filed a JNOV motion, in which they allege the map and verdict form inadvertently failed to designate them as "creek plaintiffs." The landowners contended the court should use its broad discretionary power to remedy this inequity because the verdicts against them were inconsistent with the other plaintiffs similarly situated. The JNOV motion was denied. The landowners then moved for reconsideration of the denial of the JNOV or, in the alternative, a new trial. This motion was then denied.
On appeal, the landowners contend the trial court erred in denying its motion for JNOV. Rule 50(b), SCRCP, provides the following:
A party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.... (emphasis added).
If a party fails to make a directed verdict motion before the jury retires, the party cannot subsequently move for JNOV. Ballew v. Liberty Life Ins. Co., 270 S.C. 301, 241 S.E.2d 907 (1978); Government Employees Ins. Co. v. Mackey, 260 S.C. 306, 195 S.E.2d 830 (1973). The trial court properly denied the motion for JNOV, because the landowners did not move for a directed verdict. The landowners argue that no such motion could have been made in this instance because the error came later in the trial. This argument simply highlights the fact that a motion for judgment notwithstanding the verdict was not the appropriate vehicle to address the alleged error. 1
The landowners next contend the trial court erred in failing to grant a new trial. They assert the court exhibit and verdict form incorrectly located the creek in relation to their properties and, as a result, the jury returned a verdict against them.
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Vinson v. Hartley
...and reflects the jury's confusion. Johnson v. Parker, 279 S.C. 132, 303 S.E.2d 95 (1983). See also Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 453 S.E.2d 908 (Ct.App.1995) (under "thirteenth juror doctrine," trial court may grant new trial if judge believes verdict is unsupported by ev......
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Howard v. Roberson
...and reflects the jury's confusion. Johnson v. Parker, 279 S.C. 132, 303 S.E.2d 95 (1983). See also Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 453 S.E.2d 908 (Ct.App.1995) (under "thirteenth juror doctrine," trial court may grant new trial if judge believes verdict is unsupported by ev......
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Youmans v. Dept. of Transp., 4437.
...and reflects the jury's confusion. Johnson v. Parker, 279 S.C. 132, 303 S.E.2d 95 (1983). See also Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 453 S.E.2d 908 (Ct.App.1995) (under "thirteenth juror doctrine," trial court may grant new trial if judge believes verdict is unsupported by ev......
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Henson v. International Paper Co., 3745.
...instruction in regard to contributory negligence, the issue was not preserved for appeal). 3. See Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 421, 453 S.E.2d 908, 912 (Ct.App.1995) (holding that by failing to object to a verdict form until after a liability verdict had been reached, pa......