Krepps by Krepps v. Ausen
| Citation | 479 S.E.2d 290,324 S.C. 597 |
| Decision Date | 04 November 1996 |
| Docket Number | No. 2587,2587 |
| Court | Court of Appeals of South Carolina |
| Parties | Shohn E. KREPPS, by his Guardian ad Litem, Patsy C. KREPPS, Appellant, v. Kent Robert AUSEN, Respondent. |
William H. Godbold, III, Rock Hill; and Charles G. Monnett, III, Charlotte, for appellant.
Thomas A. McKinney and James W. Tucker, Jr., both of McKinney, Givens & Millar, Rock Hill, for respondent.
Shohn E. Krepps, through his Guardian ad Litem, Patsy C. Krepps, brought this action seeking damages for personal injuries sustained as a result of an automobile accident. In a separate action filed simultaneously with the present case, Patsy Krepps individually sought reimbursement for medical expenses incurred by Shohn.
The two cases were tried together. In the action brought by Patsy Krepps for reimbursement of Shohn's medical expenses, the jury returned a verdict in the amount of $23,081.81 actual damages. However, in the case under appeal brought by Patsy Krepps as Guardian ad Litem for Shohn, the jury returned a verdict for zero dollars actual and punitive damages. Krepps then moved for judgment notwithstanding the verdict or alternatively for a new trial absolute, or alternatively for new trial nisi additur. These motions were based on the inconsistency in the two verdicts returned by the jury. 1 The trial court granted the new trial nisi additur motion in the amount of $7500. The trial
court further denied Krepps's subsequent motion to alter or amend judgment. Krepps appeals the trial court's denial of his motion for new trial absolute. We reverse and remand for a new trial. 2
On October 2, 1988, around 2:00 a.m., Shohn Krepps (Shohn), then twelve years old, was riding in a Ford Bronco being driven by his grandmother, Ruth Brandon. In addition to Shohn and his grandmother, Shohn's grandfather, Robert Brandon, and two of Shohn's cousins were also riding in the vehicle. They were traveling on Interstate 85 to Spartanburg, South Carolina. The Brandons laid the back seat of the Bronco down so that Shohn and his two cousins could sleep. Ruth Brandon was driving approximately fifty miles per hour when the Bronco was struck from behind by an automobile driven by Kent Robert Ausen (Ausen).
The Bronco crossed the median and the southbound lanes of Interstate 85, went down an embankment, and struck a tree. As a result, the Bronco was severely damaged and was later declared a total loss.
On the night of the accident, Ausen had been drinking beer and liquor in the VIP lounge from approximately 7:30 p.m. to 1:30 a.m. He drank at least six beers and one shot of liquor before leaving the lounge.
In his answer, Ausen admitted "simple negligence on his part." Ausen accepted "responsibility for this accident" and considered the accident to be his fault. He described the damage to the Bronco as "excessive," "extensive," and "major." He further conceded the impact between the two vehicles was "substantial."
Trooper J.M. Brown, a South Carolina Highway Patrol Officer, arrived at the scene shortly after the accident. He observed Ausen's pants "unzipped and kind of hanging on him." He testified Ausen was disoriented, smelled of alcohol, and did not know his passenger's name. Trooper Brown opined Ausen was under the influence of alcohol at the time of the wreck.
Trooper Brown heard the children in the Bronco crying loudly at the accident scene. He also observed Robert Brandon bleeding heavily from his arm. Trooper Brown noticed all of the windows had broken out of the Bronco and that there was some blood down the sides of the vehicle. During his investigation of the accident, Trooper Brown never talked to Shohn.
In the accident, Shohn's head struck the top of the Bronco. His head began hurting immediately after the accident. While at the scene, Shohn told his grandfather he was "seeing stars." Shohn further told him "if your head hit the top of the Bronco like mine did, you would cry too."
Shohn continued to complain of a headache while in the emergency room. When Joey Childers, Shohn's uncle, visited Shohn at the hospital, Shohn was "crying and complaining with a headache." Robert Brandon and Joey Childers both testified they did not observe any head injury suffered by Shohn as a result of the accident. Ruth Brandon, Shohn's grandmother, also saw no injury, bump, or bruise on Shohn's head. Shohn was released from the hospital later that same day at the same time all of the other passengers in the Bronco were released.
On the night of October 2, 1988, Shohn "couldn't stand the noise from the TV" and "would just hold [the back part of] his head and cry." He could not sleep that night. The next day, because Shohn continued to complain of a headache, Shohn's mother took him to Dr. Crotwell, a family practitioner. The doctor examined Shohn, but did not prescribe any medication or send him to another doctor. Because his headaches persisted, Shohn returned to Dr. Crotwell approximately one week later. At Shohn's mother's request, Dr. Crotwell referred Shohn to Dr. Philip S. Lesser, a pediatric neurologist.
Dr. Lesser first examined Shohn on November 2, 1988, approximately one month Dr. Lesser diagnosed Shohn as having postconcussive syndrome. Yet, he admitted the results of all of his examinations were in the normal range. He then referred Shohn to a neuropsychologist, Dr. Tarras Onischenko, for further evaluation and testing.
after the wreck. He did not review any medical or school records before evaluating Shohn. Dr. Lesser stated he was able to determine the cause of Shohn's complaints based upon a history provided mainly by Shohn and his mother. Such history included information indicating Shohn had lost consciousness as a result of the accident. However, there was no testimony Shohn ever lost consciousness. Shohn's mother informed Dr. Lesser that Shohn had developed severe headaches, blurred vision, and numbness of the scalp. She further stated Shohn had been irritable, moody, sad, easily upset, tearful, depressed, and unable to do his school work.
On January 17, 1990, Shohn returned to Dr. Lesser, who conducted physical and neurological exams on Shohn. Dr. Lesser testified the exams were "completely unremarkable." When Dr. Lesser again saw Shohn on October 17, 1990, Shohn and his mother told him Shohn was attending school half-days, taking four subjects, and making B's and C's in a standard ninth grade class. Dr. Lesser stated Shohn showed mild improvement since the January 1990 visit. He further indicated that by the October visit, Shohn's headaches were "considerably better" and "did not continue to be a very significant issue."
At Shohn's second visit to Dr. Lesser, approximately fourteen months after the first visit, Shohn's mother told Dr. Lesser Shohn was "still having a lot of difficulty in school." She then testified Shohn was not in school during the entire fourteen month period. Shohn was in the seventh grade when the wreck occurred and approximately two years later he was in the ninth grade.
Dr. Lesser testified it was possible for the brain to be injured without any damage to the skull or any bleeding inside the skull. He stated that closed head injuries often result in postconcussive syndrome, which is evidenced by physical symptoms such as personality change, drop in school performance, headache, fatigue, sleep disturbance, mood alteration, irritability, and memory loss. Dr. Lesser further indicated it was possible for a person to sustain a closed head injury, or postconcussive syndrome, and have little pain, very few complaints, a normal neurologic exam, a normal MRI, and a normal CAT scan. He was "ninety-nine percent" certain that Shohn sustained a closed head injury.
Dr. Lesser stated that in his opinion Shohn's brain injury was due to the closed head injury he suffered in the accident which occurred in October of 1988. He further stated he anticipated the injury to be permanent.
Dr. Tarras Onischenko first saw Shohn on November 21, 1988. Before evaluating Shohn, Dr. Onischenko took a history from Shohn and his mother and relied on their statements as to whatever changes occurred in Shohn's behavior. He did not talk with any of Shohn's teachers, any other medical doctors, any emergency room staff, or anyone other than Shohn and his mother. He further did not review any of Shohn's medical records other than one letter from Dr. Lesser. Moreover, Dr. Onischenko was under the impression that Shohn had been unconscious for approximately ten minutes as a result of the accident and was unaware the emergency room records indicated Shohn had not suffered a loss of consciousness.
Dr. Onischenko only viewed Shohn's school records for a one month period of time beginning on August 27, 1990, and ending on September 28, 1990, almost two years after the accident occurred. Dr. Onischenko testified that a complete review of Shohn's past school records before and after the accident could be significant.
As part of his neuropsychological evaluation, Dr. Onischenko performed approximately fifteen to sixteen different tests on Shohn. Out of the approximately fifteen to sixteen tests conducted, Shohn scored in the normal range on twelve of them. Dr. Onischenko classified his findings and results as being normal and only found "some spotty problems." He felt Shohn was having no problems with his reasoning and logical analysis abilities.
As a result of his examination and testing, Dr. Onischenko recommended a modification in Shohn's school and that he participate in outpatient psychotherapy. Dr. Onischenko concurred in Dr. Lesser's diagnosis of postconcussive syndrome. He further stated Shohn did not have postconcussive syndrome prior to the October accident and that it was possible for the brain to be injured without any damage to the skull or any bleeding inside the skull.
Dr. P. Jeffrey Ewert, a clinical neuropsychologist, is...
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