O'Leary-Payne v. R.R. Hilton Head, II, Inc., 4173.

CourtCourt of Appeals of South Carolina
Citation638 S.E.2d 96
Decision Date30 October 2006
Docket NumberNo. 4173.,4173.
PartiesMargaret O'LEARY-PAYNE, Respondent, v. R.R. HILTON HEAD, II, INC. and Charter Oak Group, Ltd., Appellants.
638 S.E.2d 96
Margaret O'LEARY-PAYNE, Respondent,
R.R. HILTON HEAD, II, INC. and Charter Oak Group, Ltd., Appellants.
No. 4173.
Court of Appeals of South Carolina.
Heard September 27, 2006.
Decided October 30, 2006.
Rehearing Denied December 15, 2006.

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Charles E. Carpenter, Jr., and Carmen V. Ganjehsani, both of Columbia and Thomas C. Cofield, of Lexington, for Appellants.

Daniel R. Denton, of Beaufort, David H. Berry, of Hilton Head Island and Henry E. Grimball, of Charleston, for Respondent.


In this negligence action, R.R. Hilton Head, II, Inc. and Charter Oak Group, Ltd., (collectively Charter) appeal (1) the trial court's denial of their motion for a directed verdict; (2) the trial court's decision to strike the defense of assumption of the risk; and (3) the trial court's refusal to allow them to argue third party liability in their closing argument. We affirm.


Margaret O'Leary-Payne was a manager at Lillian Vernon, a retail store located in the Hilton Head Factory Stores II (Shopping Center).1 Her duties included breaking down cardboard boxes and transporting them outside to the trash compactor. Lillian Vernon required its employees to remove all trash before the close of the day because it received new shipments early in the morning.

Around dusk on the evening of April 2, 1998, O'Leary-Payne stacked several broken down cardboard boxes up to her waist on a cart. She then proceeded out the back door onto the sidewalk, which she had traversed numerous times before, to take the boxes to the trash compactor and dumpster provided by Shopping Center. Although the sidewalk was lit, it was still quite dim. As O'Leary-Payne was walking down the sidewalk, something caught her foot and she fell backwards. Once she was on the ground, O'Leary-Payne noticed, for the first time, a metal pipe2 protruding approximately five-and-a-half inches from the sidewalk. As a result of the fall, her foot was bleeding and her shoe was torn. She returned to the store, placed a bandage on the cut, and asked her assistant manager to return with her outside to look at the rod.

The next morning, O'Leary-Payne reported her fall to the manager's office at the Shopping Center. The accident report stated

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that O'Leary-Payne "tripped over a pipe sticking out [of the] sidewalk." She and the manager then went to the scene of the accident. They observed that no warnings were in place to call attention to the rod.

On May 22, 1998, O'Leary-Payne visited a doctor for problems arising from her fall. In addition to the cut on her foot, she complained of neck and lower back pain and headaches. Immediately after the fall, she had experienced pain in her lower spine and buttocks. After the accident, some of her injuries improved but others worsened. Specifically, she continued to have problems with a vein, and eventually had to strap her right arm to her body because she lost all feeling in the arm. She also was taking several pain medications and using a pain pump.

On January 22, 2001, O'Leary-Payne instituted an action for negligence against Charter. At trial, O'Leary-Payne sought to exclude any evidence of the liability of third parties.3 The trial court agreed, ruling Charter could not introduce any evidence of third party liability unless O'Leary-Payne opened the door. During O'Leary-Payne's presentation of a video deposition, a discussion arose between the trial court and the attorneys regarding third party liability. O'Leary-Payne was "willing to let [the jury] know there were other attorneys involved and who they represented." The trial court responded, "So you're going to let [Charter's attorney] open the door as far as anything of blaming other people for this situation?" O'Leary-Payne responded, "If he wants to blame the other people in the case ... he can blame them." The trial court then asked Charter if it wanted the trial court "to let the jury know anything about who these people are, that this is another case going on somewhere else or another forum at another time?" Charter responded that it did not want the trial court to inform the jury about the other parties; it wished to let the video deposition play, and it would say "who [the other attorneys] represent." Charter maintained "it certainly opens my door to talk about the blame of these other people."

Trial proceeded with no further mention of the third parties until the trial court began ruling on motions prior to closing arguments. O'Leary-Payne made a motion to strike Charter's defense of superseding and intervening negligence of other parties. The trial court stated the record contained no evidence of third party liability, but Charter argued that because O'Leary-Payne stipulated that Charter could blame other parties, Charter did not need to present any evidence of the third parties' liability. The trial court responded that "the stipulation was that you could blame, but you didn't blame." The trial court ruled Charter could only argue evidence in the record, and because no evidence had been presented as to who constructed the sidewalk, Charter could not mention third party liability in its closing argument.

At the close of O'Leary-Payne's case, Charter moved for a directed verdict. Charter argued O'Leary-Payne failed to satisfy her burden of proof because she presented no evidence that a hazardous, dangerous, or defective condition existed or that Charter had notice of a defective condition. Upon questioning from the trial court regarding why O'Leary-Payne did not present expert testimony, she answered she was not required to present expert testimony to show a hazard existed because a lay person could determine the rod was hazardous from looking at the photograph. Charter further argued that O'Leary-Payne was improperly attempting to use the doctrine of res ipsa loquitur to meet her burden. The trial court denied the directed verdict motion. At the close of its case, Charter renewed its motion, which the trial court again denied.

O'Leary-Payne also made a motion to strike Charter's assumption of the risk defense. Charter argued that she assumed the risk by going out on the sidewalk when she

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knew the lighting was poor and with the boxes stacked high enough to impair her line of sight. Charter argued that she should have waited until the following morning to take the boxes to the dumpster. The trial court granted the motion to strike the defense.

The jury awarded O'Leary-Payne actual damages of $5,981,690, but found O'Leary-Payne was forty percent negligent and thereby reduced the verdict to $3,589,014.4 Charter moved for a judgment notwithstanding the verdict (JNOV) and a new trial, both of which the trial court denied. This appeal followed.


I. Directed Verdict

Charter argues the trial court erred by failing to grant its motion for a directed verdict on several grounds. Charter maintains (1) O'Leary-Payne relied on the doctrine of res ipsa loquitur and did not present any evidence that Charter created the dangerous condition, and (2) the rod was an open and obvious defect. We disagree.

When ruling on a directed verdict motion, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. Sabb v. S.C. State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002). This court must follow the same standard. Adams v. G.J. Creel & Sons, Inc., 320 S.C. 274, 277, 465 S.E.2d 84, 85 (1995). "If more than one reasonable inference can be drawn or if the inferences to be drawn from the evidence are in doubt, the case should be submitted to the jury." Chaney v. Burgess, 246 S.C. 261, 266, 143 S.E.2d 521, 523 (1965). This court will only reverse the trial court when no evidence supports its ruling. Steinke v. S.C. Dep't of Labor, Licensing, & Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999).


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