Lee v. Bunch

• Citation: 647 S.E.2d 197
• Decision Date: 11 June 2007
• Docket Number: No. 26334.,26334.
• Court: United States State Supreme Court of South Carolina
• Parties: John David LEE and Kathleen Newman Lee, Respondents, v. Robert Allen BUNCH, Petitioner.

647 S.E.2d 197

John David LEE and Kathleen Newman Lee, Respondents, v. Robert Allen BUNCH, Petitioner.

No. 26334.

Supreme Court of South Carolina.

Heard April 3, 2007.

Decided June 11, 2007.

Rehearing Denied July 19, 2007.

Donnell G. Jennings and R. Hawthorne Barrett, both of Turner, Padget, Graham & Laney, of Columbia, for Petitioner.

Stephen B. Samuels and Joseph R. Dasta, both of McWhirter, Bellinger & Associates, of Lexington, for Respondents.

Justice PLEICONES:

We granted certiorari to review the Court of Appeals' decision in Lee v. Bunch, Op. No.2004-UP-550 (S.C. Ct.App. filed October 27, 2004), in which the court ordered a new trial due to the trial court's failure to exclude evidence of plaintiff's pre-accident alcohol consumption. We reverse the Court of Appeals and reinstate the original jury verdicts in favor of Bunch.

FACTS

This case arises out of a 1997 traffic accident involving John David Lee (Lee) and Robert Allen Bunch (Bunch). The motorcycle driven by Lee hit the driver's side of Bunch's automobile, as Bunch was moving perpendicularly across Old Dunbar Road, a two-lane highway in Lexington County.

The parties presented conflicting accounts of how the accident happened. Lee claimed that Bunch negligently attempted a U-turn or three-point turn from the right shoulder of the road where his car had been parked, while Bunch testified he was trying to make a left turn from the roadway into the parking lot of his fiancé's place of employment, Johnny B's Bar and Grill. The parties also disputed the time of the accident, with Bunch claiming the collision occurred at "dusk-dark"¹ and Lee contending it occurred around 10:30 p.m.

Lee suffered numerous broken bones, a head injury, and a severe groin injury as a result of the accident. Trooper P.A. Nelson of the South Carolina Highway Patrol was the investigating officer and met with Lee later that night in the emergency room. During their conversation, Trooper Nelson smelled alcohol on Lee and requested a blood sample be drawn. The test conducted by SLED indicated Lee had a blood alcohol level of 0.036%.

At a pre-trial hearing, Lee moved to exclude any evidence of his alcohol consumption. The trial court denied the motion, finding Lee's alcohol consumption would be probative as to the determination of liability.²

Lee later testified that he left a family birthday party at Murray's Bar and Grill shortly before the accident occurred. He recalled having two liquor drinks along with dinner. Lee stated he was on his way to the Skyline Club, a bar and dance hall, when he collided with Bunch. After Lee's testimony, Bunch moved to amend his answer to include the affirmative defense of comparative negligence. The trial court later granted the motion.

The jury returned a defense verdict, assigning 70% of the fault to Lee and 30% to Bunch. The jury also returned a verdict in favor of Bunch on Mrs. Lee's loss of consortium claim. The trial court ruled that the verdicts were inconsistent because Mrs. Lee was entitled to recover damages due to the jury's finding that Bunch was partially negligent.³ The trial judge then instructed the jury to determine some amount of damages for Mrs. Lee. After deliberating again, the jury awarded a total of $9,000.00 to Mrs. Lee.

Each party appealed to the Court of Appeals. The Court of Appeals reversed the trial court's decision to allow evidence of Lee's pre-accident alcohol consumption and remanded for a new trial. The Court of Appeals did not address the other issues raised by Bunch or Mrs. Lee.

ISSUE

Did the Court of Appeals err in reversing the trial court's decision to allow evidence of Lee's pre-accident alcohol consumption?

ANALYSIS

The trial court analyzed the admissibility of the alcohol evidence under Rule 403, SCRE. An appellate court reviews Rule 403 rulings pursuant to an abuse of discretion standard and gives great deference to the trial court. State v. Myers, 359 S.C. 40, 48, 596 S.E.2d 488, 492 (2004). See also State v. Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 794 (Ct.App.2003) ("A trial judge's decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances.").

The Court of Appeals found that the probative value of Lee's alcohol consumption was at best, slight. The court focused on the fact that Lee's blood alcohol level was under the legal limit pursuant to the driving under the influence (DUI) statute.⁴ Furthermore, the Court of Appeals emphasized that no specific evidence was presented to show Lee's impairment.

Although Lee's blood alcohol level did not implicate a criminal DUI offense, testimony of Bunch's experts constituted probative evidence of Lee's impairment that arguably contributed to the accident. Bunch's experts, relying on the blood alcohol level of 0.036% taken several hours after the accident occurred, estimated that Lee's blood alcohol level at the time of the collision was closer to 0.066%-0.096%. At that level, according to Bunch's experts, Lee's alcohol consumption would have negatively affected Lee's judgment and his ability to multi-task, thus impairing his motorcycle driving skills.

Other evidence tended to show Lee was carelessly operating his motorcycle when the accident occurred. An eyewitness to the accident, Chong Abernathy, estimated Lee's speed at 40-45 miles per hour, which was five to ten miles per hours over the posted limit on that road. In addition, Trooper Nelson concluded that the impact occurred left of the center line.

Because there is evidence that supports Bunch's argument that alcohol affected Lee's ability to safely operate his motorcycle, this case differs from Kennedy v. Griffin, 358 S.C. 122, 595 S.E.2d 248 (Ct.App.2004), which was relied upon by the Court of Appeals. In Kennedy, the Court of Appeals held that evidence of the mere presence of marijuana in the plaintiff's system, without further indication of impairment, could mislead the jury and should have been excluded under Rule 403. In this case, however, Lee admitted drinking shortly before the accident and there was additional proof of impairment, albeit by inference. See Gulledge v. McLaughlin, 328 S.C. 504, 492 S.E.2d 816 (Ct.App.1997) (holding blood alcohol level relevant and thus admissible because corroborating evidence, including circumstances of accident, supported claim that driver was impaired).

The expert evidence concerning Lee's potential impairment, coupled with evidence of speeding and a point of impact left of the center line, supports the trial court's decision to deny Lee's motion to exclude alcohol evidence under Rule 403, SCRE. The circumstances surrounding Bunch's version of the accident, i.e. that Lee inexplicably ran into Bunch's automobile, would be more probable if Lee was impaired. Even though the admission of alcohol evidence was prejudicial to Lee, the prejudice did not substantially outweigh the probative value of the alcohol evidence in determining fault.

Accordingly, the trial court did not abuse its discretion by refusing to deny Lee's motion under Rule 403, SCRE. The Court of Appeals erred in reversing the trial court and ordering a new trial. Because the parties raised additional issues which were not addressed by the Court of Appeals, we briefly address those issues.

Amendment of Bunch's Answer

Lee argues the trial court erred in allowing Bunch to amend his answer to include the affirmative defense of comparative negligence. We disagree.

At a pre-trial hearing, the trial court ruled that Bunch would be permitted to introduce evidence of Lee's alcohol consumption. On the second day of trial and after Lee's testimony, Bunch moved to amend his answer to assert the affirmative defense of comparative negligence. The trial court later heard arguments on the motion and then granted the motion to amend, citing a lack of prejudice to the plaintiffs.

The failure to plead an affirmative defense is deemed a waiver of the right to assert it. Whitehead v. State, 352 S.C. 215, 220, 574 S.E.2d 200, 202 (2002). Rule 15(b), SCRCP, provides an exception to the waiver rule by permitting a party to amend his pleadings to conform to the evidence. The rule provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings . . . If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits . . .

Rule 15(b), SCRCP. The circuit court is to freely grant leave to amend when justice requires, and there is no prejudice to any other party. Harvey v. Strickland, 350 S.C. 303, 313, 566 S.E.2d 529, 535 (2002). A motion to amend is addressed to the sound discretion of the trial judge, and the party opposing the motion has the burden of establishing prejudice. Id. Amendments to conform to the proof should be liberally allowed when no prejudice to the opposing party will result. Id.

At trial, the degree of Lee's fault clearly became an issue in this case. Although Lee did not consent to the introduction of alcohol into the case, Lee never objected to the evidence of his speeding nor his driving left of center. Thus, comparative negligence was tried by implied consent because the parties addressed an issue not raised in the pleadings that later entered the case. See Sunvillas Homeowners Assn., Inc. v. Square D. Co., 301 S.C. 330, 335, 391 S.E.2d 868, 871 (Ct.App.1990); Fraternal Order of Police v. S.C. Dept. of Revenue, 352 S.C. 420, 435, 574 S.E.2d 717, 725 (2002) ("In order to be tried by implied consent, the issue must have been discussed...