Litchfield Co. of South Carolina, Inc. v. Sur-Tech, Inc.

• Decision Date: 17 April 1986
• Docket Number: No. 0748,SUR-TEC,INC,0748
• Citation: 289 S.C. 247,345 S.E.2d 765
• Parties: LITCHFIELD COMPANY OF SOUTH CAROLINA, INC., Respondent, v., Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 765

345 S.E.2d 765

289 S.C. 247

LITCHFIELD COMPANY OF SOUTH CAROLINA, INC., Respondent, v. SUR-TECH, INC., Appellant.

No. 0748.

Court of Appeals of South Carolina.

Heard April 17, 1986.

Decided July 7, 1986.

Dennis H. Smith, of Joseph, Harris, Hanna & Corbett, Surfside Beach, for appellant.

Kenneth W. Thornton, Jr., Georgetown, for respondent.

SANDERS, Chief Judge:

An airplane owned by respondent Litchfield Company of South Carolina, Inc. and operated by one of its employees was damaged when it struck a surveying tripod left on a runway by employees of Sur-Tech, Inc. Litchfield brought this action against Sur-Tech seeking to recover actual and punitive damages. The jury returned a verdict for actual damages. We affirm.

I

We first address the argument of Sur-Tech that the trial judge erred in striking its defense of assumption of risk.

In its answer, Sur-Tech alleges Litchfield assumed the risk of damage to its plane by using an unlighted runway instead of waiting until a lighted runway was available and further alleges Litchfield was contributorily negligent for the same reason. Based on the evidence presented at trial, the trial judge submitted the defense of contributory negligence to the jury but struck the defense of assumption of risk from the answer and refused to charge the jury on this defense.

Under the defense of contributory negligence, if the negligence of a plaintiff contributed to his damages, he is barred from recovering against a defendant guilty of even greater negligence. Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550 (Ct.App.1984), rev'd on other grounds, 286 S.C. 85, 332 S.E.2d 100 (1985). In order for the defense of assumption of risk to apply, a plaintiff must have freely and voluntarily exposed himself to a known danger, which he understood and appreciated. Easler v. Hejaz Temple A.A.O.N.M.S., 285 S.C. 348, 329 S.E.2d 753 (1985). The traditionally recognized distinction between the two defenses is that the former is a matter of some fault or departure from the standard of conduct of a reasonable person, while the latter is a matter of knowledge of a danger and voluntary acquiescence in it. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on The Law of Torts § 68, at 482 (5th ed. 1984).

In some cases, a plaintiff may be acting reasonably in assuming a risk and thus not be negligent because the risk he assumes is outweighed by the advantage of his conduct. For example, if a plaintiff dashed into a fire because it was necessary to save his child, it might be argued that he assumed the risk of being injured but it could scarcely be argued that he acted unreasonably under the circumstances.

In other cases, the conduct of a plaintiff in assuming a risk may itself be unreasonable and thus negligent because the risk he assumes is out of all proportion to the advantage which he is seeking to gain. For example, if a plaintiff dashed into a fire in order to save his hat, it might well be argued that he both assumed the risk of being injured and that he acted unreasonably. In such cases, a defendant can maintain both defenses. See, e.g., Kirkland v. Peoples Gas Co., 269 S.C. 431, 237 S.E.2d 772 (1977). However, the instant case is not such a case.

In Kirkland, the plaintiff was injured by an explosion which occurred when he entered a building where natural gas was leaking, smelled an offensive odor and struck a match intending to dispel it by lighting an incense candle. He conceded there was evidence of his negligence. There was obviously evidence he knew of the danger presented by the leaking gas from having smelled its odor since the odor was what prompted him to strike the match. Therefore, the Court properly held there was evidence the plaintiff both assumed the risk of an injury by exposing himself to a known danger and was contributorily negligent.

In the instant case, there was no evidence the plaintiff knew of the danger presented by the surveying tripod having been left on the runway. Therefore, this is a case where the defense of assumption of risk does not apply.

If we were to hold there was evidence Litchfield assumed the risk of damage to its plane by using an unlighted runway and was contributorily negligent for the same reason, this would amount to holding there is no distinction between the two defenses. A defendant could then maintain the defense of assumption of risk in every case where there was evidence the plaintiff was negligent. For example, where there was evidence a plaintiff had been driving over the speed limit, the defendant could maintain the plaintiff was both contributorily negligent and assumed the risk of an injury by having done so.

Based on these principles of law, we conclude the trial judge properly struck the defense of assumption of risk in this case.

II

We next address the arguments of Sur-Tech that the trial judge abused his discretion in two respects during the course of the trial.

A

Sur-Tech attempted to introduce in evidence the deposition of one of the airport operators on duty at the time of the accident. The trial judge refused to admit the deposition on the ground that Sur-Tech had not listed the airport operator as a witness by answering the interrogatories required by Rule 90 of the Rules of Practice for the Circuit Courts (now S.C.R.Civ.P. 33).

Rule 90 was adopted to require the disclosure of the essential elements of cases so that the outcome of trials would be the result of full examinations of all relevant facts and issues rather than surprise by the introduction of unexpected testimony. McGaha v. Mosley, 283 S.C. 268, 322 S.E.2d 461 (Ct.App.1984). To encourage compliance with the rule, the trial judge can impose sanctions on a party who violates it, including the exclusion of a witness who has not been listed as required. Id. Before so ruling, the trial judge should consider the type of witness involved, the content of his evidence, the nature of the failure, neglect or refusal to furnish his name and the degree of surprise to the other party, including any prior knowledge of the name by the other party. Moran v. Jones, 281 S.C. 270, 315 S.E.2d 136 (Ct.App.1984). The exclusion of evidence is addressed to the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a showing that he abused his discretion, committed legal error in its exercise and prejudiced the rights of a party. Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct.App.1984), cert. denied, 283 S.C. 64, 320 S.E.2d 35 (1984).

We conclude from our review of the record that the trial judge properly considered the factors relevant to his ruling before making it and did not abuse his discretion in excluding the deposition of the witness pursuant to Rule 90. Moreover, we discern no prejudice to Sur-Tech by the exclusion inasmuch as the record reveals testimony of other witnesses, including another airport operator, which is essentially the same as the relevant testimony contained in the excluded deposition.

The trial judge also excluded the deposition of the witness on the ground that Sur-Tech had not made a sufficient showing of his unavailability to testify in person as required by Circuit Court Rule 87 (now S.C.R.Civ.P. 32). In view of our ruling that the trial judge did not abuse his discretion in excluding the deposition pursuant to Rule 90 and Sur-Tech was not prejudiced by the exclusion, it is unnecessary for us to consider whether he was...