Mellen v. Lane

Decision Date11 March 2008
Docket NumberNo. 4354.,4354.
Citation377 S.C. 261,659 S.E.2d 236
PartiesJames MELLEN, Appellant/Respondent v. David Patrick LANE, Respondent/Appellant.
CourtSouth Carolina Court of Appeals

Donald H. Howe, of Charleston, for Appellant/Respondent.

Deborah Harrison Sheffield, of Columbia, and Hugh W. Buyck, of Charleston, for Respondent-Appellant.


After being injured in a brawl outside of a bar, James Mellen brought a civil action for assault and battery against David Patrick Lane. The Master-in-Equity found Lane liable for Mellen's injuries, awarding Mellen $200,000 in actual damages, but declining to award punitive damages. Lane contends the Master erred in determining his actions were the proximate cause of Mellen's injuries. Mellen maintains the Master erred by denying punitive damages. We affirm.1


In the early morning hours of September 23, 2001, Mellen sustained a fractured skull when he was struck in the head with a bottle during a melee outside Big John's, a bar located in Charleston, South Carolina. At the time of the incident, Mellen was twenty-one years old, and attending the College of Charleston.

After leaving work around 10 p.m., on September 22, 2001, Mellen and his friend Josh Tarokh joined a group of friends who were already at a bar. The group consisted of Stephanie Vrla, Mellen's girlfriend; Vrla's roommates, Melissa and Jennifer; Jennifer's boyfriend; and James Traybert. Mellen and his friends relocated to Big John's between 11:30 p.m. and 12:30 a.m. Upon arriving at Big John's, Mellen observed a group of men, including Lane:

I noticed that there was a group of gentlemen at the bar, kind of loud, obnoxious, kind of drunk guys you don't want to get in their way.

. . .

[Y]ou know, they were kind of — they were definitely having a good time. One of the gentlemen was passing shots around, it seems like to whatever girls would walk by him.

Mellen stated he did not interact with the men inside Big John's, other than "[a]t one point, [he] took the shot off the table and [he] placed it back on the bar." At approximately 1:30 a.m., Big John's issued their "last call" for drinks and Mellen and his friend began to leave. Mellen described the altercation and the events leading up to it:

We all kind of gathered up inside the bar after they called last call. And we walked out the front door onto East Bay Street. And after that we walked around the corner to Pinckney Street and started walking down Pinckney Street.

. . .

[Lane] was standing in the doorway, and I was walking with Stephanie by my side. Her friend Melissa and Jennifer, they were in front of us. Mr. Lane was standing in the doorway. And I noticed him, he was kind of hassling Melissa and Jennifer, kind of, you know, hey, come back in, that kind of thing. And so it kind of put me on guard right off the bat.

. . .

Well, we came up, and they kept on walking, Melissa and Jennifer. And when we got up there, Mr. Lane reached across my body and started grabbing my girlfriend. I caught his arm, and I asked him, you know, pretty politely, I said: "Leave it alone. We're leaving." And at that point he started saying numerous expletives to me.

. . .

I turned back to him, you know, said some certain things to him, and then turned to walk away. And I remember being pushed very hard in the back. And that's all I remember after that. And I woke up and I was in the hospital.

Josh Tarokh was aware of the group of men in Big John's: "They were just [a] loud, obnoxious, drunk crowd." Tarokh, who was walking with Mellen, saw Lane shove Mellen, and asserted Lane "[kept] pursuing [Mellen]," prompting Tarokh to "[swing] at Mr. Lane." Tarokh recalled the incident:

I just — immediately after I swung at Mr. Lane, all of his friends at the door, you know, they immediately started coming after me. So I just, you know, them swinging at me, you know, and I just kind of cover my head, ran about 10 yards away. And by the time I turned around, that's when Mr. Mellon [sic] was struck, and everybody just scattered.

. . .

Amh, you know, I had two guys like trying to punch me, and come at me. I saw [Mellen] and Mr. Lane in front of each other, you know. But after that, you know — and then after everyone ran, I just saw [Mellen] laying on the ground.

I ran towards [Mellen], and then saw that his head was busted open, blood everywhere. And I chased after Mr. Lane.

. . .

I was going to the parking lot behind Big John's. By then Mr. Lane was, you know, shutting the door of his car, you know. And I was on the phone with the dispatch, you know, and I was screaming at him, telling him to stop.

During cross-examination, Tarokh was asked if Mellen fell as a result of Lane's initial push. He responded "No" and confessed he did not see who actually struck Mellen in the head, causing Mellen's brain injuries.

James Traybert was involved in the brawl, and attested he "thought [he] saw [Mellen] get hit with a bottle." The Master-in-Equity quizzed Traybert, "And somebody wearing a Citadel polo shirt is who slammed [Mellen] with a bottle?" Retorting affirmatively, Traybert identified Lurie Poston as the bottle wielder.

David Lane professed he planned to tailgate prior to and attend the Citadel football game on September 22, 2001. He began consuming alcohol at approximately 2 p.m., while tailgating, and continued drinking throughout the day. Lane and his comrades left the game and went to Big John's at about 10 p.m., staying there until the bar closed. Lane depicted his involvement in the skirmish:

Well, I turned, turned away, and then I was pushed from behind. There were three people in front of me, two guys and a girl, and I was shoved from behind. And then I hit into the person in front of me, and he went to go — he went almost down. I grabbed him by the back of the shirt to pick him back up.

. . .

Then the individual with the shirt turned around, the individual on the left turned around. The individual on the left shoved his finger in my face, told me don't do it. We'll beat the crap out of you, something along those lines. I let out an expletive, and I got hit.

When questioned about causing Mellen's injuries, Lane asseverated: "No. I thought I was preventing an injury." Lane denied reaching for Vrla.

Lane's friend Peter Swiderski accompanied Lane to the Citadel game and Big John's the night Mellen was injured. Swiderski, while declaring he did not see who hit Mellen with a bottle, witnessed the altercation:

I walked out. We were walking around the corner of Big John's, make a left walking towards the back, and I see David Lane surrounded by about three men. And they were, you know punching at them. I'm like, what's going on here. I'm like this is not good. I took off after them, okay. Peeled the guy that was, if you have A David Lane's back was to me, because I'm coming around the corner. I took the guy that was on his right — hand side, pushed him off to the side. Me and him got into a scuffle there, okay? And I looked back and the Plaintiff was on the ground.

Another companion of Lane's that night was Gregory McHone. McHone remembered the row:

[W]e walked up to [the fight]. It looked like some of our buddies were in the mix, and we just stepped in and started trying to separate people.

And at some point I remember I had my back to the parking lot. And I remember the level of crowd noises increasing, like some particular event had happened. And I turned and to my left rear I saw Mr. Mellon [sic]. Well, I didn't know it was him, at the time, but I saw a gentleman laying on the ground.

McHone checked on Mellen, but Mellen did not answer: "I asked him if he was okay, and he didn't respond to me."

Lurie Poston is the individual Traybert identified as hitting Mellen with the bottle. He advanced he and his companions did purchase shots at Big John's but denied they were overly rambunctious: "Well, you know, we did buy some shots, but we weren't rowdy. You know, we were respectful." When asked if he saw what injured Mellen, Poston stated: "My impression was he fell. I never saw him get hit." Acknowledging Traybert's allegations, Poston offered:

And you know, Mr. Traybert just said he saw me bending over the guy, hit him with a bottle. That's — I never did that. I was not even there when that happened. I came after Mr. Mellon [sic] was already down on the ground. And it was my attempt to help him. But his girl friend was so hysterical, you know, that I said, well, maybe we better just back off and let them handle it.

Originally, Mellen sued Lane, McHone, Swiderski and Poston. Prior to trial, all defendants were dismissed by consent except Lane. The case was referred by consent to the Master-in-Equity for trial.

The Master-in-Equity for Charleston County heard this action and issued an order awarding Mellen $100,000 in actual damages. The Master found the testimony and evidence offered by Mellen more credible than that offered by Lane. In his order, he named several factors contributing to his credibility determination: (1) "Lane (and his witnesses) had admittedly been drinking for approximately twelve hours prior to the brawl;" (2) Lane's testimony at trial was inconsistent with statements he gave to police shortly after the incident; (3) Lane's and his friends' flight from the scene was behavior consistent with wrongdoing (noting McHone was the only person in Lane's party to check on Mellen's condition before leaving the scene); (4) "[Mellen] and his two eyewitnesses, both by their demeanor, lesser amount of drinking and substance of their testimony, [were] more credible witnesses;" and (5) Lane's testimony regarding the push from behind was not believable. The Master-in-Equity's factual finding of proximate cause provides:

I find that the shove of Mellen by Lane was the proximate cause of Mellen's injury. The shove by Lane was certainly the direct cause,...

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