Pike v. South Carolina Dept. of Transp.

• Decision Date: 28 September 1998
• Docket Number: No. 2884.,2884.
• Citation: 506 S.E.2d 516,332 S.C. 605
• Court: South Carolina Court of Appeals
• Parties: Michael PIKE, Personal Representative of the Estate of Melissa P. Pike, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.

332 S.C. 605

506 S.E.2d 516

Michael PIKE, Personal Representative of the Estate of Melissa P. Pike, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.

No. 2884.

Court of Appeals of South Carolina.

Heard September 1, 1998.

Decided September 28, 1998.

Rehearing Denied November 19, 1998.

William McBee Smith, of Smith & Haskell, Spartanburg, for appellant.

James Fletcher Thompson, of Thompson & Sinclair, Spartanburg, for respondent.

HOWELL, Chief Judge:

On June 24, 1992, Melissa Pike was involved in an automobile collision as she attempted to turn left from Park Road onto United States Highway 176 (hereinafter "the intersection") in Spartanburg, South Carolina. She died the next day. Melissa's husband, Michael, in his capacity as the personal representative of her estate, brought this wrongful death action against the South Carolina Department of Transportation (SCDOT). Michael alleged that a directional sign, reading "CHAPMAN HIGH SCHOOL," obstructed Melissa's view of the oncoming vehicle and that the intersection was negligently maintained. The jury found SCDOT liable for $730,000. SCDOT appeals the trial court's denial of its various trial motions. We affirm.

I.

SCDOT argues that the lower court erred by not granting its motions for a directed verdict and JNOV, or in the alternative, for a new trial because it qualified for discretionary immunity under the South Carolina Torts Claims Act. See S.C.Code Ann. §§ 15-78-10 to XX-XX-XXX (Supp.1997). We disagree.

The Tort Claims Act waives immunity for torts committed by the State, its political subdivisions, and governmental employees acting within the scope of their official duties. See S.C.Code Ann. §§ 15-78-20(b) and 15-78-40 (Supp.1997). There are, however, several exceptions to this waiver of immunity, see S.C.Code Ann. § 15-78-60 (Supp.1997), which amount to affirmative defenses, see, e.g., Strange v. South Carolina Dep't of Highways & Pub. Transp., 314 S.C. 427, 430, 445 S.E.2d 439, 440 (1994)

. For example, a governmental entity is not liable for a loss resulting from:

the exercise of discretion or judgment by the governmental entity or employee or the performance or failure to perform any act or service which is in the discretion or judgment of the governmental entity or employee; [or] [the] absence, condition, or malfunction of any sign, signal, warning device, illumination device, guardrail, or median barrier unless the absence, condition, or malfunction is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.... Nothing in this item gives rise to liability arising from a failure of any governmental entity to initially place any of the above signs, signals, warning devices, guardrails, or median barriers when the failure is the result of a discretionary act of the governmental entity.

S.C.Code Ann. § 15-78-60(5) & (15) (Supp.1997).

This appeal centers upon a review of directed verdict, JNOV, and new trial motions. Unlike a court examining a burden of proof issue, a court analyzing directed verdict, JNOV, and new trial motions is concerned solely with the existence of evidence and not with its weight. See Connelly v. Wometco Enterprises, Inc., 314 S.C. 188, 191, 442 S.E.2d 204, 206 (Ct.App.1994)

. When ruling on motions for directed verdict and JNOV, the trial court and this Court must view the evidence and the inferences reasonably drawn therefrom in the light most favorable to the party opposing the motions. See Strange, 314 S.C. at 429,

445 S.E.2d at 440 (affirming the denial of SCDOT's directed verdict motion, where evidence viewed in light most favorable to plaintiff demonstrated that SCDOT did not weigh competing consideration or use accepted professional standards). This Court must affirm a trial judge's denial of a directed verdict motion when there is evidence to support the ruling below. Id. Accordingly, we must review the evidence to determine whether the trial court properly submitted the case to the jury.

To establish discretionary immunity, the governmental entity must prove that, when faced with alternatives, it actually weighed competing considerations and made a conscious choice. See, e.g., Summer v. Carpenter, 328 S.C. 36, 46, 492 S.E.2d 55, 60 (1997)

. "Further, the governmental entity must show that in weighing the competing considerations and alternatives, it utilized accepted professional standards appropriate to resolve the issue." Foster v. South Carolina Dep't of Highways & Public Transp., 306 S.C. 519, 525, 413 S.E.2d 31, 35 (1992).

At trial, Michael sought to prove that SCDOT negligently failed to provide adequate visibility for Melissa at the intersection.¹ Before Melissa's accident, SCDOT received a complaint about the intersection from James Everhart. On a map showing the layout of the intersection, Everhart wrote:

The newly erected Chapman High School sign and the tree limbs over the sidewalk a little farther up toward Asheville make it difficult for one to see the traffic coming from toward Asheville. Therefore, crossing this intersection is a little dangerous.

Removal of sign, trimming limbs and installing a traffic light might be the answer to this dangerous situation.

In response to Everhart's letter, SCDOT sent Rodney Wilson, a "civil engineer associate," to the site. Even though motorists had to look beneath the sign to see the oncoming traffic, Wilson noted, "First check in Nov. 1990—sign is high enough not to obscure sight. Tree limbs were bare—no problem." Wilson returned to the site on July 31, 1991, when he observed that "even with foliage, tree limbs did not block sight distance. Visibility is approx. 500'-600' to north." To estimate the sight distance needed to cross the intersection safely, Wilson used a simple "rule of thumb." According to this "rule of thumb," if the sight distance exceeds ten times the speed limit, then the visibility is sufficient. At this location, the speed limit was 40 m.p.h. Wilson concluded that his estimate of 500 to 600 feet at this site passed the "rule of thumb" test. Thus, SCDOT did not move the sign.² Michael claimed that Wilson's inspection was not adequate to cloak SCDOT with discretionary immunity. First, Michael questioned the prudence of SCDOT sending just Wilson, who was not an engineer, to investigate the intersection. The testimony of Wilson's supervisor, engineer Gary Thompson, supported Michael's position that Wilson was not qualified to calculate proper sight distances.

Next, Michael attacked the process that Wilson used to determine whether the sight distance was adequate. Michael called Dr. Robert Roberts, an expert in the field of traffic engineering, to establish that SCDOT's investigation violated "accepted engineering practices." Dr. Roberts noted that Wilson did not utilize accepted engineering principles in analyzing the sight distance. Roberts testified that Wilson should not have guessed at the actual sight distance, but should have obtained the exact sight distance using a tape measuring wheel. Further, Dr. Roberts questioned the appropriateness of Wilson's using only the "rule of thumb" to determine whether the sight distance was adequate. According to Mr. Thompson and Dr. Roberts, the "rule of thumb" could not take into account the width and slope nor the prevailing speed of the road. Even SCDOT's expert witness, Dr. James Clark, agreed that using only the "rule of thumb" could be problematic, stating, "I think the danger ... is being able to recognize when to apply that `rule of thumb' and when you need to do a little bit more in-depth work."

Even though SCDOT presented evidence that could dispute some of Michael's evidence, Michael produced more than enough evidence for the judge to send the issue of discretionary immunity to the jury. Again, the trial court and this Court must simply determine whether a question of fact exists. In this case, Michael presented evidence that SCDOT failed to utilize accepted professional engineering standards in analyzing the visibility of the intersection.³

II.

SCDOT asserts that the trial court erred by admitting evidence of nineteen prior accidents at and near the intersection, when only one of the accidents was similar to Melissa's. We disagree.

"All relevant evidence is admissible...." Rule 402, SCRE. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Rule 401, SCRE. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Rule 403, SCRE.

Generally, the trial court determines relevancy in its discretion. Horry County v. Laychur, 315 S.C. 364, 369, 434 S.E.2d 259, 262 (1993). These discretionary decisions, "including the admission and rejection of testimony, ... will not be disturbed on appeal absent an abuse of that discretion or the commission of a legal error that results in prejudice for appellant." Baber v. Greenville County, 327 S.C. 31, 41, 488 S.E.2d 314, 319 (1997).

Michael introduced the previous accidents to demonstrate that SCDOT, the agency charged with determining when and where to install traffic lights, acted negligently by not including a traffic light at the intersection in question. To prove negligence, Michael argued that SCDOT deviated from The Manual on Uniform Traffic Control Devices, which sets the standard for engineering practices regarding intersection safety. The Manual on Uniform Traffic Control Devices establishes a number of tests, also called warrants, that SCDOT should consider when deciding whether to place a traffic light at an intersection. One of these tests focuses on whether there was a minimum of five accidents per year that could be corrected by a traffic light. This test...