Reiland v. SOUTHLAND EQUIPMENT SERVICE

• Decision Date: 20 April 1998
• Docket Number: No. 2828.,2828.
• Citation: 500 S.E.2d 145,330 S.C. 617
• Court: South Carolina Court of Appeals
• Parties: Jeffrey J. REILAND, Respondent, v. SOUTHLAND EQUIPMENT SERVICE, INC., Appellant.

330 S.C. 617

500 S.E.2d 145

Jeffrey J. REILAND, Respondent, v. SOUTHLAND EQUIPMENT SERVICE, INC., Appellant.

No. 2828.

Court of Appeals of South Carolina.

Heard February 3, 1998.

Decided April 20, 1998.

Rehearing Denied June 18, 1998.

Steven W. Ouzts, of Turner, Padget, Graham & Laney, Columbia, for appellant.

William P. Walker, Jr., of Walker & Morgan, Lexington, for respondent.

STILWELL, Judge:

Jeffrey J. Reiland commenced this action against Southland Equipment Service, Inc. alleging that its negligent repair of a forklift caused an `accident in which Reiland was injured. From a jury verdict in Reiland's favor, Southland appeals, raising seven issues. We affirm.

FACTS

Reiland was employed by Miller Brothers Giant Tire Service. Miller Brothers sold and serviced tires from 3½ to 30 feet tall. Reiland used a forklift to unload tires from trucks, inspect them and move them around. In order to inspect a tire, it was lifted with the forklift.

In June 1991 Reiland experienced problems with the brakes on the forklift and placed a service call to Southland. Southland worked on the brakes on June 12, 1991. Southland worked on the brakes again on June 19, 1991, after another employee experienced problems with them.

Reiland testified that on the day of the accident, August 23, 1991, he had been operating the forklift about 1½ to 2 hours. He placed a tire weighing approximately 1000 to 1200 pounds on the forklift, lifted the tire off the ground, placed the forklift in neutral, set the hand brake, and walked to the front of the forklift to inspect the tire. Reiland parked the forklift on a "very slight gradual slope" where he had parked before on many occasions.

After two or three minutes, Reiland felt a "bump" on the back of his leg; as he turned, he saw the forklift roll off the paved area onto the gravel and sand and stop on top of his foot and ankle. Reiland fell to the ground. He called for help but got no answer. He was able to pull himself up and release the hand brake, but the forklift did not move because it had sunk into the gravel and sand. Reiland managed to place the forklift into gear and when it started to roll, the tire spun in the gravel and sand and pulled his foot and ankle into the wheel well, tearing off his shoe and sock. Reiland used one hand to steer and placed the other hand on the gas pedal to drive the forklift into the warehouse where he summoned help.

Reiland testified that the hand brake had worked each time he used it that morning and had not given any indication that it would fail. He was sure he had set the hand brake because he "did it 30 times a day."

Reiland sued Southland alleging Southland's negligence in performing maintenance on the forklift or failure to warn was the proximate cause of his injuries. At trial the jury awarded Reiland $391,300.

Thereafter, Southland filed a motion to re-empanel the jury as it suspected the jury found Reiland to have been more than 50% negligent and thus barred from recovery as a matter of law. Southland also moved the court for an order setting aside the jury verdict and judgment, and to enter judgment for Southland. In response, the court issued an order finding there was "sufficient evidence in the record to sustain the factual findings implicit in the Jury's verdict" and denied Southland's motion for judgment notwithstanding the verdict.

LAW/ANALYSIS

In an action at law on appeal of a case tried by a jury, the jurisdiction of this court extends merely to corrections of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses there is no evidence which reasonably supports the jury's findings. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

I. SUBSEQUENT REMEDIAL MEASURES

A. Introduction

Southland claims error in the admission of evidence of Southland's repair of the forklift after the accident. We disagree. In order to be admissible, evidence must be relevant. 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 probable or less probable than it would be without the evidence." Rule 401 SCRE. Southland does not dispute that the September 9th invoice was relevant. Rather, Southland contends that the September 9th invoice was inadmissible because it was evidence of subsequent remedial repairs offered to prove negligence.

Rule 407, SCRE (adopted effective September 3, 1995),¹ provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

B. Common Law Rule

There is no South Carolina case interpreting Rule 407 since its adoption. There is, however, prior common law in South Carolina applying the general rule against admitting evidence of subsequent repairs or alterations to prove negligence. The United State Supreme Court set forth this rule in Columbia & P.S.R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405 (1892) (holding evidence that defendant made changes to machine after employee's injury was inadmissible).

South Carolina followed the general rule that evidence of subsequent repairs or alterations is inadmissible to prove negligence. Rule 407, SCRE note (The general rule that evidence of subsequent measures is inadmissible to establish negligence is consistent with South Carolina law.); Bolen v. Strange, 192 S.C. 284, 6 S.E.2d 466 (1939); Worthy v. Jonesville Oil Mill, 77 S.C. 69, 57 S.E. 634 (1907).

The South Carolina Supreme Court stated the reason behind excluding such evidence:

[T]he taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant. Worthy, 77 S.C. at 74, 57 S.E. at 635-36 (quoting Hawthorne, 144 U.S. at 207, 12 S.Ct. at 593).

C. Exceptions to Rule

1. In General

While not admissible to prove negligence, evidence of subsequent remedial measures is admissible for other purposes:

such as to rebut or impeach a witness; to explain measurements, maps, photographs, and the like; to show the conditions existing at the time of the accident, to prove the cause of the injury; to establish the defendant's control of the premises or instrumentality involved; and to demonstrate the feasibility of taking certain precautions.

Thomas M. Fleming, Annotation, Admissibility of Evidence of Repairs, Change of Conditions, or Precautions Taken After Accident—Modern State Cases, 15 A.L.R.5th 119, 158 (1993).

Evidence of subsequent repairs or alterations may be admissible to rebut evidence introduced by the defendant. Anderson v. Conway Lumber Co., 99 S.C. 100, 82 S.E. 984 (1914); see Worthy, 77 S.C. at 74, 57 S.E. at 635; David P. Leonard, The New Wigmore on Evidence § 2.8.5, at 2:139-40 (Supp.1998) (a common reason to allow evidence of subsequent remedial measures is to rebut defendant's testimony of postaccident conditions).

The supreme court has also allowed evidence of subsequent repairs if it is merely cumulative to evidence introduced by the defendant. Farley v. Charleston Basket & Veneer Co., 51 S.C. 222, 28 S.E. 193 (1897) (2-2 decision) (affirming trial court's decision to admit evidence that employer placed a protective guard in front of the machine that injured the plaintiff because evidence was cumulative to evidence introduced by the defendant).

2. To Prove Conditions at Time of Accident

In Eargle v. Sumter Lighting Co., 110 S.C. 560, 96 S.E. 909 (1918), an engineer was electrocuted while working for the defendant. There was no eyewitness to the fatal accident but evidence showed that the deceased came into contact with a charged chain. There was also evidence that the chain gave off sparks prior to the accident. In affirming the trial court's decision to bar evidence of subsequent repairs, the supreme court stated:

That does not mean that a plaintiff may not show the conditions existing at the time of the accident; and therefore he may show subsequent alterations, in so far as it may be necessary to do so, in order to show that defective conditions existed at the time of the accident.... And where it becomes necessary to show subsequent conditions or alterations for the purpose above stated, the jury may be cautioned that the evidence is not admissible to prove negligence in the condition or appliances existing at the time of the accident.

Id. at 568, 96 S.E. at 912; see Green v. Atlantic Coast Line R.R. Co., 136 S.C. 337, 134 S.E. 385 (1926) (holding that where brakeman was injured when knocked off top of train by a tree limb hanging over the railroad tracks, evidence that railroad company cut the tree limb off after the accident was admissible because the brakeman's case depended on establishing the fact that the limb extended over the caboose at the appropriate height to strike him).

The supreme court addressed the issue of whether an automobile recall notice was admissible in Taylor v. Nix, 307 S.C. 551, 416 S.E.2d 619 (1992). The Taylors sued the dealer for breach of warranty, strict liability and violation of the Regulation of Manufacturers, Distributors, and Dealers Act, S.C.Code Ann. § 56-15-40(1) (1991) (the Act). The Taylors had taken their car to the dealer to be repaired at least fourteen times over a twenty-six month period. The trial court permitted the service representative to be questioned...