Rivero v. Loftis

• Decision Date: 25 July 2018
• Docket Number: Unpublished Opinion No. 2018-UP-340,Appellate Case No. 2016-000548
• Court: South Carolina Court of Appeals
• Parties: Madel C. Rivero, as Personal Representative for the Estate of Lilia Lorena Blandin, Respondent, v. Sheriff Steve Loftis, in his capacity as Sheriff of Greenville County, Appellant.

Madel C. Rivero, as Personal Representativefor the Estate of Lilia Lorena Blandin, Respondent, v. Sheriff Steve Loftis, in his capacity as Sheriff of Greenville County, Appellant.

Appellate Case No. 2016-000548

Unpublished Opinion No. 2018-UP-340

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard May 17, 2018

July 25, 2018

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From Greenville County

Robin B. Stilwell, Circuit Court Judge

AFFIRMED

Russell W. Harter, Jr. and Carly H. Davis, both of Chapman, Harter & Harter, P.A., of Greenville, and Andrew F. Lindemann, of Lindemann, Davis & Hughes, PA, of Columbia, for Appellant.

Daniel Joseph Farnsworth, Jr., of Farnsworth Law Offices, LLC, of Greenville, J. Christopher Wilson and Daniel W. Luginbill, both of Wilson & Luginbill, LLC, of Bamberg, and Blake A. Hewitt, of Bluestein Thompson Sullivan, LLC, of Columbia, for Respondent.

PER CURIAM: In this wrongful death action, Appellant Sheriff Steve Loftis (Sheriff Loftis) challenges the denial of his motion for a new trial and the denial of his motion for a judgment notwithstanding the verdict (JNOV). Sheriff Loftis asserts the circuit court erred by denying his request for an evidentiary hearing to address a juror's intentional concealment of an incident involving her husband twisting her wrist when presented with a voir dire question intended to screen out victims of criminal domestic violence (CDV). Sheriff Loftis argues the concealed information would have been a material factor in the use of his peremptory challenges had it been disclosed. Sheriff Loftis also argues the circuit court erred by denying his directed verdict and JNOV motions because (1) there was no evidence of causation in fact, and (2) he was entitled to absolute sovereign immunity under the South Carolina Tort Claims Act, sections 15-78-10 to -220 of the South Carolina Code (2005 & Supp. 2017).¹ We affirm.

I. Juror Misconduct

Sheriff Loftis argues the circuit court erred by (1) failing to conduct an evidentiary hearing concerning a juror's concealment of an incident involving her husband twisting her wrist, and (2) concluding Sheriff Loftis did not show the concealment was intentional.

"Under South Carolina law, litigants are guaranteed the right to an impartial jury." Alston v. Black River Elec. Co-op., 345 S.C. 323, 326, 548 S.E.2d 858, 859 (2001) (citing S.C. Code Ann. § 14-7-1050 (Supp. 2000)); see § 14-7-1050 (2017) ("[I]n all civil cases any party shall have the right to demand a panel of twenty competent and impartial jurors from which to strike a jury."). Our supreme court "has recognized trial judges and attorneys cannot fulfill their duty to screen out biased jurors without accurate information." State v. Kelly, 331 S.C. 132, 145, 502 S.E.2d 99, 106 (1998).

Necessarily it is expected and required that jurors in their answers shall be completely truthful and that they shall disclose, upon a general question, any matters [that] might tend to disqualify them from sitting on the case for any reason. It therefore becomes imperative that the answers be truthful and complete. False or misleading answersmay result in the seating of a juror who might have been discharged by the [c]ourt, challenged for cause by counsel[,] or stricken through the exercise of peremptory challenge.

Id. at 145-46, 502 S.E.2d at 106 (quoting State v. Gulledge, 277 S.C. 368, 371, 287 S.E.2d 488, 490 (1982)). "Through the judge, parties have a right to question jurors on their voir dire examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge." State v. Woods, 345 S.C. 583, 587, 550 S.E.2d 282, 284 (2001) (quoting Gulledge, 277 S.C. at 370, 287 S.E.2d at 490).

When a juror conceals information inquired into during voir dire, a new trial is required only when the court finds the juror intentionally concealed the information[] and that the information concealed would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges.

Id.

"[I]ntentional concealment occurs when the question presented to the jury on voir dire is reasonably comprehensible to the average juror and the subject of the inquiry is of such significance that the juror's failure to respond is unreasonable." Id. at 588, 550 S.E.2d at 284. "Unintentional concealment, on the other hand, occurs where the question posed is ambiguous or incomprehensible to the average juror, or where the subject of the inquiry is insignificant or so far removed in time that the juror's failure to respond is reasonable under the circumstances." Id. "Necessarily, whether a juror's failure to respond is intentional is a fact intensive determination which must be made on a case by case basis." Id. Twelve years after issuing the Woods opinion, the court continued to rely on Woods for its analysis: "[J]uror concealment claims are governed by the analysis set forth in Woods, and such case-by-case determinations are most appropriately made after a hearing, which allows the factual circumstances to be more fully developed." McCoy v. State, 401 S.C. 363, 372, 737 S.E.2d 623, 628 (2013).

During voir dire in the present case, the circuit court asked the prospective jurors, "Is there anyone among you who has been a victim of [CDV]?" The juror in question, Robin Burns, remained silent despite a recent incident involving herhusband twisting her wrist. Burns called 911 to report the incident, and police officers arrived at her home to investigate but made no arrests. When Sheriff Loftis learned of the nondisclosure, he filed a new trial motion.

Subsequently, the circuit court reviewed the incident report from Burns' 911 call as well as the tape, transcript, and responding officers' affidavits. Based on this review, the circuit court concluded Burns was not a CDV victim and, thus, Sheriff Loftis had "failed to establish the 'fact of disqualification' so as to obtain a new trial based upon disqualification of a juror." The circuit court also concluded, "The question the court posed in voir dire was clear and unambiguous, and there [was] no evidence that [Burns], either objectively or subjectively, concealed information." The court then stated that it was unnecessary to conduct an additional hearing for the purpose of examining Burns under oath.

Sheriff Loftis contends the circuit court erred in concluding that he had to establish the fact of disqualification because juror disqualification is not an absolute requirement under the Woods test. We acknowledge the merit to this argument. See Woods, 345 S.C. at 590, 550 S.E.2d at 285 ("No motion to disqualify Juror B was made, thus there is no discretionary ruling by the trial judge for this [c]ourt to review. However, we need not decide whether [Juror B's] relationship with the solicitor's office would support a challenge for cause because we find her failure to disclose the relationship prevented the respondent's intelligent exercise of his peremptory challenges."). Nonetheless, we conclude that the question, "Is there anyone among you who has been a victim of [CDV]?" was ambiguous. Including the term "criminal" in the question could cause a potential juror to believe any experience she or he had with domestic violence had to result in an arrest at the very least. Therefore, Burns' concealment was unintentional. See Woods, 345 S.C. at 588, 550 S.E.2d at 284 ("Unintentional concealment . . . occurs where the question posed is ambiguous . . . .").²

Rivero correctly maintains that Woods and McCoy do not require an examination of Burns under oath, although the key language in Woods and McCoy certainly encourage this type of evidentiary hearing. In any event, given the ambiguity of the question posed to the prospective jurors in the present case, the circumstances do not merit an evidentiary hearing. Therefore, we affirm the circuit court's denial of the motion for an evidentiary hearing or new trial.

II. JNOV/Causation in Fact

Sheriff Loftis asserts the circuit court erred by submitting the question of causation in fact to the jury rather than concluding there was no causation in fact as a matter of law. We disagree.

"Negligence is not actionable unless it is a proximate cause of the injuries, and it may be deemed a proximate cause only when without such negligence the injury would not have occurred or could have been avoided." McKnight v. S.C. Dep't of Corr., 385 S.C. 380, 386, 684 S.E.2d 566, 569 (Ct. App. 2009) (quoting Hanselmann v. McCardle, 275 S.C. 46, 48-49, 267 S.E.2d 531, 533 (1980)). "Proximate cause is the efficient or direct cause; the thing that brings about the complained of injuries." Id. "Proximate cause requires proof of (1) causation in fact and (2) legal cause." Id. (quoting Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 72, 393 S.E.2d 914, 916 (1990)). "Causation in fact is demonstrated by establishing the plaintiff's injury would not have occurred 'but for' the defendant's negligence, while legal cause is proved by establishing foreseeability." Id. at 386-87, 684 S.E.2d at 569.

"Ordinarily, proximate cause is a question for the jury, but when the evidence is susceptible to only one inference, it becomes a matter of law for the court." Id. at 387, 684 S.E.2d at 569. "Only in rare or exceptional cases may the question of proximate cause be decided as a matter of law. If there is a fair difference of opinion regarding whose act proximately caused the injury, then the question of proximate cause must be submitted to the jury." Hurd v. Williamsburg Cty., 353 S.C. 596, 613-14, 579 S.E.2d 136, 145 (Ct. App. 2003) (citations omitted), aff'd, 363 S.C. 421, 611 S.E.2d 488 (2005).

Here, in its order denying a JNOV, the circuit court stated, "There was evidence that...