Rutland v. S.C. Dep't of Transp.

• Decision Date: 07 November 2012
• Docket Number: No. 27185.,27185.
• Citation: 400 S.C. 209,734 S.E.2d 142
• Court: South Carolina Supreme Court
• Parties: Clarence RUTLAND, as Personal Representative of the Estate of Tiffanie Rutland, Petitioner, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent. Appellate Case No. 2010–178606.

400 S.C. 209

734 S.E.2d 142

Clarence RUTLAND, as Personal Representative of the Estate of Tiffanie Rutland, Petitioner,

v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent.Appellate Case No. 2010–178606.

No. 27185.

Supreme Court of South Carolina.

Heard March 7, 2012.

Decided Nov. 7, 2012.

J. Christopher Wilson, of Wilson, Luginbill & Kirkland, of Bamberg; Lee D. Cope, R. Alexander Murdaugh and Matthew V. Creech, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Petitioner.

Richard B. Ness and Norma Jett, both of Ness & Jett, of Bamberg, for Respondent.

Justice HEARN.

Tiffanie Rutland (Tiffanie) was killed when the car in which she was riding rolled over and fell on top of her after she was partially ejected. This case presents the novel issue of whether “pre-impact fear” should be recognized as a cognizable element of damages in a survival action. We granted a writ of certiorari to review the decision of the court of appeals that pre-impact fear is not compensable in this State. Rutland v. S.C. Dep't of Transp., 390 S.C. 78, 85, 700 S.E.2d 451, 455 (Ct.App.2010). Finding no evidence of conscious pain and suffering under the facts of this case, we reserve judgment on this question for another day and affirm as modified.

FACTUAL/PROCEDURAL BACKGROUND

Tiffanie was riding in the back seat of a 1999 S–10 Chevrolet Blazer with her husband Clarence Rutland (Rutland) and their infant son when it hit accumulated water on the roadway. The driver of the Blazer, Joseph Bishop, lost control of the vehicle when it began to hydroplane, and it eventually flipped over into a nearby ditch. Tiffanie was partially ejected from the side window of the vehicle, which fell upon her when it overturned. Rutland was completely ejected through the back window of the Blazer, but he was able to walk back over to the vehicle after the accident. When he got there, he saw Tiffanie's head hanging out of the window. She made no noise and was cold and unresponsive, which lead him to believe she was already dead. Although a bystander told Rutland that Tiffanie still had a pulse, he did not believe him and assumed he just wanted Rutland to get out of the way.

Rutland settled with Bishop's insurance company for $30,000 and filed a wrongful death action against the South Carolina Department of Transportation (SCDOT) alleging negligent maintenance and repair of the stretch of highway where the accident occurred. He later amended his complaint to add General Motors (GM) as a defendant for its failure to equip the Blazer's side windows with laminated glass instead of tempered glass. Rutland subsequently settled with GM for $275,000. Including the $30,000 from Bishop's insurance company, Rutland received a total of $305,000 in settlement monies, which Rutland and GM agreed to allocate as follows: $138,000 to conscious pain and suffering under the potential (but not yet filed) survival claim and $167,000 for wrongful death. Judge Diane Goodstein approved the settlement, noting that no survival action had ever been filed, but concluding “without making any factual findings” that “there exists some evidence, however slight, that [Tiffanie] survived the crash and consciously endured pain and suffering prior to her death.” Judge Goodstein's order further clarified that SCDOT would still be allowed to “argue against the allocation or apportionment of the wrongful death and survival proceeds or findings herein, to which SCDOT does not stipulate ... for purposes of setoff to which SCDOT may be entitled.” Ultimately, Rutland never filed a survival claim against any party.

In the trial against SCDOT for wrongful death, the jury returned a verdict in the amount of $300,000. SCDOT subsequently made a motion for set-off, alleging that the entire amount of the settlement should be equitably reapportioned to the wrongful death action because there was no evidence to support the putative survival claim for which settlement funds were allocated. The trial court agreed and found that “there is not sufficient evidence from which a jury could have concluded Tiffanie Rutland experienced conscious pain and suffering of any kind before, during, or after the accident.” This effectively rendered the verdict a zero dollar judgment.

Rutland appealed, arguing the trial court erred in failing to recognize Tiffanie's pre-impact fear as damages supporting the survival action and in reallocating the full amount of the settlement toward SCDOT's judgment. Rutland, 390 S.C. at 78, 700 S.E.2d at 451. The court of appeals affirmed, concluding that South Carolina does not recognize pre-impact fear as an element of damages and the reallocation of the settlement was proper. Id. at 85, 700 S.E.2d at 455. We granted certiorari to review the court of appeals' decision.

ISSUES PRESENTED

I. Did the court of appeals err in failing to recognize damages for pre-impact fear and in finding there was no evidence of conscious pain and suffering?

II. Did the court of appeals err in affirming the circuit court's equitable reallocation of settlement proceeds?

LAW/ANALYSIS

I. CONSCIOUS PAIN AND SUFFERING

Rutland first argues the court of appeals erred in finding there was no evidence Tiffanie experienced conscious pain and suffering.¹ In particular, Rutland argues we should recognize pre-impact fright or fear as a cognizable element of damages in a survival action.² Because we find no evidence of conscious pain or suffering either prior to or after impact, we disagree and reserve the novel question ³ of whether South Carolina should allow recovery for pre-impact fear for another day.

In urging us to recognize pre-impact fear damages, Rutland asserts the majority of jurisdictions addressing the issue have found pre-impact fear compensable and that South Carolina should follow suit. Generally speaking, those courts have determined the timing of the impact should not determine the availability of an award for damages pertaining to mental distress because it is illogical to bar recovery for pre-impact distress when one can recover for post-impact suffering. E.g. Solomon v. Warren, 540 F.2d 777, 793 (5th Cir.1976) (“While in the garden variety of claims under survival statutes ... fatal injuries sustained in automobile accidents and the like[,] the usual sequence is impact followed by pain and suffering, we are unable to discern any reason based on either law or logic for rejecting a claim because in this case as to at least the part of the suffering, this sequence was reversed.”); Lin v. McDonnell Douglas Corp., 574 F.Supp. 1407, 1416 (S.D.N.Y.1983) (“In several cases it has been held that a decedent's estate may recover for the decedent's pain and suffering endured after the injury that led to his death. From this proposition, it is only a short step to the allowing of damages for a decedent's pain and suffering before the mortal blow and resulting from the apprehension of impending death.”) (internal citations omitted), rev'd in part on other grounds, Lin v. McDonnell Douglas Corp., 742 F.2d 45 (2d Cir.1984); Monk v. Dial, 212 Ga.App. 362, 441 S.E.2d 857, 859 (1994) (“The fright, shock, and mental suffering experienced by an individual due to the wrongful acts of negligence will authorize a recovery where attended with physical injury.... [W]e find no requirement that the physical injury precede the mental pain and suffering.”) (internal citations omitted); Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25, 31 (1989) (“[W]e are persuaded that there exists no sound legal or logical distinction between permitting a decedent's estate to recover as an element of damages for a decedent's conscious postinjury pain and suffering and mental anguish and permitting such an estate to recover for the conscious prefatal-injury mental anguish resulting from the apprehension and fear of impending death.”).

We decline, however, to decide the issue of whether to recognize pre-impact fear as an element of damages in a survival action given the lack of evidence in this record to support the claim. Rutland offers only a recount of his personal fears and apprehensions prior to impact as proof that Tiffanie must have felt them as well. The accident appears to have occurred quickly and the evidence suggests she died instantaneously. She therefore would have had little if any time to contemplate her demise. Furthermore, Rutland offers no other evidence of Tiffanie's pain and suffering. He himself testified that he knew Tiffanie was dead at the scene and that although he was told by a bystander that she had a pulse, he did not believe him. Additionally, even assuming she had a pulse, that fact alone is not evidence of conscious pain and suffering. Rutland further stated she was not responsive when he called her name nor did she react when he rubbed her head. Based on this evidence, a jury could not reasonably have concluded Tiffanie consciously experienced any pain or suffering prior to or after impact. Thus, Rutland has not adduced sufficient evidence even if we were to recognize pre-impact fear as an element of damages in a survival action.

II. EQUITABLE REALLOCATION

Rutland also argues that because there is sufficient evidence of conscious pain and suffering, the court of appeals erred in affirming the trial court's equitable reallocation of the settlement. We disagree.

A non-settling defendant is entitled to credit for the amount paid by another defendant who settles for the same cause of action. Welch v. Epstein, 342 S.C. 279, 312–13, 536 S.E.2d 408, 425 (Ct.App.2000). “The trial court's jurisdiction to set off one judgment against another is equitable in nature and should be exercised when necessary to provide justice between the parties.” Id. at 313, 536 S.E.2d at 425. Allowing this credit prevents an injured person from obtaining a double recovery for the damage he sustained, for it is “almost universally held that there can be only one satisfaction for an injury or wrong.” Truesdale v....