Smalls v. South Carolina Dept. of Educ.

• Citation: 339 S.C. 208,528 S.E.2d 682
• Decision Date: 22 February 2000
• Docket Number: No. 3122.,3122.
• Parties: Bonolla L. Black SMALLS and Donald S. Smalls, as Personal Representatives for Estate of Brittany Antoinette Smalls, Respondents, v. The SOUTH CAROLINA DEPARTMENT OF EDUCATION, Appellant.
• Court: South Carolina Court of Appeals

339 S.C. 208

528 S.E.2d 682

Bonolla L. Black SMALLS and Donald S. Smalls, as Personal Representatives for Estate of Brittany Antoinette Smalls, Respondents, v. The SOUTH CAROLINA DEPARTMENT OF EDUCATION, Appellant.

No. 3122.

Court of Appeals of South Carolina.

Heard November 4, 1999.

Decided February 22, 2000.

James D. Nance, of Nance & McCants, of Aiken, for appellant.

Richard A. Harpootlian and Robert G. Rikard, both of Richard A. Harpootlian, P.A.; and Carl B. Grant, all of Columbia, for respondents.

STILWELL, Judge:

Bonolla and Donald Smalls (the Smalls) brought wrongful death and survival actions against the South Carolina Department of Education (Department) after their daughter, Brittany Antoinette Smalls, was struck and killed by a pickup truck as she crossed the road. The jury returned a verdict in favor of the Smalls. Department appeals, arguing the trial court erred in various evidentiary and jury charge rulings and failed to grant its motions for a directed verdict, new trial, and judgment notwithstanding the verdict (JNOV). We affirm as modified.

BACKGROUND

Eight-year-old Brittany was killed when a pickup truck driven by Vincent Bussiere accidentally struck her early one morning as she crossed a two-lane road to catch her school bus. Brittany was taken immediately to a nearby hospital where she died of severe head injuries two days later.

The Smalls initially brought wrongful death and survival actions against Bussiere and Bussiere's employer, T.F. Anderson & Sons, Inc. Thereafter, the Smalls filed an amended complaint adding Department as a defendant. In their amended complaint, the Smalls alleged that Walter Parker, the school bus driver, "required school children along his bus route to cross the highway from the side where their houses are to [the] side where the bus would stop and pick them up before the school bus arrived at the bus stop." The Smalls alleged state and local school district policies were violated when the driver required the children to cross the highway before the bus arrived. The Smalls claimed Bussiere was negligent in hitting Brittany and further, that she would not have been out in the road absent the instructions of Department's bus driver.

Prior to trial, Smalls settled with Bussiere and T.F. Anderson & Sons, Inc. for $100,000. Of this amount, $90,000 was allocated to the wrongful death action and $10,000 to the survival action. The case went to trial with only Department remaining as a named defendant. The jury returned a verdict for Smalls in the amount of $600,000 for the wrongful death action and $310,000 for the survival action. Because the jury found Brittany eighteen percent negligent and Department eighty-two percent negligent in causing the accident, the trial court reduced the verdict by eighteen percent, thus resulting in an award of $492,000 for the wrongful death cause of action and $254,200 for the survival cause of action. Upon motion by Department, the trial court further reduced the verdict as required by the Tort Claims Act and awarded $250,000 on each cause of action, for a total judgment of $500,000.¹

LAW/ANALYSIS

I. New Trial Nisi Remittitur or JNOV (Survival Action)

Department argues the trial court erred in declining to reduce the $310,000 jury verdict in the survival action to the amount of the victim's medical bills, $33,926.10, because there was no evidence Brittany suffered conscious pain and suffering prior to her death. Department contends it was entitled to a new trial nisi remittitur or JNOV. We disagree.

A motion for new trial nisi remittitur asks the trial court to reduce the verdict because the verdict is merely excessive. See O'Neal v. Bowles, 314 S.C. 525, 431 S.E.2d 555 (1993)

. "If the amount of the verdict is grossly inadequate or excessive so as to be the result of passion, caprice, prejudice, or some other influence outside the evidence, the trial judge must grant a new trial absolute," not a new trial nisi remittitur. Id. at 527, 431 S.E.2d at 556 (emphasis in the original). The jury's determination of damages, however, is entitled to substantial deference. See Pelican Bldg. Ctrs. of Horry-Georgetown, Inc. v. Dutton, 311 S.C. 56, 427 S.E.2d 673 (1993). "The denial of a motion for a new trial nisi is within the trial judge's discretion and will not be reversed on appeal absent an abuse of discretion." O'Neal, 314 S.C. at 527,

431 S.E.2d at 556.

"In deciding a motion for JNOV, the evidence and all reasonable inferences must be viewed in the light most favorable to the nonmoving party; if more than one inference can be drawn, the case must be submitted to the jury." Gastineau v. Murphy, 331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998). The jury's verdict will not be overturned if any evidence exists that sustains the factual findings implicit in its decision. Shupe v. Settle, 315 S.C. 510, 445 S.E.2d 651 (Ct.App.1994). The South Carolina survival statute provides that a cause of action for injuries to a person shall survive the person's death, with damages recoverable by the legal representative of the deceased. S.C.Code Ann. § 15-5-90 (1976). Damages in a survival action include recovery for the deceased's conscious pain and suffering and medical expenses. See generally Baker v. Sanders, 301 S.C. 170, 391 S.E.2d 229 (1990)

(ruling that the Tort Claims Act does not preclude a survival action for conscious pain and suffering and medical expenses when an injured person later dies as a result of the tort). In addition, § 15-5-100 authorizes recovery for funeral expenses. S.C.Code Ann. § 15-5-100 (1976). Brittany's medical bills totaled $33,926.10, and her funeral expenses were $4,622.25.

Department contends Brittany never regained consciousness and cites Croft v. Hall, 208 S.C. 187, 37 S.E.2d 537 (1946), for the proposition that recovery in a survival action is limited to the medical or other out-of-pocket expenses absent proof that the deceased consciously suffered pain. In Croft, the victim was seriously injured in an automobile wreck and survived for about twenty-nine hours before she died. Id. at 193-94, 37 S.E.2d at 539. The attending physician, nurses, and others testified the victim did not consciously suffer pain after being injured in the wreck. Id. at 194, 37 S.E.2d at 540. In contrast, the victim's mother testified her daughter made "terrible noises," jerked her arms and legs while in her hospital bed, and opened her eyes several times when she spoke to her. Id. at 194, 37 S.E.2d at 539-40.

The Croft court discussed whether any evidence existed from which the jury could reasonably find the victim experienced conscious pain and suffering. Id. at 193-95, 37 S.E.2d at 539-40. The court concluded the "factual showing thereabout was weak but there was more than a scintilla of evidence tending to prove the point. The circumstances of the wreck and the fact that [the] intestate survived the finally fatal injuries for about twenty-nine hours, with some movement abed, point to the fact of suffering." Id. at 193-94, 37 S.E.2d at 539.

Here, in support of its argument that Brittany suffered no conscious pain, Department points to the testimony of Brittany's father who stated his daughter was unconscious when he found her and never regained consciousness. However, Brittany's father also testified that when he first arrived on the scene of the accident, his daughter was gasping for air and moaning somewhat. In the days at the hospital before her death, Brittany's father apparently spoke to his daughter to let her know everything would be all right. He testified:

And, during those three days I felt like she did hear me. Whether she, she couldn't talk back to me or anything but I felt like she heard me because she did have movement, she had movement with her fingers. And her eyes were blank, they were blank. So I felt like that she did hear me and she could hear me and I just tried to comfort her as much as I could.

Clearly, the testimony of Brittany's father regarding Brittany's pain and suffering was somewhat contradictory. Therefore, the issue was a question of fact properly left for the jury. See Vereen v. Liberty Life Ins. Co., 306 S.C. 423, 432, 412 S.E.2d 425, 431 (Ct.App.1991)

("If there is any evidence from which a jury could reasonably conclude a decedent experienced conscious pain and suffering, the issue must be submitted to the jury."). We conclude the trial court committed no error in denying Department's motions for a reduction in the verdict or for JNOV.

II. New Trial Absolute or JNOV (Survival Action)

Department further argues it was entitled to a new trial absolute or JNOV because the jury verdict of $310,000 awarded for the survival cause of action was excessive, shocking to the conscience, and could have only been the result of passion, prejudice, or caprice. We disagree.

A new trial absolute should be granted only if the verdict is so grossly excessive that it shocks the conscience of the court and clearly indicates the amount of the verdict was the "result of caprice, passion, prejudice, partiality, corruption, or other improper motives." McCourt ex rel. McCourt v. Abernathy, 318 S.C. 301, 308, 457 S.E.2d 603, 607 (1995). "The failure of the trial judge to grant a new trial absolute in this situation amounts to an abuse of discretion and on appeal [an appellate court] will grant a new trial absolute." O'Neal, 314 S.C. at 527,431 S.E.2d at 556.

As previously noted, evidence existed from which the jury could have determined the victim experienced conscious pain and suffering. One cannot easily or with any mathematical certainty place a value on the amount of a person's pain and suffering. We do not find the award of $310,000 to be shockingly excessive in this instance, and we defer to the jury's finding in this regard.

III. Special Verdict Form

Department contends the trial court abused its discretion in failing to submit a special interrogatory to the jury which would allocate liability...