Smith v. Ridgeway Chemicals, Inc., 1534

• Decision Date: 04 June 1990
• Docket Number: No. 1534,1534
• Citation: 395 S.E.2d 742,302 S.C. 303
• Court: South Carolina Court of Appeals
• Parties: Bobbie SMITH, Appellant, v. RIDGEWAY CHEMICALS, INC., a North Carolina Corporation, and Norman P. Khoury, M.D., Respondents. Robert F. SMITH, Jr., Appellant, v. RIDGEWAY CHEMICALS, INC., a North Carolina Corporation, and Norman P. Khoury, M.D., Respondents. . Heard

Page 742

395 S.E.2d 742

302 S.C. 303

Bobbie SMITH, Appellant, v. RIDGEWAY CHEMICALS, INC., a North Carolina Corporation, and Norman P. Khoury, M.D., Respondents.

Robert F. SMITH, Jr., Appellant, v. RIDGEWAY CHEMICALS, INC., a North Carolina Corporation, and Norman P. Khoury, M.D., Respondents.

No. 1534.

Court of Appeals of South Carolina.

Heard June 4, 1990.

Decided Aug. 27, 1990.

James E. Gonzales, North Charleston, for appellants.

M. Dawes Cooke, Jr., Robert H. Hood, and Mark V. Evans, Charleston, for respondents.

PER CURIAM:

Plaintiff Bobbie Smith brought a cause of action in negligence, breach of warranty and strict liability against Defendant Ridgeway Chemicals, Inc., and in the same Complaint brought a cause of action against Dr. Norman P. Khoury alleging medical malpractice. Sometime later her husband, Robert F. Smith, Jr., filed a Complaint against the same Defendants, alleging loss of consortium, upon the same grounds set forth in his wife's causes of action. Both Defendants filed Answers denying liability and asserting the usual defenses.

The cases were consolidated for trial and for this appeal.

The judge granted a directed verdict against both Plaintiffs as to breach of warranty. He charged the jury that it could find actual and punitive damages against either or both Defendants.

The jury found against the husband's loss of consortium claim. It wrote a verdict in the amount of $55,000 actual damages plus $2,500 punitive damages in favor of Bobbie Smith against Dr. Khoury only. Ridgeway Chemicals, Inc., was exonerated by the jury as to all claims.

Both Plaintiffs have appealed asserting twelve exceptions. Those issues are argued to the Court by way of eight questions recited in Appellants' brief. We affirm.

Bobbie Smith worked for Porsche in North Charleston from late summer of 1985 until April 1987. She was principally a detailer in an assembly line operation, in which new cars rolled through a line of quality control workers, who applied water and chemicals to remove cosmoline (wax) from the exterior of each automobile, and to remove other foreign matter such as glue and grease from the interior of the automobiles. In late 1985 or early 1986 Bobbie Smith developed skin, nasal and respiratory health problems and a possible polyneuropathy of her extremeties--damage to the nerves controlling the muscles of the extremeties.

To diagnose and treat her health problems she saw several physicians. A neurologist referred her to Defendant Khoury to biopsy a sensory (sural) nerve of the left leg to help identify the causes of her polyneuropathy. Khoury inadvertently biopsied a mixed motorsensory (tibial) nerve. She underwent graft surgery in an attempt to repair the nerve damage.

The gist of Bobbie Smith's claim grows out of her contention that Ridgeway Chemicals, Inc., negligently supplied dangerous chemical cleaning materials to which she was exposed by her employer, causing her injuries. The gist of Robert F. Smith, Jr.'s, claim is that as husband he was deprived of consortium rights because of the wrongdoing of the Defendants.

The agreed statement of fact recites:

... Plaintiffs timely filed and served motions for Judgment N.O.V. or new trial as to all verdicts, with said motions being denied by the trial judge by order served on the Plaintiffs on December 8, 1988.

The grounds of the motions and the order have not been included in the record.

We hold that the trial judge properly overruled all motions for judgments notwithstanding the verdict. This motion is available to one suffering an adverse ruling of the jury only when the same issues were submitted to the judge at the directed verdict stage. Inasmuch as no motion was made for a directed verdict at the conclusion of the trial, no motion for relief as a matter of law is available after the jury verdict. See Rule 50 SCRCP and Henderson v. St. Francis Community Hospital, 295 S.C. 441, 369 S.E.2d 652 (Ct.App.1988).

Appellants submit error on the part of the trial judge in directing a verdict in both cases as to breach of warranty. We find no error.

Since the evidence was insufficient to sustain the action for strict liability, it naturally follows that the actions based on implied warranty and negligence must likewise fail under the facts of this case. A common element to each of these separate causes of action is proof that the product was not reasonably fit or safe...