Steinke v. SC DEPT. OF LABOR, LICENSING

• Decision Date: 07 September 1999
• Docket Number: No. 24999.,24999.
• Court: South Carolina Supreme Court
• Parties: Mike STEINKE and Mary Steinke, individually and as personal representatives of the estate of Zachary Steinke; and Linda Nash Given, individually and as personal representative of the estate of Michael Nash, Respondents, v. SOUTH CAROLINA DEPARTMENT OF LABOR, LICENSING AND REGULATION, Appellant.

336 S.C. 373

520 S.E.2d 142

Mike STEINKE and Mary Steinke, individually and as personal representatives of the estate of Zachary Steinke; and Linda Nash Given, individually and as personal representative of the estate of Michael Nash, Respondents, v. SOUTH CAROLINA DEPARTMENT OF LABOR, LICENSING AND REGULATION, Appellant.

No. 24999.

Supreme Court of South Carolina.

Heard May 12, 1999.

Decided September 7, 1999.

Rehearing Denied October 6, 1999.

Andrew F. Lindemann, William H. Davidson, II, and David L. Morrison of Davidson, Morrison and Lindemann, P.A., Columbia, for appellant.

John Kassel and John Nichols of Suggs and Kelly, P.A., Columbia, and B. Randall Dong of Simpson, Dong and Wingate, L.L.C., Columbia, for respondents.

WALLER, Justice:

Mike and Mary Steinke, the parents and personal representatives of the estate of Zachary Steinke, and Linda Nash Given, the mother and personal representative of the estate of Michael Nash (Respondents), brought wrongful death actions against the South Carolina Department of Labor, Licensing, and Regulation (Department). The jury awarded the statutory beneficiaries of each teenager $1 million in actual damages. Nash's award was reduced to $900,000 because the jury concluded he was ten percent at fault.¹

The trial judge denied Department's motions for a directed verdict, a judgment notwithstanding the verdict, and a new trial. Department appealed. The Court of Appeals certified this case to this Court because it involves issues of significant public interest and legal principles of major importance. See S.C.Code Ann. § 14-8-210(c) (Supp.1998); Rule 204(b), SCACR (formerly contained in Rule 214(b), SCACR). We affirm in part and reverse in part.

FACTS

Zachary Steinke, a 17-year-old bungee jumper, and Michael Nash, a 19-year-old bungee jump master, died August 10, 1993, when the steel cage in which they were riding fell 160 feet to the ground at Beach Bungee, an attraction near Myrtle Beach. Zachary's parents saw the accident happen. His mother, a registered nurse, and his father tried to save Zachary by performing cardiopulmonary resuscitation upon him.

Beach Bungee's owners initially used a "crawlevator" to carry bungee jumpers and sightseers to the top of a 160-foot metal arch. The crawlevator was a chain-driven device that ran along the supports of the metal arch. A steel cage attached to the crawlevator carried jumpers and spectators. After a person jumped, the crawlevator lowered spectators and the suspended jumper to the ground by slowly descending the arch. Although bungee jumping was not regulated, Department considered the crawlevator a ride subject to regulation under the South Carolina Amusement Rides Safety Code² because it carried spectators. Department issued a permit for the crawlevator in May 1993.

The crawlevator had persistent mechanical problems, sometimes stalling or violently shaking passengers as the chain jerked along the track. Beach Bungee owners took the crawlevator out of service in mid-July 1993. They hired Marshall Beam, a local shrimp boat mechanic, to install an electric winch and cable to lift the steel cage. Beam attached the winch to the base of the arch, fashioned three pulleys to guide a single metal cable through the structure of the metal arch, and connected the cable to the cage as it sat beneath the center of the arch. Two stabilizing cables were attached to a static line to prevent the cage from rotating or swaying, but they provided no actual support for the cage. The winch could not be controlled from inside the cage. The jump master used hand signals to tell the winch operator on the ground when the cage was properly positioned for a jump. Operators also painted a blue mark on the cable to identify the proper stopping point.

The accident occurred when the ride operator, owner Harold Morris, became distracted during the three minutes or so it took the cage to travel to the top of the arch. When Morris failed to stop the winch, it kept pulling the three-eighths-inch cable after the cage jammed into the arch. Someone—perhaps Zachary or Michael or spectators—cried, "Stop! Stop!" As horrified onlookers watched, the single lifting cable snapped and the cage plummeted to the ground. It was the sixth day the operators had used the winch and cable system.

Major defects in the system included the use of a single cable without additional safety cables, incorrectly sized pulleys, a powerful winch capable of snapping the single cable with relative ease, the lack of controls or an emergency stop button inside the cage, and the lack of a device to shut off the winch automatically when the cage reached the top of the arch.

Respondents alleged that Department failed to revoke or suspend the license Department had issued, or adequately inspect or investigate the crawlevator, after receiving troubling reports. Those reports were (1) a July 13, 1993, memorandum written by James Cates, a Department field supervisor; (2) an August 5, 1993, telephone conversation between Henry J. McGinnis, president of the Texas manufacturer of the arch and crawlevator, and Floyd Padgett, director of Department's Office of Elevators and Amusement Rides; and (3) an August 5, 1993, facsimile from McGinnis to Padgett.

Cates wrote the July 13, 1993, memo after Department received a report of a malfunction of an electric winch at the ride. Emergency personnel were called to the scene. No one was injured, but a jumper was suspended upside down until repairs were made. Cates filed the memo away after discussing the matter with Padgett. No Department official contacted the Beach Bungee owners or visited the site because, Padgett testified, no one had gotten hurt.

Arch maker McGinnis testified he telephoned Padgett on August 5, 1993. McGinnis told Padgett he had received a report that Beach Bungee may have modified the crawlevator by installing a winch and cable to lift the cage. That was not the system he had designed and McGinnis wanted to ensure any changes had been inspected and approved by a licensed engineer. Beach Bungee's owners and employees had refused to accept McGinnis's calls, apparently due to the crawlevator's mechanical problems and the fact McGinnis's company had not been fully paid. McGinnis, at Padgett's request, outlined his concerns in a fax to Padgett the same day. He wrote that the ride recently had "incurred some type of failure" and asked Department to investigate the matter. Padgett assured him that Department would look into it, McGinnis testified.

Padgett denied having a conversation on August 5 with McGinnis. He testified he spoke with McGinnis on August 6 after receiving McGinnis's fax, but denied McGinnis told him about the winch and cable system. Padgett did not perceive the situation as an emergency and saw no reason to work overtime to follow up on the matter. Cates, however, testified the fax appeared to be more serious than other routine government and manufacturer notices faxed to the Columbia office during 1993.

Jerry Butler, a chief inspector with Department, instructed local inspector Mitchell Ward to go by the Beach Bungee site, but "not to make a special trip." Ward was not aware of the July 13 memo or the August 5 fax. Ward testified he drove by the site at about 6:30 p.m. August 6, 1993, on his way to a bowling date. He was traveling about 20 to 30 mph and did not stop at the site. Ward saw the cage sitting on the ground, but did not see the crawlevator. He did not believe the ride was operating. He passed by the ride again at about 11 p.m. on his way home, but did not stop. In fact, operators used the winch and cable system to carry forty-seven jumpers August 6, including twenty jumpers between 6:10 and 8:30 p.m.

The next afternoon, on a Saturday trip to the mall, Ward pulled his car to the far side of the six-lane highway and observed the ride for about ten minutes. Ward saw the cage on the ground and again noticed the crawlevator was not attached to the track of the arch. He also saw the stabilizing cables and was "stunned" to see a lifting cable attached to the top of the cage. Ward assumed, however, that workers were using the cables to move the cage or crawlevator, which he assumed was broken, during repairs.

Ward did not walk across the highway to get a closer look or speak to the owners. He did not try to telephone the owners later. Ward drove by the site a second time August 7 without stopping. Ward still believed the ride was not operating, and reported that to Department officials in Columbia. Operators used the winch and cable system to carry only five people August 7 due to inclement weather and mechanical problems. Ward drove by the site on his way to and from work Monday, August 9, 1993, and on his way to work Tuesday morning. He did not stop or even attempt to observe the site as he passed. The fatal accident occurred Tuesday evening.

Department officials Padgett, Butler, Cates, and Ward testified the winch and cable system was dangerous, and acknowledged a failure could result in multiple deaths. The system constituted a substantial modification of the licensed crawlevator. Padgett, Butler, and Ward testified Department officials would have taken immediate steps to shut it down if they had known about it.

STANDARD OF REVIEW

In ruling on motions for directed verdict or judgment notwithstanding the verdict, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions. The trial court must deny the motions when the evidence yields more than one inference or its inference is in doubt. This Court will reverse the trial court only when there is no evidence to support the ruling below. Creech v. South Carolina Wildlife and Marine Resources Dep't, 328 S.C. 24, 491 S.E.2d 571 (1997). This Court will not disturb a trial court's decision granting or denying a new trial unless that decision is...