Stevens v. Allen
| Decision Date | 28 June 1999 |
| Docket Number | No. 3017.,3017. |
| Citation | 336 S.C. 439,520 S.E.2d 625 |
| Court | South Carolina Court of Appeals |
| Parties | Colleen STEVENS and Gerald Stevens as Personal Representatives of the Estate of Kevin Marc Stevens, Appellants, v. Edgar Daniel ALLEN and Betty D. Allen, Respondents. |
Daniel D. D'Agostino and Cherie R. Teat, both of Roberts & D'Agostino, of York, for appellants.
Edward R. Cole, of The Ward Law Firm, of Spartanburg; and Thomas A. McKinney, of McKinney, Givens & Associates, of Rock Hill, for respondents.
These wrongful death and survival actions arise from a single car accident. Colleen Stevens and Gerald Stevens as Personal Representatives of the Estate of Kevin Marc Stevens (the Personal Representatives) brought the claim against Edgar Daniel Allen, the alleged driver, and Betty D. Allen, the car's owner, after Stevens was killed in the accident. The jury found Stevens and Allen both 50% responsible for Stevens' death and awarded zero damages. The Personal Representatives claimed this award was inconsistent and inadequate, and requested the trial judge (1) instruct the jury to continue deliberations and return with an award of damages; (2) grant a new trial absolute; or (3) grant a new trial nisi additur. The trial judge refused. The Personal Representatives made post-trial motions for a new trial as to damages, a new trial nisi additur, and judgment notwithstanding the verdict. The trial judge denied all motions. The Personal Representatives appeal. We reverse and remand for a new trial.1
Stevens and Allen were involved in a single car accident in the early morning of August 14, 1993. The teenagers had been out partying. A party attendee testified Allen had been drinking and smoking marijuana. Stevens and Allen left the party in Betty Allen's car. The car struck a bridge sign and the bridge before falling down the embankment into a creek. Stevens was killed, and Allen survived with injuries. According to one of the county pathologists, Stevens died from drowning.
The Personal Representatives filed an amended complaint on March 13, 1995, seeking damages for wrongful death and pain and suffering due to Allen's negligence. Liability was contested at trial. Allen denied (1) he was driving the car at the time of the accident and (2) the Personal Representatives suffered damages to the extent claimed. He averred Stevens' conduct was contributorily negligent.
At trial, the Personal Representatives attempted to offer medical records pursuant to Rule 803(6), SCRE, the Business Records Exception. The records consisted of the urinalysis performed on a sample from Allen collected after the crash. The judge refused to admit the evidence, finding a proper chain of custody could not be established and therefore it lacked sufficient trustworthiness.
As evidence of actual damages, the Personal Representatives offered funeral bills. They testified about the pain and suffering caused by the loss of their son. Allen introduced evidence that Stevens had been living with him for a period of time and there was a rift between Stevens and his family.
The jury concluded each party 50% liable on both the survival action and the wrongful death action. However, the jury found the Personal Representatives were entitled to "Zero Dollars" in damages on both actions. The Personal Representatives asked the court to instruct the jurors to return to deliberations and render a verdict with damages or to find for the defendant. The trial judge accepted the verdict as presented. The Personal Representatives made post-trial motions for a new trial nisi additur or for a new trial absolute. After a discussion about the amount of the additur requested, the trial judge denied the motion. The Personal Representatives filed a motion for judgment notwithstanding the verdict as to damages, a motion for additur, and a motion for a new trial as to damages. The trial judge denied all three motions.
The grant or denial of new trial motions rests within the discretion of the trial judge and his decision will not be disturbed on appeal unless his findings are wholly unsupported by the evidence or the conclusions reached are controlled by error of law. Vinson v. Hartley, 324 S.C. 389, 477 S.E.2d 715 (Ct.App.1996).
A trial court may grant a new trial absolute on the ground that the verdict is excessive or inadequate. The jury's determination of damages, however, is entitled to substantial deference. The trial judge must grant a new trial absolute if the amount of the verdict is grossly inadequate or excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of passion, caprice, prejudice, partiality, corruption or some other improper motives. The failure of the trial judge to grant a new trial absolute in this situation amounts to an abuse of discretion and on appeal this Court will grant a new trial absolute.
Vinson, 324 S.C. at 404-05, 477 S.E.2d at 723 (citations omitted).
The trial judge alone has the power to grant a new trial nisi when he finds the amount of the verdict to be merely inadequate or excessive. McCourt by and Through McCourt v. Abernathy, 318 S.C. 301, 457 S.E.2d 603 (1995). Compelling reasons, however, must be given to justify invading the jury's province in this manner. Pelican Bldg. Ctrs. v. Dutton, 311 S.C. 56, 427 S.E.2d 673 (1993).
The admission of evidence is a matter left to the discretion of the trial judge and, absent clear abuse, will not be disturbed on appeal. Carlyle v. Tuomey Hosp., 305 S.C. 187, 407 S.E.2d 630 (1991); Hofer v. St. Clair, 298 S.C. 503, 381 S.E.2d 736 (1989). For this Court to reverse a case based on the admission of evidence, both error and prejudice must be shown. Timmons v. South Carolina Tricentennial Comm'n, 254 S.C. 378, 175 S.E.2d 805 (1970),app. dismissed, cert. denied, 400 U.S. 986, 91 S.Ct. 460, 27 L.Ed.2d 435 (1971), reh. denied, 401 U.S. 949, 91 S.Ct. 922, 28 L.Ed.2d 233 (1971).
The Personal Representatives argue the trial court erred in failing to require the jury to return to deliberations to consider the Issue of damages, and in refusing to grant one of their post-trial motions for (1) a new trial nisi additur, (2) a new trial as to damages, or (3) a new trial absolute, based on the inconsistency of the verdict. The Personal Representatives contend they are entitled to a new trial as to damages or a new trial absolute as a result of the abuse of discretion by the trial judge in accepting a facially inconsistent verdict. We find the Personal Representatives are entitled to a new trial absolute.
The Personal Representatives brought this action alleging negligence on the part of Allen resulting in Stevens' death. To prevail in an action founded in negligence, the plaintiff must establish three essential elements: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately caused by a breach of duty. Reiland v. Southland Equip. Serv., Inc., 330 S.C. 617, 500 S.E.2d 145 (Ct.App. 1998) (Emphasis added.); Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 468 S.E.2d 292 (1996).
The judge charged the jury on both negligence and comparative negligence. The jury's verdict was on a seven question special verdict form. The relevant questions and jury's answers are:
The jury found the negligence of the defendant proximately caused Steven's injuries, but failed to award any damages. This is facially inconsistent. Once a plaintiff proves damages proximately...
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