Stevens v. Allen, No. 25179.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WALLER, Justice
• Citation: 536 S.E.2d 663,342 S.C. 47
• Decision Date: 07 August 2000
• Docket Number: No. 25179.
• Parties: Colleen STEVENS and Gerald Stevens as Personal Representatives of the Estate of Kevin Marc Stevens, Respondents, v. Edgar Daniel ALLEN and Betty D. Allen, Petitioners.

342 S.C. 47
536 S.E.2d 663

Colleen STEVENS and Gerald Stevens as Personal Representatives of the Estate of Kevin Marc Stevens, Respondents,
v.
Edgar Daniel ALLEN and Betty D. Allen, Petitioners

No. 25179.

Supreme Court of South Carolina.

Heard June 6, 2000.

Decided August 7, 2000.

342 S.C. 48

Edward R. Cole and Robert E. Davis of The Ward Law Firm, P.A., of Spartanburg, and Thomas A. McKinney, of McKinney, Givens & Assoc., LLC, of Rock Hill, for petitioners

Daniel D. D'Agostino and Cherie R. Teat, of Roberts and D'Agostino, of York, for respondent.

WALLER, Justice:

We granted a writ of certiorari to review the Court of Appeals' opinion in Stevens v. Allen, 336 S.C. 439, 520 S.E.2d 625 (Ct.App.1999). We affirm.

342 S.C. 49

FACTS

Fifteen year old Kevin Marc Stevens was killed in a single car accident in the early morning hours of August 14, 1993, when the car in which he was riding struck a bridge and rolled down an embankment into a creek. Stevens drowned as a result. Twenty year old Edgar Daniel Allen was allegedly the driver of the vehicle.¹ The boys had been drinking and smoking marijuana prior to the accident. Stevens' parents, Colleen and Gerald Stevens, instituted these wrongful death and survival actions against Allen and his mother, Betty, the owner of the vehicle.

The jury, using special verdict forms, returned a verdict finding Stevens and Allen each 50% negligent, but awarded the Stevens "zero damages" in both the survival and wrongful death actions. The Stevens requested the trial court re-submit the matter to the jury, contending the verdicts were inconsistent; the trial court denied the motion. The court also denied their motions for a new trial nisi additur, and alternative motion for a new trial.

The Court of Appeals reversed. It held the jury's failure to award any damages was facially inconsistent with its assessment of liability. The Court held that, upon request, the trial court should have resubmitted the matter to the jury with instructions to either assess a definite dollar amount in damages for the plaintiff, or find in favor of the defendant.

ISSUE

Did the Court of Appeals err in finding the verdicts inconsistent?

DISCUSSION

In Johnson v. Phillips, 315 S.C. 407, 433 S.E.2d 895 (Ct.App.1993), the Court of Appeals held a verdict finding the defendant liable but awarding zero damages was inconsistent

342 S.C. 50

or incomplete.² This Court subsequently reversed Johnson to the extent it imposed a duty on the trial judge to reject such a verdict in the absence of an objection by either party. See Smith v. Phillips, 318 S.C. 453, 458 S.E.2d 427 (1995). However, we now hold that, when the issue is raised, a trial judge should resubmit a verdict assessing liability but awarding zero damages to the jury with instructions to either find for the defense or award some amount of damages

There is a split of authority as to the appropriate response to a verdict finding in the plaintiffs favor, but awarding zero or no damages. Many jurisdictions hold that a verdict assessing liability but awarding zero damages is an invalid or inconsistent verdict upon which judgment may not be entered. See Annotation, Verdict for Money Judgment which finds for Party for Ambiguous or No Amount, 49 ALR2d 1328, nn. 2-6 (1956 & 1999 Supp.). See also Joseph Ashley Parr, Berry v. Risdall: When Can We Amend the Verdict?, 44 S.D.L.Rev. 147, n. 46 (hereinafter Parr). See also Archer v. Grotzinger, 680 N.E.2d 886 (Ind.1997)(jury's award of zero damages inconsistent with allocation of fault and is properly rejected by trial court).

Other jurisdictions either find no inconsistency and enter judgment for the plaintiff with no damages, or construe the verdict as being for the defendant. Parr at 171, n. 47; see also Annotation, 49 A.L.R.2d 1328, nn. 7-8. Cases upholding such verdicts generally do so either on the premise that the plaintiff has failed to prove the proximate cause of his damages, or that the jury, in essence, intended a defense verdict. See Riggs v. Szymanski, 62 Mich.App. 610, 233 N.W.2d 670, 673 (1975) (proper view of plaintiff's verdict awarding no damages is that the plaintiff failed to prove proximate cause or

342 S.C. 51

any monetary loss); Royal Indemnity Co. v. Island Lake Tp. of Mahnomen, 177 Minn. 408, 225 N.W. 291 (1929) (plaintiff's verdict awarding damages "in the sum of none dollars" was in effect a defendant's verdict); Barnes v. Prince, 41 Ohio App.2d 244, 325 N.E.2d 252 (1974) (trial court should amend verdict to reflect jury's clear intent to find for the defendant where a jury returns a defective verdict awarding plaintiff no damages); Meenach v. Triple "E" Meats, Inc., 39 Wash.App. 635, 694 P.2d 1125 (1985) ("$0" damage award showed jury's clear intent to render a defense verdict); Haley v. Byers Transp. Co., 394 S.W.2d 412 (Mo.1965) (jury's verdict awarding no damages was really a defendant's verdict); Flynn v. Vancil, 41 Ill.2d 236, 242 N.E.2d 237 (1968)(where decedent was 2 week old...