Strange v. South Carolina Dept. of Highways and Public Transp., 23570

• Decision Date: 06 December 1991
• Docket Number: No. 23570,23570
• Citation: 414 S.E.2d 138,307 S.C. 161
• Court: South Carolina Supreme Court
• Parties: Tammi STRANGE and Jonnie Faye Hudson, Respondents, v. S.C. DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant. . Heard

Page 138

414 S.E.2d 138

307 S.C. 161

Tammi STRANGE and Jonnie Faye Hudson, Respondents, v. S.C. DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant.

No. 23570.

Supreme Court of South Carolina.

Heard Dec. 6, 1991.

Decided Feb. 10, 1992.

Susan P. McWilliams and Russell T. Burke, of Nexsen, Pruet, Jacobs & Pollard, Columbia, for appellant.

Clifford O. Koon and R. Bryan Barnes, of Sherrill and Rogers, P.A., Columbia, for respondents.

HARWELL, Chief Justice:

Appellant South Carolina Department of Highways and Public Transportation contends the trial judge committed a variety of errors when he presided over the trial of this personal injury lawsuit. We agree with several of appellant's assertions, and, accordingly, reverse and remand for a new trial.

I. FACTS

Respondents Tammi Strange and Jonnie Faye Hudson drove to a tavern one rainy night in order to use a telephone there. They traveled along an unpainted, ungraded secondary road covered with dark, new asphalt. On the way back home, respondents' automobile ran off the shoulder of the newly paved road, regained the pavement, skidded across to the other side of the road, and crashed into a telephone pole. Respondents both suffered multiple injuries. They brought an action against appellant and others alleging negligence in maintaining the road and in failing to warn that a dangerously low shoulder bordered the road. Appellant denied respondents' allegations, and pleaded a variety of defenses under the South Carolina Tort Claims Act. It also asserted that respondents were contributorily negligent, and assumed the risk of traversing what they knew to be a hazardous stretch of road.

Trial was held, and the jury returned a verdict for respondents. Appellant brought this appeal, alleging the trial judge erred (1) in denying appellant's motions for a directed verdict and judgment notwithstanding the verdict on the grounds that appellant is immune from liability under the South Carolina Tort Claims Act; (2) in his handling of expert testimony; (3) in denying appellant's motions for directed verdict and judgment notwithstanding the verdict because respondent Hudson was negligent as a matter of law; (4) in admitting or not admitting various proffers of evidence, including certain photographs and testimony; and (5) in refusing to charge jury instructions requested by appellant regarding assumption of the risk and cautioning the jury against comparing the respective negligence of each party.

II. DISCUSSION

A. EXPERT TESTIMONY

The qualification of an expert witness and the admissibility of his opinion are matters resting largely within the discretion of the trial judge. Manning v. City of Columbia, 297 S.C. 451, 377 S.E.2d 335 (1989). This Court will not disturb a ruling made pursuant to the trial judge's discretion absent an abuse of his discretion and a showing of prejudice to the party complaining. Id.

Appellant first asserts that the trial judge abused his discretion in qualifying respondents' expert witness as an accident reconstruction expert when respondents had not identified their witness as an expert in accident reconstruction prior to trial. We agree.

The trial judge initially qualified respondents' expert as an expert in the field of traffic engineering and geometric design. During direct examination, respondents' attorney began questioning the expert witness regarding his opinion as to the cause of the accident. Appellant objected on the grounds that such an opinion would call for expertise in the area of accident reconstruction, and that respondents had not identified their witness as an expert in the field of accident reconstruction. The trial judge nevertheless qualified respondents' expert witness as an expert in accident reconstruction and allowed him to offer his opinions regarding the cause of the accident.

We find that appellant was unfairly surprised by the qualification, and was denied the opportunity to adequately prepare for cross-examination of the expert as to his opinions regarding the cause of the accident. Thus, we hold that the trial judge abused his discretion in qualifying respondents' expert as an expert in the field of accident reconstruction.

Appellant next contends that the trial judge abused his discretion in allowing respondents' expert to render an opinion regarding the ultimate issue in the case while denying appellant's expert the opportunity to render his opinion on the ultimate issue in the case. We agree.

During respondents' case-in-chief, respondents' expert gave his opinion regarding the ultimate issue in the case, the parties' negligence. Appellant similarly presented expert testimony during the defense phase of the trial. When appellant's counsel inquired of its expert witness whether he had formulated an opinion regarding the ultimate issue of the parties' negligence, however, the trial judge refused to allow appellant's expert to render his opinion on the grounds that the facts were disputed, the testimony was in variance, and it would be confusing to the jury to hear an opinion from another expert witness.

It is the duty of the jury to weigh conflicting evidence. Jones v. Grissett, 258 S.C. 22, 186 S.E.2d 829 (1972). Appellant was prohibited from contradicting respondents' expert witness's opinion on the ultimate issue through the use of its expert witness. Cf. Bramlette v. Charter-Medical-Columbia, ...