Trivelas v. Dept. of Transp.

• Decision Date: 02 February 2004
• Docket Number: No. 3739.,3739.
• Citation: 593 S.E.2d 504,357 S.C. 545
• Parties: Nicholas N. TRIVELAS and Peggy Trivelas, Respondents, v. SOUTH CAROLINA DEPT. OF TRANSPORTATION, Appellant.
• Court: South Carolina Court of Appeals

357 S.C. 545

593 S.E.2d 504

Nicholas N. TRIVELAS and Peggy Trivelas, Respondents, v. SOUTH CAROLINA DEPT. OF TRANSPORTATION, Appellant.

No. 3739.

Court of Appeals of South Carolina.

Heard November 4, 2003.

Decided February 2, 2004.

Rehearing Denied March 18, 2004.

William H. Davidson II, Andrew F. Lindemann and James M. Davis, Jr., all of Columbia, for Appellant.

Leigh James Leventis, and Richard A. Harpootlian, both of Columbia, for Respondents.

HOWARD, J.:

Nicholas and Peggy Trivelas brought this action against the South Carolina Department of Transportation ("DOT") for damages arising from an automobile collision involving a DOT truck. The case was tried before a jury, resulting in a verdict for DOT. DOT appeals the circuit court's grant of a new trial absolute to the Trivelases, arguing the circuit court erred because: 1) as a matter of law, Trivelas was more than fifty percent negligent, and thus, the Trivelases should be barred from recovery by the doctrine of comparative negligence; 2) the court applied the incorrect legal standard for granting a new trial absolute based on the thirteenth juror doctrine; and 3) it failed to consider explanatory and excusatory circumstances while sitting as the thirteenth juror. We affirm.

FACTS/PROCEDURAL HISTORY

A truck hauling lumber in an easterly direction on Interstate 20 spilled its load in the roadway, blocking the eastbound lanes of traffic. In response to a request from police, DOT dispatched a dump truck pulling a trailer and backhoe to assist with the cleanup.

The dump truck approached the spill from the inside, westbound lane of traffic and attempted to cross the median at the location of the spill. In order to do so, the dump truck slowed to approximately ten miles per hour. The dump truck did not have emergency signals or lights and did not cross the median in an area designated for turning.

At the same time, Nicholas Trivelas drove his van in the westbound lane of Interstate 20, and when DOT's dump truck slowed to turn, Trivelas' car collided with the dump truck and trailer. Trivelas sustained severe personal injuries, as well as property damage.

Thereafter, Nicholas Trivelas sued DOT for negligence, and Peggy Trivelas sued DOT for loss of consortium. Prior to trial, the Trivelases moved for partial summary judgment on the issue of negligence, asserting that under any view of the facts, DOT was negligent as a matter of law pursuant to South Carolina Code Annotated sections 56-5-1560(a) (Supp.2002)¹ and 56-5-1920 (1991).²

The circuit court granted the Trivelases' motion for partial summary judgment, holding by any view of the evidence, DOT was negligent as a matter of law. On appeal, this Court reversed and remanded,³ ruling that in a light most favorable to DOT, evidence existed within the record by which the jury could find DOT was acting under explanatory or excusatory circumstances, and thus, a violation of the statutes was not negligence as a matter of law.

On remand, the case was tried to a jury. At the close of the trial, DOT moved for a directed verdict, arguing under any view of the evidence, Nicholas Trivelas' negligence was greater than DOT's negligence, and thus, the Trivelases' claims were barred by the doctrine of comparative negligence. The circuit court denied the motion.

DOT then requested the circuit court charge the jury that explanatory and excusatory circumstances could justify operating the DOT truck in derogation of the aforementioned statutes. The circuit court declined, ruling explanatory or excusatory circumstances did not apply to the facts of the case.

Subsequently, the jury returned a verdict in favor of DOT, and the Trivelases moved for a new trial absolute, arguing the evidence presented did not sustain the jury verdict. The circuit court agreed and granted the motion pursuant to the thirteenth juror doctrine. DOT appeals.

LAW/ANALYSIS

I. Comparative Negligence

DOT argues the circuit court erred by granting a new trial absolute pursuant to the thirteenth juror doctrine because, as asserted in its motion for directed verdict, a reasonable jury could not find Trivelas was less than fifty-one percent negligent. Thus, DOT contends the Trivelases claims were barred by the doctrine of comparative negligence. We disagree.

Under the comparative negligence doctrine, a plaintiff may only recover damages if his own negligence is not greater than that of the defendant. Thomasko v. Poole, 349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002); Bloom v. Ravoira, 339 S.C. 417, 422, 529 S.E.2d 710, 712-13 (2000). Generally, under a less than or equal to comparative negligence rule, determination of respective degrees of negligence attributable to the plaintiff and the defendant presents a question of fact for the jury, at least where conflicting inferences may be drawn. Brown v. Smalls, 325 S.C. 547, 559, 481 S.E.2d 444, 451 (Ct.App.1997); see also Creech v. South Carolina Wildlife and Marine Res. Dept., 328 S.C. 24, 32, 491 S.E.2d 571, 575 (1997)

(holding comparison of a plaintiffs negligence with that of the defendant is a question of fact for the jury to decide).

In a comparative negligence case, the trial court should only determine judgment as a matter of law if the sole reasonable inference which may be drawn from the evidence is that the plaintiffs negligence exceeded fifty percent. Bloom, 339 S.C. at 422, 529 S.E.2d at 713.

In a light most favorable to the Trivelases, the evidence within the record indicates Trivelas was traveling westbound on Interstate 20, during rush hour, at approximately sixty-five miles per hour. There is no indication Trivelas was speeding. Rather, the evidence indicates Trivelas was within the flow of traffic traveling at the posted speed limit.

According to Trivelas, he noticed a brown van immediately in front of his vehicle. The van appeared to be a van he once owned, and for several seconds, Trivelas attempted to determine if the van was his old van. Trivelas determined it was not his old van.

Thereafter, the van abruptly switched from the left lane to the right lane, and, for the first time having an unobstructed view of the road in front of him, Trivelas saw the DOT dump truck and trailer attempting to cross the median of the Interstate, without emergency signals or lights, in a nondesignated area. Trivelas applied his brakes but was unable to stop his vehicle before it collided with the dump truck and trailer.

Trivelas testified he was traveling at a safe distance from the van at all times, and he could not see past the van until the van moved from the left to the right lane. Additionally both Trivelas and an accident reconstructionist testified Trivelas could not have done anything to avoid the accident. A human factors analyst also testified people in Trivelas situation would not have sufficient time to react and avoid the accident. However, if the dump truck had been using emergency signals or lights, Trivelas would have had more time to analyze the situation and perhaps avoid the accident.

Viewing the evidence in the record in a light most favorable to Trivelas, we do not believe the sole reasonable inference was that Trivelas was more than fifty percent negligent. See Bloom, 339 S.C. at 422,

529 S.E.2d at 713 (In a comparative negligence case, the trial court should only determine judgment as a matter of law if the sole reasonable inference which may be drawn from the evidence is that the plaintiffs negligence exceeded fifty percent.). Rather, the jury could reasonably have found the accident was predominantly caused by the actions of DOTs dump truck driver. Thus, we hold the evidence was conflicting on this point, providing a legal basis for the circuit courts grant of a new trial absolute pursuant to the thirteenth juror doctrine.

II. The Thirteenth Juror Doctrine

DOT argues the circuit court erred by granting a new trial pursuant to the thirteenth juror doctrine because the circuit court applied an incorrect legal standard. We disagree.

South Carolina's thirteenth juror doctrine allows the circuit court judge to grant a new trial absolute when the judge finds the evidence does not justify the verdict. Norton v. Norfolk S. Ry. Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002).

During the hearing on the motion for a new trial absolute, the circuit court stated,

AS CHIEF JUSTICE TOAL WROTE IN THE BAILEY V. PEACOCK CASE, WHICH WAS TRIED HERE IN AIKEN COUNTY CIRCUIT COURT, AND I QUOTE, `THE THIRTEENTH JUROR DOCTRINE IS A VEHCLE BY WHICH THE TRIAL COURT MAY GRANT A NEW TRIAL ABSOLUTE WHEN HE FINDS THE EVDENCE DOES NOT JUSTIFY THE VERDICT,' AND THEY CITE FOLKENS V. HUNT. THE COURT IS CONVINCED THAT THE EVIDENCE DID NOT JUSTIFY

THE VERDICT AND THE COURT DOES GRANT A NEW TRIAL ABSOLUTE IN THIS CASE.

(emphasis in original). Furthermore, the circuit court's subsequent order states in pertinent part:

In view of the facts introduced at trial, and after due consideration of all factual evidence and testimony offered at trial, this Court is of the opinion that conflicting evidence was presented on the issues of liability and, therefore, evidence existed from which the jury might reasonably have inferred that the Plaintiffs' injuries were proximately caused by the negligence of the Defendant. THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that,

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