Trivelas v. South Carolina Dept. of Transp., No. 3421.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON.
Citation558 S.E.2d 271,348 S.C. 125
Docket NumberNo. 3421.
Decision Date17 December 2001
PartiesNicholas N. TRIVELAS and Peggy Trivelas, Respondents, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION and E.H. Sistrunk Trucking, Inc., Defendants, of Whom, South Carolina Department of Transportation, is, Appellant.

348 S.C. 125
558 S.E.2d 271

Nicholas N. TRIVELAS and Peggy Trivelas, Respondents,
v.
SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION and E.H. Sistrunk Trucking, Inc., Defendants, of Whom, South Carolina Department of Transportation, is, Appellant

No. 3421.

Court of Appeals of South Carolina.

Heard November 13, 2001.

Decided December 17, 2001.


348 S.C. 128
Andrew F. Lindemann, William H. Davidson, II, and James M. Davis, Jr., all of Davidson, Morrison & Lindemann, of Columbia, for appellant

Richard A. Harpootlian and Robert G. Rikard, both of Richard A. Harpootlian, P.A.; and Leigh J. Leventis, all of Columbia, for respondents.

ANDERSON, Judge.

Nicholas Trivelas was injured in a motor vehicle accident involving a vehicle owned and operated by the South Carolina Department of Transportation ("DOT"). Trivelas and his wife, Peggy, filed this action against DOT, alleging damages resulting from the accident. The trial court granted partial summary judgment in favor of the plaintiffs. DOT appeals, asserting the trial court erred in finding DOT was negligent per se. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

On the afternoon of November 19, 1997, DOT was contacted to assist in clearing lumber that had fallen from a truck traveling on the eastbound lanes of Interstate 20 near mile marker three in Aiken County. David Monborne, a maintenance equipment operator and truck driver for DOT, was transporting a back-hoe to the scene of the lumber spill. Monborne was traveling on the westbound lane of Interstate 20 and driving a DOT dump truck pulling a trailer containing the back-hoe. The truck did not have a flasher or any special lights. A van driven by Trivelas struck the right corner of the DOT trailer as Monborne was turning into the median to approach the lumber spill on the east side of the interstate.

In his deposition, Monborne stated he moved into the left lane of traffic as he approached the lumber spill. Monborne then turned on his left-hand signal to indicate he was going to turn into the median. Monborne stated he "started slowing down real gradually" and slowed to less than ten miles per hour before turning into the median.

Trooper William Lynn was assisting with the lumber spill that afternoon and observed the traffic accident involving Trivelas and the DOT truck. Lynn stated the DOT truck's

348 S.C. 129
left turn signal was blinking as it turned into the median and that the truck was almost completely off the roadway when the van driven by Trivelas struck the right corner of the trailer. The trooper further stated that following the accident, he checked the DOT truck and all of the lights and blinkers on both the truck and trailer were working properly

Trooper Lynn spoke with Trivelas immediately after the accident. During his deposition, Trooper Lynn described his conversation with Trivelas:

He told me that he was traveling west bound, that as he approached the area he noticed the truck and all of the patrol cars on the east bound side of the road way, and that his attention was directed over there for a short time, and when he looked back the truck in front of him, which was the DOT truck, had slowed down sharply and he wasn't able to avoid an impact. They say [Trivelas] tried to brake and still hit it. I didn't really question him in depth, but that is basically what he told me.

The trooper additionally testified:

I feel like his attention was distracted to the other side of the roadway. He was watching the wrong thing—you know, we call it rubber necking[,] which we see everyday.
I feel like he was—his attention was transfixed on what was going on in the east bound lane and it—by the time he realized something was going on in front of him, it was too late for him to do anything other than just lock his brakes up and run into the back of the trailer.
From my standpoint as a trooper, his attention should have been in front of him to the traffic that was going on in front of him.

Additionally, DOT deposed Kendrick Richardson, an engineer who conducts accident reconstruction analysis. Richardson opined the "accident occurred as a direct result of Mr. Trivelas not behaving in an attentive manner when driving."

The plaintiffs commenced this negligence action against DOT and E.H. Sistrunk Trucking, Inc., the owner of the truck transporting the lumber. The case was scheduled for trial on August 28, 2000. On August 22, 2000, the plaintiffs filed a motion for partial summary judgment against DOT, asserting

348 S.C. 130
DOT was negligent as a matter of law. The motion for partial summary judgment was heard in chambers on August 24, 2000. On August 28, 2000, the trial court issued an order granting the plaintiffs' motion for partial summary judgment, finding that DOT's actions constituted negligence as a matter of law, or "negligence per se." The order also indicated that the trial court had considered the deposition transcripts of various witnesses and the deposition testimonies as presented in the arguments of counsel. This appeal follows

STANDARD OF REVIEW

Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; Green v. Cottrell, 346 S.C. 53, 550 S.E.2d 324 (Ct.App.2001), cert. pending; Bruce v. Durney, 341 S.C. 563, 534 S.E.2d 720 (Ct.App.2000); see also Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997) ("Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.").

Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Carolina Alliance for Fair Employment v. South Carolina Dep't of Labor, Licensing, and Regulation, 337 S.C. 476, 523 S.E.2d 795 (Ct.App.1999). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party opposing summary judgment. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct.App.1997).

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Brockbank v. Best Capital Corp., 341 S.C. 372, 534 S.E.2d 688 (2000); Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 511 S.E.2d 699 (Ct.App. 1999), affd, 341 S.C. 320, 534 S.E.2d 672 (2000). "Because it

348 S.C. 131
is a drastic remedy, summary judgment should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues." Carolina Alliance for Fair Employment, 337 S.C. at 485, 523 S.E.2d at 799.

An appellate court reviews the granting of summary judgment under the same standard applied by the trial court pursuant to Rule 56, SCRCP. Bray v. Marathon Corp., 347 S.C. 189, 553 S.E.2d 477 (Ct.App.2001), cert. pending; Brockbank, 341 S.C. at 378, 534 S.E.2d at 692; Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998); see also Estate of Cantrell, 302 S.C. 557, 559, 397 S.E.2d 777, 778 (Ct.App.1990) ("On appeal from summary judgment, the reviewing court must consider the facts and inferences in the light most favorable to the nonmoving party. The judgment may be affirmed only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.") (citations omitted).

LAW/ANALYSIS

I. Section 56-5-800

DOT contends S.C.Code Ann. § 56-5-800 shields it from liability for negligence as a matter of law for the incident arising out of the plaintiffs' cause of action. This statute provides that certain provisions of the Uniform Act Regulating Traffic on Highways "shall not apply to persons, motor vehicles and other equipment while actually engaged in work upon the highway but shall apply to such persons and vehicles when traveling to or from such work." S.C.Code Ann. § 56-5-800 (1991); see also Howard v. South Carolina Dep't of Highways, 343 S.C. 149, 154, 538 S.E.2d 291, 293 (Ct.App.2000) (stating § 56-5-800 "denies per se negligence to potential claimants[,] which forces them to prove negligence in the specific context of roadway repair operations").

We note there is no indication in the record DOT raised this argument to the Circuit Court. Furthermore, the trial judge did not address the issue in his summary judgment order. Additionally, DOT failed to raise this matter in any post-trial motion. Therefore, this issue is not preserved for appeal. See I'On v. Town of Mount Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000) (stating parties should raise all necessary issues

348 S.C. 132
and arguments to trial court and attempt to obtain a ruling); Townsend v. City of Dillon, 326 S.C. 244, 486 S.E.2d 95 (1997) (holding issues not ruled upon by the trial judge are not preserved for appellate review); Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d 122 (1991) (ruling issue was not preserved for appellate review where the trial court did not explicitly rule on the appellant's argument and the appellant made no Rule 59(e) motion to alter or amend the judgment); see also Jean Hoefer Toal, et al., Appellate Practice in South Carolina 65 (1999) (reciting the well settled rule that an appellate court will only rule upon issues that were properly preserved at the trial level).

II. Negligence Per Se

The Circuit Court ruled the driver of the DOT vehicle violated §§ 56-5-1560 and 56-5-1920, thus constituting negligence as a matter of law. DOT argues this ruling was in error. We agree.

A. Existence of Statutory Duty: Sections 56-5-1560 and 56-5-1920

Section 56-5-1560(a) states: "No person shall drive a motor vehicle at such a slow speed as to impede...

To continue reading

Request your trial
33 practice notes
  • Wogan v. Kunze, No. 4026.
    • United States
    • United States State Supreme Court of South Carolina
    • 26 Septiembre 2005
    ...Per Se Negligence per se is negligence arising from a defendant's violation of a statute. Trivelas v. South Carolina Dep't of Transp., 348 S.C. 125, 134, 558 S.E.2d 271, 275 (Ct.App.2001). In Rayfield v. South Carolina Department of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct.App.1988), we......
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • 9 Junio 2003
    ...initial burden of demonstrating the absence of a genuine issue of material fact. Trivelas v. South Carolina Dep't of Transp., 354 S.C. 660 348 S.C. 125, 130, 558 S.E.2d 271, 273 (Ct.App.2001). Once the party moving for summary judgment meets the initial burden of showing an absence of evide......
  • Jamison v. Ford Motor Co., No. 4220.
    • United States
    • Court of Appeals of South Carolina
    • 19 Marzo 2007
    ...in fact and legal cause. Bray v. Marathon Corp., 356 S.C. 111, 116-17, 588 S.E.2d 93, 95 (2003); Trivelas v. S.C. Dep't of Transp., 348 S.C. 125, 558 S.E.2d 271 (Ct.App.2001). Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence......
  • WILLIAMSBURG RURAL v. WILLIAMSBURG, No. 3707.
    • United States
    • Court of Appeals of South Carolina
    • 8 Diciembre 2003
    ...any material fact and that the moving party is entitled to a judgment as a matter of law.'" Trivelas v. South Carolina Dep't of Transp., 348 S.C. 125, 130, 558 S.E.2d 271, 273 (Ct.App.2001) (quoting Rule 56(c), SCRCP); see also Sauner v. Public Serv. Auth., 354 S.C. 397, 581 S.E.2d 161 (200......
  • Request a trial to view additional results
33 cases
  • Wogan v. Kunze, No. 4026.
    • United States
    • United States State Supreme Court of South Carolina
    • 26 Septiembre 2005
    ...Per Se Negligence per se is negligence arising from a defendant's violation of a statute. Trivelas v. South Carolina Dep't of Transp., 348 S.C. 125, 134, 558 S.E.2d 271, 275 (Ct.App.2001). In Rayfield v. South Carolina Department of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct.App.1988), we......
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • 9 Junio 2003
    ...initial burden of demonstrating the absence of a genuine issue of material fact. Trivelas v. South Carolina Dep't of Transp., 354 S.C. 660 348 S.C. 125, 130, 558 S.E.2d 271, 273 (Ct.App.2001). Once the party moving for summary judgment meets the initial burden of showing an absence of evide......
  • Jamison v. Ford Motor Co., No. 4220.
    • United States
    • Court of Appeals of South Carolina
    • 19 Marzo 2007
    ...in fact and legal cause. Bray v. Marathon Corp., 356 S.C. 111, 116-17, 588 S.E.2d 93, 95 (2003); Trivelas v. S.C. Dep't of Transp., 348 S.C. 125, 558 S.E.2d 271 (Ct.App.2001). Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence......
  • WILLIAMSBURG RURAL v. WILLIAMSBURG, No. 3707.
    • United States
    • Court of Appeals of South Carolina
    • 8 Diciembre 2003
    ...any material fact and that the moving party is entitled to a judgment as a matter of law.'" Trivelas v. South Carolina Dep't of Transp., 348 S.C. 125, 130, 558 S.E.2d 271, 273 (Ct.App.2001) (quoting Rule 56(c), SCRCP); see also Sauner v. Public Serv. Auth., 354 S.C. 397, 581 S.E.2d 161 (200......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT