Tucker v. Doe
| Decision Date | 05 August 2015 |
| Docket Number | Appellate Case No. 2014–000134.,No. 5338.,5338. |
| Citation | 776 S.E.2d 121,413 S.C. 389 |
| Court | South Carolina Court of Appeals |
| Parties | Bobby Lee TUCKER, Sr., Respondent, v. John DOE, individually, and d/b/a Doe Trucking Company, Appellant. |
C. Mitchell Brown, William C. Wood, Jr., Michael J. Anzelmo, and Graham Ross Billings, all of Nelson Mullins Riley & Scarborough, LLP, of Columbia; and Thomas J. Keaveny II, of Charleston, for appellant.
Robert Norris Hill, of Law Office of Robert Hill, of Lexington, and William P. Hatfield, of Hatfield Temple, LLP, of Florence, for respondent.
John Doe, individually, and d/b/a Doe Trucking Company (collectively referred to as Doe), argues the circuit court erred in denying Doe's motions for directed verdict and judgment notwithstanding the verdict (JNOV) because (1) the sworn witness affidavit of Anthony Bernardo failed to satisfy the requirements of section 38–77–170(2) of the South Carolina Code (2015), (2) Respondent Bobby Lee Tucker, Sr. failed to present sufficient evidence to create a question of fact about whether an unknown vehicle proximately caused his accident by leaving an object in the road, and (3) the evidence of recklessness was insufficient to sustain an award of punitive damages. We affirm.
On April 30, 2010, at approximately 12:15 a.m., Tucker lost control of the tractor-trailer he was driving southbound on Interstate 95 (I–95) and struck a concrete column in the median of the highway. Tucker, a part-time truck driver, had been driving from Darlington, South Carolina, to deliver cars to Jacksonville, Florida. He testified he was driving in the right lane on cruise control at about sixty-eight miles per hour when the car in front of him braked and switched lanes. Because Tucker could not see what was ahead, he decided to follow the car and switch lanes; however, a passing car in the left lane prevented him from being able to switch. At that point, Tucker observed an object “that looked just like a cardboard box” lying in the right lane, approximately two feet from the center line. He was unable to avoid the object and the truck's left front rim struck it, causing him to lose control of the truck, which collided with a concrete column in the median of the road supporting an overpass.
According to Tucker, two men from New York stopped to assist him. One of those men was Bernardo, who submitted an affidavit (the Affidavit) attesting to the following, in pertinent part:
A paramedic, Billie Collins, assessed Tucker, who was stuck inside the crushed cab of the truck, and treated his injuries. Collins spoke to the two men who had stopped to help Tucker. They “didn't know exactly what had taken place but they saw the accident occur.” According to Collins, Tucker claimed “[h]e swerved to miss something that was on I–95 and hit the support [column].”
A highway patrolman, Bradley Suggs, arrived at the accident scene at 12:52 a.m. Suggs testified he did not notice any objects in the road at the crash site, and he was unaware at the time that Tucker had struck an object in the road. Later, Suggs was informed that another witness found an object near the crash site.
Albert Vereen arrived between 4:00 a.m. and 4:30 a.m. to tow the wrecked tractor-trailer. Vereen testified he “walked back down the roadway and noticed the skidmarks in the road, some seventy-five to a hundred feet back, and the skidmarks went kinda from the inside lane into an angle almost to the column, and then ten or fifteen feet to the right is when we noticed the block of metal.” The block, which Vereen estimated was “five or six hundred pounds,” was too heavy for two men to lift and had to be loaded into Vereen's trailer using a front-end loader. Vereen testified he had no doubt the crash resulted from Tucker striking the block and consequently losing control of his truck. At trial, Tucker identified the block as the object he hit and testified he had no doubt his truck struck the block.
During the trial, Tucker's expert, Roger Harris, identified the block as a steel bearing block, approximately eighteen inches square, eleven inches tall, and estimated to weigh 650 pounds. Harris, an expert in machine design, material science, metallurgy, and fracture analysis, also testified that marks in the road at the crash site were “consistent with something like [the bearing block] making contact and making that mark on the concrete.” He further explained the scrape marks on the bearing block were consistent with sliding down concrete. According to Harris, the damage on the inside rim of Tucker's left front tire was consistent with striking the block. Harris also stated that, in his estimation, the bearing block could have traveled “tens of feet” had it been struck by Tucker's tractor-trailer traveling at a speed of approximately seventy miles per hour.
Earlier that same night between 10:00 p.m. and 11:00 p.m., truck driver Donald Wilson noticed a blue freightliner truck at a truck stop at the junction of Highway 52 and I–95. Wilson also observed the freightliner turn onto I–95 South. The truck caught Wilson's attention because he had previously driven a blue freightliner. The freightliner's flatbed was loaded with pipes, rebar, and an object that “looked just like” the bearing block that was located near the crash site.
Wilson explained that the block was secured in the flatbed by a yellow nylon strap but did not have a chain going through the middle of the block, which he recognized “could be a problem.” He also stated Harris testified without objection that a single nylon strap running across the top of the bearing block would not be adequate to secure the block in the flatbed. He explained the block would easily overcome the strap as the truck accelerated to interstate speeds, and he stated maneuvering turns in the road would cause the object to move in the flatbed.
According to Gilbert George, a District Maintenance Engineer with the South Carolina Department of Transportation (SCDOT), it is not unusual for objects to fall off a flatbed truck. George also examined a picture of a mark in the road at the crash scene and testified the bearing block could have made the mark had it fallen from a flatbed. He further testified that, because the object weighed 650 pounds and was located in an area where pedestrian traffic is not permitted, he could only assume this object came to be on I–95 South by way of a vehicle.
Tucker filed this “John Doe” action on May 14, 2010, seeking actual damages, punitive damages, and costs from the operator of the unknown vehicle that allegedly carried the bearing block. Tucker's uninsured motorist insurance carriers answered the complaint on behalf of Doe.
On July 14, 2010, Tucker filed Bernardo's affidavit pursuant to the witness affidavit requirement of section 38–77–170(2) of the South Carolina Code (2015) for an accident caused by an unknown vehicle without physical contact. Because that affidavit did not include statutorily required language, on March 3, 2011, Tucker served a second affidavit that included the statutory language.1
The trial in this action began on April 15, 2013. Bernardo did not testify at trial, and no witness aside from Tucker testified to observing the accident. At the close of Tucker's case, Doe moved for a directed verdict based on Tucker's failure to (1) satisfy the affidavit requirements of section 38–77–170(2), (2) satisfy the plaintiff's burden of proof for negligence, and (3) present sufficient evidence such that the jury could consider punitive damages. Doe also moved for a directed verdict based on the defense of comparative negligence. The circuit court denied these motions at this point in the trial and again at the close of all of the evidence.
The jury returned a verdict in favor of Tucker and awarded him $2.5 million in actual damages and $2.5 million in punitive damages. Doe filed post-trial motions for JNOV, new trial absolute, and new trial nisi remittitur, and on December 16, 2013, the circuit court remitted the punitive damages award to $500,000 and denied the remaining motions. This appeal followed.
I. Did the circuit court err in denying Doe's motions for directed verdict and JNOV because Bernardo's sworn witness affidavit failed to satisfy the requirements of section 38–77–170(2) of the South Carolina Code (2015)?
II. Did the circuit court err in denying Doe's motions for directed verdict and JNOV because Tucker failed to present sufficient evidence to create a question of fact about whether an unknown vehicle proximately caused his accident by leaving an object in the road?
III. Did the circuit court err in denying Doe's JNOV motion as to punitive damages because the evidence of recklessness was insufficient?
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