Youmans v. Dept. of Transp., 4437.

Decision Date24 September 2008
Docket NumberNo. 4437.,4437.
CourtSouth Carolina Court of Appeals
PartiesAngela YOUMANS as Personal Representative of the Estate of Deonte ELMORE, Appellant, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent.

Robert N. Hill, of Newberry, and Mark B. Tinsley, of Allendale, for Appellant.

Marshall H. Waldron, Jr., of Bluffton, for Respondent.

ANDERSON, J.:

Deonte Elmore was killed after his car skidded off a wet road and flipped in the median. His mother, Angela Youmans, initiated wrongful death and survival actions against the South Carolina Department of Transportation (DOT) alleging it was negligent in failing to maintain the highway to avoid rutting and not properly maintaining the median's slope. A jury awarded Youmans nine million dollars on the wrongful death claim and two million dollars for the survival action. The circuit judge reduced the judgment by the South Carolina Tort Claims Act caps. Ten months later, the circuit judge granted a new trial pursuant to the thirteenth juror doctrine in an order stating justice had not prevailed due to (1) the brief jury deliberations and (2) because there was "no evidence to support the jury's determination that Deonte was not negligent at all in losing control of his car." We reverse.

FACTUAL/PROCEDURAL BACKGROUND

On October 17, 2003, Deonte Elmore was the driver and sole occupant in a single-vehicle rollover accident on Highway 301, in Allendale County. The sixteen year old high-school student did not survive.

After attending a football game, Deonte dropped off a friend and began to drive home in his Honda Accord. His mother, Angela Youmans, was returning home after the game and saw her son's car at a stop sign. She called Deonte on his cell phone and discovered he was going the same way. Deonte followed behind his mother, but Youmans drove faster and lost sight of his lights after going around a curve.

Behind Deonte on Highway 301 was Willie Elmore (Elmore), a distant relative who knew Youmans but did not know Deonte at the time. Elmore testified Deonte was traveling without apparent problems in the right, "slow" lane at approximately forty-five to fifty miles per hour. The posted speed limit in the area is sixty miles per hour. After easing past Deonte, Elmore heard a bang and looked in his rear view mirror to see lights "flashing up." The Honda had left the highway, entered the median, and flipped a number of times. Elmore turned around, returned to the site, and found a moaning Deonte lying in the road. Youmans, meanwhile, arrived at her house, heard the loud noise, and became nervous thinking Deonte had enough time to arrive. Unable to reach him on his cell phone, Youmans backtracked down the road until she came upon the scene.

In May 2004, Youmans filed wrongful death and survival actions against DOT. In the complaint, Youmans alleged Highway 301 was severely rutted and Deonte lost control due to water pooled from the evening's rain. Additionally, Youmans asserted a dramatic drop-off in the median caused the Honda to roll. She claimed DOT was negligent for failing to maintain the roadway and the median's slope. DOT answered with a general denial, asserted immunities under the South Carolina Tort Claims Act, and pled the defense of comparative negligence.

The actions were consolidated for trial. Past and present DOT engineers asseverated DOT's duties to (1) inspect and cure any roads pooling water; (2) maintain median slopes to design specifications; and (3) the importance of a median's slope angle in allowing a stray driver to recover and avoid rollovers; Lorraine Williams, the current Resident Maintenance Engineer for Allendale County, admitted the median slope where Deonte wrecked deviated from the specifications. The DOT employees stated they had received no reports or complaints concerning the stretch of Highway 301 at issue. Elmore, who lives in the area, testified it had been raining the night of the wreck. He knew the road to hold water and, at the time of the accident, he said it held "enough to make a car sway." The friend who Deonte had dropped off prior to the wreck told the court Deonte always wore a seat belt, wore a seat belt that evening, and did not use drugs or alcohol. Youmans called an expert in accident reconstruction whose studies indicated the median's slope caused the car to bottom out and contributed to the rollover's severity. He estimated Deonte left the road traveling at forty-seven miles per hour. Although he could not state conclusively Deonte hydroplaned, he reported finding depressions on the road capable of collecting enough water to create the hazard. Officer James Oliver Freeman of the Allendale County Sheriff's Office was a responder to the crash site. He testified that when he arrived there was water "laying still on top of the road."

DOT called Allendale County Fire Chief Rodney Brett Stanley, Jr., who traveled on Highway 301 when responding to the accident. He did not remember water on the roadway that particular evening, but admitted on cross examination the road holds water at times. Donald Roberts, an expert called by DOT, contended the slope of the road would not allow standing water. Roberts stated "I wasn't able to determine why the vehicle lost control. I was able to rule out the road as being a cause."

At the end of the evidence, Youmans' motion for a directed verdict on DOT's comparative negligence defense was overruled. The trial court denied DOT's motions for directed verdict on the liability issue. The jury was charged on comparative negligence, including Deonte's duties to keep a proper lookout, drive at a reasonable speed, avoid collisions, and use due care. A five question verdict form to be filled out by the jury was explained by the judge.

At 3:45 PM on June 8, 2006, the jury was sent out to begin deliberations. Shortly thereafter, the forelady submitted a request for a copy of descriptions the trial judge had read concerning grief and sorrow, loss of companionship, and mental shock. The jury returned with a verdict at 4:45 PM. On the verdict form, the jury indicated DOT was negligent and this negligence was the proximate cause of Deonte's injuries. In response to the question asking if Deonte was negligent and whether the negligence was the proximate cause of his injuries, the jury answered "No." Damages for the wrongful death action were awarded in the amount of nine million dollars and two million dollars on the survival claim.

Immediately following the jury's discharge, the circuit judge asked if there would be any motions to which the parties responded affirmatively. DOT's motion for judgment notwithstanding the verdict was denied. The judge asked DOT if they were going to move for a remittitur and a new trial to which DOT answered "Yes". When court resumed the next morning, arguments on the motions were heard. At the conclusion, the motion for a new trial absolute was denied with the judge explaining the verdict was not so excessive to shock the conscience of the court. He told the parties he would take under advisement the question of a new trial under the thirteenth juror doctrine and get a ruling out "as soon as I can." Later that day, the judgment was entered on a form that explained:

The jury returned verdicts of $2,000,000 on the survival claim, and $9,000,000 on the wrongful death claim. Because judgments must be entered at the statute cap of $300,000 each, the parties agree it is not necessary to rule on the Defendant's motion for a new trial nisi remittitur. I find the amount of the verdict, while very generous, is not so grossly excessive that it shocks the conscience of the Court, and so I deny the motion for a new trial absolute. I am taking the motion for a new trial under the 13th juror doctrine under advisement. In the meantime, judgment shall be entered in each case in favor of the plaintiff for $300,000.

Nearly ten months later, in an order dated April 10, 2007, the circuit judge granted DOT's motion for a new trial under the thirteenth juror doctrine. The judge reiterated that DOT had moved for a new trial absolute, new trial nisi, and a new trial under the thirteenth juror doctrine. He agreed with DOT that no evidence supported the jury's determination that Deonte was free of negligence. However, the order most heavily relied upon the judge's conclusion the jury could not have given the case full deliberation in forty minutes. Thus, he determined "justice has not prevailed."

ISSUE

Did the circuit court judge err in granting DOT a new trial under the thirteenth juror doctrine due to the length of the jury's deliberations?

STANDARD OF REVIEW

"Upon review, a trial judge's order granting or denying a new trial will be upheld unless the order is `wholly unsupported by the evidence, or the conclusion reached was controlled by an error of law.'" Norton v. Norfolk S. Ry. Co., 350 S.C. 473, 479, 567 S.E.2d 851, 854 (2002); Folkens v. Hunt, 300 S.C. 251, 254-55, 387 S.E.2d 265, 267 (1990); S.C. State Hwy. Dep't v. Clarkson, 267 S.C. 121, 126, 226 S.E.2d 696, 697 (1976); Vinson v. Hartley, 324 S.C. 389, 403, 477 S.E.2d 715, 722 (Ct.App.1996); Sorin Equip. Co., Inc. v. The Firm, Inc., 323 S.C. 359, 364, 474 S.E.2d 819, 822 (Ct.App.1996). This Court's "review is limited to consideration of whether evidence exists to support the trial court's order." Folkens, 300 S.C. at 255, 387 S.E.2d at 267; Vinson, 324 S.C. at 403, 477 S.E.2d at 722. "As long as there is conflicting evidence this Court has held the trial judge's grant of a new trial will not be disturbed." Norton, 350 S.C. at 479, 567 S.E.2d at 854. Further, in an appeal of an order granting a new trial pursuant to the thirteenth juror doctrine, the appellant "bears the heavy burden of demonstrating to the court that it clearly appeared that the judge's exercise of discretion was controlled by a manifest error of...

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