772 S.E.2d 544
S.C. Ct. App.2015Background
- On Aug. 7, 2009, Michael Valenzuela swerved and dumped his motorcycle to avoid a 73,000‑lb pan (scraper) operated by Sam English Grading, Inc. (the Company); his passenger Christie died and Michael was injured. The pan did not enter the roadway but turned sharply and knocked down a stop sign at the private driveway to Owens Corning.
- The Company repeatedly crossed the public road with the pan while collecting Corning’s debris; evidence showed crossings occurred frequently and without consistent flagmen or advance warning signs.
- Plaintiff (Paige Weeks Johnson, as personal representative) sued for negligence, alleging the Company failed to provide warning signs/flagman and created a foreseeable hazard. The jury found the Company 65% at fault and Michael 35%, awarding $2.9M in actual damages; punitive damages were submitted but not awarded.
- At trial the court admitted (over Company objection) a 1984 contract between the Company and Corning (and testimony about a 2009 addendum) requiring flagmen and advance warning signs, and allowed multiple witnesses to testify about prior near‑incidents at the same intersection.
- The Company moved for directed verdict/JNOV (arguing Michael’s negligence was sole cause and the driver was not negligent); motions denied. The Company also objected to an Allen charge the court gave when jurors asked about declaring a hung jury.
- The Court of Appeals affirmed, rejecting the Company’s challenges to evidence admission, denial of directed verdict/JNOV (arguments deemed abandoned), the Allen charge, and other preserved/non‑preserved grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Corning–Company contract | Contract shows Company agreed to flagmen/warning signs and that such measures were for public safety, making failure foreseeable | Contract was private, expired, and irrelevant to plaintiff/should be excluded | Admitted: contract relevant to foreseeability and safety; same requirements in current contract; no prejudice shown |
| Admission of testimony about prior similar incidents | Prior near‑misses (same equipment/driver/spotter) show continuing hazardous practice, notice, foreseeability, and support punitive‑damage factors | Testimony is propensity/evidence of other acts and improperly prejudicial/cumulative | Admitted: prior incidents substantially similar and probative of knowledge/foreseeability and relevant to punitive‑damage considerations |
| Directed verdict / JNOV | Plaintiff presented sufficient evidence for jury on negligence and proximate cause | Defendant contends only Michael was negligent and that improperly admitted evidence was essential to plaintiff’s case | Not granted: defendant’s appellate arguments on these points were largely abandoned for lack of developed legal argument and/or not preserved in the record |
| Allen charge (deadlocked jury instruction) | Charge appropriately urged juror deliberation without coercion; court’s accommodations and timing were reasonable | Charge was coercive (court’s comments about staying late, ordering dinner, urging verdict) | Not coercive: read in context, timing and wording were acceptable under precedents; no reversible coercion found |
Key Cases Cited
- R & G Constr., Inc. v. Lowcountry Reg’l Transp. Auth., 348 S.C. 424 (Ct. App. 2000) (trial court has broad discretion on admission of evidence)
- Dorrell v. S.C. Dep’t of Transp., 361 S.C. 312 (2004) (tort liability may arise from contractual relationship; duty of care to foreseeable plaintiffs)
- Terlinde v. Neely, 275 S.C. 395 (1980) (foreseeability, not privity, is key to imposing tort liability from contractual obligations)
- Whaley v. CSX Transp., Inc., 362 S.C. 456 (2005) (admissibility of similar accidents requires showing substantial similarity and factual foundation)
- Burbach v. Investors Mgmt. Corp. Int’l, 326 S.C. 492 (Ct. App. 1997) (evidence of similar past conduct admissible for post‑trial punitive damage review)
- State v. Williams, 344 S.C. 260 (Ct. App. 2001) (Allen charge must be judged in context; judge may urge verdict but may not coerce)
- Buff v. S.C. Dep’t of Transp., 342 S.C. 416 (2000) (statutory limits on re‑sending a jury after a second no‑verdict; instruction context critical)
- Oconee Roller Mills, Inc. v. Spitzer, 300 S.C. 358 (Ct. App. 1990) (admission of prior escape incident held proper where similarities exist)