*1 by two-year period for unfairly prejudiced will not be a ployer exposure. from the last date of filing begins is the date from which the day exposure hold the last in repetitive of limitations to run trauma case. begins statute hand, ruling this rule to the case at we reverse the Applying since he his claim that Claimant’s action is time-barred filed exposure. last date of The case is years within two his to address the merits of the remanded to the commissioner claim. AND REMANDED.
REVERSED JJ., TOAL, C.J., WALLER, BURNETT, PLEICONES, concur.
Heard 2002. Nov. Decided incapacity physical or the fraud doing or mental from so reason payable compensation be person. No shall deceit of some third or ninety days given after the occurrence within unless such notice death, to the excuse is made unless reasonable the accident giving such notice and the Commission for not satisfaction of prejudiced employer been has not is satisfied that Commission thereby. *3 Pike, D. White, Turner, E. and James Andrea M. Jane L.L.C., Columbia, for peti- Turner, Duff, Boykin, White & tioner. Perkins, and Cheryl F. Anders, Myers, L. Thad
James C. Associates, Anders, P.A. & C. Haynes, T. of James Tressa Columbia, respondents. for
Justice WALLER: to review the certiorari for a writ of granted petition We Richland/Lexington Elledge decision Appeals’ Court 473, (Ct.App.2000). Five, 534 S.E.2d 341 S.C. Dist. Sch. affirm.
FACTS 9, 1994, On nine-year-old December Ginger Sierra (Ginger) slipped piece and fell on a at Irmo Elementary School where she attended fourth grade. The playground equipment was a metal bar monkey device which upon; children walked it extended above the ground approximately fall, two feet. As a result of the Ginger broke her right leg. growth plate leg was significantly damaged, and Ginger eventually surgery underwent in both legs growth remove the plates.1 mother, Ginger and her Elledge Christine (collectively re- spondents), petitioner sued Richland/Lexington School District (the District) Five for negligence. A jury returned a verdict for the District. appeal, On the Court of Appeals reversed and remanded for a new trial. Elledge, supra. trial,
At James Shirley, the principal at Irmo Elementary 1990, since testified that shortly school, after he arrived at the he had concerns about the school’s playground. He was especially by concerned the lack of a fall surface height of some of the playground equipment. As to the monkey on, bar which Ginger Shirley fell stated that children had been walking on it and this was also a In concern. Shirley contacted Jim Mosteller who redesigned play- ground. As part renovations, of the monkey bar Ginger which on fell was modified Mosteller. Original-
ly, the monkey bar was higher and had a bench underneath it. part As of the performed modifications height feet, lowered from about four feet to two and the bench was removed. bar, On the modified students would walk it, or crawl across although there were no supports hand-held on the side. Shirley testified that he knew the children were walking across the apparatus after the modification.
Both of respondents’ playground safety experts testified was, that the bar in original form, its designed to develop children’s upper body strength. Archibald Hardy stated that piece this of equipment was known as “pull a and Removing growth plates legs prevents the in growth, both uneven but growth legs. Ginger’s also retards in the doctor testified that this procedure making have Ginger would the effect of shorter than she would have been. lie back and the children were to on the bench supposed slide” pull along apparatus. underneath the bars themselves the Hardy, original design the wasn’t for According “definitely to the metal were small for walking” rungs enough because were to “fairly children’s hands and slick.” modification up to “run on equipment encouraged jump the children it;” however, have top Hardy stated that children “shouldn’t Hardy, of it at who top been on all.” sold to and playing Irmo playground equipment Elementary, installed for had visited the on several occasions since playground on Shirley had to that all the older equipment recommended playground the “bulldozed.” be Bernheim, testi- respondents’ expert, similarly Steven other it fied about the and stated that “was not meant as equipment Bernheim, safe According a climber.” form, but in unsafe originally designed, as its modified it was hands, designed were originally because narrow bars for feet, not had been on the grit placed and no metal bars prevent slipping. generally
Bernheim that at Irmo stated in Elementary safety not meet the proper did standards however, industry. sought, specific Respondents introduce Safety regarding evidence the Consumer Product Commission (CPSC) guidelines safety for and the American (ASTM) play- for for Society Testing and Materials standards granted The trial District’s ground equipment. court trial, At respon- motion limine to exclude this evidence. to establishing this was relevant argued dents trial found law of care. The court the District’s common the evidence inadmissible because “adopted” on District and District had not “binding” way. them following evidence. Bernheim
Respondents proffered fell, Ginger the CPSC have when would testified in effect have standards were and would guidelines and ASTM playground equipment ... “any group utilizing applied He stated that use,” including school district. public for and are are distributed these Signifi- meetings. principals’ via superintendents’ schools District should have had cantly, opined Bernheim *5 policies procedures place for retrofitting existing equip- ment so that it complied with the guidelines. Furthermore, Bernheim believed the modified bar did not comply with guidelines the national because there were no handrails and no grit on the walking surface. According Bernheim, because Ginger’s injury getting involved caught an entrap- areas, ment between the ladder it was the type injury guidelines designed are to prevent. While Bernheim acknowl- edged industry that the standards were only, he they stated are what the playground equipment by.” “stands
Respondents also proffered testimony from the District’s coordinator, purchasing Joe Tommie, Tommie. According the District would specify its bids for purchasing new playground equipment the equipment must meet CPSC and ASTM standards. He stated: “That’s normally the standard we use to ensure that we purchase safe equipment.”2
On appeal, respondents argued the exclusion of this evi-
dence
prejudicial
was
error. The Court of Appeals agreed.
Stating that
standards,
of industry
customs,
“[e]vidence
practices is
highly
‘often
probative
defining
when
a standard
”
care,’
the Court of Appeals held the trial court erred excluding evidence of
the CPSC
and ASTM stan-
dards. Elledge,
477,
(citation
DISCUSSION that the court excluded argues correctly The District trial Specifi- the CPSC and ASTM standards evidence. the maintains failed to establish cally, respondents District by these were and school dis- accepted that used existing safety the of tricts South Carolina determine addition, In District that contends playground equipment. erred, if was not prejudicial. even the trial court the error disagree. in negligence, plain To a cause action a establish of (1) a care following duty elements: of prove tiff must three (2) of duty by breach that by plaintiff; owed defendant (3) omission; damage proximately and result negligent act or Ravoira, v. Bloom E.g., duty. from the of 339 S.C. ing breach (2000). 417, is relevant admissi 529 710 Evidence S.E.2d any fact tendency if it has make the existence of ble of the more of to the determination action consequence that is than it be without the evi probable less would probable 402, 401, well that SCRE. It is settled dence. Rules the trial rejection largely of is within admission and discretion, be of which will not court’s exercise sound E.g., an that absent of discretion. appeal disturbed on abuse 224, 234, Dep’t of Transp., 343 S.C. 540 Pike v. South Carolina (2000). 87, 92 S.E.2d respondents’ proffered
In evidence opinion, our to, of on, required first element and admissible relevant See respondents. District’s of care negligence —the Ravoira, 401, 402, supra; v. agree SCRE. We Bloom Rules the trial court was observation that Judge Chief Hearn’s with have District must belief under “the mistaken 186
adopted protocols these national such before evidence was 478, 341 Elledge, admissible.” S.C. at 534 at 291. S.E.2d As recognized Appeals, general Court of is industry safety rule of standards relevant to See, establishing negligence the standard of care in a case. 274, 116, 42 e.g., McComish v. N.J. 200 A.2d 120-21 DeSoi (1964) that construction (holding safety manuals and codes properly objective as admitted safe con struction); v. Kirkpatrick, Pa.Super. 590, Walheim 305 451 (1982) 1033, A.2d (holding safety 1034-35 standards re garding design trampolines, safe use of including standards, ASTM were admissible on the issue of the defen dants’ negligence, though even the defendants were unaware standards); Stone United W.Va. Eng’g, (1996) (no S.E.2d 453-55 error admit evidence of safety design standards for conveyors guarding even though the standards had not been imposed statute and did law”); Feld, have “the force see generally Daniel E. Annotation, Admissibility Evidence, on Issue Negli *7 gence, Codes or Safety Standards Issued or Sponsored by of of Association, Governmental Body Voluntary 58 A.L.R.3d (1974) (modern 154 trend is to safety admit codes on the issue of negligence). This kind of is admitted not law,” it because has force of “the but rather as “illustrative evidence of safety practices or rules generally prevailing in the industry.” at McComish A.2d DeSoi
Indeed, the District even this acknowledges general is the rule. Respondents’ expert, Bernheim, laid an adequate foun- dation for the admission these safety standards when he (1) they: stated in effect at time of Ginger’s the acci- (2) dent,3 applied and would have to any group using play- ground use, equipment public including a school district. for Thus, the Court Appeals correctly that held the trial court erred excluding evidence of guidelines the CPSC and ASTM standards. District, however, argues this evidence was inadmissi-
ble because not respondents did show school districts guidelines 3. Bernheim would have testified that the CPSC were first published applied in 1981 and ASTM standards to schools since at least 1993. guidelines regard the with to accepted or followed generally com- existing playground equipment.4 argument We find this District unavailing. the evidence showed the pletely Since new purchasing play- when guidelines followed the CPSC are equipment, general intended for ground includes the maintenance safety which logically existing playground equipment, contention that District’s safety existing did not to it on apply somehow It clear us that a simply public is untenable. is to equipment exactly entity play- to which the type public school should, do, be- safety guidelines Simply ground apply. District utilize the in 1994 with cause the did not it regard existing does not mean that should equipment have.5 issue of highly probative find this evidence is on the care. 401, 402, SCRE
defining District’s Rules (evidence if it any tendency is relevant has and admissible action make the existence of fact of to the consequence evidence); less it would be without the probable more or than applica- District Bemheim “refused discuss” the 4. The contends that equipment. existing tion of the CPSC and ASTMstandards to above, Bem- portrayal is an inaccurate of the record. As stated This regard existing equipment, heim would have testified that with place compliance policies should have with District had ensure Specifically, standards. we note the excluded following exchange: included Q. again regarding compliance for for exist- And the standards place ing playground equipment, have had in [the District] should procedures? policies and so, my professional yes. opinion, A. I think humble Nonetheless, made at makes much of a comment Bernheim District that, proffered testimony. his point stated later in his Bemheim requests purchases re- experience, equipment all for new guidelines and with CPSC quired that the conform context, whether this In when the District asked ASTMstandards. this equipment, replied: purchase of new Bernheim "For the was for new *8 Despite retrofitting.” Bernheim’s equipment. I don't want to discuss retrofitting, Bernheim had response he did want to discuss not duty to opinion regarding already as the District’s testified to his application to existing equipment of the standards maintain portion of Bem- existing equipment. cannot isolate this The District and, testimony pertinent testimony by doing, erase the so other heim’s respondents. by issue which was offered on this Indeed, 1997, guidelines July CPSC District has utilized the since playgrounds. its conjunction inspection with and maintenance of 188 (“Evidence 477,
see also S.C. at 534 at 290 Elledge, 341 S.E.2d standards, customs, of is ‘often practices highly ”) probative defining (quoting when a standard of care.’ 57A (1999)). § Negligence Consequently, Am.Jur.2d we hold excluding the trial court its discretion by abused this evi- dence.6
The argues District further error made the trial in prejudice court did not result to respondents. District contends that evidence was cumulative to the admitted testimony experts of respondents’ expert testimony excluding was limited to only by specific safety references disagree. standards. We objective safety
Evidence of
is generally
“in
expert testimony
offered
connection with
which identifies it
as
of
safety practices
illustrative evidence
rules generally
prevailing
industry,
in the
and as
provides support
such it
for
opinion
expert
concerning
proper
standard
DeSoi,
care.”
(emphasis added);
McComish v.
Respondents sought to introduce evidence of industry identify standards to and establish care owed the District respondents. According respondents’ to to ex pert, the modified bar not comply did with the guidelines. According to purchasing the District’s coordina tor, guidelines the District utilized the safety to ensure the dissent, adopting 6. The argument, respondents the District’s states did applied existing playground show that the equipment. to However, specifically because Bernheim that the testified equipment guidelines applied using any group playground equipment use, public specifically for we it testify find irrelevant that he did not existing "the applied equipment.” beyond dispute It is that Bernheim’s established that the were in effect accident, Ginger’s they public at the applied time of equipment, guidelines, would have schools had notice of the and the procedures guarantee District place compliance should have had Moreover, guidelines. with the testimony was admitted that the Dis- required trict comply guidelines. new with evidence, together, therefore believe this when taken establishes the guidelines applied existing equipment. *9 import expert’s of the evi- equipment purchases. The new that the same sought is to show Respondents dence clear. equipment, safe new purchase that were used to standards modify maintain the safely have been used to should and/or existing equipment.
Furthermore, an type this of evidence constitutes ob . enhanced the jective greatly standard and as such would have dis by respondents’ experts. offered We therefore opinions that the evidence would agree argument with the District’s testimony. One of the experts’ have been cumulative is to purposes industry provide main of standard evidence on what the stan support expert’s opinion applicable for an is, thus, merely dard of care the evidence is not cumula expert’s testimony. tive to the See id. addition, experts’ testimony
In we note that the bulk of the duty specific of of whereas the went to the element breach was intended to establish the evidence words, respondents’ In other while applicable duty care. equip- that the experts opinions were allowed to offer their industry’s guidelines ment did not conform with the this relates upon, primarily not meant to be walked demonstrating precisely a not to what the duty, to breach of at went objective duty of care was. Since the evidence issue on cause of negligence to a different element action— clearly the evidence cannot be considered versus breach — cumulative. excluding this we hold the trial court’s error
Accordingly, case. prejudiced respondents’ evidence
CONCLUSION industry safety stan- general rule is of care in a the standard is admissible to establish dards and ASTM evidence of CPSC negligence case. The have admitted sought respondents standards which contemplated by of evidence exactly type instant case is correctly held the Appeals this rule. The Court general the evi- excluding error in committed reversible trial court Therefore, Appeals’ opinion the Court of dence. AFFIRMED.
TOAL, C.J., PLEICONES, JJ., BURNETT and concur. MOORE, J., dissenting separate opinion. (dissenting): Justice MOORE I dissent because I respectfully disagree the Court *10 correctly the trial court Appeals found had committed revers- by excluding guidelines ible error evidence of the CPSC and (hereinafter collectively ASTM standards referred to as the guidelines). majority While the opinion and the decision of Appeals the Court of on guidelines focus whether the were (the adopted by Richland/Lexington School District Five Dis- trict), I believe this is an improper predicate upon which to ruling. base the appropriate question more is whether guidelines the are to the District’s existing play- applicable ground equipment.
Given that respondents present did not evidence guide the existing playground lines were applicable the equipment on the District’s the property, properly trial court disallowed regarding guidelines. evidence those While ex respondents’ Bernheim, pert, Steven testified the District should have had policies procedures regarding the existing equipment’s compliance to the guidelines, testified, Bernheim never nor contends, was it shown as majority opinion guidelines in fact applied existing playground equipment. merely Bernheim testified the District should proce have had in place dures for retrofitting existing equipment accor However, dance with guidelines. he not opine did that the guidelines applied existing playground equipment. Accord ingly, the trial court did not abuse its discretion when it Pike v. rejected See South Carolina proffered testimony. Transp., 343 Dep’t (2000) (admission S.C. 87 S.E.2d rejection testimony largely within trial court’s sound discretion, the exercise of which will not be disturbed on discretion). appeal absent abuse of that Further, even if the trial court had committed error by evidence, admitting respondents prejudiced by were not the alleged proffered error. The evidence was cumulative to testimony the admitted respondents’ experts. trial, At that, Bernheim testified according prac- the standards and industry, tices of the playground equipment] [the did not meet Further, proper safety equip- standards. the District’s Tommie, testified, purchasing ment Joe in bids for purchaser, new playground equipment, the District the new specified Therefore, equipment guidelines. specif- must meet the while admitted, regarding respon- ic evidence was not equipment dents were still able to show that the did not meet industry. the standards set equipment both other Additionally, respondents’ expert, Bernheim and Hardy, Archibald testified the bar was not meant be walked also he had recom- upon. Hardy testified that all Elementary principal mended to the Irmo School on the be Given older bulldozed. testimony, regarding the above additional information respondents’ would not have bolstered case further. majority opinion respondents prej-
While the contends were udiced the trial court’s decision because the bulk of the went to the element of breach of experts’ would have established the care, duty of able to applicable respondents present *11 applicable duty through care I Consequently, of Bernheim and Tommie as noted above. do persuasive why respondents not find this contention as to trial court error. prejudiced alleged reasons, I For the above stated would reverse the Court abuse its Appeals’ decision because the trial court did not by rejecting respondents’ proffered testimony. discretion
No. 25562. Supreme Court of South Carolina.
Heard Oct. 25, 2002. Decided Nov.