*1 nose, her and a friend her that Nobles broke that Sarvis told that he had beaten that Nobles admitted of Nobles testified if he out of her” “beat the devil in the and would past Sarvis disputed page the evidence in the could her. Because find cumulative, the trial was merely the Ask-a-Nurse records See, it. v. e.g. no State by excluding error judge committed (Ct. 1991). App. 305 S.C. 407 S.E. Galloway, reasons, the decision foregoing for the Accordingly, hereby trial court is
Affirmed. JJ., concur. Connor,
Cureton White, Josephine Washington, WASHINGTON, Annette Collette Charleston, Respondents Gregory WHITAKER and Appellants. (451 (2d) 894) Supreme Court 108] *3 Charleston, Kobrovsky, and
Jimmy Stuckey, Stuckey for appellants. Holmes, Firm and T. Goul- Steinberg Jay
J. Kevin Law Gouldon, Correspondents. don of and Stoney Charleston Columbia, Lide, Potts, D. Lide of and Montgomery Vinton curiae, amicus South Carolina Law for Enforcement Officers Ass’n. 16, 1994. Heard Feb. 18, 1995. 19, 1994; Dec. Reh. Den.
Decided Jan. Chandler, Acting Chief Justice: Whitaker) (Officer Whitaker The Gregory (City) jury Respon- Charleston a verdict awarded to appeal rights. dents for violations of their Fourth Amendment We affirm.
FACTS Respondent Josephine Washington lives at 37H Flood Lakeisha, Street with her Collette daughters, Col- lette’s children.
At approximately 16,1989, 11:00 on a team p.m., February City police officers, by Whitaker, led Officer and including officer, seven undercover and one officers uniformed con- ducted raid” at 37H Flood “drug Street. raid was made pursuant to a warrant authorizing search the premises and of any therein for person illegal drugs. Officer Whitaker obtained the warrant upon based his affidavit that he ob- served confidential enter on informant 37H two apartment occasions and purchase cocaine. The confidential informant told Officer he Whitaker that had from a purchased drugs black male named “Dean.”
On the night question, undercover officers knocked on the door of 37H and for asked Dean. From an win upstairs dow, Collette who Washington, was five months in pregnant, formed them that Dean next lived door.1She also threatened call the police. Josephine answered the front Washington door and the officers the apartment. entered They gathered into the room occupants living apartment, including Collette, Josephine, Collette’s friend Reginald Harley, Lakeisha, years old, Annette, who twelve and Annette’s nine-year-old daughter Jacquetta. Collette and both Annette had infant children left who were sleeping upstairs.
After the searched the no police apartment, illegal drugs nor evidence were found.2 Re drugs Notwithstanding, taken spondents individually were to the bathroom a fe male officer a strip They for search. were forced to disrobe movements, and perform including various over and bending *4 lifting their buttocks. It that alleged twelve-year-old was 1Josephine door, Collette that had and testified new tenants moved next in cluding Dean, people constantly knocking a that man named and were on asldng door their for Dean. “zip-lock” bags disagree A box of found in Collette’s bedroom. was We bags may drug dealing, with the Dissent that these be considered evidence of noteworthy drugs by pack- it that the to the sold informant “Dean” were aged glassine, plastic, Moreover, explained in bags. not she Collette used bags clothing. for her children’s lunches and for their wet Given the ex- household, “zip-lock” bags bags, and use tensive varied in the modern more, illegal drugs. without do not constitute evidence of the officers at and that was also searched strip
Lakeisha but, due to her mother’s Jacquetta search strip tempted For search.3 reasons pat-down was protestations, given she male record, present, Harley, only appearing narcotics were discov to a search. No strip not subjected was ered. action and against City then this instituted
Respondents4 Fourth Amendment violations Whitaker, alleging Officer § The re jury and 42 1983. Claims Act5 U.S.C. Tort follows: verdicts for as Respondents turned damages actual Josephine $1500 Washington: $5,000 and $75,000 City damages against punitive Whitaker; against Officer damages actual Washington: $1000 Collette $75,000 $5,000 and damages against City punitive Whitaker; against Officer damages $100 actual Annette White: $75,000 $5,000 City damages punitive against Officer Whitaker. City and Officer appeal. Whitaker
ISSUES verdict? 1. Was entitled to directed awards have stricken damages 2. been Should or set aside? of qualified Officer Whitaker entitled to defense
3. Was immunity? to a directed verdict?
4. Was Officer Whitaker entitled disqualified? have been 5. Should Juror Nesbit activity concerning Respondents’ drug 6. Was evidence neighborhood admissible? to a mistrial?
7. Were entitled Appellants questioned? Koontz Magistrate improperly 8. Was that a “search con- Charge 9. Was Appellants’ Request to be presumed ducted with valid search warrant refused? improperly both valid reasonable” 3Appellants dispute children searched. were verdicts, jury Jacquetta to reach In suits Lakeisha unable resulting in mistrials. seq. (Supp. 1992). et. 15-78-10, Code Ann.
113
DISCUSSION A. Directed Verdict City for City that it was entitled to a directed verdict on the argues § 42 U.S.C.A. 1983action. We disagree. §
42 U.S.C.A. 1983provides: who, statute, ordinance, under Every person any color of custom, or regulation, usage, any Territory of State or or Columbia, the District of subjects, or causes to be sub- citizen jected, any of the United States or other person the jurisdiction within thereof to the deprivation any or rights, privileges, immunities secured the Constitu- laws, tion and shall be in an party injured liable to the ac- law, tion at suit in or other equity, proper proceeding for redress.
The U.S. Court has held that local Supreme governing § bodies, City, such as are liable under 1983for consti tutional violations from the im arising government’s plementation policy or custom. Monell v. Soc. Serv. Dept. of (2d) N.Y., 658, 2018, 436 L.Ed. 611 City U.S. 98 S.Ct. 56 (1978). The must show that such or custom plaintiff policy amounted to a “deliberate indifference” to their constitutional Cincinnati, 469, 1292, 475 106 rights. Pembaur U.S. S.Ct. (2d) Smith, (1986); 227, 452 Toddv. 305 407 89 L.Ed. S.C. (2d) (1991). 644 The failure to train is actionable adequately Canton, Harris, 378, 489 1983. Ohio v. U.S. (1989). 1197, 103 L.Ed. S.Ct. that, in-
Here, submitted evidence where Respondents narcotics, City were suspected concealing dividuals notwithstand- practice strip searching, condoned the to how and when training its officers received no as ing police concern- Moreover, to conduct the no specific policy searches. searches was established. ing strip from this evidence jury’s province
It was the to determine failure to train or on City’s policy strip whether the establish Respon- “conscious indifference” to constituted searching the motion for Accordingly, Fourth Amendment rights. dents’ v. S.C. Wind- properly directed verdict was denied. Waites Assoc., 307 S.E. storm and Hail Under. (this
(1983) of the evi- weight not concerned with the Court is which the jury whether evidence from dence, but there *6 finding). a making is warranted Damages
B. Punitive (1) the for request punitive damages contends that: City pursuant from to complaint have been stricken should Concerts, Inc., v. 247, 101 Newport Fact 453 U.S. S.Ct. City of (2) (2d) (1981);6and punitive damage L.Ed. 616 2748, 69 were ex they unduly should have set aside since awards been disagree. We evidence. against weight cessive First, to the City any objection propriety waived trial, At City a against municipality. punitive damages for the 1983 action on the punitive motioned strike This was denied and of insufficient evidence. motion grounds damage charge. proposed punitive submitted City itself until Newport, supra, argued City was not cited or City of for made motion JNOV. courts, not this Court does recog-
Unlike federal Rather, it well settled “plain nize a error” rule. is to preserve must be made contemporaneous objection Bridgebuilders, v. Taylor for review. argument appellate (2d) (1980)(where Inc., 275 S.C. 236, 269 objection no S.E. 337 JNOV, for applicability to as to of statute until motion made Here, City failed to raise preserved). contempora issue to City to the objection punitive damages pursuant neous v. upon appeal. Talley and, do so Newport therefore, cannot Committee, Educ. Tuition Grants 483, 289 S.C. Higher S.C. (2d) (1986) (challenge constitutionality 99 of Act 347 S.E. barred). was procedurally rule that antiquated
In so we overrule the holding, and, jurisdictional is a bar accord- sovereign immunity v. Lowry cannot be waived. See Commissioners ingly, Fund, Ham- (1886); Sinking 416, 1 141 25 S.C. S.E. Bull, Medlin, 284 v. (1856); marskold v. Reed 9 Rich. S.C. 1985). (Ct. jurisdic- those App. join 328 S.E. We an affirmative sovereign immunity which hold that is tions Newport, supra, punitive 6City municipality that a is immune from holds damages. defense that be pled.7 must This accords with modern prece Court, dent of this holding subject matter jurisdiction ifmet the case brought the court which has the authority power to determine the action at See type issue. Dove — Kist, (1994). Inc., —, v. Gold
Second, the punitive damage award against was not unduly excessive or of the evi weight dence. The trial conducted a review posttrial pursuant Gamble Stevenson8 and determined that the award was appropriate given the facts of the We affirm case. his findings as to damages.9 Qualified Immunity
C. Officer Whitaker — Officer Whitaker contends he entitled to the defense qualified immunity. We disagree.
“[Gjovernment officials performing discretionary functions liability are shielded from for civil generally damages insofar their as conduct does not clearly violate established statutory or constitutional a rights which reasonable would person 800, have known.” v. Fitzgerald, 818, Harlow 457 U.S. 102 (2d) (1982). 2727, 2738, 396, S.Ct. 73 L.Ed. 410 also Cone See (2d) Nettles, (1992). 109, v. 308 417 Thus, S.E. 523 crux this issue whether Officer Whitaker violated Re- spondents’ “clearly established” Fourth Amendment rights, “the contours sufficiently light of which clear in of pre- [were] a existing law that official public reasonable would know that his actions the right.” violate Timberlake Timberlake v. by (M.D. 1992). Benton, Supp. 676, 786F. Tenn. 685 The Fourth Amendment of the United States Constitution be from guarantees citizens free unreasonable searches Antonio, (Tex. N.Y., (2d) 7See Davis v. v. 1988); San Rubino 752 518 S.W. (2d) (2d) App. 285, (1989, v. New Gauvin Dept.); 145 Div. 538 N.Y.S. 547 1st Haven, 180, (2d) (1982); Fitzpatrick Chicago, v. 187 445 A. Conn. 1 112 Ill. (2d) (2d) Chicago, 211, 419, 492 (1986); Morris v. 97 Ill. Dec. N.E. 1292 130 Ill. (3d) Dindedahl, (2d) App. 740, 77, (1985); Kolitch v. 86 Ill. Dec. 474 N.E. 1274 (2d) Evesham, 485, v. (1985); McShain Super. 100 N.J. 497 A. 183 163 N.J. (2d) Masloff, 522, 395 (2d) (1978); 522, 437 Swartz v. A. 251 62 Pa. Cmwlth. A. (2d) Cnty., (1981); 223, Maurer v. Oakland App. 472 201 Mich. 506 N.W. 261 (1993). (2d) (1991). 104,406 8 305S.C. 9 350 the Court’s Gamble review was argues Dissent as to insufficient argument trial, appellate Whitaker. This raised at in the Officer was not briefs, mero not reach it ex motu. argument or at will oral this Court. We 116 Amend- the Fourth overriding function of seizures. “The un- privacy dignity protect personal
ment tois v. Cal- State.” Schmerber State intrusion warranted (2d) 1834, 16 L.Ed. 757, 767, 86 384 U.S. S.Ct. ifornia, (1966). dehumanizing, undig- “demeaning, searches are Strip embarrass- nified, unpleasant, humiliating, terrifying, sub- signifying degradation ing, repulsive, [and] (2d) 1263, 723 F. Mary City Chicago, Beth G. v. mission.” (7th 1983) F. Wittke, Supp. [quoting Tinetti v. Cir. (7th (E.D. Cir. 1979), 620 F. 486, 491 Wis. affirmed 1980)]. setting in a necessary be custodial may searches Strip of privacy expectations an individual has decreased where However, be- security interest. legitimate has and the State must context, premised searches strip the custodial yond showing exigent circumstances. clear upon li- from not absolve officer A warrant search does Rather, the focus is whether ability under 1983. in a reasonable manner. Duncan was executed warrant (5th 1979). Barnes, Cir. 592F. Officer Here, demonstrate that following facts strip have known that the knew or should Whitaker and, unreasonable, vio- if reasonable search Amendment rights: lated Fourth Respondents’ Street, at their arrival 37H Flood Immediately upon 1. door; lived next told that Dean officers were named Dean was sus- 2. male individual Although only searched selling drugs, only the officers pected *8 present; women strip to the prior search was “pat performed
3. down” No search; no narcotics though ordered even strip
4. The search was in the search of were discovered or evidence thereof apartment; officer, as an ex- Grooms, testified ex-police
5. Steven the facts justified under strip that a search was pert case; of this Greenberg testified Police, Reuben
6. Charleston Chief or- record, he would not have that, the facts under search. strip dered
Although Officer Whitaker was acting the authority of a warrant, search he warrant, exceeded the of the scope he scope exceeded the of the warrant ordering strip searches after search of apartment no revealed evi narcotics, dence of or of the presence of Dean.10There were exigent no circumstances or probable cause such an justifying Duncan, intrusive search. supra; Hill v. McIntyre, 884 F. (6th 1989). Cir. affirm We the denial summary judgment qualified as to immunity. D. Directed Whitaker Verdict—Officer
OfficerWhitaker that, contends inasmuch as he did not con- duct the strip searches, he was entitled to a directed verdict. We disagree. § 1983,
Under supervisory liability may be established upon a showing the defendant implicitly autho- rized, approved knowingly or acquiesced to the strip Timberlake, search. There is supra. evidence of record that OfficerWhitaker supervised the execution theof warrant and that he ordered the searches. Accordingly, there was evi- from dence which the jury could find that Officer Whitaker was directly responsible for the strip searches. Directed ver- dict was correctly Waites, denied. supra.
E. Juror Nesbit On the third day trial, Juror Nesbit told trial judge that she had heard a radio news announcement case, concerning the summarized as follows: Juror: They said about the case was something being tried where the police they assume went to the wrong house something about Ms. White the daughter being searched. That’s all. strip All I remember is that the hearing being case was tried making about bust police drug and about Ms. white daughter and her being searched. That’s all strip heard. specific, critical, 10 Nowherein the Dissent is there citation the above of the evidence reasonableness the search. *9 118 it like it residence wrong that like
They said seemed they like that wrong something residence or was said. Juror motion to exclude Appellants’
The trial denied would “take ascertaining that she jury from the after Nesbit on the radio as if [she] mind what heard [she] out of [her] the court that she could be it.” advised never even heard She on solely the case and would decide juror a fair and impartial law. and the on the charge the evidence presented of the trial court determine It within the discretion infor juror’s reception of outside whether bias results from Wasson, 299 v. the case tried. State concerning being mation (2d) (2d) Jones, v. F. 508, (1989); 255 U.S. 907 386 S.C. S.E. (4th U.S., 1990), denied; 498 U.S. cert. Johnson 456 Cir. (2d) 675, denied,,498 683, rehearing 112 L.Ed. 1029,111 S.Ct. (1991). (2d) 1116, 1028, 112L.Ed. 1109 111S.Ct. U.S. stated, that she would Here, unequivocally, Juror Nesbit Ac- influence her decision. the radio broadcast to permit from the jury motion to remove Juror Nesbit cordingly, the was denied. properly
F. Drug Activity Evidence of “a drug activity” evidence of lot of contend that Appellants at where 37H is located relevant housing complex was reasonable. We Whitaker’s conduct prove Officer disagree. discretion
The of evidence within sound admission its will not be disturbed on ruling appeal the trial court and Clair, v. St. a clear of that discretion. absent abuse Hofer (1989). Evidence is relevant to make or less if it tends to establish or more admissible Id.; matter in issue. Associate probable Management, some Co., 219, 305 S.E. v. E.D. Const. 279 S.C. Inc. Sauls (1983). Respondents’ excluded. properly evidence was make
misfortune of crime area does not living high it nor does they drugs, it more deal probable their There was no abuse of dis- rights. constitutional lessen this exclusion of evidence. judge’s cretion the trial *10 G.Mistrial in Josephine Washington, testimony, reply mentioned that an insurance company had contacted her:
Q. Okay, after speaking with Mr. Goldberg did someone
from the—did someone contact to ask you you—from to ask you for a statement as what to had happened?
TheA. insurance company. well, Excuse me. It I was— know that someone call and talk to me at Mr. Gold- office.
berg Appellants argue that their motion for mistrial based on this testimony should have been granted since the mention of insurance an contributed to irrational award dam- punitive ages. We disagree.
The decision to declare a mistrial rests within the sound discretion the trial court and its ruling will not be reversed absent an abuse of that discretion. Where liability insurance has been at injected trial, the party complaining must establish prejudice. Tucker v. Reynolds, (1977) (where inadvertent defendant). mention of insurance not did prejudice Here, Josephine Washington’s mere mention of insur- anee intentional or calculated to influence the jury. jury was instructed to draw no infer- ences from the Further, whatsoever word “insurance.” award was to damage found be supported record. There was no abuse discretion. Magistrate
H. Koontz in Appellants contend that the trial erred allow- ing questioning line of following Magistrate Koontz, who issued search warrant: Q. Gregory Had Whitaker come to on your Court this
case said I buy one time made a of two one-hun- of a gram dredths cocaine or a confidential —we don’t know hewho is—two one-hundredths of a gram, and I in I want to there and want go house all the off strip clothes chil- grandmomma, daughter, house, dren in that would have... you that? you have allowed Q. Would have me all, Whitaker wouldn’t asked A. First of Mr. that, no, have. and, would not above, the of evidence within admission As stated will not dis- trial court and its finding discretion of the of that discretion. Evidence appeal on absent abuse turbed or make if it tends establish is relevant admissible Hofer, supra; some matter issue. probable more or less Management, supra. Assoc. questioned concerning was being Koontz
Magistrate *11 the warrant she to Officer Whitaker. Since issued scope of warrant scope Officer Whitaker exceeded whether in issue, allowing there was no abuse an ultimate was question.
I. Charge Jury jury given following that the requested Appellants charge: to be and presumed
A without a warrant is invalid search but a search conducted with valid search unreasonable and reasonable. warrant be both valid presumed it charge, holding applied refused agree. in criminal cases. We evidence suppression not case, here, In a civil as a search warrant does if the liability officers from civil shield manner. Gal- warrant was executed in an unreasonable (2d Hill, Holmes, 1983); F. Cir. supra. luccio v. in light charge must be read of the entire Jury instructions Lund, the facts of the case. Cox v. 286 S.C. 334 S.E. and (1985). here, were not en- the facts Appellants Under titled to the requested charge.
Affirmed. Moore, JJ., concur.
Finney, Toal and Justice, dissenting Associate Acting Littlejohn, Bruce separate opinion. (dissenting): Associate Justice Acting
Littlejohn, and respectfully dissent would reverse the judgment court trial as relates to both actual damages defendants, against both Officer Gregory Whitaker and the City Charleston.
The search warrant under which Officer Whitaker pro- to 37H valid, ceeded Flood Street I do was not under- stand counsel for the plaintiffs contend otherwise. That warrant authorized him to search only premises but any also “... their person and vehicles ex- present during the added.) ecution of warrant.” (Emphasis The warrant procured because a reliable informant gave the officer reason to seek a warrant search co- for caine.
Officer Whitaker and other male proceeded to officers search the premises downstairs and upstairs. They found no cocaine but found sandwich bags oftentimes used for dispens- ing cocaine products upstairs a bedroom. no Having found cocaine at the where places cocaine would normally be con- cealed, proceeded Officer Whitaker to look for cocaine on the person of the three herein. Inasmuch as the plaintiffs plain- female, tiffs are all he summoned female Officer Connolly who plaintiffs took the into a time, bathroom one at a them had disrobe, and them searched without invading bodily cav- ity. The search of a body cavity required medical person- nel. Officer used a Connolly flashlight drugs and searched for *12 at places those on plaintiffs’ might bodies which conceal co- caine or other drugs.
It the testimony of Chief Police Greenberg of Reuben that “.. . has experience shown me have person might people rings it—I’ve seen with items of narcotics or concealed in ears, hair, their in their their around their armpits, waist, butt, behind their the their behind toes of feet with their socks on and their shoes. their simply go To into pockets say would insufficient. the person really be would hadn’t * * * been searched. On some occasions have even swal- they lowed the items and it particular passed their bowels through or tried to retrieve it later through vomiting.” theory
The of the is that plaintiffs’ case Officer Whitaker perform directed female Officer to the search. is Connolly She defendant, not a party and the inference be only reasonable to drawn from the evidence is that performed strip she search ac- Was the then becomes: question
in manner. The a proper the under all of circum- tion Officer Whitaker reasonable of of the case. stances 10, the Carolina, I, and of Article
The Constitution South the forth in Fourth the United States as set of Constitution to secure in then- of be rights people declare the Amendment and search and effects unreasonable houses papers, seizure. the case, I hold that all the of this would facts
Under ac- In the whether determining was not unreasonable. search unreasonable, or we are reasonable officers police tions the problem the magnitude take into consideration must It is common is deal. designed with which action police entities, including governmental that all knowledge drug problems. are plagued by States government, United much multiplied the use thereof has drugs and supply courts, pris- of the capacity police, more than rapidly inescapable light It that in the deal it. ons to with executed, warrants that are issued multitude search reasons, will be found. occasionally nothing illegal for various not be drugs may are to conceal which dealers known Drug drugs to flush down commode found and have been known this. The fact them a Police officers know or toss out window. search is one of an might target unproductive that one be so, Even must searches prices pay citizenship. we for manner. carried out an unreasonable be had in the been found baggies If the sandwich/cocaine more kitchen, might plausible, of their use explanation in a not be bedroom normally would found bags but sandwich upstairs. us the con- in the record before to warrant nothing
There body the policy-making Whitaker or clusion either Officer acted deliberate indifference City for the of Charleston with hand, it is de- easily of the On the other rights plaintiffs. Whitaker that both the of Charleston and Officer tected drug problems to deal with attempting and his associates were difficultyconstantly. escalating difficult handle he rea- drugs did not find had Officer Whitaker When sought he to find premises, on the next son to believe were *13 him look—that is to the warrant to permitted them where be- The warrant did not differentiate persons. search tween search of and It clothing strip searching. authorized a of persons. search Officer had
While Whitaker substantial training prepare work, him for his we must mind keep police officers make lawyers mistakes same as The officer judges. must act attorney without the benefit of train- promptly are ing. They have, not or do not lawyers judges. They as do cool judges, reflection, deliberation, benefit of and re- search air-conditioned comfort where time is not of the It would folly essence. be have Officer required Whitaker back to the go magistrate procure additional war- interim, rant search. In if authorizing strip were drugs area, in the have been they destroyed. would aWhen search warrant illicit sought for contraband the officer never knows in advance drugs, whether a strip will search or will not desirable. The reasonableness of a search must be determined in the strip observations light premises. on the are Strip illegal per searches not se.
There was on discretionary involved action part Offi- Whitaker, cer and the fact that other officers might not have the search in the same pursued way is not controlling. Batson, the often
In case of quoted McCall v. 285 S.C. (1985) sovereign abolishing immunity, this (later Court, speaking Associate through Justice Chief Jus- tice) Ness, said: aptly
We hold the of the rule abrogation will extend to leg- islative, judicial and executive acts by acting individuals in their official These capacity. discretionary activities cannot be threat by liability controlled of tort mem- by bers of the who take issue with the public decisions made We public expressly officials. decline to allow tort lia- bility for these discretionary acts. The exercise of discre- tion includes the to be right wrong. impressed by very am able brief of Attorney Vinton Lide, Curiae,
D. as a friend of the Amicus appearing Court on filled behalf of the Carolina Law Enforcement South Offi- cers Association. I with the in that agree argument brief to Whitaker, effect that turn Officer and in Charleston, should liability be exonerated from because of qualified immunity. argues: He
124 1861, 60 L.Ed. 520, 99 S.Ct. Wolfish, Bell 44 U.S.
In v. upheld body- visible (1979), 447 the Court Supreme held that: cavity searches and the Fourth under The test of unreasonableness me- definition or capable precise is not of Amendment it requires In each case balanc- chanical application. inva- need search particular of the for ing entails. that the search rights the personal sion of intru- scope particular must consider Courts conducted, the sion, justifi- in which it was the manner it con- it and the in which is initiating place cation for 559,99 id. at S.Ct. at 1884. ducted. See the motion granted that the should have judge I would hold both actual to both defendants for for a directed verdict as solely based on evidence. damages and punitive IN RE: DAMAGES PUNITIVE herein, that neither actual opinion indicated I am the As judge be allowed. The should damages nor should punitive on the evidence. As relates to have directed a verdict based such there are additional reasons should punitive damages, Briefly The law simply prohibits puni- not be allowed. stated: correctly ruled city. The trial damages against judge tive matter could not recov- punitive damages as a of law Tort Act. ered under the South Carolina Claims punitive that it award charged jury The Court could At the mo- posttrial under the 1983cause action. damages both stage proceedings, attorneys tion Concerts, Fact City Newport that the case of admitted (1981) Inc., 2748, L.Ed. 616 101 S.Ct. U.S. that a such as Charleston could not be liable for held From that opinion under a claim. punitive damages quote: sum, history
In find that considerations of and policy we dam- municipality punitive do not support exposing for the actions of its officials.Because ab- ages bad-faith at such obtained common immunity damages solute from law and undisturbed the 42nd and be- Congress, cause that is with both the immunity compatible pur- § poses of 1983and general we principles public policy, hold that municipality immune from dam- ages 1983. Accordingly, U.S.C. the judgment vacated, the Court of Appeals and the case is re- for manded further proceedings consistent with this opinion.
It is so ordered. McCall, Prior to no supra, damages per- whatsoever were *15 mitted against governmental in South entities Carolina. After McCall, Legislature the dealt problem with the and sanc- tioned actions for actual damages governmental enti- against ties but specifically declared the state in public policy the 15-78-120(b) as follows:
No award under damages chapter this shall include or punitive exemplary damages or interest to prior judg- ment.
Here we have the unusual situation the Court permitting jury a to award punitive against the damages Charleston when the Assembly General has said that such are not recoverable under our South Carolina Tort Claims Act, and the United Supreme puni- States Court has said that tive are not a damages recoverable under 1983claim.
While recognizing punitive damages are not recover- able any theory under involved in this the proceeding, judge explained his from bench reasoning as stated the as follows:
. . . And while it be to may policy have public it punitive damages, while that is may something be not a submitted the properly jury City Newport to case, it is also a for the state of public policy South Car- twice, olina to they not have to for trials when can pay avoid it. And so that is another That costs public policy. of South money, every state Carolina time have you try to a case twice.
At that granted JNOV should have at least as point been punitive to A trial was mandated. damages. new with that of the which disagree portion majority opinion objection holds that the to the propri- defendants waived ety of punitive damages by proposed punitive submitting to submitted request At time the
damages charge. he would allow already indicated that court, had judge That which the defen- damages. to award jury punitive mitigate dam- punitive was in an effort to requested dants to to disallow. jury and/or ages persuade AND JURISDICTION
WAIVER “First, city objec- waived any holds: majority opinion The a municipal- damages against tion the propriety that Rule 51 of ground made on the ity.” largely ruling counsel requires Carolina Rules of Civil Procedures South correctly as to assist charges made so object made, objection If is not an error law. stating propositions general propo- Overlooked the is said to have been waived. immunity, involves law that which governmental sition of under South Car- not be waived public policy,may matter of olina law. issue, the jurisdictional majority to eliminate the
In order so, it waived. In jurisdiction may doing holds that opinion v. Lowry well law declared would overrule established Fund, 416, 1 Sinking Commissioners of Bull, (1856); v. (1886); 9 Rich. and Reed Hammarskold *16 (Ct. 1985).The Medlin, 585, App. 328 S.E. is of- immunity an affirmative opinion sovereign holds that the that at time It overlooks fact the pled. fense and must be this and at the time the trial the were filed in case pleadings that held, was law of this state. In Lowry opinion, the Justice Mclver said: sued in its courts without
That state cannot be the consent, given by which can be expressed only its con- universally is a so authority, proposition legislative or to argument authority support as to render any ceded wholly unnecessary. it Simpson agreed:
In a Chief Justice dissenting opinion, cannot not that the state deny legal proposition I do con- state, by this its own except sued in the courts of be es- firmly too settled and too sent. This doctrine is well thereto; in reference to intimate even doubt tablished I in its correctness. fully concur While this Court has to its authority overrule own deci- sions, Rule 217 Appellate Court contemplates preceden- tial should rulings not overturned without giving inter- That litigants ested to be heard. rule opportunity reads as follows:
Permission of appellate court shall be required to in argue against precedent the brief. Oral argument shall against precedent not be permitted except upon leave of the court in which the case appellate is then to in pending, pursuant motion accordance with Rule 224 (15) filed at days least fifteen to oral prior argument. No to at level party proceeding this the trial or at the ap- level has this Court pellate asked to review cases over- by opinion. ruled In this crucial majority ruling matter, on I submit due has been process denied both defendants.
The error attributable judge allowing punitive is the of both damages fault counsel for the plaintiffs and for the plaintiffs counsel defendants. Counsel for the in the for relief prayer sought damages thereby represent- to the court that were ing such Counsel for the legal. defen- dants failed to under Rule 51 object similarly and is at fault. There sufficient blame to around. go I would hold that the circuit court the power lacked to hear and determine the of punitive issue damages sought pursuant § to U.S.C. issue was not waived by counsel’s object failure to prior submission of the case to the At jury. post-verdict stage, trial counsel for the defendants in ar- said: think gument “And don’t there can be any waiver of took a public policy.” view. contrary bar, Being jurisdictional sovereign immunity not sub- ject imposition waiver of procedural requirements or litigation by procedural 57 Am. Jur. defaults. Mu- School, (1988). nicipal, County, Liability State Tort at Accordingly, the failure to raise the trial issue does not *17 it. Id. waive See also GNOC v. Estate John Corp. C. of — (Davis (2d) (1994) —, Rhyne, S.C. 439 S.E. 274 Adv. Sh. 40) (the 1 at No. of lack of matter question subject jurisdiction action, may be raised at time even on any during appeal, or consent); and cannot be waived conferred Dove v. by Gold — Kist, (2d) (1994)(Davis Inc., —, 442 S.E. Adv. Sh. to hear 30) is the power jurisdiction matter (subject 7 at No. the pro- to which class general cases of determine matter ju- lacking subject a court belong; ceedings question of of the consent act regardless to authority has no risdiction School, (2d) County, Municipal, Am. Jur. litigants); (1988)(lack matter subject Liability Tort and State at be raised damages may to award punitive jurisdiction on appeal). the first time even for in the proceedings, time may immunity that authority holding for There is abundant raised for the may be objection that the waived and not be motu. ex mero submit appeal' time on first —-and immunity its has waived City alleges Rutherford to by failing Act Tort Claims under Maine defense by failing answer and in its second the defense plead Auburn, 465 In Faucher v. at trial. raise the issue (2d) (Me. that the 1983), recognized we 1120, 1124 A. statutory reformulation Act is Tort Claims Maine have previously We sovereign immunity. the doctrine waived cannot be sovereign immunity concluded forfeited by or requirements procedural imposition (2d) Smith, 541, 543 v. 390 A. defaults. Drake procedural (Me. Collins, 537, 540 (Me. 390 A. 1978); Turner v. 1978). or expressly in the Act that either find nothing We intent to the hold abrogate a legislative shows impliedly therefore, did not waive its City, of these cases. ing the de by failing plead defense sovereign immunity v. trial. New Mexico answer or at State fense its 1987)] (Ct. App. P. 2d 1156 [735 105 N.M. Apodaca, cert. denied. raised for the first may also be immunity
... The claim of
County
Lincoln
Maes Old
upon appeal.
time even
Crist,
In examining underlying judgment, must, as we we find that that portion the judgment awarding prejudg ment interest is void for lack of subject matter jurisdic tion. Where relief precluded by defense of sover eign immunity, court is said to be lacking subject matter jurisdiction relief sought. See grant Mills, Hutchins v. (2d) (Fla. 818, 363 So. 1st DCA denied, cert. 1978), (2d) (Fla. 1979). 368 So. Because an award of prejudgment interest does not fall within the parameters of the waiver of sovereign immunity ex pressed in 768.28, Section Statutes, Florida the trial court was without jurisdiction to enter such an award. It then follows that the trial court’s denial of DOT’s first Rule 1.540 motion was patently incorrect. State of Florida v. Bailey (Dist. Florida, Ct. of App. Dist., 1st 28, 1992). filed August GAMBLE v. STEVENSON REVIEW RE:
IN The majority opinion holds:
Second, the punitive damage award against the City was not unduly excessive or against the weight of the evi dence. The trial judge conducted a post-trial review pur Stevenson, suant to Gamble v. 104, 406 [305 (1991)] and determined that the award was appropri ate given the facts of the case. We affirm his as findings to punitive damages.
No mention is made relative to a review of the dam- award ages against Officer Whitaker.
The by review the trial court did not with comply the man Mutual Insurance v. Haslip, date of Co. 499 U.S. Pacific Life 1032, 113 111 S.Ct. (1991), L.Ed. nor with this Court’s requirement of Gamble. These cases provide for “meaning ful and adequate” review by the trial court and such a post- trial review is mandated.
While unnecessary under the view I take for a determina- tion of the issues on I am appeal, of the opinion the trial erred in failing give review to the meaningful puni- both the officer and police award damages
tive Gamble, supra. propriety case of required by as case in recent been years has punitive damages Insurance of much debate. In Mutual subject Pacific Life at- Co., the United States Supreme Court of supra, the trial a handle on issue requiring tempted get *19 grew the of award. out to review fairness the Gamble judge In a re- requirement. Court Supreme of this United States award, the a Court punitive damage requires view of Gamble to degree culpability,” “ability “defendants’ to consider the At this of the stage proceeding, and “other factors.” pay,” to see that opportunity and counsel had one more judge trial to At that justice damages. was done as relates punitive court, all the were in point, parties, including agreement not, law, as a be awarded. punitive could matter damages Gamble, view, have set aside my judge, In the should the and the officer. against the award punitive judgment who are not city punishes persons An award the damages are punitive is the While culpable taxpayers. —that the grounds, on various some of courts justified sometimes a to as “windfall.” punitive damages refer review, must use his discretion and judge In a Gamble the or is fair. punitive a award is not damage determine whether a the he the things required ability is to consider is Among to is in the record relative pay. nothing defendant to There respond to to a ability the of Police Officer Whitaker not in the A Gamble review is mentioned damage verdict. order; final from relative ruling formal the bench his judge’s thereto was as follows: ability the Defendant’s to again regard
. . . Here with to to ability the pay, there not evidence Defendant’s into To the extent the court is able take consider- pay. say I that an police pay, ation the normal officer’s would $5,000 overly in of the con- generous light award of not added.) (Emphasis and alleged proved. duct that was as a for deter- There is the record to serve basis nothing $5,000 awards are commensurate with three mining made no ability inquiry and the police pay, officer’s relative thereto. (1) does property are such as: What questions
Unanswered (3) (2) salary? own? What his Will police officer his $15,000 job bankrupt- verdict cause him to lose or declare (4) family this verdict his payment deprive and cy? Will of normal needs? contemplated by pro-
No review as Gamble was meaningful I vided. would reverse. case, in this proper
If need in order to reach the result case of Toyota of our Court adopt reasoning would — (2d) Florence, al., —, —, 442 Lynch, Inc. v. et S.C. S.E. (1994) de 611, (although procedural condoning lack of fault, contemporaneous this overlooked the Court ar outrageous, inflammatory jury vicious objection to verdict); reversed and remanded Gal gument, jury’s (1967)(this 157, 153 loway Galloway, mi rights it reach issue may affecting Court held Keenan, motu); ex State v. 278 S.C. 296 S.E. nors mero (1982) (every power duty court has decide jurisdic its own necessary all issues to the determination of tion). view, In counsel should have raised parties for both my *20 court, and, trial issue matter to the subject jurisdiction this ex action, the should have raised issue absent such court lawyers re part This error on flagrant mero motu. to the City, consequently prejudice sulted clear for which the illegal recovery public, allowing general will have to foot the bill. public for dam-
I would reverse the verdicts actual therein, I would hold Failing both defendants. ages recoverable in this properly were not punitive damages proceeding. BRUNSWICK, Respondent FEDERAL BANK OF
FIRST SAVINGS COMPANY, Appellant, Elinor H. STEWART TITLE GUARANTY beneficiary Individually Estate Alpert, Executrix and sole as Shoppe, Inc., Alpert, The a Cor- Alpert, L. Escrow of Leonard I. Debra Shareholder, Butler, Individually Principal Mary and as the poration, J. Houston, Esq., Shoppe, Inc., of the Charles Officer and Director Escrow N.A., Hanswirth, Sherry Unger, Equibank, Unger, Jerry H. Ronald F. L.