Crystal Wickersham v. Ford Motor Company

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 14, 2018
• Docket: 17-2131
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-2131

CRYSTAL L. WICKERSHAM; CRYSTAL L. WICKERSHAM, as Personal Representative of the Estate of John Harley Wickersham, Jr.,

Plaintiffs - Appellees,

v.

FORD MOTOR COMPANY,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Beaufort. David C. Norton, District Judge. (9:13-cv-01192-DCN; 9:14-cv-00459-DCN)

Argued: May 8, 2018 Decided: June 14, 2018

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Unpublished Order of Certification of a question of law to the Supreme Court of South Carolina. Judge Floyd wrote the order in which Judge Niemeyer and Judge Motz joined.

ARGUED: Adam Howard Charnes, KILPATRICK TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for Appellant. Kathleen Chewning Barnes, BARNES LAW FIRM, LLC, Hampton, South Carolina, for Appellees. ON BRIEF: Carmelo B. Sammataro, TURNER, PADGET, GRAHAM & LANEY, P.A., Columbia, South Carolina; Thurston H. Webb, KILPATRICK TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for Appellant. Ronnie L. Crosby, PETERS, MURDAUGH, PARKER, ELTZROTH & DETRICK, Hampton, South Carolina, for Appellees. ___________________

ORDER ___________________

FLOYD, Circuit Judge:

Pursuant to Rule 244 of the South Carolina Appellate Court Rules, we respectfully

certify the following questions of law to the Supreme Court of South Carolina:

1. Does South Carolina recognize an “uncontrollable impulse” exception to the general rule that suicide breaks the causal chain for wrongful death claims? If so, what is the plaintiff required to prove is foreseeable to satisfy causation under this exception―any injury, the uncontrollable impulse, or the suicide?

2. Does comparative negligence in causing enhanced injuries apply in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty and is seeking damages related only to the plaintiff’s enhanced injuries?

We acknowledge that the Supreme Court of South Carolina may restate these

questions. As we explain, we believe that no controlling South Carolina authority

directly answers either question. Moreover, the answers will determine whether the

district court properly concluded that the uncontrollable impulse exception applied to the

plaintiff’s wrongful death claim, and whether the district court properly denied the

defendant’s motion to alter or amend the judgment based on the jury’s finding of the

plaintiff’s comparative negligence. Consequently, each answer will be determinative of

this appeal.

I.

This case stems from negligence, strict liability, and breach of warranty claims

filed under South Carolina law by John Wickersham’s estate and wife against Ford Motor

2 Company, asserting that the airbag system in Wickersham’s Ford Escape was defective

and seeking to hold Ford liable for the injuries from the accident and his subsequent

suicide. Federal subject-matter jurisdiction exists under 28 U.S.C. § 1332 based upon

complete diversity of citizenship between the parties and damages alleged to be greater

than $75,000.

Wickersham was a pharmacist who had long suffered from mental illness,

including suicidal ideation. On February 3, 2011, during a rain storm, Wickersham drove

straight through a T-intersection going forty-two miles per hour, hit a ten-inch curb and

went airborne, and crashed his 2010 Ford Escape into a tree forty-five feet from the road.

He suffered significant facial injuries during the accident, which led to several surgeries

and to him losing his left eye, sense of smell, and ability to chew food.

After the accident, he struggled with pain management, despite many visits to pain

specialists, surgeons, and doctors to try to manage his pain. He also continued to suffer

from depression and was voluntarily hospitalized for severe depression and suicidal

ideation on April 6, 2012. On June 19, he began receiving nerve treatments to alleviate

his pain at a pain clinic at Emory University, but had to cease treatments when his

insurance expired, as he was unable to pay the out-of-pocket costs. Although

Wickersham had struggled to maintain a full-time job since 2010, before the accident, he

did not return to full-time work after the accident, in part because he could not be on pain

medication while working as a pharmacist, which put a financial strain on his family.

Nearly eighteen months after the accident, on July 21, 2012, Wickersham committed

suicide by ingesting a lethal dose of methadone pills.

3 His wife and his estate (collectively, “Wickersham”) each filed negligence, strict

liability, breach of express warranty, and breach of the implied warranty of

merchantability claims against Ford Motor Company in the South Carolina Court of

Common Pleas, claiming the airbag system was defective and seeking to hold Ford liable

for Wickersham’s injuries in the accident and his suicide. This was a crashworthiness

case, in which an automobile manufacturer may be held liable for enhanced injuries

caused by a defective product, even if the defective product was not responsible for the

accident itself. Donze v. Gen. Motors, LLC, 800 S.E.2d 479, 480–81 (S.C. 2017); see

also Jimenez v. Chrysler Corp., 74 F. Supp. 2d 548, 565 (D.S.C. 1999), rev’d in part &

vacated in part on other grounds sub nom. Jimenez v. DaimlerChrysler Corp., 269 F.3d

439 (4th Cir. 2001) (“The [crashworthiness] doctrine applies if a design defect, not

causally connected to the collision, results in injuries greater than those that would have

resulted were there no design defect.” (citation omitted)). Mrs. Wickersham sought

damages for loss of companionship, and the estate sought damages for wrongful death,

pain and suffering, lost wages, and medical bills. Ford removed both cases to the United

States District Court for the District of South Carolina pursuant to diversity jurisdiction

under 28 U.S.C. § 1332. The cases were tried simultaneously, but not consolidated.

Ford moved for summary judgment and primarily argued that the wrongful death

claim could not survive under South Carolina law because Wickersham’s suicide was an

intervening act that could not be proximately caused by an airbag defect. The district

court denied Ford’s motion, holding that Wickersham could prevail on the wrongful

death claim if he proved that Ford’s actions led him to take his life due to an

4 “uncontrollable impulse”―an exception to the general rule that suicide breaks the causal

chain in wrongful death claims. Essentially, the district court held that Wickersham

could prevail if the injuries sustained in the accident as a result of the defective airbag

caused chronic pain that led to an uncontrollable impulse to commit suicide. Ford

renewed this motion again during and after trial, both of which the district court denied.

During the two-week trial, Wickersham asserted that the defective airbag caused

his severe facial injuries, and that if the airbag had either not deployed in this crash or if it

had not deployed so late, he would not have suffered these injuries. Ford argued that

Wickersham’s injuries were caused by the gearshift lever, rather than the airbag,

impacting the left side of his face, arguing that he was out of position and leaning over

the passenger seat when his vehicle struck the tree and when the airbag deployed.

The jury returned a verdict for Wickersham and found that the airbag was

defective and was a proximate cause of Wickersham’s injuries and suicide, and that Ford

was liable for strict liability, negligence, and breach of warranty. Additionally, the jury

found that Wickersham was thirty percent at fault for his injuries based on his misuse of

the restraint system. After being instructed not to reduce any damages awarded based on

the fault attribution, the jury awarded $4.65 million total to Wickersham―$1.9 million

for the personal injury claims and $2.75 million for the wrongful death claim. The

district court entered judgment for Wickersham in accordance with the jury verdict, and

declined Ford’s request to reduce the damages based on the finding of comparative

negligence. Ford then moved to alter or amend the judgment, for judgment as a matter of

law, and for a new trial, all of which the district court denied.

5 As relevant to this certification order, Ford appealed the district court’s denial of

its motion for judgment as a matter of law as to the wrongful death claim, and also

asserted that the district court committed reversible error in instructing the jury on

proximate cause for the wrongful death claim. It argued that the district court erred in

applying the “uncontrollable impulse” exception because South Carolina courts do not

recognize this exception to the general rule that suicide breaks the casual chain in

wrongful death claims, or alternatively that it does not recognize the exception as the

district court applied it. Ford also appealed the district court’s denial of its Rule 59(e)

motion to alter or amend the judgment based on the jury’s finding that Wickersham was

thirty percent at fault for his injuries, arguing that South Carolina law permits

comparative negligence as a defense in strict liability and breach of warranty claims

under these facts. As we explain below, we believe South Carolina courts have not

answered either question, and each answer is determinative of this appeal.

II.

A.

We have certified the first question because South Carolina courts have never

applied the “uncontrollable impulse” exception that the district court applied in this case

to the wrongful death claim, and whether such an exception is recognized under South

Carolina law is determinative of this claim.

Ford argues that the district court erred in denying its Rule 50(b) motion for

judgment as a matter of law as to the wrongful death claim because the district court

6 applied the wrong standard to determine whether Ford’s conduct proximately caused

Wickersham’s suicide, and because applying the correct standard, Ford cannot be held

liable for Wickersham’s suicide. Ford similarly argues that the district court committed

reversible error in instructing the jury on proximate cause for the wrongful death claim.

The issue here, with both arguments, is whether South Carolina recognizes an

“uncontrollable impulse” exception to the general rule that suicide breaks the causal

chain in wrongful death claims, and if so, whether the district court correctly applied that

exception.

This issue is determinative in this case because the district court recognized and

instructed the jury on the exception, and the jury found Ford liable under the wrongful

death claim based on this exception. Thus, if South Carolina does not recognize the

exception, or does not recognize the exception the way the district court applied it, we

will vacate and remand the wrongful death claim for reconsideration under the proper

standard. Otherwise, we will affirm on this claim.

To prevail on a wrongful death claim under South Carolina law, a plaintiff must

prove that the product defect proximately caused the suicide. See S.C. Code § 15-51-10

(stating that a civil action for a wrongful death claim requires that “the death of a person

[was] caused by the wrongful act, neglect or default of another”). Ordinarily,

establishing proximate cause requires proof of (1) causation-in-fact, and (2) legal cause,

which is proved by establishing foreseeability. Baggerly v. CSX Transp., Inc., 635

S.E.2d 97, 101 (S.C. 2006). “[F]oreseeability is considered the touchstone of proximate

cause, and it is determined by looking to the natural and probable consequences of the

7 defendant’s act or omission. However, while foreseeability of some injury from an act or

omission is a prerequisite to establishing proximate cause, the plaintiff need not prove

that the defendant should have contemplated the particular event which occurred.” Id.

(emphasis in original) (citations & internal quotation marks omitted).

As both parties and the district court recognized, the general rule is that suicide is

an intervening act that breaks the chain of causation in wrongful death actions and

precludes recovery. See, e.g., Scott v. Greenville Pharmacy, 48 S.E.2d 324, 328 (S.C.

1948) (rejecting a wrongful death claim against a pharmacy because suicide was not a

foreseeable consequence of providing the customer with barbiturates); Civil Liability for

Death by Suicide, 11 A.L.R.2d 751, § 2[b] (1950) (“Where an action is brought under a

wrongful death statute the general rule is that suicide constitutes an intervening force

which breaks the line of causation from the wrongful act to the death and therefore the

wrongful act does not render defendant civilly liable.”).

In applying this general rule, courts typically conclude that suicide is not a

foreseeable consequence of a defendant’s action. As the Supreme Court of South

Carolina observed, “so many elements may enter into a suicide that it is impossible to say

that it was the natural and probable consequence of [defendant’s action],” and that

reaching such a conclusion would require the court “to eliminate entirely all those

elements of feeling, temperament, disposition, emotional disorders, background and lack

of self-control, which might of themselves have been sufficient to bring about the tragic

result . . . .” Scott, 48 S.E.2d at 328; see also Crolley v. Hutchins, 387 S.E.2d 716, 717–

18 (S.C. Ct. App. 1989) (affirming grant of summary judgment concluding that a

8 bartender’s negligence in serving an intoxicated patron alcohol in violation of state law

did not proximately cause the patron’s attempted suicide because “[o]ne does not expect

a person to attempt suicide as a natural and probable result of being served a drink while

intoxicated”).

Here, the district court purported to apply the “uncontrollable impulse” exception

to the general rule that suicide breaks the causal chain. Under this exception, the district

court stated that “the court will simply look to whether the decedent had the ability to

control his conduct, and if not, whether his uncontrollable impulse was proximately

caused by the defendant’s negligence.” J.A. 185; see also J.A. 556 (instructing the jury

that “a plaintiff may recover for the wrongful death when the defendant’s actions made

the person incapable of controlling his or her own actions”); J.A. 366 (asking the jury

whether Wickersham proved “that the Defendant’s wrongful conduct was a proximate

cause of [his] uncontrollable impulse to commit suicide”).

However, we cannot find any South Carolina case directly applying an

“uncontrollable impulse” exception to the general rule that suicide breaks the causal

chain in wrongful death claims, and, moreover, there is no controlling precedent to

indicate whether South Carolina recognizes this exception. The District of South

Carolina recognized as much in Watson v. Adams when it stated that “[a]s far as the

Court can tell, South Carolina Courts have never permitted a recovery on [the] basis” of

the uncontrollable impulse exception. No. 4:12-cv-03436-BHH, 2015 WL 1486869, at

*6, *8 (D.S.C. Mar. 31, 2015) (expressly recognizing that the uncontrollable impulse

exception exists in some jurisdictions and stating that there was an “absence of evidence”

9 that an uncontrollable impulse exception applied, but not citing any South Carolina cases

in providing the rule for this exception).

Scott v. Greenville Pharmacy, however, arguably indicates that such an exception

exists under South Carolina law, but does not answer the related and also determinative

question of what must be foreseeable under the exception in order for causation to be

satisfied. 48 S.E.2d at 325–28. In Scott, the plaintiff-executrix brought a wrongful death

action against a pharmacy that sold the decedent barbiturates without a prescription (in

violation of state law), alleging that the sale of the habit-forming drug proximately caused

the decedent’s suicide. Id. at 325. The Scott court held that based on the complaint it

could not hold “that the unlawful sale of the barbiturate capsules brought about a

condition of suicidal mania as the natural and probable consequence of the sale, or that

this result should have been reasonably foreseen by the respondent.” Id. at 328; see also

id. (stating that it may have been reasonably foreseeable that the decedent would become

a drug addict, but not that he would kill himself because “a vast majority of the people”

who use barbiturates do not commit suicide).

Although we think the Scott court merely rephrased the standard proximate cause

requirement for a wrongful death claim that the harm must be a foreseeable consequence

of the defendant’s actions, we recognize that its “condition of suicidal mania” language

arguably indicates that South Carolina courts may recognize an uncontrollable impulse

exception to the general rule. See id. However, even if that is true, what must be

foreseeable under this exception remains unclear: does foreseeing “the condition of

10 suicidal mania” require foreseeing an uncontrollable impulse to commit suicide, just the

uncontrollable impulse, or any condition or injury?

Wickersham also argues that part of the Scott court’s explanation of the “last clear

chance” rule can be interpreted as recognizing the uncontrollable impulse exception. The

Scott court stated:

In many cases involving the issue under consideration, the doctrine of “the last clear chance” is invoked. This principle is stated in 2 Restatement of the Law of Torts, pp. 1257, 1258, Sec. 480:

“A plaintiff who, by the exercise of reasonable vigilance could have observed the danger created by the defendant’s negligence in time to have avoided harm therefrom, may recover if, but only if, the defendant (a) knew of the plaintiff’s situation, and (b) realized or had reason to realize that the plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff”.

This is sound law. Seay v. Southern Railway-Carolina Division, 205 S.C. 162, 31 S.E.2d 133 [(1944)]. But the allegations of the complaint, on the most liberal construction, fall far short of presenting the case of one who was no longer a free agent incapable of controlling his own conduct, and bent upon suicide. Nor, even if this had been alleged, is there any averment that respondent knew of any such condition.

Id. at 327–28. We acknowledge that an uncontrollable impulse exception could resemble

this description of the “last clear chance” rule, in that a plaintiff can be “incapable of

controlling his own conduct, and bent upon suicide.” See id. * However, this potential

* We recognize that the “last clear chance” rule has been subsumed into South Carolina’s consideration of comparative negligence, and is no longer sound law as a standalone doctrine. See Spahn v. Town of Port Royal, 499 S.E.2d 205, 206–07 (S.C. 1998) (overruling Seay, 31 S.E.2d 133). We leave it to the Supreme Court of South Carolina to determine whether this change in the last clear chance rule itself impacts

11 description of an uncontrollable impulse exception also fails to describe what action must

be foreseeable in order for a plaintiff to succeed on a claim. In sum, it is unclear whether

Scott recognizes an uncontrollable impulse exception at all, and if it does, it is unclear

what is required to satisfy the exception.

Therefore, we believe these facts raise a question of South Carolina law for which

there is no controlling precedent and insufficient guidance for us to dispose of this

question. Additionally, the answer to this question will control whether the district court

erred in applying the uncontrollable impulse exception to Wickersham’s wrongful death

claim. Consequently, we have certified this question regarding this determinative issue to

the Supreme Court of South Carolina.

B.

We have certified the second question because the Supreme Court of South

Carolina’s recent decision in Donze v. General Motors, LLC, 800 S.E.2d 479, left open

the question of whether comparative negligence is a defense to strict liability and breach

of warranty claims in crashworthiness cases when the negligence relates to misuse of the

product rather than causation of the accident, and the answer to this question determines

whether the jury award should have been reduced.

Ford argues that the district court erred in denying its motion to alter or amend the

judgment under Rule 59(e) because the jury found that Wickersham was thirty percent at

whether the description of the rule in Scott can nevertheless be interpreted as recognizing an uncontrollable impulse exception in wrongful death claims.

12 fault for proximately causing his own injuries based on his misuse of the restraint system

by being out of position at the time of the crash and when the airbag deployed, and that

such failure to reduce the jury award was a clear error of law which, if not corrected, will

impose a manifest injustice on Ford. See Mayfield v. NASCAR, Inc., 674 F.3d 369, 378

(4th Cir. 2012) (stating that Federal Rule of Civil Procedure 59(e) allows the court to

alter or amend a judgment within twenty-eight days of its entry “to correct a clear error of

law or prevent manifest injustice” (internal quotation marks omitted)). Wickersham

argues that South Carolina law does not recognize comparative negligence as a defense in

crashworthiness claims under any cause of action when the product defect caused

enhanced injuries.

The answer to this certified question is determinative in this case. If comparative

negligence is a defense to strict liability and breach of warranty claims in crashworthiness

cases, then the district court erred in denying Ford’s motion to alter or amend the jury

award. If it is not a defense, then the district court did not err, as the parties seem to

agree that the entire jury award was recoverable under the strict liability or breach of

warranty claims.

The United States District Court for the District of South Carolina recently

certified a related question to the Supreme Court of South Carolina. The certified

question asked: “Does comparative negligence in causing an accident apply in a

crashworthiness case when the plaintiff alleges claims of strict liability and breach of

warranty and is seeking damages related only to the plaintiff’s enhanced injuries?”

Donze, 800 S.E.2d at 480. The court responded that comparative negligence is not a

13 defense in this scenario. Id. at 481. We submit that the court’s response in Donze,

however, does not answer the question of South Carolina law before us.

First, the Donze court expressly narrowed its holding to when the plaintiff’s

negligence contributed to the cause of the accident. Id. at 485 n.4 (“Our ruling today is

limited to the certified questions before us which concern only the applicability of

comparative negligence to a plaintiff in causing the collision in a crashworthiness case.”).

Here, conversely, Wickersham’s negligence contributed only to his enhanced injuries, not

the cause of the accident. Thus, the holding from Donze, by its own terms, does not

extend to the factual scenario presently before the Court. See id. at 481 (agreeing that

“the enhanced injuries are a subsequent and separate event” from the initial collision).

Moreover, the Donze court opined that another factual scenario may exist in which

comparative negligence could be a defense in a crashworthiness case, and we submit that

we are faced with the kind of factual scenario the Donze court imagined. The Donze

court stated that “[c]omparative negligence related to the [defective component]

itself―tying [a door] shut for example―could still be a defense, if a factual basis

existed . . . .” Id. at 485 n.4 (alterations in original) (quoting Jimenez, 74 F. Supp. 2d at

566 n.11). Here, the jury found that Wickersham negligently used the restraint system by

being out of position at the time of the crash and when his airbag deployed, contributing

to the enhanced injuries caused by the airbag. We submit that the negligent use of the

restraint system relates to the defective airbag, specifically (as the airbag is part of the

restraint system), and to the defective vehicle, generally, invoking the factual scenario

described in Donze. In other words, the Donze court expressly left open the question of

14 whether comparative negligence could be a defense to a crashworthiness claim, when, as

here, the plaintiff’s comparative negligence contributed to the enhanced injuries rather

than the accident itself.

Finally, the Donze court’s decision can be read to support either side in this case

and consequently does not provide sufficient guidance for us to dispose of this question.

One the one hand, the Donze court reasoned that defenses to strict liability and breach of

warranty claims are statutory constructs, and because the South Carolina legislature has

not mandated application of comparative negligence principles either in crashworthiness

cases, specifically, or in all personal injury actions, generally, the court declined to permit

comparative negligence in causing an accident as a defense. Id. at 482, 485 (citing S.C.

Code Ann. §§ 15-73-10, -20 (2005); §§ 36-2-314, -711 (2003)) (distinguishing South

Carolina from the majority of states that permit a comparative negligence analysis in

crashworthiness cases based on state statutes or case law permitting the analysis). From

the Donze court’s reliance on the South Carolina statutory scheme, we might infer that

South Carolina courts are more likely to again decline to permit a comparative negligence

defense under our facts.

On the other hand, however, in announcing its holding, the Donze court expressly

“adopt[ed] the rationale established by the district court in Jimenez,” id. at 485, and the

Jimenez court focused on the crashworthiness doctrine itself rather than South Carolina

statutes, see 74 F. Supp. 2d at 565–66, which leads us to a different conclusion about the

outcome of this question. The crashworthiness doctrine only holds manufacturers liable

for the plaintiff’s enhanced injuries, or the injuries greater than those that would have

15 resulted were there no design defect, creating an inherent separation between causation

and enhanced injuries in crashworthiness claims. See id. at 565; Mickle v. Blackmon, 166

S.E.2d 173, 187 (S.C. 1969). Both the Jimenez court and the Donze court focused on this

inherent separation in reaching their conclusion that any comparative negligence in

causing an accident is irrelevant to a crashworthiness claim under South Carolina law.

Jimenez, 74 F. Supp. 2d at 565–66 (“[T]he concept of ‘enhanced injury’ effectively

apportions fault and damages on a comparative basis; defendant is liable only for the

increased injury caused by its own conduct, not for the injury resulting from the crash

itself. Further, the alleged negligence causing the collision is legally remote from, and

thus not the legal cause of, the enhanced injury caused by a defective part . . . .” (emphasis

added)); Donze, 800 S.E.2d at 481 (“[T]he enhanced injuries are a subsequent and

separate event, the sole cause of which is the manufacturer’s defective design” and,

“[t]herefore, any negligence on the part of the plaintiff in causing the initial collision is

irrelevant.” (emphases in original)); id. at 485 (“[T]he doctrine of crashworthiness itself

divides and allocates fault to a manufacturer for damages it alone caused . . . .” (emphasis

added)).

Here, conversely, application of the crashworthiness doctrine arguably better

supports permitting the defense. Holding the manufacturer responsible “only for the

increased injury caused by its own conduct,” Jimenez, 74 F. Supp. 2d at 566, would

require permitting a comparative negligence defense to reduce the judgment for the

enhanced injuries caused by the plaintiff’s conduct. Otherwise, the court would be

permitting manufacturers to be held liable for damages that the plaintiff caused. See

16 Donze, 800 S.E.2d at 485. In sum, the two prongs of the court’s analysis in Donze

arguably lead us to two different conclusions on the determinative issue of whether South

Carolina permits comparative negligence based only on the plaintiff’s enhanced injuries

as a defense in strict liability and breach of warranty claims in crashworthiness cases.

Thus, we believe these facts raise a novel question of South Carolina law, and we

find ourselves unable to predict with confidence how the Supreme Court of South

Carolina would rule on this question. Consequently, we have certified this question

regarding this determinative issue to the Supreme Court of South Carolina.

III.

For the aforementioned reasons, we respectfully request that the Supreme Court of

South Carolina accept and answer the foregoing certified questions, thereby providing the

parties, the courts, future litigants, and the public with definitive guidance on these

issues.

We direct the Clerk of Court to forward a copy of this order under official seal to

QUESTIONS CERTIFIED