THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED
ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Courtney Danielle Saxon, Appellant,
v.
South Carolina Department of Transportation and Thomas Cooler, Defendants,
of whom South Carolina Department of Transportation is Respondent.
Appeal From Jasper County
Perry M. Buckner, Circuit Court Judge
Unpublished Opinion No. 2004-UP-435
Submitted June 8, 2004 Filed July 23, 2004
AFFIRMED
Darrell T. Johnson, Jr. and Mills Lane Morrison, Jr., both of Hardeeville,
for Appellant.
I. McDuffie Stone, III, of Bluffton, for Respondent.
PER CURIAM: This case arises from an automobile
collision. As a result of the accident, Saxon filed suit against the South
Carolina Department of Transportation (DOT) for failure to maintain necessary
sight lines at a stop sign. [1]
The circuit court granted a directed verdict in favor of the DOT on the basis
of proximate cause and lack of notice. We affirm. [2]
FACTS
Saxon was driving along
Darby Plantation Road when she came to a stop sign and attempted a left turn
onto Route 39. She stopped at the stop sign, drove her car forward to gain
a better view of Route 39, and then looked in both directions before turning.
When Saxon pulled out, Thomas Coolers vehicle struck the rear drivers side
door of Saxons vehicle. Cooler was driving at or below the speed limit of
45 miles per hour, and he did nothing to contribute to the accident.
Saxon filed suit against
the DOT for negligence, alleging it failed to maintain the vegetation along
Route 39 and thereby failed to maintain the proper sight line and sight distance
for cars entering from Darby Plantation Road. At trial, Saxon stated that she
did not see another car before turning and that prior to turning she had inched
her car past the stop sign to see past overgrown trees and bushes. Cooler testified
that he was able to see the stop sign on Darby Plantation Road, but he did not
see Saxons car until the accident.
Mr. Lohr, an engineer and
Saxons expert witness, testified the DOT provided inadequate sight distance
along Route 39. However, during cross-examination, he admitted the 468 feet
sight distance actually provided should have been sufficient for Saxon to detect
a vehicle traveling up to 47.7 miles per hour. Because Coolers car was traveling
less than 47.7 miles per hour, Lohr opined the intersections sight distance
was safe. Dr. King, an expert witness for the DOT, also testified the intersection
had more than adequate sight distance. Additionally, a highway patrolman, who
investigated the accident, testified he did not observe any visual obstructions
the day of the accident. The trooper also stated: he traveled the road frequently;
it was his duty to report any problems such as obstructions; and he never saw
any problems.
After the close of testimony,
the trial court granted the DOTs motion for a directed verdict because there
was no evidence: (1) the accident was proximately caused by any breach of duty
by the DOT; and (2) the DOT had notice of the dangerous condition. Pursuant
to Rule 59, SCRCP, Saxon moved for judgment notwithstanding the verdict (JNOV)
and for a new trial. The court denied these motions. Saxon appeals.
STANDARD OF REVIEW
In ruling on a motion for directed verdict, the
trial court is required to view the evidence and the inferences that reasonably
can be drawn therefrom in the light most favorable to the party opposing the
motion and to deny the motion where either the evidence yields more than one
inference or its inference is in doubt. Creech v. South Carolina Wildlife
& Marine Res. Dept, 328 S.C. 24, 29, 491 S.E.2d 571, 573 (1997).
In deciding whether to grant or deny a directed verdict motion, the trial court
is concerned only with the existence or nonexistence of evidence. Long v.
Norris & Assocs., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct. App. 2000).
This court can only reverse the trial court when there is no evidence to support
the ruling below. Creech, 328 S.C. at 29, 491 S.E.2d at 573.
DISCUSSION
I.
Saxon argues the trial court erred in granting
a directed verdict on the issue of proximate cause. She contends the evidence
is conflicting and supports the conclusion that the accident was proximately
caused by the DOTs negligence. Because this issue required a credibility determination,
she asserts it should have been submitted to the jury.
[3] We disagree.
In a negligence action, a plaintiff must show:
(1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached
the duty by a negligent act or omission; (3) the defendants breach was the
actual and proximate cause of the plaintiffs injury; and (4) the plaintiff
suffered an injury or damages. Andrade v. Johnson, 356 S.C. 238,
245, 588 S.E.2d 588, 592 (2003). Proximate cause requires proof of both
causation in fact and legal cause, which is proved by establishing foreseeability.
Bray v. Marathon Corp., 356 S.C. 111, 116-17, 588 S.E.2d 93, 95 (2003).
Causation in fact is proved by establishing the plaintiffs injury would not
have occurred but for the defendants negligence. . . . Legal cause turns
on the issue of foreseeability. An injury is foreseeable if it is the natural
and probable consequence of a breach of duty. Schmidt v. Courtney,
357 S.C. 310, 326, 592 S.E.2d 326, 335 (Ct. App. 2003). Foreseeability
is not determined from hindsight, but rather from the defendants perspective
at the time of the alleged breach. Parks v. Characters Night Club, 345
S.C. 484, 491, 548 S.E.2d 605, 609 (Ct. App. 2001). Furthermore, legal cause
is ordinarily a question of fact for the jury. Only when the evidence is susceptible
to only one inference does it become a matter of law for the court. Oliver
v. South Carolina Dept of Highways & Pub. Transp., 309 S.C. 313, 317,
422 S.E.2d 128, 131 (1992).
In this case, the trial court granted a directed
verdict on the ground Saxon failed to present any evidence the accident was
proximately caused by a breach of duty by the DOT. Specifically, the court
found: (1) neither Saxon nor Cooler testified that inadequate sight distance
caused the accident; and (2) Saxons expert, Lohr, testified that inadequate
sight distance was not the cause of the accident.
Viewing the evidence in the light most favorable to Saxon, we find Saxon failed
to present any evidence that the DOTs failure to maintain the vegetation proximately
caused the accident. Saxons own expert witness testified the sight lines were
insufficient because of overgrown bushes and trees only if a car was driving
on Route 39 in excess of 47.7 miles per hour. However, it was stipulated
that the speed limit was 45 miles per hour and that Cooler was driving at or
below the speed limit. Cooler also acknowledged that the bushes did not obstruct
his view.
Saxon argues, notwithstanding the testimony of
her own expert witness, the lay testimony was sufficient to submit the issue
of proximate cause to the jury. Saxon refers to her direct testimony in which
she stated that she had to inch up before pulling out to turn left [b]ecause
the trees and bushes are overgrown and its kinda hard to see all the way down
Malphrus Road to your left. She also points out that she and Cooler both testified
that even though they were looking, they did not see the other vehicle until
after the accident. In light of this testimony, Saxon urges this court to reverse
based on Poston v. Southeastern Constr. Co., 208 S.C. 35, 36 S.E.2d 858
(1946), and Roscoe v. Grubb, 237 S.C. 590, 118 S.E.2d 337 (1961).
In Poston, a workers compensation case,
the claimant testified that an accident at work caused his eyes to become inflamed
and, in turn, severely affected his vision. Due to the accident, he was unable
to perform the same types of carpentry jobs he did before the accident. The
treating physician testified the claimant came to him with red, inflamed, and
irritated eyes. In contrast to the claimants testimony, he stated, as a medical
fact, the claimants farsightedness could not have been caused by any event
but must have existed all of the claimants life. The claimant was awarded
benefits for the work-related injury. In considering the employers appeal,
our supreme court found that had the case been tried before a jury, the trial
judge would have submitted the issue to the jury because there was a conflict
between the claimants testimony and the medical testimony. Poston,
208 S.C. at 38, 36 S.E.2d at 860. The court stated, a medical opinion which
conflicts with the physical facts will not be permitted to control the determination
of a factual controversy. Id. (citations omitted). The court affirmed
the award of benefits, finding sufficient lay testimony that the claimants
reduced vision was caused by the accident. The court pointed to the evidence
that prior to the accident, the claimant had been able to work as a carpenter
without the aid of glasses. The court held that when expert testimony is disregarded,
the decision must be based on other competent evidence. Id. at 39.
Similarly, in Roscoe, the court disregarded
the testimony of a physician that the decedent died as a result of an automobile
accident that occurred almost one year prior to the death. Roscoe, 237
S.C. at 592-93, 118 S.E.2d at 338. The court noted that where physical injury
is coincident with or immediately follows an accident and is naturally and directly
connected with it lay testimony may be sufficient to carry to the triers of
the facts the issue of whether or not the accident proximately caused it, despite
expert medical testimony that it did not. Id. at 596, 118 S.E.2d at
340. Together, these cases properly situate the expert witnesss testimony
as non-binding and intended to aid the fact finder. Hines v. Pac. Mills,
214 S.C. 125, 132, 51 S.E.2d 383, 385 (1949).
In the instant case, expert witnesses for both
Saxon and the DOT testified that given the speed of Coolers vehicle there was
sufficient sight distance, and thus, the vegetation did not in fact cause the
accident. In contrast to the pointedly different testimony in Poston,
neither Saxon nor Cooler testified the accident was caused by an inability to
properly see because of an overgrowth of vegetation. Cooler testified he could
see the stop sign, but he never saw Saxons vehicle. Saxon testified that difficulty
in seeing down Route 39 caused her to inch past the stop sign prior to turning,
and she did not see any cars prior to turning onto Route 39. She, however,
did not testify she was unable to see Coolers vehicle because of the overgrowth.
Instead, she testified the overgrowth forced her to take another action, which
involved moving her car forward. Saxon was also vague in her testimony regarding
how far down the road she could see. Although she testified that she could
not see all the way down the road, this testimony did not quantify the sufficiency
of her sight distance. Even construing Saxons testimony in the light most
favorable to her, as we are required to do, we find there is no testimony or
inferences to be drawn as to causation in fact. Accordingly, the trial court
properly directed a verdict in favor of the DOT.
II.
Saxon asserts the trial court erred in granting
the DOTs motion for a directed verdict on the issue of notice. She contends
the issue should have been submitted to the jury because the DOT conceded there
was evidence of a breach of duty, which necessarily encompasses notice, and
moreover, the DOT failed to affirmatively show a lack of notice.
The South Carolina Tort Claims Act provides that
the State, its agencies, political subdivisions, and other governmental entities
are liable for their torts in the same manner and to the same extent as a private
individual under like circumstances, subject to certain limitations and exemptions
with the Act. Jinks v. Richland County, 355 S.C. 341, 344, 585 S.E.2d
281, 283 (2003) (quoting S.C. Code Ann. § 15-78-40 (Supp. 2002)). Section
15-78-60 of the South Carolina Code provides several exceptions to the waiver
of sovereign immunity. These exceptions act as limitations on the liability
of a governmental entity. Id. at 344, 585 S.E.2d at 283. Among these
exceptions is one providing that a government entity is not liable for a loss
resulting from natural conditions of unimproved property of the governmental
entity, unless the defect or condition causing a loss is not corrected by the
particular governmental entity responsible for the property within a reasonable
time after actual or constructive notice of the defect or condition. S.C.
Code Ann. § 15-78-60 (10) (Supp. 2003).
Therefore, the DOT cannot be liable for Saxons
injuries unless the defect or condition that caused her injuries was not corrected
within a reasonable time after actual or constructive notice of the defect
or condition. See Richardson v. City of Columbia, 340 S.C. 515,
522, 532 S.E.2d 10, 14 (Ct. App. 2000) (finding City of Columbia not liable
for childs injuries sustained at baseball field unless the defect or condition
that caused his injuries was not corrected by the particular governmental entity
responsible for maintenance, security, or supervision within a reasonable time
after actual notice of the defect or condition (quoting S.C. Code Ann. § 15-78-60(16)
(Supp. 1999))). The exceptions outlined within the Act must be liberally construed
in favor of limiting liability. S.C. Code Ann. § 15-78-20 (f) (Supp. 2003).
The burden of establishing an exception to the waiver of immunity under the
Tort Claims Act is upon the DOT. Faile v. South Carolina Dept of Juvenile
Justice, 350 S.C. 315, 324, 566 S.E.2d 536, 540 (2002).
The DOT sought to meet this burden by the testimony
of the highway patrolman. The trooper testified that he traveled the road frequently,
it was his duty to report any problems, and he never saw any problems. Furthermore,
a search of records showed no history of prior accidents at this intersection.
Based upon the stipulation that there was no record of prior accidents at this
intersection and the testimony of the trooper, the DOT established it did not
have actual notice of a dangerous condition. See Richardson, 340
S.C. at 525, 532 S.E.2d at 15 (holding City of Columbia did not have actual
notice of any condition or defect prior to childs accident at baseball field
where there were no prior complaints that the area was dangerous and no prior
injuries).
Saxon, however, argues the DOT did have constructive
notice of overgrowth and reduced sight lines. Specifically, Saxon asserts the
DOT was charged with constructive notice given it failed to anticipate and discover
the obstruction by making frequent and careful inspections.
Constructive notice is a legal inference which
substitutes for actual notice. It is notice imputed to a person whose knowledge
of facts is sufficient to put him on inquiry; if these facts were pursued with
due diligence, they would lead to other undisclosed facts. Strother v. Lexington
County Recreation Commn, 332 S.C. 54, 63 n.6, 504 S.E.2d 117, 122
n.6 (1998). Constructive notice requires knowledge of facts sufficient
to have led the DOT to the danger. The trooper, however, testified that he
was at the scene immediately after the accident and saw no problem with vegetation
overgrowth. Despite this testimony, Saxon relies on Campbell v. South Carolina
State Highway Dept, 244 S.C. 186, 135 S.E.2d 838 (1964), overruled on
other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985)
(abolishing the doctrine of sovereign immunity); Inabinett v. South Carolina
State Highway Dept, 196 S.C. 117, 12 S.E.2d 848 (1941); and Ford v.
South Carolina Dept. of Transp., 328 S.C. 481, 492 S.E.2d 811 (Ct. App.
1997), for the proposition that the duty owed by the DOT to maintain safe roads
would require this court to find constructive notice and liability in this case.
The DOT does in fact have a duty
to maintain safe roads and to discover and remedy potential hazards; however,
under the specific facts of this case, all testimony points to the existence
of adequate sight lines. The DOT cannot be charged with constructive notice
that a dangerous condition existed when there is no testimony that any dangerous
condition actually existed. Furthermore, each of the above-cited cases is distinguishable
from the instant case. Unlike this case, there was evidence in each of the
cases regarding the dangerous condition prior to the incident that was the subject
of the lawsuit. See Campbell, 244 S.C. at 190-91, 135 S.E.2d
at 840 (affirming denial of highway departments post-trial motions in case
involving motorcycle accident on negligently maintained mountain road where
highway department had on occasion repaired the road and was aware that the
drainage system was insufficient to take care of excess water); Inabinett,
196 S.C. at 123-24, 12 S.E.2d at 850 (affirming denial of highway departments
post-trial motions in case for personal injuries sustained when a tree alongside
a public highway fell onto plaintiffs vehicle where plaintiff offered testimony
that highway department was on constructive notice of the dangerous condition
given the decay of the tree was visible and the highway department had examined
the surrounding road shortly before the accident but had not discovered the
condition of the tree); Ford, 328 S.C. at 487-89, 492 S.E.2d at 814-15
(reversing grant of summary judgment in favor of highway department in case
arising from death of motorcyclist who collided with a fallen tree on the road
where department worked in the area intermittently in the weeks immediately
preceding the accident and an area neighbor informed the department prior to
the accident that trees were falling onto the road and were dangerous).
Because there was no actual notice of a dangerous condition, and it is impossible
to charge the DOT with constructive notice of a dangerous condition when there
is no testimony of a dangerous condition, we find the trial court properly directed
a verdict in favor of the DOT. Thus, even assuming the DOTs improper maintenance
of the vegetation proximately caused Saxons injuries, the DOT was immune from
liability under the Tort Claims Act given it did not have actual or constructive
notice of the defect or condition.
CONCLUSION
For the reasons stated above,
the decision of the circuit court is
AFFIRMED.
HEARN, CJ., STILWELL, J., and CURETON, AJ., concur.
[1] Saxon also filed suit against Thomas Cooler, the driver of the other
vehicle. After discovery was completed, Saxon dismissed Cooler as a party.
[2] We decide this case without oral argument pursuant
to Rule 215, SCACR.
[3] We note the DOT concedes in
its brief that Saxon presented evidence of all of the elements of negligence
except proximate cause.