Henson Ex Rel. Hunt v. International Paper Co. , 358 S.C. 133 ( 2004 )

GOOLSBY, J.:

This is a wrongful death action brought by Harriet Hunt against the respondent International Paper Company (“IPC”) and others.¹ The issues on appeal relate to the verdict, which Hunt challenges as inconsistent, and to the trial judge’s failure to instruct the jury regarding the doctrine of attractive nuisance. We affirm.

FACTS

Hunt commenced this action against IPC for the wrongful death of Terry Henson (“Terry”). Hunt’s complaint alleged negligence, attractive nuisance, and unguarded dangerous condition. IPC answered, pleading affirmative defenses of comparative negligence and sole negligence of others.

IPC owns and operates a canal that runs twenty-seven miles through Georgetown County. The canal eventually terminates in the City of Georgetown. Several pumping stations aid the flow of the water through the canal. When water reaches the Church Street pumping station, it rushes through an underground, forty-two-inch pipe at 19,000 gallons per minute.

Access roads that IPC uses for maintenance run alongside the entire length of the canal. IPC employees travel these roads Monday through Friday, inspecting the canal. With the exception of some small areas near two schools, the canal is not fenced. “NO TRESPASSING” signs, which IPC erected when it constructed the canal, have disappeared. On Saturday, April 25, 1998, there were no signs warning trespassers of the hazard created by the swift, flowing water.

On that day, ten-year-old Terry and his older brother went to the home of Donnie Lippert, a friend. Another friend, Dustin, had been riding his go-cart near the canal and wanted to show the boys something the record describes as “a dirt jumping hill.” The boys walked to the canal and entered the canal property, using a dirt path by a fence that protected the Church Street pumping station.

The boys eventually walked over to a pipe that spans the canal. Metal bracing, which serves as support for the pipe, gives it the appearance of a bridge.

The boys used the pipe to cross over to the other side of the canal, where they found a cast net. Terry decided to enter the water, holding on to the cast net while his friends held the other end. After being in the water for a short period, Terry attempted to grab the metal supports to lift himself out of the water. In the process, he slipped and fell back into the water. With his friends unable to hold on to the cast net, the swift current swept Terry away and he drowned.

IPC knew of at least three other people who had drowned in the canal, two of whom were reportedly good swimmers.

The trial judge directed a verdict in favor of IPC as to attractive nuisance and submitted the case to the jury, using a verdict form to which no one objected.

The form consisted of four questions. The first asked whether IPC was negligent and whether its negligence proximately caused Terry’s death. The jury answered “yes.” The second question asked whether Terry was negligent and whether his negligence proximately caused his death. Again, the jury answered “yes.” Question three instructed the jury to allocate the percentage of negligence attributable to each party. The jury attributed 75 per cent to Terry and 25 per cent to IPC. Question four asked for the total amount of damages sustained by the plaintiff. The jury found $400,000. The question, however, instructed the jury not to reduce the amount of damages by the negligence attributed to Terry. It did not do so.

When the jury reached its verdict, the trial judge instructed the clerk to publish the answers to the verdict form. The clerk read the answers to questions one through three. Once the clerk stated the jury had allocated 75 per cent of the negligence to Terry and 25 per cent to IPC, the trial judge instructed the clerk not to read any further; consequently, the clerk did not publish the jury’s answer to the fourth question in the jury’s presence.

After affirming the verdict, the judge asked the parties if there was anything else they wanted from the jury. Receiving negative responses from both parties, she dismissed the jurors.

Afterward, the judge published the answer to the fourth question. She explained she did not publish the answer earlier because of the percentage of negligence attributed to the child would not have entitled Hunt to a judgment against IPC.

LAW/ANALYSIS

I.

Hunt argues the jury’s verdict is inconsistent and also contends the trial judge erred by discharging the jury before publishing the jury’s answer to the fourth question.

A.

Hunt maintains the verdict was inconsistent because the jury, which experienced confusion concerning certain issues it was to decide, found Terry 75 per cent at fault, damages notwithstanding.

While it is true the record reflects the jury raised several questions with the trial judge during its deliberations and twice returned to the courtroom for further instructions, the trial judge responded to each question without objection from Hunt. In particular, Hunt did not object to the judge’s additional instructions on comparative negligence.²

Regarding the verdict form, the trial judge explained to the jury how it was to complete it. She told the jury:

Now, if you answered number three [which instructed the jury to apportion fault if it found the negligence of both parties proximately caused Terry’s death] and you put a percentage, and this is again for instructions only, if this should happen, you put a percentage of negligence on the part of the deceased, Terry Henson, you do not lower the amount of damages by that percentage. Do not do it. In other words, even if you found negligence on the part [sic] for this question I want to see the total amount of damages. Do you understand what I’m saying? Do not reduce it by any amount of negligence you might apply.

Hunt did not object to these instructions and, as indicated above, did not object to the verdict form.³

Hunt, however, cites cases concerning inconsistent verdicts or the failure of a jury to follow instructions.⁴ These cases have no application here. In this instance, the jury rendered a verdict that was consistent on its face with the structure of the form submitted to it and the jury completed the verdict form in accordance with the trial judge’s instructions.

B.

Hunt also argues the trial judge erred in discharging the jury before publishing the verdict form to counsel in its entirety. We disagree.

The trial judge properly determined the jury returned a defense verdict based on the law of comparative negligence and in accordance with her instructions; thus, there was no need to publish the entire verdict form in the jury’s presence.⁵

II.

A.

Tragic as this case is, the trial judge committed no error in directing a verdict in favor of IPC on the issue of attractive nuisance. Settled law supports what the trial judge did.⁶ When viewed in the light most favorable to Hunt,⁷ the evidence shows Terry was not attracted to the premises by reason of the canal. He went there for another purpose entirely, i.e., to see “a dirt jumping hill.” The attractive nuisance doctrine “is not applicable where the injured child went to the dangerous situation for some other reason.”⁸

B.

Even if the trial judge erred in directing a verdict as to attractive nuisance, the error is harmless. The questions of whether IPC was negligent and whether IPC maintained an “unguarded condition”⁹ remained for the jury’s consideration.

Regarding the question of “unguarded condition,” where, as here, the element of attractiveness is missing and the child does not enjoy the status of an invitee or business visitor, a child who sustains injury by reason of a dangerous condition of the premises may still have a right of recovery for his or her injuries under appropriate circumstances.¹⁰ Our supreme court has recognized that this right runs “[p]arallel with the attractive nuisance doctrine.” ¹¹ We therefore fail to see how the trial judge’s directing a verdict on the question of attractive nuisance prejudiced Hunt, being that the trial judge did not direct a verdict on the question of unguarded condition.¹² Then too, the negligence cause of action subsumed both unguarded condition and attractive nuisance.¹³

We recognize the verdict form did not ask the jury to determine the unguarded condition claim separately from the negligence claim; however and as noted above, counsel for both parties examined the form after the trial judge submitted it to the jury and neither side voiced any objection to the form.¹⁴

C.

We also have serious reservations regarding whether this court can consider the issue regarding attractive nuisance.¹⁵

Rule 208(b)(1)(B), SCACR requires an appellant’s initial brief to contain “[a] statement of each of the issues presented for review.” The rule further states that, “[ojrdinarily, no point will be considered which is not set forth in the statement of the issues on appeal.” Chief Justice Toal and her coauthors write in their work Appellate Practice in South Carolina that “where an issue is not specifically set out in .the statement of issues, the appellate court may nevertheless consider the issue if it is reasonably clear from appellant’s arguments.” ¹⁶

For the latter proposition, the authors cite Southern Welding Works, Inc. v. K & S Construction Co.,¹⁷ a case decided under the prior Rules of the Supreme Court in which Rule 4, Section 6, required an appellant to include exceptions, among other things, in a transcript of record. Each exception had to contain a concise statement of one proposition of law or fact that the appellant asked the supreme court to review.

Judge Bell, writing for the court of appeals in that case, noted the appellant’s exceptions violated Rule 4, Section 6, because they failed to contain a complete assignment of error. Nevertheless, the court elected to consider those issues “which [were] reasonably clear from [appellant’s] argument and which were ruled on by the trial court.”

What we gleaned from Judge Bell’s opinion is that the exceptions, questions, and issues presented for appellate review in that case, namely, whether the appellant had been denied its statutory right to four peremptory challenges and whether the trial court properly refused to allow the appellant to .recall a witness, were preserved for appellate review notwithstanding the exceptions did not contain a “because” clause. In other words, although the appellant challenged two particular, identifiable rulings made by the trial court, but failed to detail its reasons for each challenge, the failures were not fatal to its appeal because the court could discover the assignments of error directed to each of the two rulings from the arguments set out in the appellant’s brief.

That is a far cry from what Hunt did in this case. Here, Hunt set forth in her initial brief the following issue:

The trial court erred in failing to charge attractive nuisance where a ten year old was attracted to the canal in which he drowned but entered the property for a purpose unrelated to water.

(Emphasis added.)

The reason the trial judge did not charge the law regarding attractive nuisance was because that theory of recovery was no longer an issue in the case.¹⁸ The trial judge had earlier directed a verdict on that issue in IPC’s favor pursuant to its motion.

Nowhere in the issues on appeal does Hunt ask this court to review the granting by the trial judge of IPC’s motion for a directed verdict. Rather, Hunt, under an issue relating to jury instructions, bootstraps an attack on the trial judge’s action in directing a verdict by arguing the trial judge erred in refusing to charge attractive nuisance as a basis for recovery.

An issue directed at a trial court’s denial of a request to charge does not reasonably and fairly embrace a trial court’s granting of a directed verdict.¹⁹ If a party wishes to question a trial court’s directing of a verdict in an opposing party’s favor, the party should appeal that particular ruling. A challenge to a failure to charge is a poor vehicle by which to challenge the grant of a directed verdict motion.²⁰ Appellate review of the grant of a motion for a directed verdict and of a denial or granting of a request to charge involve different considerations.²¹

AFFIRMED.

CURETON, A.J., concurs. ANDERSON, J., concurs in part and dissents in part in a separate opinion.

1 . The complaint originally included Georgetown Steel Corporation, the City of Georgetown, and Georgetown County as defendants.

2 . See Creighton v. Coligny Plaza Ltd. P'ship, 334 S.C. 96, 119, 512 S.E.2d 510, 522 (Ct.App.1998) (staling because no objection was raised concerning the trial judge’s jury instruction in regard to contributory negligence, the issue was not preserved for appeal).

3 . See Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 421, 453 S.E.2d 908, 912 (Ct.App.1995) (holding that by failing to object to a verdict form until after a liability verdict had been reached, party failed to preserve any issue relating to the verdict form).

4 . See Johnson, 317 S.C. 415, 453 S.E.2d 908; Southeastern Mobile Homes, Inc., v. Walicki, 282 S.C. 298, 317 S.E.2d 773 (Ct.App.1984).

5 . See Nelson v. Concrete Supply Co., 303 S.C. 243, 245, 399 S.E.2d 783, 784 (1991) (adopting the doctrine of comparative negligence and holding plaintiff can recover in South Carolina when his or her negligence is not greater than the defendant’s negligence).

6 . See Kirven v. Askins, 253 S.C. 110, 117, 169 S.E.2d 139, 142 (1969) ("It follows that the doctrine is not applicable where the injured child went into the dangerous situation for some other reason. In Hancock v. Aiken Mills, Inc., 180 S.C. 93, 185 S.E. 188 [(1936)], we held that unless the child goes on the property by reason of the temptation of the very instrumentality, which is held to be the attractive nuisance, he cannot recover. Here, the appellant was not attracted to the premises of the respondent by reason of the presence thereon of either the pile of dirt or clods of clay.").

7 . See Adams v. Creel, 320 S.C. 274, 277, 465 S.E.2d 84, 85 (1995) (stating that on an appeal from an order granting a directed verdict, the appellate court views the evidence and all reasonable inferences that can be drawn from the evidence in the light most favorable to the party against whom the verdict was directed).

8 . Kirven, 253 S.C. at 117, 169 S.E.2d at 142.

9 . On the issue of “unguarded condition,” the trial judge stated, “[TJn looking at the evidence in the light most favorable to the non-moving party, it is a jury issue for their determination and I’m speaking clearly [sic ] on the unguarded condition issue.”

10 . Everett v. White, 245 S.C. 331, 335, 140 S.E.2d 582, 584 (1965).

11 . Id. at 335, 140 S.E.2d at 584.

12 . See 65A C.J.S. Negligence § 507, at 240 (2000) ("Also, even though a thing or a condition may be both attractive and dangerous to children, the attractive nuisance doctrine cannot apply to it unless it is maintained or left in an unprotected or unguarded condition.”).

13 . See, e.g., Daniels v. Timmons, 216 S.C. 539, 550-51, 59 S.E.2d 149, 155 (1950) ("All of the so-called attractive nuisance cases spring from negligence of the defendant in regard to his or her own property which is subject to being entered upon by a child who may be attracted onto the premises.”); 65A C.J.S. Negligence § 494, at 220 (2000) ("The attractive nuisance doctrine is merely a detailed articulation of ordinary negligence, and under that doctrine, a trespassing child is afforded the protection of ordinary negligence doctrine....").

14 . In fact, counsel for Hunt agreed that principles of negligence applied. In discussing IPC's motion for a directed verdict, he agreed it was "for the jury to say under the circumstances was it reasonable what [IPCJ did and how they set it up and was the kid himself liable for it.”

15 . See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) (“No point will be considered which is not set forth in the statement of issues on appeal.”) (citing Rule 208(b)(1)(B), SCACR); Barnes v. Cohen Dry Wall, Inc., 357 S.C.App. 280, 592 S.E.2d 311 (2003) (declining to address an argument not set forth in the statement of issues on appeal). We are aware of the supreme court’s holding in Hendrix v. Eastern Distribution, Inc., 320 S.C. 218, 464 S.E.2d 112 (1995), wherein the supreme court held this court should not have addressed an issue not preserved for review. The difference between Hendrix and this case is that here the question of whether the directed verdict issue is procedurally barred from appellate review is not, like the one in Hendrix, a settled one. Moreover, in this case, the dissent addresses the merits of the issue of attractive nuisance; therefore, under the circumstances and in the interest of judicial economy, we think we should likewise do so.

16 . Toal, Vafai, and Muckenfuss, Appellate Practice In South Carolina 75 (2d ed.2002).

17 . 286 S.C. 158, 332 S.E.2d 102 (Ct.App.1985).

18 . A trial court should confine its instructions to the issues made by the pleadings and supported by the evidence. Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977).

19 . See 4 C.J.S. Appeal and Error § 591, at 592 (1993) ("Assigning error to one ruling or decision raises no question as to the correctness of another, and a party who has assigned one class of errors will not be allowed to argue another; hence, the scope of the question considered will be determined by the scope of the assignment and the theory presented.”).

20 . Cf. State v. Lynn, 277 S.C. 222, 226, 284 S.E.2d 786, 789 (1981) ("Failure to contemporaneously object to [a] question now advanced as prejudicial cannot be later bootstrapped by a motion for a mistrial.”); State v. Moultrie, 316 S.C. 547, 555-56, 451 S.E.2d 34, 39 (Ct.App.1994) (quoting State v. Lynn).

21 . See Strange v. S.C. Dep’t of Highways and Transp., 314 S.C. 427, 429-30, 445 S.E.2d 439, 440 (1994) (holding the trial court, when ruling on a motion of directed verdict and JNOV, 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 motions and to deny the motions where either the evidence yields more than one inference or its inference is in doubt.”); Priest v. Scott, 266 S.C. 321, 324, 223 S.E.2d 36, 38 (1976) (holding an "alleged error in a portion of a charge must be considered in light of the whole charge, and must be prejudicial to the appellant to warrant a new trial."); Tucker v. Reynolds, 268 S.C. 330, 335, 233 S.E.2d 402, 404 (1977) (holding instructions to the jury should be confined to the issues made by the pleadings and supported by the evidence).