Dawkins v. Sell ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Maurice Dawkins, Appellant,
v.
James A. Sell, Respondent.
Appellate Case No. 2017-002520
Appeal From Hampton County
Roger M. Young, Sr., Circuit Court Judge
Opinion No. 5857
Submitted June 1, 2020 – Filed September 1, 2021
AFFIRMED
Richard Alexander Murdaugh and William Franklin
Barnes, III, both of Peters Murdaugh Parker Eltzroth &
Detrick, PA, of Hampton, for Appellant.
Kelly Dennis Dean and Ernest Mitchell Griffith, both of
Griffith Freeman & Liipfert, LLC, of Beaufort, for
Respondent.
WILLIAMS, J.: In this negligence action against James A. Sell, Maurice
Dawkins appeals the trial court's denial of his motions for a directed verdict, a
judgment notwithstanding the verdict (JNOV), and a new trial. Dawkins argues
the trial court erred in denying his motions for a directed verdict and JNOV on (1)
Sell's affirmative defense of Dennis Owens's intervening and superseding
negligence and (2) Sell's negligence. Dawkins also asserts the trial court erred in
denying his motion for a new trial because (1) the jury instruction on intervening
and superseding negligence was unwarranted, (2) Sell improperly published
Dawkins's interrogatory answer, and (3) Sell exceeded the empty-chair defense.
We affirm.
FACTS/PROCEDURAL HISTORY
This matter arises out of an automobile accident that occurred on I-95 in the
morning hours of August 21, 2010. Sell, who was sixty-one years old at the time,
was helping his son move from Ohio to Georgia, and he was driving a moving
truck (Moving Truck) with his grandson. Sell began driving the truck around
11:30 A.M. on August 20, and he stopped a few times to rest and help repair his
son's vehicle. Between 3:30 and 4:00 A.M. on August 21, while it was raining, Sell
lost control of the Moving Truck when the front right tire veered off the lane of
travel into the emergency lane. Sell attempted to return the Moving Truck to the
lane of travel, but the truck overturned and came to rest blocking both lanes of
travel, resulting in the emergency lane being the only navigable path around the
Moving Truck.
Multiple individuals, including Dawkins, stopped to render aid. While these
individuals were helping Sell and his grandson exit the vehicle and ensuring they
were uninjured, between ten to twenty other vehicles and one to three tractor-trailer
trucks passed the Moving Truck via the emergency lane. Approximately five to
ten minutes after the Moving Truck overturned, a tractor-trailer truck (Semi)
owned by Pierce National, Inc. and operated by Owens collided with the Moving
Truck, causing it to strike and injure Sell, Dawkins, and the other drivers rendering
aid.
Dawkins filed a complaint against Sell, Owens, and Pierce National and amended
it twice. Dawkins asserted, among other claims, that Sell and Owens were both
negligent in their operation of their respective vehicles and their negligence caused
him harm. Sell filed answers to Dawkins's complaints and asserted, among other
defenses, that Owens's negligence intervened and superseded any negligence on his
part. Additionally, Sell asserted a cross-claim against Pierce National and Owens
contending he had been injured by their negligence. Prior to trial, Pierce National
and Owens settled with Dawkins and Sell.
The trial occurred from October 9 through 12, 2017. Prior to trial, Dawkins moved
in limine to exclude evidence generally related to the prior inclusion of Pierce
National and Owens in the trial and their settlement. The trial court excluded some
evidence that was agreed upon by the parties but denied the motion to exclude the
remaining evidence. After Dawkins rested, Sell published portions of Owens's
deposition relating to his conduct prior to the accident and called John W.
Pinckney, an expert in motor carrier safety and compliance, to testify regarding
Owens's conduct. At the close of evidence, both parties moved for a directed
verdict on Sell's intervening and superseding negligence defense, and the court
denied both motions. Dawkins also moved for a directed verdict on the issue of
Sell's negligence, which the court also denied. The trial court instructed the jury
on the defense of intervening and superseding negligence and other particular
statutes that Dawkins claimed Sell violated. After deliberating, the jury issued a
general verdict for Sell. Dawkins moved for JNOV or a new trial in the
alternative, both of which the trial court denied. This appeal followed.
ISSUES ON APPEAL
I. Did the trial court err in denying Dawkins's motions for a directed verdict
and JNOV on the issue of Sell's affirmative defense of Owens's intervening
and superseding negligence?
II. Did the trial court err in denying Dawkins's motions for a directed verdict
and JNOV on the issue of Sell's negligence?
III. Did the trial court err in denying Dawkins's motion for a new trial because
the jury charge on intervening and superseding negligence was unwarranted?
IV. Did the trial court err in denying Dawkins's motion for a new trial because
Sell improperly published Dawkins's interrogatory answers identifying a
trucking expert previously retained by Dawkins?
V. Did the trial court err in denying Dawkins's motion for a new trial because
Sell exceeded the bounds of the empty-chair defense?
STANDARD OF REVIEW
A negligence action is an action at law. Hartman v. Jensen's, Inc., 277 S.C. 501,
502, 289 S.E.2d 648, 648 (1982). On appeal from an action at law tried by a jury,
appellate courts correct errors of law and do not disturb the jury's factual findings
unless the record reveals no evidence reasonably supporting those findings.
Wright v. Craft, 372 S.C. 1, 18, 640 S.E.2d 486, 495 (Ct. App. 2006).
When ruling on directed verdict or JNOV motions, "the [trial] court must view the
evidence and all reasonable inferences drawn from the evidence in the light most
favorable to the nonmoving party" and must deny the motions "[i]f the evidence at
trial yields more than one reasonable inference or its inference is in doubt." Kunst
v. Loree, 424 S.C. 24, 37–38, 817 S.E.2d 295, 301–02 (Ct. App. 2018). We apply
the same standard on appeal. Wright, 372 S.C. at 18, 640 S.E.2d at 495. Neither
the trial court nor this court has the authority to make credibility determinations or
resolve conflicting evidence. Kunst, 424 S.C. at 38, 817 S.E.2d at 302. The trial
court's ruling on a directed verdict or JNOV motion will be reversed only if the
ruling is governed by an error of law or no evidence supports the ruling. Austin v.
Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010).
"[T]he appellate court reviews a denial of a new trial motion for an abuse of
discretion." Kunst, 424 S.C. at 38, 817 S.E.2d at 302 (quoting Duncan v. Hampton
Cnty. Sch. Dist. No. 2, 335 S.C. 535, 547, 517 S.E.2d 449, 455 (Ct. App. 1999)).
"An abuse of discretion occurs when the trial court's order is controlled by an error
of law or when there is no evidentiary support for the trial court's factual
conclusions." Stokes-Craven Holding Corp. v. Robinson, 416 S.C. 517, 536, 787
S.E.2d 485, 495 (2016). "In determining whether the [trial] court erred in denying
a motion for a new trial, the appellate court must consider the testimony and
reasonable inferences to be drawn therefrom in the light most favorable to the
nonmoving party." Kunst, 424 S.C. at 38, 817 S.E.2d at 302.
LAW/ANALYSIS
I. Dawkins's Motions for a Directed Verdict and JNOV
A. Intervening and Superseding Negligence
Dawkins argues the trial court erred in denying his motions for a directed verdict
and JNOV on Sell's intervening and superseding negligence defense. We disagree.
A plaintiff must prove three elements on a negligence claim: "(1) a duty of care
owed by [the] defendant to [the] plaintiff; (2) breach of that duty by a negligent act
or omission; and (3) damage proximately resulting from the breach of duty." J.T.
Baggerly v. CSX Transp., Inc., 370 S.C. 362, 368–69, 635 S.E.2d 97, 101 (2006).
Proximate cause is ordinarily a question of fact for the jury and "requires proof of:
(1) causation-in-fact, and (2) legal cause." Id. at 369, 635 S.E.2d at 101; see Gause
v. Smithers, 403 S.C. 140, 150, 742 S.E.2d 644, 649 (2013) ("Only in rare or
exceptional cases may the issue of proximate cause be decided as a matter of law."
(quoting Bailey v. Segars, 346 S.C. 359, 367, 550 S.E.2d 910, 914 (Ct. App.
2001))). "Causation-in-fact is proved by establishing the injury would not have
occurred 'but for' the defendant's negligence, and legal cause is proved by
establishing foreseeability." Baggerly, 370 S.C. at 369, 365 S.E.2d at 101.
Foreseeability "is determined by looking to the natural and probable consequences
of the defendant's conduct." Gause, 403 S.C. at 150, 742 S.E.2d at 649.
"Evidence of an independent negligent act of a third party is directed to the
question of proximate cause." Matthews v. Porter, 239 S.C. 620, 628, 124 S.E.2d
321, 325 (1962). "For an intervening force to be a superseding cause that relieves
an actor from liability, the intervening cause must be a cause that could not have
been reasonably foreseen or anticipated." Stephens v. CSX Transp., Inc., 415 S.C.
182, 205, 781 S.E.2d 534, 546 (2015) (quoting Small v. Pioneer Mach., Inc., 329
S.C. 448, 467, 494 S.E.2d 835, 844 (Ct. App. 1997)). If the original tortfeasor's
"negligence appears merely to have brought about a condition of affairs, or a
situation in which another and entirely independent and efficient agency intervenes
to cause the injury, the latter is to be deemed the direct or proximate cause, and the
former only the indirect or remote cause." Gibson v. Gross, 280 S.C. 194, 197,
311 S.E.2d 736, 739 (Ct. App. 1983) (quoting Locklear v. Se. Stages, Inc., 193
S.C. 309, 318, 8 S.E.2d 321, 325 (1940)). The defense of intervening third-party
negligence ordinarily presents a question of fact for the jury and only rarely
becomes a question of law for the court to determine. See Small v. Pioneer Mach.,
Inc., 316 S.C. 479, 489, 450 S.E.2d 609, 615 (Ct. App. 1994); id. at 491, 450
S.E.2d at 616 (holding it was error for the trial court to direct a verdict in favor of
defendants on the ground of intervening third-party negligence because the record
contained some evidence the third-party's negligence was foreseeable).
i. Admission in Pleading
First, Dawkins argues the trial court erred because Sell admitted in his cross-claim
that Owens's actions were foreseeable. We disagree.
"It is well settled that parties are judicially bound by their pleadings unless
withdrawn, altered or stricken by amendment or otherwise." Charleston Cnty. Sch.
Dist. v. Laidlaw Transit, Inc., 348 S.C. 420, 425, 559 S.E.2d 362, 364 (Ct. App.
2001) (quoting Postal v. Mann, 308 S.C. 385, 387, 418 S.E.2d 322, 323 (Ct. App.
1992)). "Any allegations, statements, or admissions contained in a pleading are
conclusive against the pleader, and a party cannot subsequently take a contrary or
inconsistent position." Id.In Sell's cross-claims against Pierce National and Owens, he asserted they were
negligent in multiple ways and he suffered damages "as a direct and proximate
result of" their conduct. In answering Dawkins's complaints, Sell asserted as an
affirmative defense that Owens's negligence intervened and superseded any
negligence on his part. Dawkins argues that Sell cannot claim Owens's actions
were foreseeable in his cross-claim while also claiming Owens's actions were
unforeseeable in his defense against Dawkins's claim.
Dawkins mischaracterizes Sell's pleadings. Sell does not assert in his cross-claim
that Owens's actions were foreseeable; rather, he asserts his injuries were the
foreseeable result of Owens's alleged negligent actions. See Baggerly, 370 S.C. at368–69, 635 S.E.2d at 101 (stating the third element of a negligence action is the
breach of the duty proximately causing the plaintiff's damages). In the same
pleading, Sell asserts Owens's negligent actions were an unforeseeable result of
Sell's alleged negligent conduct and therefore an intervening and superseding cause
of Dawkins's injuries. See Stephens, 415 S.C. at 205, 781 S.E.2d at 546 (stating
the intervening negligence of a third party supersedes the negligence of the
defendant when the third party's negligence could not have been reasonably
foreseen). Sell's claim that his injuries were the foreseeable result of Owens's
negligence is not equivalent to asserting that Owens's negligence was the
foreseeable result of Sell's alleged negligence. Therefore, we find the trial court
did not err in denying Dawkins's motions for a directed verdict and JNOV on this
ground.
ii. Reasonable Inference from Evidence
Dawkins also asserts the trial court erred because the only reasonable inference
drawn from the evidence is that Owens's negligence and collision with the Moving
Truck was a foreseeable result of Sell's negligence. Dawkins relies on our supreme
court's opinion in Matthews v. Porter, which he asserts contains nearly identical
facts to the case at issue. We disagree.
In Matthews, our supreme court affirmed the denial of Porter's motions for a
directed verdict, JNOV, and a new trial on the issue of intervening and superseding
negligence. 239 S.C. at 631–32, 124 S.E.2d at 327. In that case, Porter and a third
individual were involved in an automobile collision that blocked the lane of traffic,
making the roadway impassable. Id. at 623, 629, 124 S.E.2d at 322, 326.
Matthews stopped to render assistance, and while she was providing aid, a fourth
individual—McKnight—sideswiped another car and pinned her between his car
and Porter's car. Id. at 623, 124 S.E.2d at 322. Porter moved for a directed verdict
on the ground that McKnight was an intervening and superseding negligent cause,
but the trial court denied the motion, and the jury ultimately issued a verdict in
Matthew's favor. Id. at 624, 124 S.E.2d at 323. Our supreme court, reviewing the
evidence in the light most favorable to Matthews, affirmed the denial of Porter's
motions because there was sufficient evidence to raise a question of fact as to
whether McKnight's negligence was an intervening and superseding cause of
Matthews's injuries. Id. at 625, 628–32, 124 S.E.2d at 323, 325–27. Because the
evidence was susceptible to more than one inference, the court held it could not
find as a matter of law that McKnight's negligence superseded Porter's negligence
and affirmed the trial court's denial of Porter's motions. Id. at 632, 124 S.E.2d at
327.
However, in Gibson v. Gross, this court held the evidence supported a directed
verdict in favor of the defendant on the issue of intervening and superseding
negligence. 280 S.C. at 197–98, 311 S.E.2d at 739. In that case, Gross was
involved in accident that left his vehicle resting on the traveled portion of the road,
and Gibson stopped to lend assistance. Id. at 195, 311 S.E.2d at 737. Gross took
no action to warn other drivers of his disabled vehicle, and while Gibson was
assisting, another individual, Edwards, struck Gibson with his vehicle. Id. at 195,
311 S.E.2d at 737–38. Gross asserted he was not negligent and even if he was,
Edwards was negligent and was an intervening and superseding cause of Gibson's
injuries. Id. at 196, 311 S.E.2d at 738. The trial court granted a nonsuit in favor of
Gross because no evidence indicated Gross's alleged negligence proximately
causes Gibson's injuries and any potential negligence "'was only an indirect or
remote cause' of Gibson's injury." Id. at 195, 311 S.E.2d at 738. This court noted
the first tortfeasor's negligence is an "indirect or remote cause" when it merely
creates "a condition of affairs" in which the second tortfeasor's negligence
intervenes and causes the injury. Id. at 197–98, 311 S.E.2d at 739 (quoting
Locklear, 193 S.C. at 318, 8 S.E.2d at 325). The court held Gross could not have
foreseen that Edwards would have negligently collided with Gibson and affirmed
the trial court. Id. Upon a petition for rehearing, the court interpreted and
distinguished Matthews. Id. at 198–99, 311 S.E.2d at 739. The court stated the
cases superficially mirrored each other but noted key differences, such as the fact
that in Matthews, the vehicles "completely blocked a lane of the highway" but only
one lane of a four-lane highway was blocked in Gross. Id. at 198, 311 S.E.2d at
739. The court also observed that McKnight testified Porter's failure to warn and
blocking of the highway caused McKnight to hit Matthews and that Matthews
presented "witnesses whose testimony established an unbroken chain of causation
from the negligent act of [Porter] to [her] injuries." Id. The court noted there was
no evidence in its case that Edwards struck Gibson because the highway was
blocked or that Gross failed to warn him. Id.
We find the trial court did not err in denying Dawkins's motions for a directed
verdict or JNOV. Similar to the discussion in Gibson, we note that the vehicles in
Matthews blocked the highway and made it impassable. See Matthews, 239 S.C. at
628, 124 S.E.2d at 325; Gibson, 280 S.C. at 198, 311 S.E.2d at 739. In this case,
however, multiple witnesses, including Dawkins and Owens, testified the interstate
was not impassable after the Moving Truck overturned because the emergency lane
was unblocked and usable. Witnesses, including Dawkins, also testified other
vehicles used the emergency lane to safely avoid the Moving Truck prior to
Owens's collision. Conversely, Owens testified in his deposition that he was
watching the painted lines—not scanning the road for obstacles—and traveling
around sixty-five miles per hour, which was three miles per hour under the
maximum possible speed for the Semi due to a speed cap placed on its engine,
while driving at night in rain. Owens also he said he struck the Moving Truck
traveling around sixty-five miles per hour. Owens never testified that he was
unable to avoid the Moving Truck or attributed his collision with the Moving
Truck to some fault of Sell. Instead, he testified he collided with the Moving
Truck after unsuccessfully applying his brakes. Pinckney—Sell's expert witness—
opined Owens breached his duty of prudent driving by not scanning the road and
overdriving his headlights.1 Additionally, Pinckney further opined that Owens was
a fatigued driver because evidence showed that on the afternoon preceding the
collision, Owens picked up a shipment at the same time his driving log showed he
was resting in his bunk, which was a violation of Federal Motor Carrier Safety
Regulations. When viewed in the light most favorable to Sell, we find the
evidence presented a reasonable inference that Owens's negligence was not
foreseeable as a matter of law and Sell's negligence merely created a "condition of
affairs" in which Owens's subsequent negligence caused Dawkins's injuries. See
Gibson, 280 S.C. at 197, 311 S.E.2d at 739 ("When the negligence appears merely
to have brought about a condition of affairs, or a situation in which another and
entirely independent and efficient agency intervenes to cause the injury, the latter
is to be deemed the direct or proximate cause, and the former only the indirect or
remote cause." (quoting Locklear, 193 S.C. at 318, 8 S.E.2d at 325)). Accordingly,
we hold the trial court did not err in denying Dawkins's motions for a directed
1
Overdriving one's headlights means driving at a rate of speed that makes it
impossible to stop the vehicle within the range of sight provided by the headlights.
See Gautreaux v. Orgeron, 84 So. 2d 632, 633 (La. Ct. App. 1955).
verdict or JNOV on Sell's intervening and superseding negligence defense, and we
affirm the trial court on this issue.
B. Sell's Negligence
Dawkins argues the trial court erred in denying his motions for a directed verdict
and JNOV on the issue of Sell's negligence. Dawkins asserts the trial court should
have held as a matter of law that Sell was negligent because the evidence only
supported the inference that Sell failed to maintain proper control of the Moving
Truck. We disagree.
Dawkins asserts the case of Fettler v. Gentner is factually similar to this case and
controls this issue. 396 S.C. 461, 722 S.E.2d 26, (Ct. App. 2012). In that case, the
Fettlers stopped at a yield sign due to an oncoming car, and Gentner rear-ended
them. Id. at 461, 465, 722 S.E.2d at 28. The Fettlers moved for a directed verdict
on the issue of Gentner's negligence, which the trial court denied. Id. at 465–66.
722 S.E.2d at 28–29. On appeal, this court noted Gentner admitted he took his
eyes off the road and failed to keep a lookout after the Fettlers reached the yield
sign. Id. at 467, 722 S.E.2d at 30. Because the evidence was not susceptible to
more than one reasonable inference on the issue of Gentner's negligence, this court
reversed the denial of Fettler's directed verdict. Id. at 468–69, 722 S.E.2d at 30.
We find Fettler is distinguishable from the instant case. In Fettler, Gentner
admitted he took his eyes off his lane of travel and Fettler's vehicle. Id. Although
Sell stated he was responsible for overturning the Moving Truck, this is not the
same as (1) admitting he breached his duty of care or (2) Gentner's admission that
he took his eyes off his lane of travel and Fettler's vehicle while continuing to
approach it. Additionally, when considered in the light most favorable to Sell, the
record contains evidence creating an inference that Sell was not negligent. Sell
testified he drove "considerably slower than [he did] in a car" because it was
raining and the steering wheel "seemed to be a little bit loose, which made the
truck tend to sway a little bit." Sell also stated that when the Moving Truck's tire
veered into the emergency lane, he tried to steer the tire back onto the road and
"steered a little bit more" when the tire "did[ not] seem to respond as quickly as
[he] thought" it should. He asserted that he had traveled a lot for his work and was
familiar with knowing when to stop and that although he was somewhat tired and it
had been a long day, he did not believe it was unsafe for him to be driving at that
time. He further testified that in addition to stopping for two hours earlier in the
day due to his son having vehicle trouble, he stopped twice to rest for twenty to
thirty minutes—one of which was around twenty to thirty minutes before the
accident. Sell did not make any concession similar to Gentner's admission that he
removed his eyes from the road. Therefore, we find this evidence, when viewed in
the light most favorable to Sell, creates an inference that he was not negligent. See
Wright, 372 S.C. at 18, 640 S.E.2d at 496 ("On appeal from an order denying a
directed verdict [or JNOV], an appellate court views the evidence and all
reasonable inferences in a light most favorable to the non-moving party.").
Accordingly, the trial court did not err in denying Dawkins's motions for a directed
verdict and JNOV, and we affirm.2
2
Dawkins also argues only one reasonable inference could be drawn regarding
Sell's negligence due to his failure to comply with a statutory requirement of
placing warning devices to warn oncoming drivers of the overturned Moving
Truck. See S.C. Code Ann. § 56-5-5090 (2018) (requiring the driver of certain
vehicles to utilize warning devices, such as lighted flares or electric lanterns, if the
vehicle is disabled upon the traveled portion of a highway or the shoulder).
However, this argument is unpreserved. At the close of evidence, Dawkins only
argued he should be given a directed verdict "on the issue that [Sell] breached a
duty in overturning the truck, blocking both southbound lanes in the rain at night,"
and he did not argue that the court should direct a verdict on the issue of
negligence because Sell failed to set out warning devices. See I'On, L.L.C. v. Town
of Mount Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) ("[The]
preservation requirement . . . is meant to enable the lower court to rule properly
after it has considered all relevant facts, law, and arguments." (emphasis added));
Scoggins v. McClellion, 321 S.C. 264, 267, 468 S.E.2d 12, 14 (Ct. App. 1996) (per
curiam) (holding an appellate court will not consider an issue on appeal from the
denial of a directed verdict if the issue was not raised in a directed verdict motion
at trial). Dawkins did not raise the statute to support his motion for a directed
verdict until his posttrial motion for JNOV. See Duncan v. Hampton Cnty. Sch.
Dist. No. 2, 335 S.C. 535, 545, 517 S.E.2d 449, 454 (Ct. App. 1999) ("A motion
for [JNOV] under Rule 50(b)[, SCRCP,] is a renewal of the directed verdict motion
and is limited to the grounds asserted in the directed verdict motion." (second
alteration in original) (quoting Glover v. N.C. Mut. Life Ins. Co., 295 S.C. 251,
256, 368 S.E.2d 68, 72 (Ct. App. 1988))); S.C. Dep't of Transp. v. First Carolina
Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007)) ("[A]n issue may
not be raised for the first time in a [posttrial] motion."). Accordingly, this ground
is not preserved for our review, and we affirm the trial court.
II. Dawkins's Motion for a New Trial
Dawkins asserts the trial court erred in denying his motion for a new trial. We
disagree.
A. Jury Instruction
Dawkins contends the trial court erred in denying his motion for a new trial
because the court instructed the jury on intervening and superseding negligence,
which he asserts was unwarranted. Because we affirm above the trial court's denial
of Dawkins's directed verdict and JNOV motions on this ground, we similarly
affirm the trial court's denial of his motion for a new trial. See Stephens, 415 S.C.
at 204–05, 781 S.E.2d at 546 (finding the trial court did not err in charging the jury
on intervening and superseding negligence because evidence that a third party was
unforeseeably negligent supported the charge).
B. Interrogatory Response
Dawkins argues the trial court improperly denied his motion for a new trial
because the court erred in allowing Sell to publish an answer to an interrogatory
identifying a trucking expert that Dawkins previously intended to use against
Pierce National and Owens. Dawkins argues it was error to publish the answer
because it identified a nonparty with whom Dawkins had previously settled. We
disagree.
Answers to interrogatories can be used in trials "to the extent permitted by the rules
of evidence." See Rule 33(d), SCRCP. Generally, relevant evidence is admissible,
and irrelevant evidence is inadmissible. Rule 402, SCRE. Relevant evidence is
evidence that tends to make the existence of any fact of consequence for the case
more or less probable. Rule 401, SCRE. Admitting evidence is within the trial
court's sound discretion "and will not be disturbed absent an abuse of discretion
and a showing of prejudice." Fountain v. Fred's, Inc., 429 S.C. 533, 560, 839
S.E.2d 475, 490 (Ct. App. 2020) (quoting Oconee Roller Mills, Inc. v. Spitzer, 300
S.C. 358, 360, 387 S.E.2d 718, 719 (Ct. App. 1990)).
We find the trial court did not abuse its discretion in admitting the answer. In his
response to Pierce National's and Owens's interrogatories, Dawkins indicated he
was prepared to call an expert named David L. Dorrity to testify regarding Owens's
operation of the Semi and compliance with federal laws. This fact, indicating
Dawkins believed Owens was negligent, made the fact that Owens was negligent
more probable. See Rule 401. Owens's negligence was a "fact of consequence"
because it was a necessary element of Sell's affirmative defense of intervening and
superseding negligence. Id. Because Owens's negligence remained relevant, the
trial court did not abuse its discretion in admitting the interrogatory answer. See
Robinson, 416 S.C. at 536, 787 S.E.2d at 495 ("An abuse of discretion occurs when
the trial court's order is controlled by an error of law . . . ."). Moreover, any error
in admitting the answer did not prejudice Dawkins because whether Dawkins was
prepared to allege Owens violated federal motor laws was cumulative to the
evidence offered by Sell's expert Pinckney that Owens did violate such laws. See
Campbell v. Jordan, 382 S.C. 445, 453, 675 S.E.2d 801, 805 (Ct. App. 2009)
("When improperly admitted evidence is merely cumulative, no prejudice exists,
and therefore, the admission is not reversible error."). Accordingly, the trial court
properly denied Dawkins's motion for a new trial on this ground, and we affirm.3
C. Empty-Chair Defense
Dawkins argues the trial court erred in denying his motion for a new trial after
allowing Sell to exceed the bounds of the empty-chair defense. Dawkins asserts
the trial court "enabled Sell to fashion and extract a benefit from the fact that
Pierce National and Owens were not defendants." Dawkins avers Sell exceeded
the bounds of the empty-chair defense by presenting evidence of Owens's
negligence. Dawkins contends because Sell was entitled to a setoff for any amount
Dawkins received from his settlement with Pierce National and Owens, the issues
surrounding Pierce National and Owens were irrelevant. We disagree.
The empty-chair defense is the defendant's "right to assert another potential
tortfeasor, whether a party or not, contributed to the alleged injury or damages"
and was codified in the Uniform Contribution Among Tortfeasors Act (the Act) at
section 15-38-15 of the South Carolina Code (Supp. 2020). Smith v. Tiffany, 419
S.C. 548, 557, 799 S.E.2d 479, 484 (2017) (emphasis added) (quoting
§ 15-38-15(D)). Dawkins relies on Tiffany for the proposition that the defense "is
3
Dawkins also claims the trial court improperly (1) allowed Sell to cross-examine
Dawkins as to the allegations he raised as to Owens in his complaint over his
objection and (2) admitted portions of Owens's deposition over his objections on
relevancy. However, Dawkins does not list these as issues in his statement of
issues on appeal, and we decline to address them. See Rule 208(b)(1)(B), SCACR
("The statement shall be concise and direct as to each issue . . . . Ordinarily, no
point will be considered which is not set forth in the statement of the issues on
appeal.").
not boundless and the non-settling defendant cannot expand the scope of the case
and make evidence relevant by the fact [that] another tortfeasor settled." However,
Tiffany is distinguishable. In that case, the court interpreted the Act on appeal of a
defendant's request to join as a party an individual—with whom plaintiff had
already settled and released from the action—in order to allow the jury to
apportion fault. Id. at 554–55, 799 S.E.2d at 482–83. The court held the plain
language of the Act precluded the defendant from joining the prior codefendant.
Id. at 555–59, 799 S.E.2d at 483–85.
Because Tiffany did not discuss the empty-chair defense in the context of an
intervening and superseding negligence defense or provide the parameters of the
defense, it does not support Dawkins's argument. The evidence Sell offered of
Pierce National's and Owens's negligence was relevant because it related to Sell's
assertion of the affirmative defense of intervening and superseding negligence, for
which Sell had the burden of proof, not because they settled. See Small, 316 S.C.
at 481, 450 S.E.2d at 611 (noting intervening and superseding negligence is an
affirmative defense); Cole v. S.C. Elec. & Gas, Inc., 355 S.C. 183, 195, 584 S.E.2d
405, 412 (Ct. App. 2003) ("It is well established that a party pleading an
affirmative defense has the burden of proving it."), aff'd as modified on other
grounds, 362 S.C. 445, 608 S.E.2d 859 (2005). The fact that Sell may be entitled
to a setoff of any judgment the jury enters against him does not preclude him from
offering evidence to show the jury why it should not enter a judgment against him
at all. See § 15-38-15(D) ("A defendant shall retain the right to assert that another
potential tortfeasor, whether or not a party, contributed to the alleged injury or
damages and/or may be liable for any or all of the damages alleged by any other
party."). Therefore, we find Sell did not "fashion and extract a benefit from the
fact that Pierce National and Owens" had settled and did not exceed the empty-
chair defense. See Riley v. Ford Motor Co., 414 S.C. 185, 197–98, 777 S.E.2d
824, 831 (2015) (finding the defendant improperly extracted a benefit from the
settlement between the plaintiff and a prior codefendant when the court
reapportioned the allocation of settlement proceeds between the settling parties in a
manner that decreased the defendant's liability).
Dawkins also asserts that after allowing Sell to present evidence that Dawkins had
sued Pierce National and Owens, the court should have allowed him to reveal to
the jury that he had settled with Pierce National and Owens as well as the amount
of the settlement. Dawkins asserts that by allowing the jury to learn he originally
sued Pierce National and Owens without instructing the jury (1) of his settlement
with both parties, (2) of the amount of the settlement, and (3) that Sell would
receive credit for that amount, the court "undoubtedly left the jury with the belief
that Dawkins had been fully compensated by Pierce National and Owens." This
argument is unpersuasive because mere knowledge of a suit between Dawkins and
the former defendants would not "undoubtedly" lead the jury to assume Dawkins
had been fully compensated. Moreover, Dawkins cites no supporting authority for
this proposition, and this request goes beyond the parameters set forth in Lucht v.
Youngblood for the proper procedure when the jury learns the plaintiff previously
sued another in the same or a related action. 266 S.C. 127, 221 S.E.2d 854 (1976).
In that case, our supreme court stated that when there is a concern that admissible
evidence could indirectly inform the jury that another defendant has been released
from the action due to a settlement, the court should admit the evidence and
"simultaneously charge the jury that a plaintiff may choose which defendant he
wishes to sue and that if any actions against a former defendant are relevant, they
would be a matter for the court and not for the jury." Id. at 135, 221 S.E.2d at 858.
Dawkins did not request the trial court issue such an instruction, and his request to
disclose the amount of the settlement extends beyond the guidance provided by
Lucht, which specifically stated that evidence of the amount should not be
presented to the jury. See id. at 134, 221 S.E.2d at 858. In light of the above
reasoning, the trial court did not err in denying Dawkins's motion for a new trial on
this ground. Thus, we affirm the trial court on this issue.
CONCLUSION
Based on the foregoing, the trial court is
AFFIRMED.4
KONDUROS and HILL, JJ., concur.
4
We decide this case without oral argument pursuant to Rule 215, SCACR.