ESTATE OF HALEY EX REL. HALEY v. Brown

GOOLSBY, J.

This wrongful death action was brought after a bicycle rider ran into the right-rear side panel of a pickup truck. The trial court directed a verdict in favor of the defendant, Gary Curtis Brown, who was the driver of the truck. The plaintiff, the Estate of Joshua M. Haley, by and through its personal representative Cynthia Haley, appeals. The dispositive issue is whether the trial court properly found that, when viewing, as we are required to do,¹ the evidence in the light most favorable to the Estate, the only reasonable conclusion is that the negligence of the bicycle rider, Joshua Haley, outweighed any possible negligence by Brown in light of the sudden emergency in which Brown found himself. We affirm.

Around 6:00 p.m. on August 27, 2001, Joshua, an eight-year-old boy, engaged in play with his brother, Jimmy, and Kyle Sams, both around the same age as Joshua. They were in the parking lot of a vacant bank building in Myrtle Beach located at the corner of Fifth Avenue South and Highway 17. The boys were jumping their bikes over a speed bump located a few feet from the edge of the street at Fifth Avenue South and landing their bikes in or near the street.

A driveway shielded with “extremely tall” shrubbery provided access from the parking lot to the street. Brown was driving down Fifth Avenue South when James and Kyle, riding their bicycles, exited the driveway from behind the bushes and entered Fifth Avenue South. Brown immediately swerved his pickup truck to the left to avoid hitting them. Brown turned back to the right to return to his proper lane, but he swerved to the left again when he saw Joshua suddenly appear from the driveway as Joshua jumped over the speed bump. Despite Brown’s efforts, Joshua slammed his bicycle into the side of Brown’s truck just above the tire. The impact threw Joshua into the street. He died the next day. At the time Joshua struck Brown’s vehicle, Joshua was going an estimated 10 to 15 miles per hour. Brown was traveling at or about 25 miles per hour, the posted speed limit. Also, at or near the time of impact, there was a sound of screeching tires; there is no evidence of any other vehicles besides Brown’s in the vicinity. Approximately two to five seconds elapsed from the time Brown avoided the first two boys and Joshua rode his bicycle into the side of Brown’s pickup truck.

The only lay witness present at the time of the collision who testified at trial was Kyle, one of the first two riders to dart out as Brown drove down the street. According to Kyle’s uncontradicted testimony, Kyle had just jumped over the speed bump, landed in the street, and gotten onto the sidewalk when he heard screeching tires and then a crash. Kyle turned around to see Joshua, who had been following right behind him, lying in the street. According to Kyle, the accident “happened real quick.” Kyle acknowledged he was well aware of the need to look both ways before entering a street and agreed the boys had “made a mistake.”²

At trial, an expert witness for the Estate opined as follows: Brown would have traveled between 70 to 90 feet toward the boys once they exited the driveway and entered his field of vision; Brown had between 0.25 seconds and 2.0 seconds, the average human reaction time, to perceive the peril created by the first two children entering the street, make a decision about what evasive action he should take, and execute the evasive maneuver; at a hypothetical speed of 30 miles per hour, Brown would have traveled 44 feet per second, thus traversing his visibility field in approximately 2.0 seconds; from the time Joshua’s bicycle would have became visible and impacted Brown’s truck, 2.0 seconds would have elapsed, assuming Joshua was traveling 10 miles per hour; and Brown had approximately 2.0 seconds of reaction time to avoid colliding with Joshua.

Brown moved for a directed verdict on the issue of liability. The trial court granted Brown’s motion, but apparently inadvertently referred to it as summary judgment. The court stated “there is no reasonable evidence to suggest to the jury that any negligence on the part of the Plaintiff could possibly be exceeded by the — any perceived negligence on the part of the Defendant.... ”

In our view, the trial court properly directed a verdict in this case. The only reasonable inference that can be drawn from the evidence is that Joshua’s negligence in running into the side of Brown’s truck outweighed any possible negligence by Brown and was the more determinative factor in causing the collision.³

At the time of this accident, Brown was driving in his proper lane and at the posted speed limit. Moreover, there is no evidence of any impairment or recklessness on his part. Brown was confronted with an emergency situation caused solely by the first two boys wrongfully darting out of the bank parking lot into the path of his truck. He quickly made a decision to swerve to the left to avoid hitting the two boys. By choosing to swerve, Brown made a choice a person of ordinary prudence placed in the same emergency situation might also make at that moment.⁴ In fact, Brown did not hit any of the three children that day; unfortunately, one of them, Joshua, struck him. Even the Estate’s expert witness conceded a reasonable person might also swerve his or her car to the left to avoid an accident when faced with a sudden emergency and such a maneuver would often be the quicker response. As to this case, he further conceded⁵ a collision likely would have occurred even with braking.⁶

This situation is similar to that in Hopson v. Clary,⁷ a case in which the plaintiff, Hopson, was driving down the street, pulled over, and attempted to make a U-turn when she was struck by the defendant, Clary, who was traveling behind her.⁸ We upheld the trial court’s decision granting a directed verdict to Clary, finding that, even assuming Clary was guilty of some negligent act, Hopson’s own negligence in attempting “an inherently precarious maneuver without ascertaining whether she could do so safely” was, as a matter of law, greater than any negligence attributable to Clary and the more determinative factor in causing the accident.⁹

Likewise, in Bloom v. Ravoira,¹⁰ our supreme court held that where a pedestrian was struck by a motorist as he attempted to cross a street, the only reasonable inference was that his own negligence was more than fifty percent, thus precluding his recovery in a negligence action against the motorist.¹¹ The pedestrian “entered the street quickly [in the middle of the block from between two parked cars] and without any warning to drivers.”¹² The pedestrian stated he looked left and then right and then entered the street without looking to the left again.¹³ He did not see the motorist.¹⁴ The motorist was driving no more than 25 miles per hour and was not driving recklessly.¹⁵

The supreme court held the pedestrian was not entitled to recover on his negligence action, stating: “Here, the undisputed facts establish that [the pedestrian] attempted to cross the street but did not do so in a safe, reasonable manner. Any factual issues that might exist as to [the motorist’s] fault in this accident cannot alter the inescapable conclusion that, as a matter of law, [the pedestrian’s] fault exceeded fifty percent. Where evidence of the plaintiffs greater negligence is overwhelming, evidence of slight negligence on the part of the defendant is simply not enough for a case to go to the jury.”¹⁶

Of particular interest is the decision of the Court of Appeals of Georgia, Neal v. Miller,¹⁷ wherein it considered a scenario similar to the current appeal. There, the court affirmed a directed verdict in favor of a defendant motorist whose car was struck on the side by the plaintiff, a nine-year-old bicycle rider who “shot out of [a steep] driveway” that was hidden from view by trees.¹⁸

Then there is Dorsey v. Buchanan,¹⁹ in which the Court of Appeals of North Carolina found, in a situation involving the collision of a minor bicyclist and a truck driver, that the “most compelling circumstance is that [the bicyclist] collided with the truck, not vice versa....”²⁰ The court, in upholding the grant of a directed verdict to the truck driver, observed that “the mere occurrence of a collision between a motor vehicle and a minor on the street does not of itself establish the driver’s negligence.²¹

CONCLUSION

In this instance, the only allegation of negligence is that Brown should have swerved and braked; but the evidence shows Brown did swerve and applied his brakes. Moreover, even if we assume he just swerved, we still find that is a reasonable response to the hazard presented and his conduct would not, in any event, constitute the greater negligence. Again, Brown was struck by Joshua, not vice versa, and Brown did make, under any view of the evidence, at least a reasonable attempt to avoid a collision. Although we, like the trial court, are sympathetic to the loss that was incurred in this case, we feel compelled to uphold its ruling where the only reasonable conclusion is any possible negligence by Brown could not be deemed greater than fifty percent.

AFFIRMED.

HEARN, C.J., concurs. ANDERSON, J., dissents in a separate opinion.

1 . See, e.g., Hurd v. Williamsburg County, 363 S.C. 421, 426, 611 S.E.2d 488, 491 (2005) ("When reviewing a ruling on a motion for directed verdict, we must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party.”).

2 . In South Carolina, the conduct of a minor is judged by the standard of behavior to be expected of a child of like age, intelligence, and experience under like circumstances. Standard v. Shine, 278 S.C. 337, 339, 295 S.E.2d 786, 787 (1982). The undisputed evidence was that Joshua and the other children knew of the need to look before entering a street. Kyle’s mother testified her son had known "for some time” of the need to look both ways before entering a street, he had been trained in this for his own safety, and she had the impression he understood this for several years prior to the accident. Likewise, Joshua's mother conceded her sons, including Joshua, "knew the rules of the road” and "[tjhey knew not to go in the road.”

3 . Under comparative negligence, the plaintiff in a negligence action may recover damages only when his or her negligence is not greater than that of the defendant. Nelson v. Concrete Supply Co., 303 S.C. 243, 245 & n. 1, 399 S.E.2d 783, 784 & n. 1 (1991) (finding the plaintiff, who ran into the back of a tractor-trailer, was not entitled to recover damages because there was no negligence on the part of the truck driver as a matter of law). The trial court should grant a motion for a directed verdict in a comparative negligence case when “the only reasonable inference that may be drawn from the evidence is that the plaintiff's negligence exceeded fifty percent." Creech v. South Carolina Wildlife & Marine Res. Dep’t, 328 S.C. 24, 33, 491 S.E.2d 571, 575 (1997); cf. Lydia v. Horton, 355 S.C. 36, 40, 583 S.E.2d 750, 752-53 (2003) (noting if the evidence supports only one conclusion, the comparative fault of the plaintiff and the defendant becomes a question of law for the trial judge; the court held, in a negligent entrustment action, the plaintiff's admission that he was intoxicated and lost control of a borrowed vehicle exceeded the owner’s alleged negligence in loaning him the vehicle as a matter of law).

4 . The sudden emergency doctrine does not bar a plaintiff’s claim as a matter of law, but it is relevant in determining whether there is any reasonable inference that the defendant’s alleged negligence outweighed that of the plaintiff. See Wiggins v. Thomas, 264 S.C. 360, 365, 215 S.E.2d 426, 428 (1975) (stating the doctrine of sudden emergency is a part of the overall law of negligence); Watson v. Aiken, 243 S.C. 368, 373, 133 S.E.2d 833, 836 (1963) (observing when a person faces a sudden emergency, he is not to be judged in light of later events, but rather, is to be judged in light of all the surrounding circumstances, by the standard of what a person of ordinary prudence likely would have done under the same conditions); Singletary v. South Carolina Dep’t of Educ., 316 S.C. 153, 157, 447 S.E.2d 231, 233 (Ct.App.1994) ("Where a motorist is suddenly placed in an emergency situation, through no fault of his own, and is compelled to act instantly to avoid a collision, he is not negligent if he makes a choice that a person of ordinary judgment might make if placed in the same emergency situation.”); Alston v. Blue Ridge Transfer Co., 308 S.C. 292, 297-98, 417 S.E.2d 631, 634 (Ct.App. 1992) (noting the question of whether a sudden emergency existed, normally a question for the jury, can be a question for the court if the facts show no actionable negligence on the part of the defendant; the court found, as a matter of law, that the defendant made eveiy reasonable effort to avoid a collision by attempting to brake and pull off the road when faced with the plaintiff’s vehicle crossing the center line and that the allegedly excessive speed of the defendant was not the proximate cause of the accident).

5 . The Estate's expert witness had suggested that Brown was negligent in failing to apply his brakes rather than swerving to his left, but the expert witness agreed a collision would have occurred between the truck and Joshua's bicycle "even if [Brown had] hit the brakes.” Furthermore, the evidence of screeching brakes just before Joshua crashed into Brown's truck and the lack of evidence of any other vehicles in the vicinity suggests Brown applied his brakes in an emergency fashion at the time of the collision.

6 . To the extent the Estate argues the doctrine of last clear chance precludes a directed verdict in this case, we find the doctrine, like sudden emergency, is simply one factor to be considered in determining the overall negligence of the parties. Although we agree comparative negligence normally presents a jury question, where, after consideration of all the relevant factors, the only reasonable inference is that the plaintiff’s negligence exceeded fifty percent, it becomes a matter of law for the trial court. See Spahn v. Town of Port Royal, 330 S.C. 168, 173, 499 S.E.2d 205, 208 (1998) (stating the doctrine of last clear chance has been subsumed by the adoption of comparative negligence and is simply one factor to be considered in analyzing the parties’ relative negligence); Rothrock v. Copeland, 305 S.C. 402, 405, 409 S.E.2d 366, 368 (1991) (holding last clear chance is not applicable where an emergency arises so suddenly that the defendant has no reasonable opportunity to avoid it); Bennett v. Wilbro, Inc., 310 S.C. 371, 374 n. 1, 426 S.E.2d 812, 813 n. 1 (Ct.App. 1992) (noting ”[t]he [last clear chance] doctrine allows recovery to a victim who negligently subjects himself to harm only if the defendant could or should have discovered the victim's peril and thereafter fails to exercise reasonable care to avoid injury to the victim” (emphasis added)).

7 . 321 S.C. 312, 468 S.E.2d 305 (Ct.App.1996).

8 . Id. at 313, 468 S.E.2d at 307.

9 . Id. at 315, 468 S.E.2d at 308.

10 . 339 S.C. 417, 529 S.E.2d 710 (2000).

11 . Id. at 424-25, 529 S.E.2d at 714.

12 .Id. at 423, 529 S.E.2d at 713.

13 . Id.

14 . Id.

15 . Id. at 424, 529 S.E.2d at 713.

16 . Id. at 424, 529 S.E.2d at 714.

17 . 194 Ga.App. 231, 390 S.E.2d 125 (1990).

18 . Id. at 125.

19 . 52 N.C.App. 597, 279 S.E.2d 92 (1981).

20 . Id. at 94.

21 . Id. at 95.