HUGHES v. WESTERN CAROLINA REGIONAL SEWER AUTHORITY (2009)

In this tort action, Western Carolina Regional Sewer Authority (WCRSA) appeals (1) the trial court's denial of motions for directed verdict and judgment notwithstanding the verdict, based on an alleged lack of proximate cause; (2) the trial court's instruction to the jury; and (3) the trial court's denial of a motion to set-off the verdict by the amount the plaintiff received in settling with a negligent third party. We affirm in part, reverse in part, and remand.

FACTS

In December 2005, Gene Richard Hughes, Jr. was injured in an automobile accident consisting of two separate collisions. A WCRSA employee, Timothy Moser, caused the initial collision, which left Hughes uninjured but caused his vehicle to become stopped in an intersection. Roughly ten minutes after this initial collision, a third driver, James Coker, while drunk, negligently drove through the intersection, collided with Hughes, and caused him extensive injury.

On the night of the accident, an ice storm caused widespread power outages in Greenville County. In order to keep the sewer pumps running, WCRSA charged employees Timothy Moser and Benjie Burns with delivering fuel to emergency generators. WCRSA provided Moser and Burns with a Ford F350 pickup truck temporarily outfitted with a two-hundred-gallon, diesel-fuel tank. While making a delivery, Moser approached a four-way intersection where the power outage had caused the traffic signals to become disabled. At the same time, Hughes, after having made a complete stop at the intersection, made a left turn in front of Moser's lane of travel. Moser failed to stop at the intersection and collided with Hughes's vehicle. The collision caused Moser's vehicle to proceed a short distance through the intersection and come to a rest on the median. Hughes's vehicle came to a stop in the intersection.

Although Hughes stated he was “shaken up” as result of the collision, neither he nor his passenger was injured. Because the traffic signals and street lights were out, a witness to the accident parked her vehicle with its headlights pointed to illuminate Hughes's vehicle stopped in the intersection. During the minutes immediately following the accident, Hughes remained in the intersection outside of his vehicle.

Approximately ten minutes after the initial accident, Coker drove through the intersection, striking Hughes and his vehicle. Coker was intoxicated and driving a vehicle owned by his employer, Operator's Unlimited, Inc. As a result of this second collision, Hughes sustained extensive injuries to his leg. Coker later pled guilty to his second conviction for driving under the influence and admitted responsibility for the second collision.

Hughes brought suit against WCRSA and Coker.¹ During trial, Hughes entered a settlement agreement and covenant not to execute with Coker. WCRSA unsuccessfully moved the court for a directed verdict. Over WCRSA's objection, the trial court instructed the jury on various statutes dealing with WCRSA's alleged duty to carry emergency signaling devices. The jury returned a verdict of $225,000 for Hughes. The trial court denied WCRSA's motions for judgment notwithstanding the verdict (JNOV) and to have the verdict off-set or reduced by the $80,000 Hughes received from the settlement with Coker. This appeal followed.

ISSUES ON APPEAL

I. Did the trial court err in denying Hughes's motions for directed verdict and JNOV?II. Did the trial court err by instructing the jury on sections 56-5-5060 to -5100 of the South Carolina Code (2006)?III. Did the trial court err in failing to set-off or reduce the verdict entered against WCRSA by the amount Hughes received from Coker?LAW/ANALYSISI. Directed Verdict & JNOV

WCRSA argues the trial court erred in failing to grant a directed verdict or a JNOV in its favor. We disagree.

WCRSA alleges that either a motion for a directed verdict or JNOV should have been granted in its favor for lack of proximate cause. Specifically, WCRSA alleges the ruling of the trial court was error because the second accident, which injured Hughes, was not foreseeable. Therefore, WCRSA contends the second collision was the result of an intervening cause and/or Coker's intervening criminal conduct, which supersedes its original negligence, breaking the chain of causation and relieving it from liability.

“In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence.” Corbett v. Weaver, 380 S.C. 288, 292-93, 669 S.E.2d 615, 617 (Ct.App.2008) (quoting Sims v. Giles, 343 S.C. 708, 714, 541 S.E.2d 857, 861 (Ct.App.2001)). “When reviewing the denial of a motion for a directed verdict or JNOV, this [c]ourt applies the same standard as the trial court.” Gibson v. Bank of Am., 383 S.C. 399, 405, 680 S.E.2d 778, 782 (quoting Gadson ex rel. Gadson v. ECO Servs. of S.C., 374 S.C. 171, 175, 648 S.E.2d 585, 588 (2007)). This court must review the evidence and any inferences in the light most favorable to the non-moving party and will only reverse the trial court's ruling “when there is no evidence to support the ruling or when the ruling is controlled by an error of law.” Gadson, 374 S.C. at 175, 648 S.E.2d at 588.

In a tort action based on negligence, the plaintiff must establish the negligent act or omission proximately caused the injury. Singletary v. Atl. Coast Line R. Co., 217 S.C. 212, 218-19, 60 S.E.2d 305, 307-08 (1950); Hurd v. Williamsburg County, 353 S.C. 596, 611, 579 S.E.2d 136, 144 (Ct.App.2003). “Proximate cause requires proof of both causation in fact and legal cause.” Platt v. CSX Transp., Inc., 379 S.C. 249, 266, 665 S.E.2d 631, 640 (Ct.App.2008). Cause in fact is established when “but for” the defendant's negligence, the particular injury would not have occasioned the plaintiff, while legal cause is established when the plaintiff's injury was a foreseeable consequence of the wrongdoing. Oliver v. S.C. Dep't of Hwys. & Pub. Transp., 309 S.C. 313, 316, 422 S.E.2d 128, 130 (1992). “The touchstone of proximate cause in South Carolina is foreseeability,” and a plaintiff must prove proximate cause by establishing the injury suffered occurred as a natural and probable consequence of the negligent act or omission. Hurd, 353 S.C. at 612, 579 S.E.2d at 144. The act or omission may be deemed the proximate cause of the injury if, “in the natural and continuous sequence of events, it produces injury, and without it, the injury would not have occurred.” Id. Conversely, when the injury is not reasonably foreseeable or, “if the accident would have happened as a natural and probable consequence, even in the absence of the alleged breach, then the plaintiff has failed to demonstrate proximate cause.” Id.

Foreseeability is determined from the defendant's perspective at the time of the negligent act or omission, not from hindsight. Id.; Parks v. Characters Night Club, 345 S.C. 484, 491, 548 S.E.2d 605, 609 (Ct.App.2001). It is not necessary that defendant foresaw the particular event that occurred, but rather only that his negligent conduct would probably cause someone injury. Hurd, 353 S.C. at 613, 579 S.E.2d at 145. Thus, if a plaintiff demonstrates that a defendant, through foresight “or by the exercise of ordinary care should have foreseen[ ] the probability that his conduct would likely cause injury to another,” he has established the requisite element of a negligence cause of action. Id. at 612, 579 S.E.2d at 144.

Proximate cause is the “efficient or direct cause of an injury,” but does not mean the sole cause of the injury. Id. at 613, 579 S.E.2d at 145; Small v. Pioneer Mach., Inc., 329 S.C. 448, 464, 494 S.E.2d 835, 843 (Ct.App.1997). A plaintiff can establish proximate cause by showing that the act or omission was “at least one of the direct, concurring causes of the injury.” Hurd, 353 S.C. at 613, 579 S.E.2d at 145. When the negligence of two or more parties contributes to the injury suffered by the plaintiff, the negligence of the intervening party does not necessarily relieve the initial wrongdoer of liability. Shepard v. S.C. Dep't of Corr., 299 S.C. 370, 375, 385 S.E.2d 35, 37 (Ct.App.1989); S.C. Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 176, 348 S.E.2d 617, 620 (Ct.App.1986). In order for the superseding or intervening act to break the causal chain, the inquiry is whether or not the initial actor should have reasonably anticipated injury in light of the circumstances. Shepard, 299 S.C. at 375, 385 S.E.2d at 38. Naturally, a defendant cannot be charged with foreseeing the unpredictable. Id. However, the wrongdoer need not have contemplated “the particular chain of events that occurred, but only that the injury at the hand of the intervening party was within the general range of consequences which any reasonable person might foresee as a natural and probable consequence of the negligent act.” Id.; see also Pfaehler v. Ten Cent Taxi Co., 198 S.C. 476, 485-86, 18 S.E.2d 331, 335 (1942) (demonstrating that the focus remains on the anticipation or foreseeability of injury, not the number of subsequent acts that chance to intervene); Wallace v. Owens-Ill., Inc., 300 S.C. 518, 521, 389 S.E.2d 155, 157 (Ct.App.1989) (“If the intervening acts are (1) set in motion by the original wrongful act and (2) are the normal and foreseeable result of the original act, the final result, as well as every intermediate cause, is considered in law to be the proximate result of the first wrongful cause.”).

When considering proximate cause, this court is mindful that “[o]rdinarily the question of proximate cause is one of fact for the jury.” Platt, 379 S.C. at 266, 665 S.E.2d at 640. “Only when the evidence is susceptible to only one inference does it become a matter of law for the court.” Id. at 267, 665 S.E.2d at 640; see also Newton v. S.C. Pub. Rys. Com'n, 312 S.C. 107, 439 S.E.2d 285 (Ct.App.1993), rev'd on other grounds, 319 S.C. 430, 462 S.E.2d 266 (1995) (noting that the particular facts of each case determine whether the issue of proximate cause is one of fact or law).

WCRSA argues Gibson v. Gross, 280 S.C. 194, 311 S.E.2d 736 (Ct.App.1983), applies here. In Gibson, the defendant, Gross, caused an accident when his vehicle hit a telephone pole and then collided with another car before finally coming to rest on the paved portion of the highway. Id. at 195, 311 S.E.2d at 737. Gross did not place any warning devices around his vehicle to warn oncoming drivers. Id. Shortly after the accident, an altercation broke out between Gross and the other driver involved in the collision. Id. Noticing the altercation in progress, the plaintiff, Gibson, a passerby, pulled over to intervene. Id. at 195, 311 S.E.2d at 738. Moments later, an oncoming vehicle struck and injured Gibson as he stood next to Gross's car. Id. The trial court granted a directed verdict in favor of Gross, finding Gross did not proximately cause Gibson's injuries and “even if there was some negligence on the part of ․ Gross, such negligence was only an indirect or remote cause” of Gibson's injuries. Id.

To the extent the Gibson court addressed the foreseeability of the plaintiff's injury, the case is distinguishable. Initially, Gibson alleged Gross was negligent in failing to remove his car from the highway or in the alternative, in failing to warn oncoming drivers that his vehicle blocked the lane of travel. Significantly the record contained “no evidence ․ that [the other driver] struck Gibson because the highway was blocked, or because warning devices failed to warn him of the highway's condition.” Id. at 198, 311 S.E.2d at 739 (emphasis added). Accordingly, with no evidence to support this position, the only issue was whether the evidence was sufficient to overcome the directed verdict motion based solely on Gross's negligent driving, which caused the initial accident. On this issue, because Gibson was not involved in the initial accident, the court held “[Gross] could not have been expected to foresee that he would have by his conduct caused injury to a person in [Gibson's] circumstances.” Id. Thus, any negligence on the part of Gross was completely independent of that of the third-party driver, and the trial court's decision to direct a verdict in Gross's favor was affirmed.

In the case at hand, unlike Gross in Gibson, Hughes was involved in the collision and was not at the scene of his own accord. The jury was free to surmise it was reasonably foreseeable that a party involved in an accident at an intersection may fall victim to subsequent collisions or may even remain near the accident site for a period of time. Moreover, we find no legal authority that establishes a bright-line test regarding the amount of time necessary to break the chain of causation. To the contrary, our supreme court has acknowledged in a case in which a subsequent collision occurred some “fifteen to forty-five” minutes after an initial collision, “the mere lapse of time would not necessarily break the chain of causation.” Matthews v. Porter, 239 S.C. 620, 630, 124 S.E.2d 321, 326 (1962). Accordingly, the amount of time that must pass before the second occurrence is no longer foreseeable will vary from case to case. We therefore uphold the trial court's decision to allow the jury to make this determination.

WCRSA's argument that Coker's conduct was an intervening cause also fails. Generally, the intervening, criminal conduct of a third person will break the chain of causation when the act is neither intended by the initial actor nor foreseeable as the probable result of his conduct. Fortner v. Carnes, 258 S.C. 455, 462, 189 S.E.2d 24, 27 (1972); Mellen v. Lane, 377 S.C. 261, 285, 659 S.E.2d 236, 249 (Ct.App.2008). Accordingly, the lynchpin of whether an intervening act, criminal or otherwise, breaks the causal chain is foreseeability. Thus, regardless of Coker's intoxication, the foreseeability that someone in Hughes's position would be injured as a natural consequence of WCRSA's negligence was a question for the jury.

In sum, because the record contains evidence to support that Hughes's injury was the reasonably foreseeable consequence of WCRSA's negligence, the trial court did not err in denying the directed verdict and JNOV motions. See Corbett, 380 S.C. at 292-93, 669 S.E.2d at 617 (“In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence.”). As the evidence does not compel only a single inference that WCRSA was not the proximate cause of Hughes's injuries, the issue is one of fact, proper for the jury, and this court will not disturb it on appeal. See Platt, 379 S.C. at 267, 665 S.E.2d at 640 (“Only when the evidence is susceptible to only one inference does [proximate cause] become a matter of law.”).

II. Jury Instruction

WCRSA next alleges that the trial court erred in instructing the jury on sections 56-5-5060 to -5100 of the South Carolina Code (2006).² We agree.

WCRSA's alleged error pertains primarily to instructing the jury on (1) section 56-5-5060, requiring, inter alia, “motor trucks” to carry flares or reflective devices and (2) section 56-5-5070 of the South Carolina Code (2006), which requires a vehicle transporting “inflammable liquids” to carry reflective devices.³

This court will not reverse the decision of the trial court as to particular jury instructions absent an abuse of discretion. Cole v. Raut, 378 S.C. 398, 405, 663 S.E.2d 30, 33 (2008); Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). A trial court abuses its discretion when the ruling is not supported by the evidence or is based on an error of law. Clark, 339 S.C. at 389, 529 S.E.2d at 539. However, an erroneous jury instruction is not reversible error unless it causes prejudice to the appealing party. Raut, 378 S.C. at 405, 663 S.E.2d at 33; Ellison v. Simmons, 238 S.C. 364, 372, 120 S.E.2d 209, 213 (1961).

When interpreting a statute, the “cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.” Hardee v. McDowell, 381 S.C. 445, 453, 673 S.E.2d 813, 817 (2009); Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 122, 542 S.E.2d 736, 739 (Ct.App.2001). “A statute should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute.” Ga.-Carolina Bail Bonds, Inc. v. County of Aiken, 354 S.C. 18, 22, 579 S.E.2d 334, 336 (Ct.App.2003).

When confronted with an undefined term, the court must interpret it in accordance with its usual and customary meaning. Branch v. City of Myrtle Beach, 340 S.C. 405, 409-10, 532 S.E.2d 289, 292 (2000); State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 581 (Ct.App.1999). However, this court will consider the language of the particular clause in which the term appears and also its meaning in conjunction with the purpose of the whole statute. See Hinton v. S.C. Dep't of Prob., Parole & Pardon Servs., 357 S.C. 327, 332-33, 592 S.E.2d 335, 338 (Ct.App.2004) (“Terms must be construed in context and their meaning determined by looking at the other terms used in the statute.”). Statutes must be read as a whole and sections that are part of the same statutory scheme must be construed together. Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992); Hinton, 357 S.C. at 332-33, 592 S.E.2d at 338. Further, the maxim expressio unius est exclusion alerius provides that the expression of one thing implies the exclusion of another or its alternative. State v. Leopard, 349 S.C. 467, 473, 563 S.E.2d 342, 345 (Ct.App.2002).

A. Section 56-5-5060

Section 56-5-5060 provides: “No person shall operate any motor truck, passenger bus or truck tractor upon any highway outside of the corporate limits of municipalities at any time from a half hour after sunset to half hour before sunrise unless there shall be carried in such vehicle” a specified quantity of signaling devices, flares, lanterns, or red-burning fuses.

The applicability of this statute hinges upon whether WCRSA's vehicle is a “motor truck.” This chapter of the Code does not define the term “motor truck”; however, the term “truck” is defined as “[e]very motor vehicle designed, used or maintained primarily for the transportation of property.” S.C.Code Ann. § 56-5-200 (2006). WCRSA argues the trial court erred in interpreting motor truck to be synonymous with the defined term truck. We agree.

In this case, when addressing whether truck and motor truck were synonymous, the trial court held because “there is no distinction between truck and motor truck in the definition section, I don't know how else to interpret it, except to think that they must be one in the same.” However, a review of the statute as a whole, as well as reading the term motor truck in context with the remainder of the statute, does not support the trial court's interpretation.

In addition to the section in question, the term motor truck appears in section 56-5-4150 of the South Carolina Code (2006), providing in pertinent part:

A private motor truck or truck tractor of more than twenty-six thousand pounds gross weight and a for-hire motor truck or truck tractor must have the name of the registered owner or lessor on the side clearly distinguishable at a distance of fifty feet. These provisions do not apply to two-axle straight trucks hauling raw farm and forestry products.

As the legislature specifically defines the term truck and clearly employs the term truck in other sections of the statute, the maxim expressio unius est exclusion alerius suggests motor truck and truck are not synonymous. See Leopard, 349 S.C. at 473, 563 S.E.2d at 345 (providing that the expression of one thing implies the exclusion of another). Had the legislature intended section 56-5-5060 to encompass trucks, we must surmise the drafters would not have elected to employ the term motor truck.⁴ Moreover, considering the practices of statutory construction demonstrate the two terms are not to be construed as synonymous, motor truck must be given its plain and ordinary meaning. See Branch, 340 S.C. at 410, 532 S.E.2d at 292 (stating that terms must be given their natural and customary meanings). Naturally, the addition of the adjective motor qualifies the term to a narrower class of vehicles than merely a truck. The common meaning of motor truck is an automotive truck used especially for the transportation of goods. See Merriam-Webster English Dictionary 760, 466 (10th ed. 1993) (defining motor truck as a vehicle used for the transportation of freight, and defining freight as goods to be shipped). Further, the term motor truck appears in sections applicable to larger load-bearing and load-towing vehicles suggesting that a motor truck is a truck for the purposes of transporting freight being larger in size or weight than that of a common pickup truck, such as the WCRSA vehicle here. Accordingly, section 56-5-5060 does not require WCRSA to carry flares or reflective devices.

B. Section 56-5-5070

Section 56-5-5070 provides:

No person shall operate at the time and under the conditions stated in § 56-5-5060 any motor vehicle used in the transportation of inflammable liquids in bulk or transporting compressed inflammable gases unless there shall be carried in such vehicle three red electric lanterns meeting the requirements stated in § 56-5-5060, and there shall not be carried in any such vehicle any flare, fuses or signal produced by a flame.

Whether section 56-5-5070 imposes a duty on WCRSA to carry warning devices hinges upon the interpretation of the term “inflammable liquid.” This chapter of the Code does not define the term inflammable liquid; however, it does define the term “flammable liquid” as “any liquid which has a flash point of 70° F., or less, as determined by a Tagliabue or equivalent closed-cup test device.” S.C.Code Ann. § 56-5-350 (2006). The general provisions of statutory construction would mandate that when the legislature employs a term other than one specifically defined, the implicit intent is that the undefined term has a different meaning. Leopard, 349 S.C. at 473, 563 S.E.2d at 345 (providing that the expression of one thing implies the exclusion of another). However, of paramount significance in this situation is that the defined term-flammable liquid-is used nowhere in this chapter outside of the definition section. Rather, the only similar term employed is inflammable liquid. We remain acutely mindful that the legislature employed different terms; however, the common definition of inflammable is flammable. See Merriam-Webster English Dictionary 598 (10th ed. 1993) (defining inflammable as flammable); see also Branch, 340 S.C. at 409-10, 532 S.E.2d at 292 (stating that terms must be given their natural and customary meanings); Ga.-Carolina Bail Bonds, 354 S.C. at 22, 579 S.E.2d at 336 (“All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered from the language used ․ [and t]he legislature's intent should be ascertained primarily from the plain language of the statute.”). Thus, in order to construe the statute to be consistent and give the terms their natural and common meanings, we look to the legislative definition of flammable.

Because we interpret inflammable and flammable to be synonymous, section 56-5-5070 applies only to vehicles that carry liquids with a flash point of seventy degrees Fahrenheit or lower, in bulk. At trial, WCRSA inquired as to the existence of evidence that the liquid at issue, diesel-fuel, fell within the ambit of the statute. To this, the trial court simply replied it was a “reasonable inference.” However, upon review of the record, we find no evidence to indicate the diesel-fuel being transported by WCRSA was actually a flammable or inflammable liquid. Notwithstanding that the truck in this case is not one described by section 56-5-5060, the trial court's assumption that the carrying of diesel-fuel implicated section 56-5-5070 is unsupported by the evidence and was therefore error.

As the trial court's erroneous instructions could have led the jury to infer WCRSA had a duty to carry and use warning devices, the instructions had a reasonable chance of influencing the jury's verdict and prejudicing WCRSA. Therefore, the trial court's instructions amount to reversible error.⁵ See Raut, 378 S.C. at 405, 663 S.E.2d at 33 (stating that improper jury instruction is not reversible error unless it causes prejudice to the appealing party).

CONCLUSION

Accordingly, the ruling of the trial court is

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

THOMAS, J.

HEARN, C.J., and KONDUROS, J., concur.