Breland v. SCDOT

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

William Breland, Respondent,

v.

South Carolina Department of Transportation, Appellant.

Appellate Case No. 2014-000168

Appeal From Orangeburg County
Edgar W. Dickson, Circuit Court Judge

Unpublished Opinion No. 2016-UP-089
Heard January 7, 2016 – Filed February 24, 2016

AFFIRMED

Richard B. Ness, Norma Anne Turner Jett, Alison Dennis
Hood, and Adam Christopher Ness, all of Ness & Jett,
LLC, of Bamberg, for Appellant.

John S. Nichols and Blake Alexander Hewitt, both of
Bluestein Nichols Thompson & Delgado, LLC, of
Columbia, and J. Christopher Wilson and Daniel W.
Luginbill, both of Wilson & Luginbill, LLC, of Bamberg
for Respondent.
PER CURIAM: The South Carolina Department of Transportation appeals
several of the circuit court's evidentiary rulings, including the court's admission of
a Google Street View photograph and life expectancy tables, and the court's
exclusion of the plaintiff's criminal record. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. As to the admission of the Google Street View photograph: Proctor v. Dep't of
Health & Envtl. Control, 368 S.C. 279, 312-13, 628 S.E.2d 496, 514 (Ct. App.
2006) ("The admission of evidence is within the trial court's discretion. The court's
ruling to admit or exclude evidence will only be reversed if it constitutes an abuse
of discretion amounting to an error of law." (citations omitted)); id. at 313, 628
S.E.2d at 514 ("The trial court's decision will not be reversed on appeal unless it
appears the trial court clearly abused its discretion and the objecting party was
prejudiced by the decision."); Rule 901(a), SCRE (addressing the authentication of
evidence sought to be introduced at trial and stating "[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims"); Deep Keel, LLC v. Atl. Private Equity Grp., LLC, 413 S.C. 58,
64-65, 773 S.E.2d 607, 610 (Ct. App. 2015) ("'[T]he burden to authenticate . . . is
not high' and requires only that the proponent 'offer[ ] a satisfactory foundation
from which the jury could reasonably find that the evidence is authentic.'"
(alternations in original) (quoting United States v. Hassan, 742 F.3d 104, 133 (4th
Cir. 2014)); id. at 65, 773 S.E.2d at 610 ("The authentication requirement does not
demand that the proponent of . . . evidence conclusively demonstrate [its]
genuineness . . . .") (alterations in original) (quoting 29A Am. Jur. 2d Evidence §
1045 (2008)).

2. As to the issue of constructive notice: Ford v. S.C. Dep't of Transp., 328 S.C.
481, 487, 492 S.E.2d 811, 814 (Ct. App. 1997) ("In South Carolina, the
Department of Transportation can be held liable for damages caused by the fall of
a tree standing within the limits of or in close proximity to a public highway.
Liability depends on whether the Department knew, or in the exercise of
reasonable care should have known, that the condition of the tree would make it
hazardous to persons or property in the immediate vicinity."); id. ("This liability
arises from the Department's duty to use reasonable care to keep streets and
highways within its control in a reasonably safe condition for public travel.");
Wimberly v. Winn-Dixie Greenville, Inc., 252 S.C. 117, 123, 165 S.E.2d 627, 630
(1969) (Bussey, J., dissenting) ("When liability of a defendant, if any, is predicated
upon constructive notice, . . . the instances are, indeed, rare in which a plaintiff can
prove constructive notice by other than circumstantial evidence . . .; id. ("The
pivotal question . . . is whether there was evidence from which the jury might
reasonably infer that the defendant, by the exercise of reasonable diligence, should
have known of the hazard . . . which caused the injury to the plaintiff.").

3. As to the circuit court's charging the life expectancy tables: Johnston v. Aiken
Auto Parts, 311 S.C. 285, 288, 428 S.E.2d 737, 739 (Ct. App. 1993) ("A trial judge
may properly charge the life expectancy tables to the jury in a personal injury
action when there is evidence of 'permanent injury.'"); id. (affirming the trial
court's charging the life expectancy table when plaintiff testified his injured knee
had "never gotten right" and was too badly damaged to receive a prosthesis);
Wilder v. Blue Ribbon Taxicab Corp., 396 S.C. 139, 148, 719 S.E.2d 703, 708 (Ct.
App. 2011) ("The amount of damages suffered in a personal injury action is a
question for the fact-finder. Future damages are generally recoverable in personal
injury actions as long as the damages are reasonably certain to result in the future
from the injury." (citations omitted)); id. (affirming the jury's award of future
damages when the plaintiff testified "she continued to experience pain nearly three
years after the accident").

4. As to the circuit court's exclusion of Breland's prior criminal convictions: State
v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012) ("The admission of evidence
concerning past convictions for impeachment purposes remains within the trial
judge's discretion, provided the judge conducts the analysis mandated by the
evidence rules and case law."); id. ("An abuse of discretion occurs when the trial
court's ruling is based on an error of law or, when grounded in factual conclusions,
is without evidentiary support."); State v. Colf, 337 S.C. 622, 626, 525 S.E.2d 246,
248 (2000) (noting the Fourth Circuit has explicitly held evidence of remote
convictions should only be admitted for impeachment purposes in exceptional
circumstances); id. at 626-27, 525 S.E.2d at 248 ("Rule 609(b) establishes a
presumption against admissibility of remote convictions, and the State bears the
burden of establishing facts and circumstances sufficient to substantially overcome
that presumption." (citation omitted)).

AFFIRMED.

FEW, C.J., and KONDUROS and LOCKEMY, JJ., concur.